Criminal-law-review-compilation1.pdf

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 03/29/16 Criminal Law Review Part 1 What do you mean by Criminal Law? Criminal law defines what crimes are and provides for their penalties. What do you mean by crime? A crime refers to act or omission which violates criminal law.

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Can you commit a crime by doing nothing? Yes. If you are obliged to do something that you didn‘t do. What are the sources of penal laws? 1. Revised Penal Code 2. Different Special Penal Laws - crimes not mentioned in the Revised Penal Code 3. Different Presidential Decrees – these are the laws enacted by the late President Marcos Is there a common law crime in the Philippines? No. the rule is if there is no law penalizing an act, there is no crime. Even how morally wrong it is, but if there is no law making the act a crime, there is no crime. You won‘t be penalized. The government, in line with its police power, has the power to enact laws defining certain acts to be a crime through the legislative branch of the government. From time to time the legislative branch of government will enact laws defining certain acts or omissions as crimes. This is on line with the police power of a state. Limitations to the power of the state to enact laws: 1. No ex post facto law or bill of attainder shall be enacted. What do you mean by ex post facto law?  An ex post facto law is a law which makes an act punishable as a crime when such act is not yet an offense when it was committed.  A penal law must have a prospective effect. As a rule it cannot be given a retroactive effect. But if the congress would pass a law penalizing an act although that act when committed was not yet a crime, then it is an ex post facto law. What is bill of attainder?  That is a law which inflicts penalty without a judicial trial.  It is only the court which will give a verdict whether the act constitutes a crime.  When the congress passes a law which automatically declares a person guilty without a judicial trial that would be a violation of the constitution. That would be

considered a bill of attainder. It would violate the due process of law.  What is the definition of due process?  It‘s the law which hears before it condemns and renders judgment only after trial. What are other classes of ex post facto law?  Another is a law which aggravates the seriousness of a crime or a law which prescribes a graver penalty of the crime committed.  For example, the crime of rape is punishable by reclusion perpetua. For instance, a man committed the crime of rape on May 29, 2013. Suppose later on, the congress passes a law reviving the death penalty effective on January 1, 2017, will the accused be given death penalty?  NO.  Suppose the law says that those who previously committed rape crimes should also be subjected to death penalty, is it allowed?  NO because that law would be considered an ex post facto law.  Another, the amount of evidence to convict a person of a crime is proof beyond reasonable doubt. Suppose the amount of evidence would be reduced to preponderance of evidence, is it allowed to be given retroactive effect?  No because that would be considered an ex post facto law. CASE IN POINT:  LACSON VS EXECUTIVE SECRETARY, GR NO 128096, JAN 1999

The accused has certain rights. 1. Constitutional rights Rights embodied in our Constitution, Art. III, Bill of Rights. 2. -

Statutory rights These are the rights granted by the Rules of Court. Rule 115 provides for the rights of the accused. Some statutory rights are also constitutional rights. For instance, the right to speedy trial is contained in the Constitution and in the Rues of Court.

What are the rights of the accused that can be waived? Those rights that are personal to the accused can be waived. What are these rights personal to the accused?  Right to cross-examine. The accused may or may not conduct cross-examination.  Right to bail. Accused may not post bail.  Right to appeal.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D What are the rights of the accused that cannot be waived? Those rights that affect public policy cannot be waived.  The right to be informed of the nature and cause of the accusation against him. Characteristics of our penal laws: 1. Generality or General GR: Our penal laws are binding against all persons who live or sojourn in the Philippines. For example a Korean stabs another Korean. Can he be held liable?  Yes. He can be charged with homicide or murder because he is in the Philippines and committed crime in the Philippines. What about the military killing another military or soldier? Can he be charged with murder or homicide?  Soldiers or militaries can be charged in our civilian courts or under the military court martial.  The civilian courts have concurrent jurisdiction. A case can be filed against them in the civilian courts or in the military court martial provided it is service connected. So if a soldier committed a crime which is service connected, he can be tried in the civilian court or in the court martial.  CASE IN POINT: NAVALES VS ABAYA, GR NO 162318, OCT 2004 EXP: a) By virtue of treaties or treaty stipulation with another country exempting their nationalities from operation of our penal laws If the Philippines has a treaty with another country exempting their nationalities from operation of our penal laws, that should be respected. Ex, the Military Bases Agreement. Before, if the American soldiers commit a crime in the Philippine, we do not have jurisdiction. Now, we have the Visiting Forces Agreement. Under the agreement, they are only allowed to use our military bases. Under the VFA, if the American soldiers commit a crime, they should be tried in the Philippines. b) The law of preferential application Example, the congressmen and senators, if they commit a crime penalized by imprisonment of 6

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years or less, they cannot be arrested while congress is in session. RA 75 mandates that foreign diplomatic representatives including their domestic servants cannot be arrested if they commit a crime. CASE IN POINT: SHAUF VS CA, 191 SCRA 713

Law on Preferential Application R.A. 75 - Foreign diplomatic representatives such as ambassadors cannot be arrested. This includes their domestic servants. They cannot be arrested when they commit a crime. The only thing we can do is to declare them as persona non grata "unwelcomed visitor". They will then be sent back to their country because they are immune from arrest and immune from suit. Shauf vs. Court of Appeals 191 SCRA 713 (kung ni ingun ko tan.awa, basaha gyud na kay mu gawas na - It involves grave oral defamation. Another exception to the characteristic of generality for persons exempt from our criminal laws are those covered under Public International Law. There are foreigners who are also exempt from arrest by reason of PIL. Such as: 1. Sovereigns and Heads of State. - If Obama visits and he commits a crime. He cannot be arrested. He is immune from suit. Chiefs of state such as kings cannot be arrested when they commit a crime. 2. Ambassadors, ministers, ministers plenipotentiary, minister residents and charge de affairs - As a rule, a consul is not immune from suit. They can be arrested and charged unless there is a treaty in effect exempting them from arrest or suit. - do you remember when there was a Chinese (Consul) who killed someone here in the lighthouse? He was only sent home. There were lawyers who wondered why he was not charged. Maybe there was a request from the Chinese embassy that they will be the ones to take care of him. 2. Territoriality - Our law is like a dog. A dog is only aggressive if it is within your premises. If you take it outside, its tail will be between its legs. Same as a ―bogoy2x‖ in the street, he will only be tough in his own street. G.R. - Our penal laws are only effective within our territory Example: An OFW married here in the Philippines. Nakig "iring²" in Singapore or Hong Kong. Can he be charged of adultery/concubinage? No, because our penal laws are only effective within our territory. If he goes out of the territory

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D then our penal laws are no longer effective. If he gets married there, it is supposed to be bigamy but considering that our laws are territorial. He cannot be charged here in the Philippines. So if your husband is overseas and has someone else there, you should do the same here. But if he has a live in partner there and brings her here and continues their relationship because there is a thing called "forever" then he can now be charged here. He already committed the crime within our territory. There are exceptions to the Territoriality principle of our penal laws Stated under Article 2 of the Revised Penal Code: 1. A person commits a crime on board a Philippine ship or airship Take note on Philippine registered not just Philippine owned. It is the registration that matters. Example: The crew on board an international cruise ship, traversed the Pacific Ocean and then they were watching the game between OKC and GSW. They were betting with each other and drinking intoxicating drinks. GSW won the game and the losing party didn‘t pay his end of the bargain, so he was stabbed. Upon reaching the Philippines in the Cebu International Port, he was charged of homicide but the crime was committed why the ship was on its voyage. Is he liable even if he filed a motion to quash the information for lack of jurisdiction because at the time the crime was committed, the ship was still at the Pacific Ocean. He is still liable because of Article 2 of the RPC. The motion to quash is not meritorious due to extra-territorial effect. It will be tried in any RTC. 2. A person who forge or counterfeit Philippine currency. Making Philippine notes in Hong Kong will still be within the jurisdiction of the Philippines because of extra-territorial jurisdiction. 3. Introduction of these counterfeit or fake notes in the Philippines. It is not necessary that you are the one making the fake notes but as long as you are bringing them inside the country you are liable. 4. A person commits a crime while being employees if the government. Public officers There are instances where you are a public officer and you commit a crime abroad. ex. Employees of the Philippine embassy asking for bribes or falsifying documents. Being a public official abroad and

using money other than its intended purpose will make you liable for malversation although the crime was committed abroad. 5. A Filipino commits a crime against national security or the law of nations. - Against National Security - Treason, misprision of treason - Treason is a war crime - Only committed during war - Even if you are in China and you commit treason you are still under the jurisdiction of the Philippine laws. - Crimes Against the Law of Nations - Piracy - is a transnational crime - does not have any boundary ex. Pirates of Somalia, pirates a Japanese ship and was chased towards the Philippines and was caught here, they can be tried in the Philippines even if there are no Filipinos involved because it involves a crime against the laws of nations. 3. Prospectively - Penal laws will always have prospective application G.R. - Laws cannot be given retroactive effect because it will be considered as an ex post facto law. A violation of the constitution. ex. The death penalty was implemented and later on removed. Then it was revived again. It cannot be given retroactive effect for the persons charged of crimes during the time there was no death penalty because it will be considered an ex post facto law. Exp. When a penal law is favorable to the accused. - For persons sentenced for death, upon the removal of the death penalty, their sentences were reduced from death to reclusion perpetua or life imprisonment. Exp. To the Exp - The retroactive effect will not be applied if the accused is a habitual offender. When the law expressly provides that the law will not apply to pending cases. Interpretation of Penal Laws - Strictly against the government - Favorable to the accused Doctrine of Pro Reo When a circumstance is capable of two or more interpretations, an interpretation which is favorable to the accused will be adopted. Doctrine of Equipoise In convicting an accused, the prosecution must be able to present proof beyond reasonable doubt. Where the evidence of the parties are of equal

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D weight and the prosecution is not able to present evidence of proof beyond reasonable doubt. The accused must be acquitted.

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The Revised Penal Code History When the Philippines was under Spanish rule, there was a penal code. It was copied from the Spaniards. In the 1930's, when the Philippines was under American command, the penal code which was used during Spanish reign was modified and is now the Revised Penal Code. The wordings in the RPC especially in the penalties are latin or Spanish terms. Even though there are a lot of amendments, it is still basically the same. There is a proposal though to enact a Code of Crimes. It codifies the RPC and the Special Penal laws. The Revised Penal Code is divided into 2: Book I - Modes and Circumstances Affecting Criminal Liability Book II - Crimes and their Penalties Art. 2. Application of its provisions. — Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship ; 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code. -

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about the territorial application of our penal laws it shall be enforced not only within our country, not only within the Phil archipelago, including its atmosphere, its interior waters and maritime zone but also outside of its jurisdiction this is so because of the extra territorial application of our penal laws GR: it is only applicable within our territory Exception: extra territorial application EX: kill someone at Scarborough Shoal, who has jurisdiction, Phils or China?

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Title One FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY Chapter One FELONIES Art. 3. Definitions. — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. -

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Should commit an offense while on a Philippine ship or airship ;

TN: basis is the registration and not the ownership of the ship or vessel Suppose the Phil registered ship is anchored in Malaysia. While the Phil registered ship is anchored in Malaysia a crew member, a Filipino killed another member of the crew. He was charged with homicide. He filed a motion to quash arguing that the court doesn‘t have jurisdiction because the crime was committed in Malaysia. Do we have jurisdiction? Yes, but TN that the crime was also committed in Malaysia. Malaysia or where that country is anchored may take jurisdiction of the offense. It can also be punishable in their country. So once that country where the crime is committed will take jurisdiction, we will not anymore take jurisdiction since he is already imprisoned there. Crimes committed on board a Philippine registered ship while in a territory of another country is still triable in the Phils if such country does not take jurisdiction of such crime If foreign registered anchored in our country, do we have jurisdiction? Of course! If foreign registered merchant vessel, our courts have jurisdiction over crimes committed on board such vessel, over crimes committed in our territory unless the crime committed merely affects the internal management of the vessel. CASE: US vs Look Chow, US vs Fowler If foreign warship like an American warship who will visit the Philippines and then there will be a crime that will be committed on board such ship. Do we have jurisdiction? We do not have jurisdiction over foreign warship on crimes committed on board that ship within our territory.

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felony: refers to an act or omission in violation of the RPC if we refer to felony then those are those acts penalized under the RPC crime: a broad term; it includes felony

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

there must be an act or omission and such act or omission must be penalized by the RPC there is no crime if there is no law penalizing an act or omission

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa). deceit otherwise known as dolo (the latin term), fault the latin term is culpa So is there a crime when you are doing nothing? EX of crimes when you are doing nothing and yet one is liable/omission penalized by law o Cashier of the government and you do not issue a receipt. So you are doing nothing. You are liable for the non-issuance of a receipt. o A law enforcer arrested a criminal inflagrante delicto (caught him in the act of committing a crime). One is mandated, since he is the arresting officer to file a case against the arrested person within the period of 12, 24, 36 hours. If one fails to do that, held liable for arbitrary detention. A person is criminally liable for an act or omission in violation of the RPC. In order to be held criminally liable, there must be an act or omission committed. Requisites of Felony: 1. Act committed or omission incurred 2. The action must be punishable by the RPC 3. The act or omission incurred must be committed by either dolo or by culpa Requisites/Elements for dolo or malice: 1. Freedom o if a person kills another person but if he did it out of uncontrollable fear or irresistible force then that person is not liable because he committed the crime without freedom. He did it under of the compulsion of an irresistible force or uncontrollable fear. o 7 years ago in the news. Somewhere in Mabolo, the employer went home drunk at around 11 PM. He called his driver and his helper. He got his gun then he ordered both of them to take off their clothes. He then pointed his gun to the two and told the driver to have a sexual intercourse with the helper. So the helper was raped by the driver. The driver did it because if he won‘t then he‘ll be killed. The helper, after the act ran and escaped. She went to the Mabolo police station and reported the incident regarding the employer and the driver. The employer as well as the driver were charged with rape. If you were the counsel for the driver, what will be your defense? (How will you argue the case that your client is not liable) He performed the act without any

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freedom. He could not be held liable. He committed a crime under the compulsion of an uncontrollable fear. o A person committing a crime under the compulsion of an uncontrollable fear or irresistible fear, like when a gun is pointed at your head or one is hitting your head with a gun if you won‘t do it. A person is reduced to a mere instrument. He has no option, he has no choice. He cannot be held criminally liable due to one of the requisites. In order for a person to be held criminally liable for a crime committed by means of dolo a person must have freedom. Dolo or deliberate intent. One has the intention to commit a crime. 2.

Intelligence o in order to be held liable, a person committing a crime by means of dolo must have intelligence. o If it is found out that at the time the person committed the crime, he does not have intelligence, there is complete absence of intelligence he is not liable. o Imbecile(a person who is chronologically adult but with a mental ability which is equivalent to a child who is 6/7 years old) or completely insane person cannot be held liable o Being insane at the commission of the crimeand or being an imbecile is not criminally liable due to the absence of intelligence o RA 9344, Juvenile Justice and Welfare Code: a child who is 15 years old or below is exempt from criminal liability because the law considers that child to be absent of intelligence. He does not have the capacity to determine what is right and wrong (rationale of the law).

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Intent/Criminal Intent o in order to be held criminally liable, a person must have criminal intent o TN: intent is a mental activity o How would you know once a person wanted to steal or kill? That is presumed. o A person who kills another person without any justifiable reason is presumed to have criminal intent. But the presumption is rebuttable. If that person can present evidence, which would prove that he does not have any criminal intent, then he will be acquitted. o US vs Ah Chong: There was a case wherein there was a roommate. The roommate went out late at night and there was another guy

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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who was left since he just wanted to sleep. He wanted that when his roommate came home he didn‘t have to stand and open him but he was also scared that they might be robbed. So he preferred that he not lock the door but he placed a chair to block the door. If the roommate enters the room he would just push the chair but if another person does then he would also be aware. While he was asleep a person who was attempting to slowly open the door awakened him. He called out and asked, ―Who are you?‖ But there was no answer so he stood up and went closer to the door. He was then hit by the chair so he stabbed the person who hit him because he thought it was an intruder or robber. But when he turned on the lights, it was his roommate who was only trying to scare him. The roommate died. He was charged with homicide and convicted. The case reached the SC. Is he liable? According to the SC, he is not because there was no criminal intent on his part. He was performing a lawful act of self-defence although there was the so-called mistake of facts. Mistake of fact or ignorance of facts will excuse a person from a criminal liability. To be relieved from any criminal liability, there must be no dolo or culpa on his part. There must be no deliberate intent to commit a crime. There must be no fault. There must be no negligence. There must be no imprudence on his part in committing the act. Elements of Mistakes of Facts: 1. that the accused performed an act which would have been lawful had the facts been as the accused believed them to be under the intention of the accused in performing the lawful act should be lawful  the actor performed an act which would have been lawful if the facts were true as he believed them to be  Ex: if it was true, as what was going on in his head that it was really a robber that came in then attacked him, would he be liable? No because he was hit by the chair, There was an unlawful aggression. And when he stabbed the person he was performing a lawful act. He used mean to repel the attack.  The act of stabbing, was it lawful? Yes because it was self-defence. Is it a crime to defend oneself? No.

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There must be no malice or fault or carelessness on the part of the accused.  Ah Chong case: was the accused careful? Yes because he asked, ―who are you?‖ But there was no answer. Requisites for the crime of culpa or fault: 1. Freedom 2. Intelligence 3. Negligence or Imprudence Ex: a person is driving his car. Then while driving, he received a message so he read it but he didn‘t notice that it was already the red light so he hit a pedestrian. Is there freedom? Yes there is freedom. Is there intelligence? Of course. Would an insane person be able to drive? But was there criminal intent on his part to kill the pedestrian? None but there is negligence or imprudence. There was lack of foresight. Not good to tinker with phone while driving. It is the same with driving while drunk. So there is negligence or imprudence on the part of the driver thus he is liable. He is liable for a crime through culpa. He could be charged and held liable for reckless imprudence resulting in homicide. A crime committed with criminal intent is more serious than a crime committed with negligence. What is graver, one wherein you intentionally killed a person or killed a person because you were negligent? Intentional killing. So that is why there is a higher penalty a crime of murder or homicide as to reckless imprudence resulting to murder or homicide. The penalty for reckless driving resulting to murder or homicide is I think not over 6 years. The penalty for homicide is a minimum of 12 years and 1 day – 20 yearsor murder is a minimum of 20 years and 1 day – 40 years. To be held liable for a felony: there must be an act or omission, 1st requisite. The act or omission must be penalized by the RPC. That the third, the act or omission is committed either by of dolo or culpa.

DOLO; CULPA 1. 2.

Committed by Dolo, meaning by deliberate intent are called intentional crimes, whereas those Committed by Culpa are culpable crimes.

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There is deceit when the act is performed with deliberate intent; and

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there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

Actually negligence and lack of foresight are the same.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

When you are negligent there is lack of foresight on your part. When you are imprudent that means there is lack of skill.

Case: The Chief of police and his subordinate were executing a warrant of arrest for a notorious criminal. Bringing the warrant of arrest, they went to the house were the person subject of the arrest was. Upon reaching the house, they saw a person sleeping lying on his side, with his back fronting them. Now believing that that person was the subject of the arrest and considering that, that person was a notorious criminal, they immediately fired their gun at him. It so happened that it was not the person they were looking for. And so they were charged with murder. Question, are they liable? Yes. -

Now they argue that they can be liable only for reckless imprudence resulting to homicide. Are they correct? No. Because they had criminal intent. Unsa man tawn ang sala atong tawhana nga natug ra man. They could‘ve justified the use of their firearms kung nisukol pa to. Kung wala to nisukol, ila ta to gipasukol. And bisan pa to nisukol di man justified nga imo patyon kay di man necessary na nga patyon. So they are liable for Murder.

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Why is it that they should be liable for Murder? Because there is treachery. There is treachery when the victim doesn't have the opportunity to defend himself.

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Why not reckless imprudence resulting to homicide? Because when treachery is committed, it presupposes that they committed the crime with criminal intent. Because when a crime is committed by means of culpa, the perpetrator has no any criminal intent, just negligence or imprudence.

Case: Nay tanod natulog sya mga 2 o‘clock. Gipukaw sya sa iyang silingan kay nakakita ang silingan ug taw nga nagdrive ug motor and nagpabuto, so iya gipukaw to ang brgy tanod. Nya ang brgy tanod, nibangon unya naa man syay pusil nga dili ra ba lisensyado, nigawas siya unya kakita sya sa taw nga nagsakay ug motor gadala pud ug pusil. Ay iyang gipusil dayon oi. Hala kay it so happened nga nag shooting diay. Nag shooting ra diay to. So liable ba ang brgy tanod? -

Ang panutana dira kay naa bay crime nga gicommit katong actor. I don‘t know what happened to that case. He was charged with I think it was murder or homicide ba.

Remember ha, when a crime is committed by means of dolo, criminal intent is a requisite. So if the prosecution fails to prove that there was intent, then he would be acquitted.

GENERAL CRIMINAL INTENT; SPECIFIC CRIMINAL INTENT. Dunay ubang kaso na aside from general criminal intent, the prosecution must also be able to prove specific criminal intent. Again, SPECIFIC CRIMINAL INTENT. Usually, it‘s only the general criminal intent that is required to be established- it is actually presumed. But there are some crimes that require proof of specific criminal intent. Example. Attempted homicide or attempted murder. So kung pananglitan dunggabon ka or pusposan kag baseball bat diri sa ulo unsa may crime nga nacommit? Let‘s say wala namatay. -

That could be attempted murder or attempted homicide or

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if the wounds are serious and if it‘s not for the timely medical assistance, ang biktima wala namatay. That could be frustrated homicide or frustrated murder.

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HOWEVER, in order to convict the accused of such crime- attempted homicide, attempted murder, frustrated homicide, frustrated murder, the prosecution must be able to prove the specific intent of INTENT TO KILL.

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Because if the prosecution fails to present evidence showing intent to kill on the part of the accused, the accused cannot be convicted of frustrated homicide or frustrated murder. Bisag hapit pa na siya mamatay, nag comatose sa hospital. Kung dili maka prove ug specific criminal intent, the accused cannot be convicted of frustrated homicide or frustrated murder but only of serious or less serious physical injuries or slight physical injuries, depending upon the seriousness of the wounds.

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So kanang serious physical injuries, or less serious, or even slight physical injuries, nagkinahanglan ra na siya ug general criminal intent. Pero kung mucharge na gani ka ug attempted homicide, attempted murder, frustrated homicide, frustrated murder nagkinahanglan na na siya ug specifical criminal intent to kill. Kasabot mo?

So there are some crimes that require proof of specific criminal intent otherwise the accused will not be convicted. -

THEFT. That requires the SPECIFIC CRIMINAL INTENT TO GAIN. If there is no evidence of specific intent to gain on the part of the accused, he cannot be convicted for theft.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D TWO KINDS OF CRIMES Crimes committed by Crimes dolo culpa

committed

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Requires general criminal intent or in the case of some crimes, proof of specific intent. There are crimes that do not require criminal intent. And what are these crimes? These are the crimes in violation of Special Penal Laws. Example 1: violation of PD 1866. (What are these PDs again? Presidential Decrees! Kinsa pay nag enact ani? Marcos!) Okay so for example naa kay frat. Membro ba ka ron sa Acro or Tau Gamma. Unya naa kay (..) unya giingnan ka nga ―Bai! Timan.i ni ako sulti, sunod natog kita duk.an gyud tikag (something) sa imong ulo. Tungod ato iya giingon kay nag dala dala na siyag pusil. Laliman kag buk.on imong ulo?! Mas mayo pang imo ulo ang mabu.ak kaysa akong ulo imong buk.on.. Mao dada dayn syag pusil. Pero ang imo tuyo ato is for self- defense. Is self- defense a crime? Is defending yourself a crime? Hala kay nasakpan man ka kay na may election. Dunay checkpoint. Nakuha ang imong pusil, gipangitaan kag documents, licenses- license to possess and license to carry. Wa kay napakita so gicharge ka. Imong depensa, you didn‘t have any criminal intent in carrying your firearms kay your purpose was for self- defense. You didn‘t have any intent to rob. You didn't have any intent to kill anybody. But just in case you will be attacked. Are you liable? -

YES. Because criminal intent is immaterial in a crime punishable by Special Laws.

Example 2: Kanang muadto ka sa airport. Kanang musakay kag barko, musakay kag eroplano. Unya inspeksyonon imong bag, muana ka ―Hinay- hinay dira mam kay naa nay bomba‖. Dakpun ka! Dakpon ka. Are you serious with your words? You were just joking! Pero ngano prisohon man ka? -

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Because in an offense punishable by special law, intent is immaterial. What is required is only the fact that you committed the act prohibited by law. Ang pangutana ra jud diha dili kay do you have criminal intent, kundi did you commit the act prohibited by law. If the answer is yes, then you are liable. It is immaterial whether you have the intent. Okay do you understand?

Such as murder, rape, robbery. Good faith is a defense

Most of the crimes here are punishable under the RPC.

they become wrongful only because there is a law prohibiting such acts. GF is not a defense because intent is not material Most crimes here are punishable by SPL.

Ngano niingon man ko nga most, ngano wala man ko niingon nga ―all‖? Dunay kaso. Case: (Take note because this came out twice in the BAR). Kaniadto, kanang members of the Board of Election Inspectors (kana bitaw magbuhat sa list of voters). Magbuhat na sila mga tulo ka list. Tagaan ra na sila ug usa ka libro nga listahan nya magbuhat sila ug 2 other lists. Kopyahon nila tong lista gikan ato gihatag, kay wala pa may computer niadto. Just imagine sa isa ka bulk of voters dunay 200 or 300, usahay pa 500 depende sa kadako sa precinct. Kato naglista na sila, kapoy na siguro kay to sila. Nay mga voters nga na-omit so wala sila ka vote. Meaning they were disenfranchised. The teachers were charged with violation of the election code. They raised good faith. According to the prosecution, a violation of the Election Code is a violation of a special law. According to the prosecution it is malum prohibitum, therefore good faith is not a defense. Giconvict sila sa trial court. But on appeal they were acquitted. Matod pa sa CA, although the law violated is a Special Penal Law, the act of disenfranchising a voter is considered mala inse. It is wrongful by its nature. And because it is wrongful by its nature then good faith is a defense. So mao na ako buti pasabot ninyo nga dili tanan na lalaki dunay uyab na bayi. Nay uban laki dunay uyab na lalaki. -

Mao na, not all mala inse are penalized by the Revised Penal Code, some of them are penalized by Special Laws.

2 Types of Felonies MALA IN SE Wrongful by nature

MALA PROHIBITA Wrongful by virtue of a penal law penalizing such acts/omission

MALA INSE VS. MALA PROHIBITA Mala inse by their nature they are bad, they are wrongful.

Mala prohibita they are not by their nature wrongful, but

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Good faith and lack of criminal intent are good defenses in mala in se

Good faith not a defense since criminal intent is immaterial -

Good faith not a defense in ―technical malversation‖ People v. Ysidoro Nov. 14 2012

MOTIVE – reason for the accused to commit the crime Is it necessary for prosecution to present proof of motive? GENERAL RULE: Proof of motive or evidence establishing motive is not necessary. Example: Mayor killed his political rival; motive is political Husband killed the paramour of his wife; motive is jealousy or love triangle EXCEPTIONS: 1. When the act brings about variant crimes Example: when teacher is attacked on his way home by a student, is the accused automatically liable for direct assault the fact that the victim is a teacher? No! It must be proven that the reason of the attack has connection to the performance of the duties of the teacher, if the attack has nothing to do with the performance of the teacher, then it is not considered direct assault. So there must be proof of MOTIVE. 2. When the perpetrator is not positively identified due to lack of witnesses 3. To determine whether the killing was intentional or accidental 4. When accused claims self-defense Article 4.When is criminal liability incurred? By any person committing a felony Although the wrongful act or the resulting crime done is different from that which he intended to commit A person is liable for all the direct, natural and logical consequences of his felonious act Circumstances/possible scenarios wherein the resulting c rime is different from what the accused intended: (APE) 1. ABERATIO ICTUS – The crime committed is different from what is intended; there could be 2 crimes, against the victim and the unintended victim.(Article 48. Complex Crimes) Example: X wanted to kill Y. The bullet went through Y and hit A who was sitting at the back of Y. Both died. X is liable for both crimes committed. 2. PRAETER INTENTIONEM – lack of intent to commit so grave a wrong Example: X punched Y. Y fell to the concrete and hit his head and died. X has no intention to kill Y. X is liable. 3.ERROR IN PERSONAE– The offender meets the object to which the felonious act is aimed, however, mistaken in the identity of his victim. Example: X wanted to kill Y. X waited for Y in a dark alley. When X saw a person going to his direction, and the

figure resembles to that of Y, X immediately fired his gun. However when he approached the body, he found out that it was his father that he shot. X is liable for parricide. Other scenarios: 1. Accused was cleaning his licensed firearm. Upon finishing, accused wanted to test out his gun. Upon searching for a target, a cat passed by the walls of his property. He then tried to point the gun at the cat. Accused fired the gun with the intention of hitting the cat. Unfortunately, the cat jumped and the bullet hit his neighbor instead on the other side of the wall. Is he liable for unintentional crime of homicide? or reckless imprudence resulting in homicide? Take note that article 4 is applicable only for unintentional crime, it says different from the crime which intended to commit, so he must have intention to commit such crime. He was charged with homicide, is he liable? he doesn‘t have any criminal intent to kill his neighbor! They were friends! Take not that a person committing a felony is liable for the felony committed even if the felony is different from that which he intended to commit. In this case, the intention to kill the cat is malicious mischief which is a felony penalized under the RPC. Hence, he could be liable for homicide. Note: To be held criminally liable for the resulting crime/act, the person must be committing a felonious act; he must be committing a crime in order to be held criminally liable for the RESULTING ACT which is different from the crime he intended to commit. 2. X decided to commit suicide. He decided to jump over Mactanbridge. As he was about to jump, he closed his eyes, asking for a sign from God. As he opened his eyes, he saw a billboard from Nike (JUST DO IT!), without hesitation, he jumped. Unfortunately a fisherman who was spearfishing just came above the water and was hit by X who jumped. The fisherman was killed and X survived. Question, is he liable? In order for Article 4 to apply, the intended act must be a felonious act, so, is committing suicide a felonious act? The answer is no, he cannot be held liable. However, it could‘ve been different if he saw the fisherman before jumping, then he could‘ve been liable for reckless imprudence resulting to homicide. Ok? Note: Just look at the INTENDED ACT or the ACT WHICH HE INTENDED TO COMMIT, if it is a felonious act, then he is LIABLE under Article 4. A person who committed a felonious act is liable for all the direct, natural and logical consequences of his felonious act. JUNE 1, 2016 Criminal Law Review Part 2 Criminal liability shall be incurred by any person committing a felony. (cont. of Art 4) Felony is an act or omission which is in violation of the RPC. So if an act or omission does not constitute of the RPC, then it

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D is not a felony. But of course if it is in violation of a SPL, then that will still be a crime.

3. The accused stabbed the victim with a bamboo stick and the accused was brought to the hospital but was not confined. 21 days later, the victim was brought again to the hospital. The next day he died. Accused was charged with homicide. What is the liability? - Try to see the decision of the SC. I will not spoon feed you! (Pp vs Villacorta GR No. 186412 9/7/11)

To recap: (Criminal liability incurred when) 1. By any person committing a felony and by any person an unintended felony provided that the unintended felony is the direct, natural and logical (DNL) consequence of the intended felonious act. Example: Mr. X tried to stab Mr Y. Mr Y was able to move away. Mr Y tried to get the knife and disarm Mr X. In the course of trying to disarm X, Mr. Y incidentally injured Mr. A. Is Mr. Y liable for the injury caused to Mr. A? No, because Mr. Y was not committing a felonious act. Defending oneself is not a crime. He was performing a lawful act.

4. If the accused is carrying a knife and chased the victim. Due to fear, the victim ran away. When he saw the accused nearing him, he jumped into the sea but the victim doesn‘t know how to swim. Victim died. Liable? - Yes, Legal Basis: Article 4.

To be liable, there must be a logical connection. Meaning there must be a relation between the felonious act and the resulting crime. In other words the resulting act must be the proximate cause of the intended felonious act. Proximate Cause: such adequate and efficient cause as, in the natural order of events, and under the particular circumstances surrounding the case, which would necessarily produce the event. When there is an ACTIVE FORCE that intervened between the felony committed and the resulting injury and that active force is a distinct act or fact absolutely foreign from the act of the accused, the accused is not liable. Examples: 1. Accused boxes the victim. But accidentally the horse nearby jumped on the victim. Is accused liable? - No. The death of the victim can’t be considered as the direct natural and logical consequence of the boxing of the accused. The jumping of the horse is an active intervening force. The accused could be held liable of slight physical injuries only but not of the death of the victim. 2. The accused inflicted physical injuries on the victim. But the victim deliberately immersed his body on contaminated water. Infected and so it became serious. Liable? - No. The accused can’t be liable for serious injuries but only of slight physical injuries. Deliberately immersing the body into contaminated water can be considered as an active intervening force. The resulting injury is the result of the intentional act of the victim himself. (US vs Delos Reyes. GR 13309)

5. If the accused staged a robbery in a jeepney. X out of fear, jumped off the jeepney but she hit her head first on the concrete and died. Liable for ROBBERY ONLY or ROBBERY WITH HOMICIDE? - Robbery with Homicide! Legal Basis: Check this case (Pp. vs Pahi 77 SCRA 348)also check (Pp vs Valdez 41 Phil 497) Another instance when a person is criminally liable is: 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (AKA IMPOSSIBLE CRIME) Familiarize yourselves with crimes against PERSONS and PROPERTY.  Felonies against persons: parricide, murder, homicide, infanticide, physical injuries, etc.  Felonies against property: robbery, theft, usurpation, swindling, etc. Elements of Impossible Crime: a. accused is performing an act, and such act would have been a crime against PROPERTY AND PERSONS. b. there is legal or physical impossibility of the accomplishment of such act/ its accomplishment is inherently impossible c. its employment is inadequate or its means is ineffectual d. the act performed should not be a violation of any provision of the RPC Impossible Crime is the only crime which is penalized under Book 1. All other crimes are defined in Book 2. 

Penalty for Impossible Crime: ARRESTO MAYOR (found in Art 58)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

Impossible crime is not really a crime but the RPC imposes a penalty because of the person‘s CRIMINAL TENDENCY.

through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation.

Examples: 1. X saw Y (his enemy) sleeping on a bamboo bed. He stabbed Y. But it so happened that Y died 3 hrs ago pa. What crime is committed? - Impossible crime! Crime would‘ve been murder had it not been for its legal/ physical impossibility to accomplish the crime. You cannot kill a dead person.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.

2. X saw a beautiful lady sleeping on a bamboo bed and X raped the lady. But the lady was actually dead 2 hours prior. Crime committed? - Impossible crime to commit rape! Why? Rape is a crime against persons and there was legal/physical impossibility to accomplish the crime. 3. X secretly took away the cellphone of Y. X later discovered that that cellphone was the same phone he lost last week. Crime? - Impossible crime TO COMMIT theft. Take note: IMPOSSIBLE CRIME gani, ang apilyedo kay TO COMMIT (murder, rape, theft) --- Remember, crimes against Persons or Property ra ni. 4. W is tired of H, her husband being a womanizer/drunkard. Ig sweldo, di mo hatag sa sweldo, hubog pa! So in the morning, W made coffee for him. She put poison but later noticed that H was not affected. What she thought was poison was actually white sugar. Matod pas iyang bana, ―Tam-is man kayo, dear!‖ Crime? - Impossible crime to commit Parricide.- here the means was ineffectual. The next day, nanigurado nagyud! W bought Racumin (para sa ilaga). She put it in the coffee, but H was still not affected cause she placed a very little amount. So here, there was inadequate means as opposed to the last scene. **Read: Pp vs Jacinto 7/13/09 – ALWAYS READ MY CASES GIVEN COS THEY MIGHT COME OUT! Article 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive,

What should the court do if the accused is charged with a crime but after trial, the court finds that the act committed does not constitute any offense or is not penalized by any law? ACQUIT! There is no crime if there is no law penalizing such act. Under Art 5, the court is required to submit a report to the President thru the DOJ if the court believes that the act should be penalized. Why make a report? So that the President to the DOJ can make representation with the congress for the proper legislation. If it‘s the reverse? The act is penalized but the court finds that the penalty is too harsh? What should the court do? The court does not have any option but to apply the law. But if it believes that the penalty is harsh, the court shall furnish a copy of his decision to the President thru the DOJ for the president to exercise his executive powers. Example: During the advent of the death penalty, there was this case involving the accused who raped and killed a 7 year old chid. The penalty then was death. In the case, the judge was a Born-again Christian and based on his religion, only God can take away life. Since it was against his religion, the judge did not impose death penalty, only reclusion perpetua. Prosecution objected. SC nullified the decision and let the judge choose: Impose the penalty provided by law or lose your job? So the judge imposed the correct penalty which is DEATH. Dura lex sed lex. ARTICLE 6: Consummated, Frustrated, and Attempted Felonies Now, Article 6 tells us another classification of Crimes. Crimes can be classified ―According to the stage of its execution.‖ Under Article 6, felonies are classified into three (3) according to the stage of execution and these are: (a) Attempted Felony (b) Frustrated Felony and (c) Consummated Felony. Note: In Book One, the most important provisions are Articles 2-20. If you notice, more than half of your book (Reyes) discuss about these articles. This will show how important these

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D articles are. So, ―kay importante man, aron mas advantageous sa imong part, mas maayo nga imong ma-memorize!‖  Now, in the commission of a crime, there are two (2) stages. These stages are: (1) Internal Acts; and (2) External Acts. Internal Acts These are mere ideas in the mind of a person. These are not yet punishable. For example, mag huna2x kang mang-rape ka or mag huna2x kang mangawat ka, or mag huna2x kang mupatay ka. You will not be punished because of your evil thoughts. Dili pareha sa atong relihiyon, kay sa atong relihiyon, mag huna2x palang ka daan, sala nana. External Acts You are now doing acts according to your thoughts. For example, nag huna2x kang mopatay, maong nang hulam kag pusil, nang hulam kag motor. External acts are further divided into two: (1) the Preparatory Acts and (2) the Acts of Execution. Preparatory Acts Ordinarily they are not punishable. For example, gusto kang mopatay, ngita kag pusil. Palit kag pusil sa Danao. Preparatory acts. Palit kag kutsilyo sa Basak. Preparatory acts. Now, most of the preparatory acts are not yet punishable. Kun mopalit kag pusil, silutan naba ka ana? Dili pa. Except kun mag dala2x ka ana during COMELEC gun ban. Pero as a rule, di pa na sya punishable. Another example, gusto kang hiloan nimo imong husband or imong wife. Palit kag hilo. Preparatory acts kana. That is not yet punishable. Acts of Execution So, nana kay hilo or nana kay kutsilyo o pusil, then you will now use the firearm or the knife to accomplish the crime that you plan. The acts of execution are further divided into three. So mao nana syang Attempted, Frustrated and Consummated Stage. Kanang acts of execution duna nana syay gitawag og ―overt acts‖. Overt Acts The overt acts, in order to be punishable, must have connection to the intended crime. That is what is meant by ―directly by overt acts‖. Look at the definition of Attempted Felony under Article 6. ATTEMPTED FELONY Now, under Article 6, there is an ―attempt‖ when the offender commences the commission of a felony directly by over 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. Case: There was this case, the barangay tanods were patrolling. Now they chance upon a person removing a portion of a wall of a house which is also used as a store. Balay sya unya naa puy tindahan. So the barangay tanods saw a person in the act of removing a portion of a wall.

Question: What is the crime committed? The accused was charged with Attempted Robbery. Is the accused liable for that crime? Does the overt act of the accused of removing a portion of the wall already have direct connection to robbery? Ruling: According to the SC, he is not liable for Robbery but only of Attempted Trespass to Dwelling. The act of removing a portion of the wall could only be connected to Attempted Trespass to Dwelling, not of Robbery. That is the importance of the phrase, ―directly by overt acts‖. The overt acts committed must have connection to the intended crime. ―.. 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‖ Kanang Acts of Execution, pwede na sya mabahin into: Subjective Phase and Objective Phase. Subjective Phase Meaning, the execution of the acts is still within the control of the offender. So, the offender may choose to continue with the crime or not. So like our first example, kadtong gi remove and portion sa wall. Tingali ang tuyo ato niya mao gyud ang pag pangawat sa mga tinda. Pero kun mao to iyang tuyo, he still has the chance to desist. So, attempted stage. Example. Gusto nimo patyon ang tawo, imong gi-tiunan og pusil. Within pana sya sa imong control. Nalooy ka. Within pana sya sa imong control. Mao na syay gitawag og Subjective Phase. In the Attempted Stage, the offender was not able to perform all the acts of execution and the reason why he was not able to perform all the acts of execution is because of causes other than his own spontaneous desistance. So in our example earlier, the reason why the accused was not able to enter the house is because of the roving barangay tanods and he was arrested. Another Example. The accused, with intent to kill the victim, fired at the victim but the firearm did not fire because it malfunctioned. So, why is it that he was not able to perform all the acts of execution? Because the firearm malfunctioned. It is not because of his desistance. Another Example. He fired at the victim but he was not able to hit the victim because of his poor marksmanship. What is the reason why he was not able to perform all the acts of execution? Because of his poor marksmanship, not because of his own spontaneous desistance. Another Example. Or when he pointed at the victim but he was not able to hit the victim because the victim ran away in a zigzag manner. What is the reason why he was not able to perform all the acts of execution? Because the victim because the victim ran away in a zigzag manner and not because of his own spontaneous desistance.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Situation: What about if the accused fired at the victim but the victim was not hit. The victim cried and pleaded to spare his life, ―Sir, ayaw kog patya kay naa koy pamilya. Bata pa raba kaayo akong asawa.‖ Nalooy ang accused. He desisted. Question: Is the accused liable for Attempted Homicide? Answer: In order for the accused not to be liable by virtue of his desistance, it is necessary that the acts that he performed should not constitute any offense. Example: So pananglitan, on his way to the house of the victim, he saw the victim sleeping. Giduol niya, uy, nalooy man siya. So, niuli sa ilaha. Is he liable? NO, because kadtong iyang pag duol dili paman to mo constitute og crime. Pero, kun iya nato syang napusil unya nalooy siya, that can already be considered as a crime despite his desistance. And kun napusil gyud to niya, that can be considered as Attempted Homicide or Attempted Murder. Kun gi point lang, that is not an Attempted Stage but that is Consummated Crime. Grave Threats. Pero kun iya nang na pull ang trigger unya usa sya ni desist, he could be liable for Attempted Homicide. Dunay instances when an overt act could be considered an Attempted Stage of a crime pero duna say instances when the same act could be considered as another crime, a Consummated Crime. Example. The accused saw a beautiful woman, murag si Kim Chui, nga natug. Iyang gi hikap2x ang mga private parts. Private kay for ―private use only‖ man. Whats the crime committed? That‘s Consummated Crime of Acts of Lasciviousness. What about if after touching the private parts, he undressed the woman, likewise undressed himself, and placed himself on top of the woman. That could no longer be Acts of Lasciviousness, but that is already an Attempted Stage of Rape. Because the overt acts of undressing the woman, undressing himself, and placing himself on top of the woman, these overt acts will constitute the Attempted Stage of the crime of Rape. The intention to rape now is obvious. So, that is just to show you that an overt act may be a Consummated Crime and if you go further, pwede na syang mahimong Attempted Stage of another crime. Situation: What about if the accused was able to pull the trigger, hit the victim in the head. The victim was rushed to the hospital and if it were not for the timely medical assistance AND expertise of the doctor the victim would have died. Kanang duha mag uban jud na. Kay kun immediate medical assistance pero banga ang doctor, patay! What is the state of the commission of the crime? Frustrated. Now, kaning frustrated, naa nani sa Objective Phase. FRUSTRATED FELONY The accused has no more control. He has already performed all the acts of execution but the crime was not produced by reason

of causes independent of his will. So, if not for the timely medical assistance AND expertise of the doctor, the accused would have died. Frustrated Stage. CONSUMMATED FELONY A crime is consummated when all the elements of the crime are present. Case: The wife is already tired of her husband. Palahubog, sugarol, mamaye, mao tong naka huna2x siyang hiloan iyang bana. Iyang gihurot ang isa ka sachet sa hilo sa ilaga sa kape sa iyang bana kay gapatimpla man kay hubog. Sos! sa dihang nag bula2x na ang baba sa bana, ang asawa doktora man, naka huna2x, naka realize nga she could not live without her husband. Mao tong iya dayon gipa inom og usa ka gallon nga honey. Naulian ang bana. The husband filed a case of Frustrated Parricide against his wife. Was the wife able to perform all the acts of execution? Yes. Nagbutang syag hilo. Nainom na sa bana. Question: Is the wife liable for Frustrated Parricide? Answer: NO. Why? Because the crime was not accomplished because of her will. She could not be held liable for Frustrated Parricide. Perhaps, Serious Physical Injuries kay ga suka2x man ang bana, but that cannot be Frustrated Parricide. In frustrated crime, the accused performs all the acts of execution which would produce the felony but the crime was not produced because of some causes independent of the will of the perpetrator. In the problem given, the crime was not produced because of the acts performed by the accused. Now, in order to determine what stage is the commission of the crime, it is sometimes helpful to know the manner of the commission of the crime, the elements of the crime, as well as the nature of the crime. Now there are crimes that have no attempted or frustrated stage. There are crimes that are consummated at once. These crimes are called formal crimes. There are also crimes which have attempted, frustrated and consummated. These are called material crimes. There are even crimes that are attempted and consummated. Some crimes do not have frustrated stage. Example: Theft. It does not have any frustrated stage, only attempted and consummated. Why? Because in the crime of theft, it is consummated the moment the accused takes control over the stolen item. Opportunity to dispose of the item is not necessary. CASE IN POINT: Ppvs Valenzuela, June 21, 2007 Unlawful taking is deemed complete from the moment the accused takes possession of the thing even if he has no opportunity to dispose of the same. You have to know the manner in committing the crime. Example of crimes committed at once:  Acts of Lasciviousness  Libel

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D  Oral defamation  Physical injuries You have also to know the nature of the crime. Example, the case of arson. The accused is holding with him a rug soaked with gasoline and match because he is going to burn the building. Before he lights the match, he was arrested. What is the stage? Attempted stage But suppose the accused was able to light the match and the rug, that would be frustrated although no part of the building is burned. But if part of the building is burned, that would be consummated. It is not necessary that the entire building is consumed. It is enough that just a part of it is burned. Take note that if all elements are present, the crime is consummated. In the crime of attempted, frustrated murder, it is necessary that the prosecution should prove intent to kill. How do you distinguish attempted from frustrated? Take note that in order for the accused to be held liable for attempted or frustrated murder, aside from intent to kill, the victim must have also sustained mortal wounds or the vital organs must have been hit and had it not been for the timely medical assistance and expertise of the doctor, the victim would have died. For example the victim was hit in the head by a bullet which almost hit the brain or the brain was hit. That would be frustrated because he sustained a mortal wound. The wounds must be fatal. Suppose the bullet just grazed. He was hit but the bullet just grazed the head. That would only be attempted homicide or attempted murder because he did not suffer mortal wound. For example, he was stabbed in the stomach and his intestines were hit and had it not been of timely medical assistance and expertise of the doctor he would have died. That would have been frustrated homicide or frustrated murder. Why is it so? Why frustrated homicide or murder?  If the attending circumstances that would constitute the crime of murder are present then that would be frustrated murder. If not, then it would be frustrated homicide.  How can the prosecution prove intent to kill?  The weapon used. If the weapon is a firearm, there is intent to kill.  The location of the wounds. If you were shot in the head and the bullet didn‘t hit your head, there is intent to kill.  The words uttered. For example, when the accused pulled the trigger he said ―I will kill you‖, there is intent to kill.  The number of wounds.

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What about if prosecution was not able to prove intent to kill? And the wounds are serious?  The crime committed would be serious physical injuries only. So intent to kill would distinguish between physical injuries and attempted homicide or murder. What do you mean by light felonies and less grave felonies? Crimes could be classified into grave, less grave or light felonies. When can you say that the felony is grave?  That would depend on the penalty imposable.  Art. 25. Penalties  Grave felony – penalty imposable is capital punishment or afflictive penalties. o Afflictive penalties – from prision mayor, reclusion temporal, reclusion perpetua and death.  Less grave felony – penalty imposable aresto mayor and prision correccional  Light felony – aresto menor or fine not more than 200. Under Art. 7 says the light felonies are only punishable when they are consummated except those felonies committed against persons or property. What do you mean by conspiracy and proposal? Proposal – when a person decided to commit a crime and proposes its execution to another.  When you say proposal, it is not necessary that the person of whom the commission of the crime was proposed to will agree to commit the crime.  It occurs the moment the person who decided to commit the crime proposes. The mere act of proposing would constitute proposal.  If that person agrees to commit the crime, then there‘s no proposal but conspiracy. Conspiracy – when 2 or more persons come to an agreement and decide to commit a crime or a felony. Conspiracy and proposal have 2 concepts.  First, these are just preparatory acts. Meaning, they are not punishable.  Second, these are crimes by themselves. Conspiracy and proposal can only be considered crimes if there is specific provision of law penalizing mere proposal or conspiracy. If none, they are just considered preparatory acts and they are not punishable.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

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Example: Conspiracy/ Proposal to commit treason rebellion, sedition. They are punishable by the RPC, Art 115.  Example: X and Y agreed and decided to kill A. Are they liable at that point in time?  No. mere proposal or conspiracy to commit a crime of murder is not punishable. There is no specific provision of law to commit murder.  There‘s also no law punishing mere proposal/conspiracy to commit the crime of robbery. What is the liability of conspirators?  Conspirators are equally liable regardless of the acts committed. They are equally liable as principals.  Suppose X and Y agreed and decided to rob OFW. They agreed that they will only rob. When they entered the room, OFW retaliated and hit X in the head. X then stabbed OFW. What is the crime committed by X and Y? Take note that killing OFW was not agreed by them. Their agreement was only to rob  Both are liable for robbery with homicide because conspirators are liable for the crime that they have agreed upon and for all the crimes that are considered the logical, natural consequence of the crime that they have agreed upon.  Can murder/homicide considered as connected to the crime of robbery? Yes.  What about if X and Y agreed to rob. Their agreement was only to rob the victim. But when they entered the room of OFW, Y was tempted to rape her. They were charged with robbery with rape. Are all of them liable?  Take note that rape is not connected to the crime of robbery agreed upon by them. It would only be Y who could be liable for the crime of robbery with rape. Take note that once the offenders would constitute a quadrille, this is an exception to the rule, somewhere in Para 2, Art. 296, RPC.  If the offenders would constitute a quadrille, 4 or more, or would constitute a band, they are all liable for the acts committed by a member of the band even if those acts are not agreed upon and if the other members did not prevent the commission of the act not agreed upon,  Example: W, X, Y, Z agreed to rob but rape is not part of their agreement and during the actual robbery, Z committed rape but W, X,

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Y were not able to prevent Z from committing such act. Then they are all liable for the crime of robbery with rape.  CASE IN POINT: PP vs NAVASCA, March 15, 1997 What is the amount of evidence in order for the parties to be liable as conspirators? What is the amount of evidence required to prove conspiracy?  There should be proof beyond reasonable doubt in order for all of the accused to be liable as conspirators. Conspiracy must be proved just like the crime itself.  How can it be proven that there is conspiracy?  By their collective acts. Conspiracy is seldom proved by direct evidence, by presenting direct witness. It is usually proven by circumstantial evidence.  Direct evidence is usually had when one conspirator presents himself as state witness. Take note that mere presence does not constitute conspiracy. The conspirator must have performed act or acts for the accomplishment of the act agreed upon. But if you served as a lookout, then you are liable as conspirator. If you were present in the commission of the crime to give moral support, you are also a conspirator. This is called implied conspiracy.  Implied conspiracy – conspiracy that can only be proven by circumstantial evidence. It is one which is only inferred from the manner the participants in the commission of the crime carried out its execution.

June 3, 2016 Criminal Law Part 3 Article 9 Classification of Felonies 1. Grave Felonies – penalty imposable is Capital (Death) or Afflictive (Reclusion Perpetua, Reclusion Temporal, Prision Mayor) 2. Less Grave Felonies – penalty imposable is Correctional (Arresto Mayor, Prision Correctional or Destierro) 3. Light Felonies – penalty imposable is Arresto Menor or fine not more than 200) What are Special Penal Laws? Those crimes not penalized under the RPC Are the provisions of the RPC applicable to Special Penal laws?  G.R. – The provisions of the RPC are not applicable to special penal Laws, they are merely supplemental (Article 10) o As a rule, in special penal laws, there are no stages of a crime. There is no attempted or frustrated stage. It is

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always consummated. A mere attempt to violate the special law is not punishable. Unless the special penal law provides that an attempted stage of a crime is punishable. Violation of R.A. 9165 (Drugs), there is a provision where an attempted stage for the sale of drugs is punishable.

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Ex. A police officer shot a person. There is a crime of murder. Then you have to pay for the life of the person (50k) including the grave lot and the earnings lost. The person is a public officer then an administrative case will also be filed for grave misconduct (dismissal). If the act committed is justified and would fall under any of the justifying circumstances, there are no liabilities.

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Exc. –The special law specifically provides that the RPC provision will apply. o There are some special laws that use/borrow the terms under the Revised Penal Code such as the penalties imposable. o Those special laws that borrow the terms of penalties under the Revised Penal Code may also apply its provisions. o Example: When using the penalties of the Revised Penal Code, mitigating and aggravating circumstances will also be applied. As a rule mitigating circumstances under the RPC do not apply to Special Penal Laws, unless the Law uses the terms of penalties under the same Code. o The pleading of guilty under special laws does not mitigate the crime committed, unless the special law applies the penalties of the RPC. When the special law uses the nomenclature of the Revised Penal Code, the provisions of the latter may apply to the special law. (People vs. Simon, July 29, 1994) (Go-Tan vs. Sps. Tan, September 30, 2008) The Different Circumstances Affecting Criminal Liability: Modifying Circumstances: 1. Justifying 2. Exempting 3. Mitigating 4. Aggravating 5. Alternative/ Alternating Book I – most important article is article 11 (memorize if possible) Article 11 Justifying Circumstances Circumstances where the act of a person is in accordance with law. The act is justified. Does not commit a crime and there is no civil liability. When committing a crime, usually you are charged with two cases. If it involves a public officer then it will be three charges, one for criminal, one for civil and another for administrative.

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Anyone who acts in defence of his person or his rights, provided that the following circumstances concur: a. Unlawful Aggression; (most important) b. Reasonable necessity of the means employed to prevent or repel it; c. Lack of sufficient provocation on the part of the person defending himself. Unlawful Aggression is the most important circumstance but all must be present for a valid justifying circumstance. Without it, there is no basis to perform self-defense. Aggression – an attack or at least a threat which is imminent and immediate. Actual o Already stabbed by a knife Imminent o Still going to be stabbed by a knife o Being pointed with a gun o At the point of happening o Expected to happen Types of Aggression: 1. Lawful 2. Unlawful There was this newlywed couple. The husband was working in a call center. He usually reports at night. He had to return to work. One evening, while the wife was left alone sleeping in the rented house at midnight, there was someone touching her. She recalls that sometimes her husband would just come home in the middle of his nightshift. She thought it was her husband touching her. She did not resist the acts, thinking it was her husband. The man proceeded to have sexual intercourse with her. After the sexual intercourse, the man whispered to her ―Thank You Very Much, I hope you enjoyed as much as I did.‖ At that very moment, she realized it was not her husband. With all her might, she took the knife she hid under her pillow and stabbed the man. It was found out that it was their neighbor. She was charged with homicide. Is she liable? She raised self-defense. -

Yes, she is liable. There was no longer any aggression when she stabbed her neighbour. The unlawful aggression already ceased. It was not self-defence but retaliation. There must be unlawful aggression at the very moment of the performance of the act.

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Support your answer with legal basis. No legal basis –zero

The husband, the call center agent, went home early because he was not feeling well. When he went home, he heard a disturbance in their room. He tried to listen to the noise. When he looked inside the room, he realized it was his friend and his wife in the act of sexual intercourse. He then went into the kitchen and took a knife. When he was about to stop the man (who was a police man), grabbed his firearm and fired the gun. The husband died. The policeman was charged with homicide. Was he liable? Yes, he is liable. The policeman was liable because there was no unlawful aggression. There was an aggression but the aggression was lawful. The first element of self-defence was absent. It is within the right of a spouse to kill his/her spouse or the paramour/ concubine in the act of sexual intercourse. Mr. Y attempted to stab Mr. X but Mr. X, who is a fan of FPJ, was able to parry the attack and rest away the weapon of Mr. Y. Mr. X then used the knife and stabbed Mr. Y. Is he liable? Yes, at the time that he stabbed Mr. Y, there was no longer any unlawful aggression. At the time the accused committed/performed the act to defend himself, there was no longer an unlawful aggression. Even though there was an unlawful aggression at the start it had already ceased. The attacker was already disarmed therefore there was no longer unlawful aggression. Unless the attacker, after being disarmed, searched for another weapon, then unlawful aggression would still be present. It is justifiable to stab him with the knife. What about if the attacker, the aggressor, after firing at you ran away after stabbing you but you were able to evade the attack but you ran after him and stabbed him, are you liable? Yes, liable because there is no more unlawful aggression. Art. 11. Justifying circumstances. — The following do not incur any criminal liability: 5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. -

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Remember that if the person being attacked; he is a law enforcer, TN that being a law enforcer you have the duty to arrest the criminal. If you are only a civilian, if you are being attacked – only until prevent and repel If you are a law enforcer, you have the duty to arrest him. EX: After attacking you, you were hit or slightly hit then after the attacker ran away. You fired a warning shot and told him to stop because you are going to

arrest him, he did not stop despite the warning shot. You fired at him. He was hit in the back and died. Is the policeman liable? No. There is no more unlawful aggression. But why is it justifiable? There is another justifying circumstance, not anymore self-defense. Your defense would be: Lawful performance of duty. Where can it be found? That is par 5. -

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Under this justifying circumstance, unlawful aggression is not an element. There are only 2 requisites: 1. the accused is performing his duty; and 2. in the course of the performance of such duty he inflicted an injury to another person If these 2 requisites are present, he is not liable

Art. 11. Justifying circumstances. — The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. -

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why is it that the law allows self defense? You have killed a person but you are not punished. o Classical theory or positivist theory: selfdefense is considered a justifying circumstance because it is just impossible for the government to protect every citizen 24 hours, 7 days a weeks. Even if the 6 months is already over, there would still be bad guys. o Self-preservation is a right of every person First. Unlawful aggression. There must be unlawful aggression Unlawful aggression: there must be either actual or imminent attack Imminent: expected or on the point of happening o EX: a gun is still pointed at you Actual: attack is already present o EX:you are already stabbed, or got shot at It is not right that you have already been shot before you take your revenge. It is not a need. If you are about to be hit, you can already kill the person. If you have no gun, you can already run. Case for actual aggression: US vs Laurel o Laurel – our President during the Japanese period o He was able to stab someone o FACTS: His friend had a girlfriend which he also wanted to court but the girl just kept on

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D agreeing but she never goes. So when he saw the girl he stole a kiss from her and ran away. The girl then told Laurel‘s friend about the incident. The boyfriend got really mad. There was this gathering once so the boyfriend told one of his friends to call Laurel to let him go to the gathering. So Laurel went and the boyfriend confronted him then he was hit by a stick or garote. Laurel was able to bring a knife or batangas during that time. When was told to kneel down and was then hit by the stick. When the attacker was about to strike him again, he stabbed the attacker or the boyfriend. The act of teasing or kissing the girl happened the other day.

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The victim almost died so he was only charged of frustrated homicide. Liable? RULING: The lower court convicted Laurel. When the case reached the SC Laurel was acquitted. According to the SC, all the elements of self-defense were present. There was an actual aggression. There was an actual attack when Laurel stabbed the victim. Why was he acquitted when there was provocation on his part? He made fun of the girlfriend.  The sufficient provocation must immediately precede the attack. You do not have to wait for tomorrow. Later on when Laurel became a lawyer then a justice of the SC. One of the cases he decided was the case of former President Marcos.  Marcos was charged with murder for allegedly killing the political opponent of his father Congressman Nalundasan.

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While Nalundasan was having his victory party at Ilocos, he was shot. Marcos was a sharp shooter. So he was accused as the killer. He was convicted by the lower court but when the case was appealed to the SC it was Laurel who wrote the decision and Marcos was acquitted.

Marcos was very intelligent and Laurel saw himself in Marcos. He thought that if he was convicted before then his life would have been different. Case for imminent aggression: PP vsCabungcal o FACTS: The accused and the member of his family together with other persons, one of whom was the victim, they were riding a boat or paddleboat or outrigger. When they were already on board the boat, on their way home, when they were already at the middle of the river the victim kept on rocking the boat as if he was playing around with the around passengers on board. The water started to get in into the boat. The accused was scared because most of the passengers or his family members were women. He admonished the victim to stop but the victim did not stop. So he hit the victim at the forehead using his paddle. The victim then fell to the water but the victim tried to capsize the boat. The accused hit the neck of the victim and so he died. Liable? 

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RULING: There was imminent danger. There was an unlawful aggression that is imminent. Meaning, there is imminent danger to life or there is danger on the point of happening. o It is not needed that you are already being attacked and that‘s the only time that you perform an act wherein you defend yourself EX: you are being insulted, is it sufficient that you raise self-defense once you killed the person? o Insulting words, light pushare not considered unlawful aggression NOT unlawful aggression: o Insulting words o light push o drawing a gun o cocking a gun Considered unlawful aggression: o Pointing a gun, or aiming a gun (Almedavs CA 80 SCRA 575) o Brandishing a gun o Slapping the face of a person (Rugasvs PP, January 14, 2004)  Face = represents the person and his dignity The unlawful aggression made by the victim and the killing of the victim made by the accused should succeed each other without appreciable interval of time. o If you are stabbed now, it is not allowed that you would take your revenge tomorrow.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D It must be necessary that the defensive act be simultaneous with the unlawful aggression or must immediately follow the unlawful aggression. To determine self-defense, the number, location, and seriousness of the wounds would indicate selfdefense. o EX: stabbing him 30 times, chopping his head off, chopping his body parts? No o Not necessary to chop off parts o

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Second. Reasonable necessity of the means employed to prevent or repel it. TN: reasonable necessity Reasonable necessity: there is necessity of the cause of actiontaken and there is necessity of the means used When one used a gun, was it really necessary? When you hit him with a gun, was it really necessary so as to prevent the attack? When you were boxed, is there an unlawful aggression? Yes, there is an unlawful aggression. If you were boxed but used a gun, is the means used to defend yourself necessary? That is not. But if the person who boxed you is Shaquille O‘Neil then you used a knife to defend yourself, is it reasonably necessary? Yes. If it is Pacquiao who boxed you, you used a knife? Still necessary. It depends on the reasonable necessity of the means used: the means used depends on the weapon used by the aggressor and counter-aggressor. It would really depend. 2nd element: reasonable necessity of the means used to prevent or repel the attack Prevent when the attack is imminent Repel when the attack is already going on or actual If you are boxed, as a rule you also box him. If he used a fist then you should also use a fist against him. If he winked at you, then wink at him also. Third. Lack of sufficient provocation on the part of the person defending himself. Where should the provocation come from? On the part of the person defending himself It should be that he did not do it first If he committed an act that which triggered the aggression then he cannot anymore claim complete self-defense because there was sufficient provocation on his part EX: the accused was teased that he was a cleft lip even if he knew that he was already a cleft lip, so he stabbed the victim. o Is it not a provocation? It is. o Is it considered a sufficient provocation? That could be considered a sufficient provocation. EX: in front of a lot of people a person was called him a thief. If it was you, what would you do? It is really

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possible that you would stab the person who said that. What about if there was provocation but it was not sufficient? o EX: you only stepped on his foot but he already stabbed you. Was there provocation? That could be since you didn‘t check you surroundings when passing by since you hit him. But it is not sufficient provocation.  Can he claim self-defense? He can because there was unlawful aggression, the means is necessary then there was sufficient provocation but there was lack of sufficient provocation on the part of the accused. Although there was provocation but the same is not sufficient. o EX: you stabbed a person but he had a gun so he shot you. If it is sufficient but not, it would depend on the circumstances EX: if you were only walking but you were suddenly stabbed then you took revenge by hitting his head until he died o There was no provocation on your part o Was there unlawful aggression? Yes you were stabbed o Was the means used by you reasonable? Yes reasonable lack of sufficient provocation: it could be that there is no provocation at all o EX: you were just walking but he was jealous of your hairdo because it‘s a mohawk so he stabbed you. So you took revenge.  There was no provocation or there was no sufficient provocation Lack of sufficient provocation: 1. there was no provocation at all 2. there was provocation but it was not sufficient 3. there was sufficient provocation but it was not the accused who made the provocation 4.

Justifying Circumstance: Self- defence Par. 1 Anyone who acts in defence of his person or rights, provided that the following circumstances concur: 1. Unlawful aggression 2. Reasonable necessity of the means employed to prevent or repel it 3. Lack of sufficient provocation on the part of the person defending himself. WHEN THE FIGHT WAS AGREED UPON, THE AGGRESSION AS BETWEEN THE PARTIES IS CONSIDERED LAWFUL.

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Case: There is no unlawful aggression in a concerted fight. Here the accused and the deceased after an argument agreed to fight, went to a store and purchased two knives. Even if the accused expressed his desire not to push through the fight but the deceased paid no heed and attacked the accused- but the latter succeeded in killing the deceased. When the fight was agreed upon, the aggression as between the parties is considered lawful. The aggression is considered reciprocal and legitimate. There being no unlawful aggression then there is NO SELFDEFENSE. US vs. Navarro 7 Phil 713

What about if there was an agreement to fight but the other deceived and ambushed the accused, the latter however was able to kill the deceased. Is there selfdefence? YES. Now there can be self- defence because the attack this time is unexpected. DEFENSE OF PROPERTY CAN BE INVOKED AS A JUSTIFYING CIRCUMSTANCE ONLY WHEN IT IS COUPLED WITH AN ATTACK ON THE PERSON OF ONE ENTRUSTED WITH SAID PROPERTY, SO THAT THERE IS COMPLETE SELF- DEFENSE. Example: Your chicken was stolen. The thief (the deceased) ran and so you ran after him and shot him. Here, the act is not completely justifiable. There could be unlawful aggression but the means used was not justifiable, especially if the victim was not armed or does not have any weapon.

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But take note that justifying circumstances just like the exempting circumstances are your defenses. It is not for the police to determine whether you are guilty or not, but for the court. It is not the police who determines whether the requisites for a valid defense are present. A case can still be filed against you even if you claim self- defense.

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In Criminal Procedure, what is required in filing a case is mere probable cause. The fact that you killed a person makes you probably guilty, although not certainly guilty. Now it‘s up to you to argue that the act that you committed is justifiable.

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Because when you raise self- defense, you are in effect admitting that you killed the victim. It is now incumbent upon the accused to present evidence to prove that all these elements are present. And the amount of evidence required is CLEAR AND CONVINCING.

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What are the circumstances that will determine whether the means used is reasonable? 1. 2.

The nature and the quality of the weapon used by the aggressor His physical condition, character, size of the attacker, and other circumstances and

But take note: That WHEN THE PERSON BEING ATTACKED IS A LAW ENFORCER, unlike a civilian which is required only to prevent or repel the attack, the law enforcer has the duty to arrest and overcome his opponent. A police officer is not required to afford a person attacking him, the opportunity of a fair and equal fight. US. vs Mojica, 42 Phil. 784

When there is complete self- defense, the accused is not criminally and civilly liable because the act is justifiable.

People vs Narvais. April 20, 1983

Is it necessary to kill the aggressor/ attacker? NO. But the person defending himself is not expected to control his blow. IN REPELLING OR PREVENTING AN UNLAWFUL AGRESSION, THE PERSON DEFENDING HIMSELF MUST NOT INDISCRIMINATELY FIRE HIS DEADLY WEAPON. Example: You are attacked and you have a gun. You cannot just recklessly fire it, at the risk of the innocent bystanders around. Because in the event that you hit an innocent person, even if you were attacked, you can still be held liable for culpable felony. Although self- defense is a lawful act, you have to exercise such right with due care. Again, WITH. DUE. CARE.

But note that perfect equality between the weapon used by the one defending himself and that of the aggressor is not required. Example: Stick vs. Knife= Reasonable Gun vs. Bolo= Reasonable Gun vs Knife= Reasonable Fist vs Knife= As a rule is not reasonable. If the attacker just used his fist, you must just have used your fist as well. But then again you have to take into consideration the physical condition, character and the size of the attacker. Because if the attacker is too strong, he is a wrestler, a champion in the UFC. He can be deadly so you can just shoot him.

Amount of evidence required:  To convict the accused: Proof beyond reasonable doubt.  To acquit the accused (if self- defense is raised): Clear and convincing evidence. EXCEPTION TO SELF- DEFENSE: BATTERED WOMAN SYNDROME. - Here the accused can still be justified even in the absence of the requisites for a valid and complete self- defense. -

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Under Section 26 of RA NO. 9262 or the Anti- VAWC Act of 2004, victim- surviviors who are found by the courts to be suffering from battered woman syndrome do not incur criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self- defense under the RPC. But the accused has to prove that she is suffering from Battered Woman Syndrome (BWS). BWS- meaning you are a victim of physical or psychological abuse. A woman who is repeatedly subjected to any forceful physical or psychological behaviour by a man. It must be ―REPEATED physical or psychological abuse‖. If you were (kulata) just once and you killed the victim right away, you can still be held liable because the law requires repeated abuse.

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Even in the absence of unlawful aggression, or the means employed was unreasonable. Such as when you were hit by the fist and you used an axe in return or a gun, you cannot be held liable.

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In People vs Genosa, GR NO. 135981 January 15, 2004, Genosa was convicted of parricide because at that time there was yet no law justifying killing on the ground of Battered Woman Syndrome. But this case was the basis of Congress in enacting RA 9262.

Justifying Circumstance; Defense of Relatives Par. 2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants or legitimate, natural or adopted brothers or sisters or of his relatives by affinity in the same degrees and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein. ―Relatives by affinity in the same degrees‖ meaning by marriage, this includes: 1. Brother in law 2. Sister in law 3. Mother in law 4. Father in law -

―Relatives by consanguinity within the fourth civil degree‖- first cousin is included.

Your sweetheart is therefore a stranger REQUISITES FOR DEFENSE OF RELATIVES TO BE JUSTIFYING: 1. Unlawful aggression 2. Reasonable necessity of the means employed to prevent or repel it and

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In case the provocation was given by the person attacked, the one making the defense had no part therein.

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There is still a legitimate defense of relative even if the relative being defended has given provocation, provided that the one defending such relative has no part in the provocation.

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When can you be considered part of the provocation? If for example you induced your relative to hit the deceased and assured him you have his back come what may. Aw

What if your wife is already dead, and your brother in law is being attacked, can there still be a valid defense of a relative? In the case of Carungcong vs People, GR No. 181409 February 11, 2010, the court said that you can still raise defense of a relative. Justifying Circumstance; Defense of Stranger Par. 3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment or other evil motive. Any person not included in the enumeration of relatives is considered stranger for this purpose. THIRD ELEMENT: THE PERSON DEFENDING BE NOT INDUCED BY REVENGE, RESENTMENT OR OTHER EVIL MOTIVE. He must be prompted only by heroic motive. -

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Example: You heard your neighbour screamed for help. She was being chased with a knife by her husband, you ran down and helped her. You stabbed the husband causing the latter‘s death. Are you liable? NO. Because there was unlawful aggression on the part of the deceased. The means used was reasonable. You were not induced by evil motive, but only by heroic motive to save the life of your neighbour.

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But for example the wife who cried for help was your paramour. You saw it as an opportunity to kill the victim so that you and his wife can now live happily ever after. Will you be held liable? YES. Because here defense of stranger is no longer complete. Clearly there was an evil motive that induced you to defend the stranger, or the wife for that matter.

4. Avoidance of a greater evil/injury This presupposes that there are 2 evils, meaning there are 2 dangers. Example: So for example you are driving your car on a narrow road, on your left there is a creek, so if you‘ll swerve to your left you will die because there is a creek, if you‘re swerve to your right there‘s a pedestrian. Now for example there‘s a dump truck

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D coming your direction at a high speed, you were to choose whether to swerve your car to the left and fall to the creek or to your right and eventually hit the pedestrian. What will you choose? You will choose between the 2 evils or injury. ELEMENTS: 1. That the evil sought to be avoided actually exists; 2. That there is no other practical and less harmful means of preventing it; 3. That the injury feared be greater than that done to avoid it. Another example: You are the captain of a motorized boat, you encounter violent sea waves, in order to lighten the boat, you have to throw cargoes into the sea otherwise the boat will capsize and all of you will die. Suppose you throw cargoes into the sea, are you criminally liable for malicious mischief? The answer is NO. You can raise paragraph 4, avoidance of greater injury. Note: Remember Under justifying circumstance, no criminal and civil liability. However, as an exception under paragraph 4 in connection to the example above, although you are not criminally liable for malicious mischief, but you are civilly liable for the cargoes, you have to pay the value of the cargoes thrown. Here, actual case, a woman is about to get married, all was set, he eloped with another man, charged with slander by deed since she did not attended her wedding and as a result, humiliated the groom to be, by her act of not showing up in her wedding, is she liable? According to the case of People vs. Hernandez, the CA in that case applied paragraph 4, stating that the act was justified as she was made to choose between a man whom she did not love and to a man whom she really loved. Well I don‘t know what happened after that case. Note: This is the only paragraph where civil liability could be assessed to the accused 5. Any person who acts in the fulfilment of a duty or in the lawful exercise of a right or office. ELEMENTS: 1. Under the performance of duty or in the lawful exercise of a right/office; and 2. Inflicts harm to another - Unlawful aggression is not an element. That presupposes that the person here acted without any negligence or imprudence. ―Under the performance of duty….‖ Example: In one case, the policeman was ordered to arrest a person who is a fugitive from justice, meaning there is a pending case, now when he ordered the person to surrender, the accused attacked him with a spear, now when the policeman dodged the attack, he ran away, the policeman fired the warning shot, but the accused continued to run, hence the policeman fired at the fugitive to stop him. Now, is he liable? According to the SC, the killing was done in the performance of duty. He was performing his duty and the injury inflicted was done while the course of performance or as a consequence of his duty, what is his duty? To arrest the criminal. You might say there is

no more unlawful aggression since the victim ran away, but take note, under this justifying circumstance, UNLAWFUL AGGRESSION is not an ELEMENT. That‘s why this presupposes that the accused should have performed his duty with DUE CARE. There might be a case where you‘re an officer, you are after a robber in the busy streets of colon, and you fired your gun and hit a pedestrian or stranger, you could be liable, why? Because you are negligent, you know for a fact that the area is crowded. Another case, policemen apprehended a person who‘s about to rob a house, then upon investigation, the robber was asked where are the items that he robbed from the said house, robber said that its in the house, now he was escorted to the policemen in the patrol car, now while on the way to the house of the suspected robber, the latter allegedly grabbed the service firearm of one of the policemen and attempted to jump off the police car, now one of the policeman who saw what happened, fired at the suspsect who is about to jumped off the service car and killed him, there is no warning shot here, now they were charged with murder, are they liable? Look at this case, Cabanlig vs. Sandiganbayan, July 28 2005. Also look People vsDelima 46 PHIL 738 So if a law enforcer is being attacked, and then inflicted upon the person attacking him, 2 justifying circumstances can be raised, self-defense and performance of duty. As a law enforcer, he is also duty bound to arrest the person attacking him. ―….lawful exercise of a right or office‖ So, what can be an example under this phrase, now for example your legs are about to get amputated due to diabetes, can the doctor be liable for mutilation? Answer is no. How about during the time of death penalty, a convict was killed thru lethal injection, now is the one employing such liable for murder? Of course no. 6. Obedience to an order issued by a superior for some lawful purpose ELEMENTS: 1. Order is issued by a superior; 2. for some lawful purpose; 3. Means used by the subordinate to carry out the order is lawful. For example you‘re a policeman, and you are ordered by your superior to torture the rebel or a member of Abu Sayaf, and the victim died, liable? Yes, since the order is not lawful. Is torturing a prisoner lawful? No. Article 12. Exempting Circumstances There is a crime committed but there is no criminal. Going back to justifying circumstance, do you remember the requisites under dolo and culpa? Freedom, intelligence, and intent. Absent any of one of these are not liable. Now under this article, what is absent? INTENT. There is no criminal intent. Because if you perform an act defending yourself, you are not committing a crime, you are exercising your right to defend yourself, which is the right to self-preservation. Why is

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D self-defense allowed? Because it is impossible for the state to defend its citizens 24/7. 1. Imbecile/Insane person, unless the latter acted during lucid interval Imbecile – a person who is at age but his mental age is that of a 7yr old or younger An imbecile is always exempt; an insane person may be criminally liable if he/she acted during lucid intervals; it must be necessary that at the time of the commission of the crime, there must be complete absence of intelligence. Because if there is only a mere abnormality of his mental faculties, then he is not exempt, he is only entitled to mitigating circumstance. Who is required to present evidence that indeed the accused that at the time of the incident, there was complete deprivation of intelligence? It is the accused/defense. How? Through his lawyer, subjecting the accused to a psychiatric examination, and the psychiatrist must be presented in court to testify that at the time of the commission of the crime there was complete deprivation of intelligence. What if the accused says, ―boangko‖ will the case be automatically be dismissed? No, let the court decide, let the court rule whether there is complete absence of intelligence. Note: amount of evidence to establish this exempting circumstance is CLEAR and CONVINCING evidence, the same with justifying circumstance. Art. 12. Circumstances which exempt from criminal liability. — the following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. Imbecility is always exempting; Insanity is not. - A person claiming to be insane cannot be exempted if it is found that he acted during lucid interval because an insane person has intelligence during his lucid interval. Remember that one of the three elements of crimes against dolo/culpa is intelligence. In this article, if a person commits a crime, and he is COMPLETELY DEPRIVED OF INTELLIGENCE – then he is exempt. There is a crime, but there is no criminal. 

TN: The presumption is that a man is SANE. So, he who raises the defense of insanity has the burden of presenting evidence that indeed at the time or before he committed a crime, he was completely deprived of any intelligence. That he cannot distinguish right from wrong.

Amount of Evidence required: CLEAR & CONVINCING EVIDENCE

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TN: When an accused raises the defense of insanity, he is in a way admitting the crime. It is now incumbent upon the accused to present evidence that his act is exempting due to insanity. There must be COMPLETE ABSENCE OF INTELLIGENCE. It must be COMPLETE ABSENCE. If it is not COMPLETE, it will not be exempting but only mitigating. Thus, one is still liable.

How may the defense prove that the accused is insane? - thruthe doctor/psychologist, that the insanity occurred even before or during the accused committed the crime. (cause it‘s possible that the accused became insane already after he committed the crime) - anordinary person who has sufficient familiarity with the accused claiming to be insane (e.g. mother, immediate family) In a case, the SC ruled that a person who is suffering from SCHIZOPHRENIA or DEMENTIA PRAECOX is equivalent to INSANITY. Dementia Praecox is an irresistible homicidal impulse. (you keep on thinking that a person wants to kill you) People v Madarang GR 132319, May 12, 2000: the accused is found to be suffering from Schizophrenia. This is a common form of psychosis which is equivalent to insanity. Read this case and try to know why the SC sustained the conviction of the accused who was charged with Parricide for killing his wife. He raised the defense of Schizophrenia. Pedophilia? Read! Pp v Diaz, Dec 8, 1999 Amnesia? Read some more!Pp v Tabugoca Jan 28, 1998 Epilepsy? Yes, equivalent to insanity. Committing a crime while in a dream? Read Pp v Taneo Basis of Exemption: Absence of Intelligence 2. A person under nine years of age. 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformably with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institution or person mentioned in saidArt. 80. Paragraphs 2 & 3 have been repealed by RA 9344. This will be discussed separately. But here‘s a bird‘s eye view: 15 years old exactly or under – EXEMPT Over 15, and under 18 – could be exempt IF the prosecution fails to prove that he acted with discernment. (Prosecution has the burden. It must be alleged in the information AND proved that he acted with discernment)

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D With allegation but no evidence, or vice versa = ACQUIT!

circumstances, the accused is not criminally liable but he can be civilly liable. Paragraph 4 is an exception.

Discernment- the mental capacity to distinguish right from wrong

3. You are a police officer in Colon and saw a snatcher. You chased him but he did not stop. You fired a warning shot but a person painting soemthing nearby got hit. Liable? - Firing a warning shot may be lawful. But you should observe your surroundings. There is negligence on the part of the police officer. He knew he was in Colon where there are many people. He may not be liable for intentional crime like homicide or murder but he may be liable for Reckless Imprudence resulting to Homicide due to his negligence.

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How to prove that he acted with discernment -examination by a psychologist/psychiatrist from DSWD - acts made during, after or before the commission of the crime (e.g. After committing the crime, he cleaned the materials used. So clearly, he is aware that what he did was wrong. So there is discernment.) Reckoning date of the age: At the time he committed the crime Term for the minor offender: Child in conflict with the law If the minor is EXEMPT – subjected to INTERVENTION (seminars) Basis of Exemption: Lack of Intelligence 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. Article 4 of RPC - accused is performing an unlawful act

Article 12, par 4 - accused is performing a lawful act

Examples: 1. You‘re driving your car with due care, at a moderate speed. Suddenly a toddler ran to your lane. You noticed him running when you were just 2 meters away. Unfortunately you ran him over. Liable? - No! Par 4. Let‘s see the elements: a. performing a lawful act – driving your car b. with due care – moderate speed, not drunk, not tinkering with a phone c. inflicted an injury – ran over the child d. by accident without fault or intention of causing it – no negligence or imprudence on your part The injury must have been by ACCIDENT. Accident- an unavoidable and unforeseeable event 2. You have a plant on your window. You were watering it, and you placed it a big pail of water by the plant. You did not notice but imongnasik-hanangbalde! (hit by the elbow haha). The pail fell on a person outside and eventually died. Liable? - Danghagka! So here, there was no prudence on your part. Lack of foresight. So LIABLE! 

If all the elements in this paragraph is present, you are exempt and so there is NO CIVIL or CRIMINAL LIABILITY on your part. Generally in exempting

Basis of Exemption: No criminal intent/ Negligence 5. Any person who act under the compulsion of irresistible force. Force, meaning violence. It is a physical force (―kulata‖, punch, shot by a gun). One that is irresistible. This is different from par 6. In the latter, there is mere threat. While in this par 5, there is physical violence. Par. 5: IRRESISTIBLE FORCE Now, what do you mean by IRRESISTIBLE FORCE? Meaning, the accused does not have the opportunity to put up a fight; the accused does not have any chance to escape. Basis: Complete absence of freedom ―An act committed by me against my will is not my act.‖ A person who committed a crime under a compulsion of an irresistible force is reduced to a mere instrument, and as such incapable of committing a crime. Who is liable there? The person who inflicted violence. Par . 6: UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY Now, the fear here must be actual or real and imminent and the injury must be greater than or equal to that committed. Actual, Imminent ―If you will not kill him, I will kill you later.‖ There is a threat but the threat is no imminent. The treat is one which is imminent or actual. Equal or Greater Injury For example, in one old case, the accused was threatened to be killed unless he will join the rebellious movement. So what was the threat? Which is greater, your life or joining the rebellion? But suppose, you were told, ―Kill your father otherwise I will burn your house.‖ Is it exempting? No, because the act threatened is not equal or greater than the crime committed. Basis: Complete absence of freedom Again, ―An act committed by me against my will is not my act.‖ Who is liable? The person who committed threat. Par. 7: INSUPERABLE CAUSE The person fails to perform an act required by law when prevented by some lawful or insuperable cause.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Take note that the accused here is required to perform an act by law but he failed to perform such act because of some lawful or insuperable cause. Insuperable Cause A cause which beyond his control. Example, a law officer has arrested a person caught in flagrante delicto (caught in the act). A public officer who arrested another person is required under the law to immediately file a case against him within the period of 12, 18 and 36 hours, depending upon the gravity of the crime committed by the person arrested. Suppose he arrested the offender in the afternoon of Friday. The next day, Saturday, there is no court. Sunday, the more. He was only able to file a case in the early morning of Monday. Suppose Monday is also a holiday, then the next day. Is he liable for Arbitrary Detention? NO, because fails to performing an act, which is to file a case against the arrested person, when he was prevented from doing so by some lawful or insuperable cause. Basis: There is no criminal intent. The circumstances under Art. 12 is Not Exclusive. There are instances, not mentioned in Art. 12 that also exempts a person from criminal liability, we call it Absolutory Causes. Absolutory Causes The act committed is a crime but by reason of public policy and sentiment, there is no penalty imposed. Example is Art. 332. A relative who committed Estafa, Theft, or Malicious Mischief against a family member is exempt from criminal liability INSTIGATION AND ENTRAPMENT Favor subject of Bar Exams. Instigation What do you mean by Instigation as an absolutory cause? The law enforcer or his agent instigates or practically induces another person to commit a crime. IOW, the person induced is not committing a crime before the inducement. But because he is being induced by the law enforcer, he committed a crime. And after committing the crime, he is arrested by the law enforcer. Liable? NO, because there is instigation. Example, you were just sitting down when a police officer, who was your neighbor said ―I heard shabu is for sale these days, why don’t you buy some and we use it‖. That is what we call instigation. The person is not liable by reason of public policy. Otherwise, the person who induced must also be held liable for being a principal by inducement Entrapment The law enforcer resorted to means or ways to capture or arrest the offender in the act of committing the crime. Meaning, the law enforcer arrested the offender after he resorted to ways and means. The idea idea of committing a crime comes from the offender itself. Very common example, ―buy bust operation‖. There are still other absolutory causes scattered in the RPC but the most favorite there is entrapment and instigation. PERIOD AND DEGREE Degree

What do you mean by degree? Degree refers to one entire penalty. What are the different penalties used by the RPC. Let‘s go jump to Art. 71. Familiarize the different penalties. 1.

Death

2.

Reclusion perpetua

3.

Reclusion temporal

4.

Prision mayor

5.

Prision correccional

6.

Arresto mayor

7.

Destierro

8.

Arresto menor

DEGREE (One entire penalty)

So, the penalties here are arranged according to seriousness or gravity. What is the penalty one degree higher than that of Reclusion Perpetua? Answer: Death. So, what is the penalty next lower in degree from Death? Reclusion Perpetua. From Reclusion Perpetua? Reclusion Temporal. So and so forth. Period A period refers to one of the 3 equal portions of a divisible penalty. They are called divisible because the range can be divided into 3 equal periods: Minimum, Medium and Maximum. A period is applicable only to divisible penalties. It cannot apply to indivisible penalties – Death and Reclusion Perpetua. Memorize the periods! Time included in the MINIMU MEDIU MAXIMU Divisible penalty M M M Penalties in its (Period) (Period) (Period) ENTIRET Y Reclusion Temporal

Prision mayor, Absolute Disqualificati on and Special Temporary Disqualificati on

From 12 years and 1 day to 20 years.

From 12 years and 1 day to 14 years and 8 months.

From 14 years, 8 months and 1 day to 17 years and 4 months.

From 17 years, 4 months and 1 day to 20 years.

From 6 years and 1 day to 12 years.

From 6 years and 1 day to 8 years.

From 8 years and 1 day to 10 years.

From 10 years and 1 day to 12 years.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Prision Correccional, Suspension and Destierro

From 6 months and 1 day to 6 years.

From 6 months and 1 day to 2 years and 4 months.

From 2 years, 4 months and 1 day to 4 years and 2 months.

From 4 years, 2 months and 1 day to 6 years.

Arresto Mayor

From 1 From 1 to month 2 months. and 1 day to months.

From 2 months and 1 day to 4 months.

From 4 months and 1 day to 6 months.

Arresto Menor

From 1 to 30 days.

From 1 to 10 days.

From 11 From 21 to to 20 30 days. days. Now, what is the importance of knowing the Mitigating Circumstances? Mitigating Circumstance Mitigating Circumstance will not relieve the offender from criminal liability, if he is liable. But, the penalty is lowered. There is discount, discounted! So for example, the penalty is Reclusion Temporal and there is an Ordinary Mitigating Circumstance and no Aggravating Circumstance, the penalty will be imposed in the Minimum. Provided that the Mitigating Circumstance present can be considered Ordinary Mitigating. But for example, no Mitigating, there is Aggravating – the penalty to be imposed will be in the Maximum. Don‘t forget that we are talking here with years. Meaning to say, if your penalty supposedly is 8 years, now it will be 12 years. Another example, there is No Mitigating, no Aggravating, impose in the Medium. Two Kinds of Mitigating Circumstances: Ordinary and Privileged Privileged Mitigating We have Minority. Provided, over 15 years but below 18 years who acted ―with discernment‖. Because a minor below 15 or above 15 or under 18 who acted without discernment is exempt from criminal liability. Another privileged mitigating is Incomplete Justifying or Exempting Circumstances provided MOST of the elements are present. Example, there is unlawful aggression and there was no sufficient provocation on the part of the person defending himself BUT the means used is not reasonable. That is an example of privileged mitigating. Provided further that, as regards self defense, defense of relatives, defense of strangers, unlawful aggression must be present. What is the effect of the presence of Privileged Mitigating? The penalty will not only be lower by period but by degree. For example, a minor killed. That‘s homicide. The penalty to be imposed is Reclusion Temporal, BUT since Minor, one degree lower, Prision Mayor. Penalty is lowered by one degree. The same with incomplete justifying or exempting provided that

most of the requisites for justifying or exempting must be present. There are times when a period is considered a degree – if that is expressly provided by law. Example. Look at the penalty for Sedition (Art. 139) – Prision Mayor in its Minimum period. The period there is used as a degree and not period. So you further divide it into 3 periods because that is divisible. But that is the exception. Generally, it is one whole penalty. Privileged Mitigating Circumstances 3. When there are 2 or more ordinary mitigating circumstances and no aggravating circumstance  The penalty can be lowered by one degree.  Only applicable to divisible penalties.  If ordinary mitigating only, it is lowered to minimum period.  Ordinary mitigating circumstances are those mentioned in Article 13  In incomplete and justifying, the majority requisites must be present. Otherwise, if only one is present such as unlawful aggression, it is not anymore privileged mitigating but only ordinary mitigating circumstance.  In ordinary mitigating circumstance where the penalty is lowered to the minimum period, it will only be used if the imposable penalty is divisible. What is the difference between ordinary mitigating and privileged mitigating? In PM, it can lower the penalty by one degree. Whereas in OM, lowered only until the minimum period of the imposable penalty. In PM particularly in minority, it cannot be offset by any aggravating circumstance. It will always lower the penalty by one degree. Whereas OM can be offset by aggravating circumstance. The PM can be applied even if the penalty imposable is indivisible. In other words, if a minor committed murder where the penalty is reclusion perpetua which is indivisible, the court cannot impose reclusion perpetua because of his minority. The penalty will always be lowered by one degree even if the penalty imposable is indivisible. ART 13 (1) This refers to justifying or exempting circumstances wherein not all of the requisites are present. As regards self-defence, defence of relatives and defence of stranger, unlawful aggression must be present. If majority are present, then that is privileged mitigating. If not, that is only ordinary mitigating.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D ART 13(2) Repealed by RA 9344 Offender is over 15 but under 18 – privileged mitigating but acted with discernment Accused is over 70 years – mitigating The minor that‘s exempt shall undergo intervention. But if he is not exempt because he acted with discernment, he will undergo diversion. ART 13(3) That the offender has no intention to commit so grave a wrong than that committed. Praeter intentionem Ex: Accused boxed victim because the victim boxed his son. but when he boxed the victim, he wasn‘t able to control his blow, the victim fell to the ground hitting his head first. Victim died. What is he liable for? He could be liable for homicide although his main intention was only to inflict physical injuries. Intent to kill now is presumed. Penalty is minimum od reclusion temporal. In parricide, lack of intent to commit so grave a wrong cannot mitigate the penalty because the penalty is reclusion perpetua which is an indivisible penalty. This mitigating circumstance is not applicable to felonies by negligence. Ex: Reckless imprudence resulting to homicide, lack of intent to commit so grave a wrong will not apply. Because that presupposes that he has the intention to commit the offense Intent is a state of mind Consider surrounding circumstances:  Weapon used  Nature of injury/where blow was directed  Attitude of the mind/manner of commission ART 13(4) Sufficient provocation on the part of the victim immediately preceding the act the act of the victim is lesser act in such a way that it does not constitute an unlawful aggression (otherwise it will now be considered self-defence) the act of the victim is merely considered a sufficient provocation or threat and does not constitute unlawful aggression Requisites:  act of victim is lesser that it would not constitute as an unlawful aggression  provocation must be sufficient and preceding the act  no interval of time CASE IN POINT: PP V MANANSALA Acts of provocation but not sufficient:  Blowing of horns  Cutting lanes

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 Overtaking The provocation refers to the unjust or improper act or conduct that would incite or irritate the accused.

ART 13(5) Immediate vindication of a grave offense for the one committing the felony The grave offense is done to:  One committing the offense  Spouse  Ascendant  Descendant  Legitimate, natural, or adopted brother or sister (immediate relatives)  Relatives by affinity within same degree Here, the victim committed an offense. The offense here need not be unlawful as long as the act prompted the accused to commit the crime. The grave offense need not be unlawful CASE IN POINT: PP vs DIOKNO  The accused (father) stabbed the victim because the victim eloped with his daughter.  2 to 3 days lapse of time Immediate  There could be lapse of time between the commission of the crime and the act CASE IN POINT: US v AMPAR  Sarcastic remark may be considered as a grave offense ART 13(6) Passion or obfuscation  the accused losses his reason and self-control  so the victim committed an act which caused obfuscation on the part of the accused  must have acted on an impulse so powerful  must arouse from lawful sentiments CASE IN POINT: US v HICKS  In this case, victim and accused lived together without marriage. When victim decided to leave accused, the latter stabbed him. Accused raised the mitigating circumstance of passion and obfuscation. SC said that passion or obfuscation must arise from lawful sentiments. Since there was no marriage, victim is still free to leave the accused. Compare to US v DE LA CRUZ, 22 Phil 429  In this case, accused and victim lived together without the benefit of marriage. Accused caught victim (in flagrante) having sexual intercourse with a man. Accused killed his live-in partner. SC said considered passion or obfuscation as a mitigating circumstance. The impulse was caused by sudden revelation that she was untrue to

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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him and his discovery of her, in flagrante, in the arms of another man. CASE IN POINT: US v MACALINTAL

ART 13(7) 2 Mitigating circumstance:  Voluntary surrender and  Voluntary surrender must be made before a person in authority (Mayor, Brgy. Captain, Judge) or his agent (policemen, Brgy. Tanod, law enforcers)  voluntary plea of guilty (confession) Surrender to media personality – not mitigating TN: Person who surrendered must acknowledge his guilt If purpose is just to clear the accused‘s name, it is not mitigating. If no warrant served – mitigating even if the accused knew its issuance and then he surrendered Voluntary plea of guilty  Must be made in open court  Must be made before the prosecution starts presentation of its evidence June 10, 2016 Part 5 Voluntary Surrender Spontaneous o Done in a manner that the accused surrendered unconditionally to the authorities because: i. Acknowledge guilt ii. Save the trouble and expense in capturing him Voluntary Plea of Guilt 1. Made in open court with competent authority 2. Made before the prosecution has started presenting its evidence 3. Spontaneous plea of guilty to the crime being charged a. If the accused pleaded guilty to a lesser offense by reason of the plea bargaining by the accused and the prosecution. The plea of guilty to a lesser offense is not mitigating. i. When the accused is charged with murder and due to the plea bargaining between the accused and the prosecution, the accused pleaded guilty to the lesser offense of homicide. His plea of guilty cannot be considered mitigating. ii. If the accused was originally charged with murder but later on the prosecution amended the charge into homicide. When arraigned in the amended information, the accused pleaded guilty to homicide. Is it mitigating? 1. Yes, because the crime charged is now homicide.

Pleading guilty is mitigating to the crime charged shows repentance of the accused. By pleading guilty, the prosecution has saved a lot of time and effort. It is just right to lower the penalty. Sometimes it is favorable to the client if the advice of the lawyer is to plead guilty depending on the circumstance. Ordinary mitigating circumstance is only applicable if the penalty imposable is divisible. If the crime charged against the client is murder. Advising him to plead guilty would not lower the charge and is still Reclusion Perpetua. The plea of guilty of the client cannot help him. But there is no stopping him if the client really wants to plead guilty for moral/spiritual reasons. Just remember to inform him of the consequences of his plea. People vs. Mendoza The accused pleaded guilty The court acquitted him despite of the plea Plea of guilt is a judicial confession, not just an admission The confession does not necessarily mean conviction If the court believes that there is no evidence against the accused then the trial court is not duty bound to convict the accused. Par.8 – The offender is deaf, dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense or communication with his fellow beings. Physical defect of the accused It is not automatic The defect must be in connection or related to the manner of committing a crime. o If the accused is seen limping and is charged with grave oral defamation. His limping is not related to his defect therefore not mitigating. o If a blind man stabbed another person or shot another person, his blindness is mitigating. His defect is in relation to the manner of committing the crime Par. 9 – Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts. Although the accused is not completely insane, he is diagnosed to be feeble minded. (dili buang pero buang-buang lang) mentally retarded. He is entitled to a mitigating circumstance because of illness. As long as it diminishes the will power of the accused, it is mitigating. Par.10 – And, finally, any other circumstances of a similar nature and analogous to those above-mentioned. Analogous circumstances Similar circumstances related to the other mitigating circumstances. Over 60 years old. With failing eye sight (similar to over 70 years old) People vs. Reantillo CA case

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

Voluntary Restitution of Stolen Property Voluntary Reimbursement of Malversed Funds (similar to voluntary plea of guilt) Extreme Poverty (similar to incomplete justifying of state of necessity) Mitigating circumstances is not applicable to all accused. Personal only to an accused Not applicable to co-accused o A and B committed a crime. A is a minor but B is already of age. Minority only applies to A. The function of a mitigating circumstance will lower the penalty imposed. There is a difference between penalty imposable and penalty imposed. Penalty Imposable is penalty prescribed by law Penalty Imposed is the penalty actually given depending on: o Stage o Mitigating circumstances o Aggravating circumstances Mitigating Aggravating Lowers the penalty Penalty Imposes the to its minimum penalty in the maximum Lowers the degree 2 or more Present Only imposes the of the penalty without the other penalty in the maximum Aggravating Circumstances: 1. Generic – refers to aggravating circumstances which are applicable to all crimes. 2. Specific – apply to particular crimes (treachery is only applicable in crimes against persons) 3. Qualifying- changes the nature of the crime to a more serious offense a. Evident premeditation or treachery raises homicide into murder 4. Inherent – necessarily included or accompany the commission of the crime, does not increase the penalty imposed a. Part or one of the elements of the crime i. Malversation – public officers taking advantage of public authority. ii. Robbery - Evident Premeditation 5. Special – arise under specified conditions to raise the penalty a. Cannot be offset by any ordinary mitigating circumstances Aggravating Circumstances 1. Must be alleged 2. Proven during trial. If it is proven but not alleged then it cannot be considered. If it is alleged but not proven, it cannot be considered as well to increase the penalty. Exc. If the prosecution wants to present evidence, not for the increase of the penalty but for purposes

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collecting civil liability against the accused then it can be allowed. If aggravating is present then moral and exemplary damages may be awarded.

Chapter Four CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY Art. 14. Aggravating circumstances. — The following are aggravating circumstances: Aggravating Circumstances The accused is very mean here so the penalty will be increased EX:  Stealing inside the church,  Killing someone in his home,  One is a public officer and he uses his position to commit the crime/to facilitate in the commission of the crime,  Committed the crime during nighttime so that you will not be identified The presenceof this could be the basis for the court in awarding moral and exemplary damages and other forms of damages to the victim, as well as attorneys fees If that is the purpose of the prosecution then they present evidence to hold the accused liable for damages then it can be allowed even if the aggravating circumstance/s to be proved are not alleged in the information/complaint 1. -

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EX:

That advantage be taken by the offender of his public position. Offender is a public officer, a government employee Why is it aggravating? The party officer here committed a crime and he committed the crime abusing his position and had it not in his position he could not have committed the crime It is not automatic that once you are a public officer and you commit a crime, aggravating. It is not automatic. It must first be proved that the accuse abused his office/used his office in order to make it easier for him to commit the crime or because of this public office or of not because of this public office he could not have committed the crime 

You are a policeman you are assigned as a jailer. While being assigned as a jailer you killed a prisoner. If you were not a police, you could not have been assigned as a jailer or guard for the prisoner. You could not have also killed him or you could not have committed the crime. o There was abuse of your position so because of that it is considered aggravating.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D EX:

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EX:

The accused took advantage of his public position, in order to be considered aggravating 

The accused is a policeman and he used in killing his victim his service firearm. Is the use of his service firearm considered aggravating? (PP vsVillamor, January 15, 2002) o No o In order to be considered aggravating it must be proved that the accused took advantage of his position. o The mere fact that the accused who used his service firearm in the commission of the crime is not considered aggravating. As what we have said earlier, although as a rule the presence of aggravating circumstances will necessitate the imposition of the penalty in the maximum period but when that aggravating circumstance is already inherent in the commission of the crime, the same will not anymore be considered. That aggravating circumstance will not anymore be considered to increase the penalty. 

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EX:

A policeman committed murder or homicide because he killed the prisoner. o Being a public officer is not an element of homicide or murder. The aggravating circumstance will be considered to increase the penalty to the maximum period. The policeman is assigned as a custodian of a public property but he misused it and he is charged with malversation. o In the crime of malversation, public office or being a public officer is already inherent. And because it is already inherent, the mere fact that he is a public officer will not anymore increase the penalty.

That the crime be committed in contempt of or with insult to the public authorities. What do you mean by pubic authority? This refers to persons in authority. Who are persons in authority? We have barangay captain, barangay councilors under the LGC, mayor, governor, judges The accused here committed the crime in the presence of a person in authority who is performing his duties outside his office Are there public officers who in performing his duties do it outside of his office? Yes, like mayors when they inspect drainage project or schools being built. 

EX:

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The barangay captain was supervising a disco party in his barangay. While checking up on whether there was peace and order in the disco party a man suddenly stabbed another person in front of him. Is this aggravating circumstance present? o Yes o The crime was committed with insult to the public authority.  On TV, wherein there‘s a part that they catch a thief or snatcher or killer or one who stabbed another and then the victim or relatives comes out in front of the police then boxes the accused. If a case is filed against the suspect, will it be considered or appreciated an aggravating circumstance? o No o The crime was not committed in the presence of a person in authority but merely an agent. The crime must not be committed against the public officer. The crime is merely committed in front or in the presence of the public officer. The victim is not the public officer himself. It is still an aggravating circumstance if the public officer is the victim but this is not the correct provision but under Par 5. It falls under a different circumstance. In order to be aggravating, it is necessary that the accused must know that he committed the crime in the presence of a person in authority.

EX: 

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Suppose the mayor while inspecting a particular project, which is supervising or overseeing the clearing of the sidewalk or clearing of the

informal settlers along the creek or along the river. Suppose in his presence, in front of him the offender stabbed another person. Is it not an insult on the part of the mayor? o That is an insult. o This aggravating circumstance is present. The crime is committed in contempt of or with insult to a person in authority. The public officer here is performing his duties outside his office.

He knows that he is a barangay captain but he does not know that a barangay captain is a person in authority. o Ignorance of the law. o The same will not excuse him. The public officer must be performing his duties outside his office. That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that the crime is

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D committed in the dwelling of the offended party, if the latter has not given provocation. There are 4 aggravating circumstances here 1. Disrespect of the offended party on account of his rank o What should one do when a person has a high rank? The accused should respect him. o What happens if one disrespects him? You instead stab him. That is aggravating. o Rank refers to the high social standing or position. So, in to other words there must be a difference in the social standing or social condition between the offender and the offended party in order for this aggravating circumstance to be considered.

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EX:

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 3.

Accused is just a civilian and the victim is a general of the Philippine army. o There is disregard of his rank. Disrespect of his age o Supposed to be that when one is already a senior citizen, one should respect him o Suppose that instead of respecting him, you stabbed or killed him

facts and you may be required to enumerate what are the aggravating or mitigating circumstances present and you would be required to explain why you considered it as an aggravating or mitigating circumstances. So we should understand this. 4. Dwelling o In order for dwelling to be considered the building or structure must be exclusively used only for rest and comfort.  A combination of house and store that is not considered a dwelling. (PP vsMagnaye, 89 Phil 233, 239)  A market stall that is used as sleeping quarter for the owner of the stall cannot be considered a dwelling. o In order to be considered aggravating, the crime must be committed inside the dwelling of the victim. o It could be that the accused is outside the dwelling while the victim is inside his dwelling. EX:

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He is standing near the window while the accused was outside then he shot him from here.  That could still be aggravating. o Dwelling also includes dependencies, such as garage, foot of the staircase, and enclosure under the house. (US vsTapan, 211, 213, PP vs Alcala, 46 Phil 739, 744) o If the victim is killed while she is climbing up the stairs, that would be considered aggravating since it is part of the dwelling.

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If the victim is a mere visitor because it was a fiestaand he was seen by his enemy then was killed. Aggravating?  TN that in order to be considered aggravating the victim must be the owner of the dwelling or house where he is killed or at least he must have been staying there as a bed spacer, lessee, or boarder, or even as mere guest.  Guest – must have been staying there not a casual guest

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The victims, while sleeping as guests in the house of another person, were shot to death in that house were killed. Dwelling was considered aggravating. (PP vsBasa, 83 Phil 622, 624) o The offender and the offended party are occupants of the same house? Dwelling is not aggravating. o EXCEPT: in adultery o The SC considered dwelling as an aggravating circumstance when adultery is committed in the dwelling of the husband

A 90-year sold is being stabbed by a 20 years old. o There could be lack of respect on account of his age. Disrespect of his age o Sex here refers to a female

EX: 

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The accused in order to take revenge since he had a relative that was killed by that group. He killed the female members of that group who killed his relatives. He selected and killed a female relative of the killers in retaliation. (PP vsDayug, 49 Phil 423, 427) o This is aggravating. Direct assault upon a lady teacher. (Sarcepuedesvs PP, 90 Phil 230, PP vsManapat, CA, 51 OG 894) o This aggravating circumstance, lack of respect on account of sex was also considered. o Sex is inherent in the crime of rape

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EX: 

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A 90-year old woman is being raped. What aggravating circumstances are present in the case? o Age o What about sex? It is not anymore considered because it is inherent in that crime. In order to be considered, it must be shown that the accused deliberately insulted or disrespected the offended party on account or despite of his rank, despite of his age, or sex ***These should be memorized or familiarized since bar questions or in the bar, you will be given a set of

EX:

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D even if it is the dwelling of the unfaithful wife. (US vs Ibanez, 33 Phil 611, 613) 4. That the act be committed with abuse of confidence or obvious ungratefulness. Abuse of confidence, meaning the victim must have trust and confidence on the offender Offended party trusted the offender and the offender abused such trust by committing the crime and the abuse of confidence facilitated the commission of the crime Once you have trust upon a person, you will be less watchful EX:  A nanny killing the child that she is watching. o There is abuse of confidence when a domestic servant kills or killed the child she is watching. The victim must have trust and confidence in the accused. Par. 4 That the act be committed with abuse of confidence or obvious ungratefulness OBVIOUS UNGRATEFULNESS Ungratefulness must be obvious. This aggravating circumstance was present in the case of the accused who killed his father- in- law in whose house he lived and who partially supported him. People vs Floresca, 99 Phil 1044

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The circumstance also exists when a visitor commits robbery or theft in the house of his host.

Par. 5 That the crime be committed in the Palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties or in a place dedicated to religious worship. 4 AGGRAVATING CIRCUMSTANCES IN PARAGRAPH 5: Crime is committed in the Palace of the Chief Executive -

Crime is committed in his presence Here, the president need not be in Malacanang. The president need not be doing his official duties, because his presence alone in any place where the crime is committed is enough for this aggravating circumstance to be appreciated. -

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In one case, a foetus was found in one of the crs in Malacanang Palace. The crime committed is abortion with this aggravating circumstance because the abortion was committed inside the Palace of the Chief Executive. This is aggravating even if the president was not in the Palace at the time the crime was committed.

Example: President- elect Digong was invited as guest speaker at a graduation exercise in San Jose, and while delivering his speech somebody got killed, then this aggravating circumstance is present- that the crime was committed in the presence of the Chief Executive.

The crime is committed where public authorities are engaged in the discharge of their duties. The word ―where‖ presupposes a place. Therefore the crime was committed in the office or in the place where the public authority is discharging his duties. The victim here could be the person in authority and the crime was committed inside his office or in the place where he is discharging his duties. -

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Example: In one case, one of the teachers or one of the members of the Board of Election Inspectors was killed inside the election precinct. In this case, this aggravating circumstance was present because the crime was committed in the place where a public authority was engaged in the discharge of her duties. Example: While conducting a court hearing, the judge is killed. Here, this aggravating circumstance is also present because the crime was committed in the place where the public authority was engaged in the discharge of his duties. Place where public Contempt or insult to authorities are public authorities engaged in the (par. 2) discharge of their duties (par. 5) In both, the public authorities are in the performance of their duties. The public authorities who are in the performance of their duties must be IN their office.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

The public authorities are performing their duties OUTSIDE their office.

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D The public authority should NOT be the offended party.

aggravating circumstance that the crime was committed in a place dedicated to religious worship, present here?

Case: Remember that case of the Canadian who intruded the court? He killed the lawyer and the doctor- plaintiff inside the court, nuon at that time the hearing hasn't started yet.

A: NO. Because in order to be considered aggravating, the offender must already have the intention to commit the crime when she entered the place. In this case, the SC said that the accused did not have murder in her heart when she entered the chapel because in the first place she did not know that the victim would be there, so this circumstance was not considered in imposing the penalty. People vs Jaurigue, 76 Phil 174

The public authority MAY BE THE OFFENDED PARTY.

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The crime is committed in a place dedicated to religious worship.

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Example: When a thief or pickpocket took away your cellphone while you were in a mass. What aggravating circumstance is present in this case? Ans. That the crime was committed in a place dedicated to religious worship.

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Examples of places dedicated to religious worship: o Church o Temple o Chapel o Mosques

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

Nighttime means from dusk to dawn.

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Q: Is it automatic that when a crime is committed during nighttime, nighttime is aggravating? A: NO. For it to be considered aggravating, nighttime should be 1. especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or 2. that it facilitated the commission of the crime; or 3. that the offender took advantage thereof for the purpose of impunity.

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Example: The accused, in order to kill the victim purposely waited for him at a dark place, so nighttime is aggravating.

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Q: What about if the crime was committed at nighttime but the place was lighted, let‘s say at Fuente Osmena? Is nighttime aggravating?

Q: What is the reason why it is considered aggravating? A: Lack of respect of the place. HE committed the crime in a place which should be considered holy.

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Q: How about if the crime was committed in a CEMETERY? A: The Supreme Court in one case said NO. Cemeteries are not such a place, however respectable they may be, as they are not dedicated to the worship of God.

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Case: There‘s this girl (accused) who was so pissed about this guy (victim) who often confesses his affection for her and who at that time was courting her. She gets irritated everytime she sees the guy because he is bastos and touchy. And so one time, she started bringing a knife with her wherever she goes. It so happened that while inside the chapel for a novena the accused came, sat beside her and started confessing and touching her again. And so the girl got his knife and stabbed him. The victim died. Is the

A: NO. It must be dark. If it is lighted then of course nighttime did not facilitate the commission of the crime. It negates the notion that the accused had especially sought or taken advantage of nighttime in order to facilitate the commission of the crime. -

The only question you have to take note of is ―Did the accused purposely commit the crime at nighttime to

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D consummate the commission of the crime?‖ If the answer is yes then that is aggravating. 2.

Uninhabitted place Meaning the houses are so far from each other that it would be hard for the victim to receive some help. Specially in remote places, ie. in the mountains. -

If the accused specially committed the crime in a place where the houses are very far from each other or there are no persons staying in that place then that is aggravating.

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IF THE CRIME IS COMMITTED IN THE MIDDLE OF THE SEA. For example the victim is a member of Bantay Dagat (that who apprehends illegal fishermen). The accused believing that the victim was the one who reported him, waited for the victim at the middle of the sea and stabbed him. What aggravating circumstance is committed in that case? Ans. That the crime was committed in an uninhabited place. It is aggravating because the crime was perpetrated in the OPEN SEA, where no help could be expected by the victim and the offender could easily escape punishment.

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The offender took advantage thereof for the purpose of impunity.

By a band Band is present where there are more than 3 armed malefactors who have acted together in the commission of the crime. In other words, band is present where there are at least 4 armed malefactors. -

Example: If there are 10 of them but only 3 are armed, is band present? NO. There must be at least 4 persons.

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Case: A rock is considered a deadly weapon. So if 3 have knives while one has a rock then there is band.

ALL THE ARMED MEN, AT LEAST 4 IN NUMBER MUST TAKE DIRECT PARTICIPATION IN THE COMMISSION OF THE CRIME. -

So if one of the 4 armed persons is a principal by inducement then they do not form a band.

Par. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. Conflagration- during fire. -

Example: While the victim is occupied securing his things, the accused commits robbery.

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Example: That time when one person screamed ―Tsunami!‖ causing the people to ran up the mountains leaving behind their houses. Then the accused took advantage and stole things from these houses. What aggravating circumstance is present in this case? Ans. That the crime was committed on the occasion of epidemic or calamity or misfortune.

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Case: There was this bus accident in Talisay, where people in the vicinity finished the lives of the accident survivors to consummate robbery, at the same time eliminate witnesses. So this aggravating circumstance is present.

Par. 8 That the crime be committed with the aid of (1) armed men, or (2) persons who insure or afford impunity. With the aid of armed men (par. 8) If less than 4 armed malefactors. They may or may not participate in the crime.

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By a band (par. 6) At least 4 armed malefactors All must have participated in the commission of the crime.

Aid of armed men is absorbed when band is present. ―Armed men‖ includes armed women.

Par. 9. That the accused is a recidivist. Who is a recidivist? -

One who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC.

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Note: To know if an offender is a recidivist, it is important to know the different crimes under a particular title.

The reckoning period here is at the time of trial.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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The accused must ALREADY BE GUILTY BY FINAL JUDGMENT. If his case is still pending appeal at the time of the trial for the second crime, then he is not considered a recidivist. NOTE: THE PRIOR CRIME MUST HAVE BEEN COMMITTED PRIOR TO THE COMMISSION OF THE PRESENT CRIME. Because it is possible for one to be convicted first of a prior offense. Example: Charged with theft but the accused hid. Being at large, his case will in the meantime be archived because his presence is important specially in arraignment. So while he is still at large, the case shall be archived. Supposed that while the accused was hiding, he committed another crime of theft. This time he was arrested. Because he was arrested in the present crime, he was tried and convicted for this later crime. When that court where the first crime of theft learned of his conviction, they likewise required the appearance of the accused in that first court. Accused was tried and convicted for the crime of theft he first committed. But take note that during the trial of that first case, he was already convicted of this present case. Is he a recidivist? Ans. NO. Because in order to be considered a recidivist, the ―previous crime‖ to which you are convicted must have been committed prior to the second.

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THE TIME INTERVAL DOES NOT MATTER. Example: The first crime was committed in 1980, while you were 18 years old. Now you are already 40 years old, you are again convicted of a crime under the same title. You are still considered a recidivist because time interval does not matter.

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IT COULD BE THE SAME CRIME. IT COULD BE EXACTLY THE SAME CRIME.

Reitiracrion / Habituality – need not fall under same title as distinguished from that of recidivism ELEMENTS: 1. Accused has been previously convicted and served his sentence for that crime when he is tried for that crime 2. Penalty for that previous crime is either equal or more serious than the penalty for the present crime For example, you were previously convicted for forcible abduction. Now you are convicted and you have fully served your sentence. Now you are charged with another offense, shall we say serious physical injuries, take note that the penalty for forcible abduction is more serious than the penalty for serious physical injuries. So when you will be convicted of this charge, then the aggravating circumstance of habituality shall be considered. Now what about if the accused has been convicted of forcible abduction and now he is tried for homicide? What will be the aggravating circumstance for this? Now the penalty for this offenses are equal, once the accused is convicted for homicide, then the aggravating circumstance of habituality shall apply. What about if it is the reverse? The accused is convicted with serious physical injuries, then later on charged with forcible abduction, what if he gets convicted with the latter charge? Will the aggravating circumstance of habituality apply? The answer is NO. Because as what we have said, when the penalty for the previous offense is lesser than that of the present, it is necessary that it must be 2 crimes/convictions for the previous offense. Again in reitiracion, the crimes do not belong under the same title, otherwise it will be recividism. Quasi- recidivism – Accused committed another crime before serving sentence or while serving sentence for the previous crime committed. (Article 160) -

Example: If before you were convicted of theft and now you are again convicted of theft, then the aggravating circumstance of recidivism shall be considered. Example: If before you were convicted of theft and now of estafa, then the aggravating circumstance of recidivism shall also be considered.

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2nd crime must be a felony; 1st crime need not be a felony Cannot be offset by any ordinary mitigating circumstance; 2nd crime should be penalized in the maximum. Under article 160, the law expressly provides that the penalty for the 2nd crime should be in the maximum. This is what we call special aggravating circumstance

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Multi-recedivism / Habitual delinquency – ELEMENTS: 1. Accused committed 3 crimes; 2 of which are already final and executor or could have serve sentence and at the same time under trial for another crime. 2. Crimes committed could either be or a combination of the ff: a. Falsification b. Estafa c. Theft d Robbery e. Less serious and serious physical injuries 3. That the time interval must not exceed 10yrs from conviction or release. - 3rd conviction, additional penalty; accused will serve 2 sentences successively. Example: Theft. Accused is a master of theft, for example he‘s been convicted for theft during 1997, then in 2006 he was convicted again for theft, then last January 2016, he committed another crime for theft and now the case is pending for trial. Supposed he is convicted for the 3rd crime, what will be the effect of such circumstance in the imposition of the penalty for the 3rd crime? Is he a multi-recidivist? Yes, since the requisites are present as provided above. In this case, there would be an additional penalty, not just the maximum of the original penalty, it is as if he committed another crime, so he is going to serve 2 sentences SUCCESSIVELY. The penalty for the 3rd offense is prision correctional in its medium period. For example, in the example above, accused was convicted for a crime of theft on 1997, but was instead released in 2000. Now let‘s say he committed a crime in 2009, is he a multi-recidivist? Yes. Now take note that the reckoning point for the counting of the 10yr interval could either be the time of conviction or at the time of release. (these kinds of repeat offenders are favorite questions in the Bar) Par. 11. Crime be committed in consideration of a price, reward or promise. -crime must be committed by reason of price, reward or promise; primary consideration

- A person who committed such has his own reason other than the price, reward or promise; not aggravating - the price, reward or promise must be made prior to the commission of the crime So for example, you did not agree with your neighbor, and the latter killed your enemy, and after the killing you gave him a bonus, aggravating? No. In order for it to be aggravating, the giving of the price, reward or promise must be the primary consideration why the crime was committed. Par. 12. Crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel, or intentional damage thereto; derailment of a locomotive or a by the use of any other artifice involving great waste and ruin. Example: Now, what is the crime committed if you purposely burn the building/house, but without your knowledge, a person was inside and died by the fire. The burning of the house is arson. What about the killing? Not arson with homicide. If the main purpose is to burn the house/building, and a person is killed instead, the crime is Arson. But the main purpose is to kill the person and burn the house as a means, then the crime is Murder. What about you kill the person first and in order to hide the crime ,you burned the house. Then there are 2 crimes committed, either murder/homicide or arson. -People vsMalngan 503 SCRA 294 What we‘re talking here in par. 12 is that the crime is committed by means of fire, poison, explosion etc2. Aggravating circumstances in this paragraph, are aggravating circumstances for Murder. June 12, 2016 Part 6 13. That the act be committed with evident premeditation. Evident premeditation –presupposes that there was deliberate planning of the method means and time of the commission of the offense. -one of the common circumstance that qualifies killing into murder. Deliberate planning – presupposes a sufficient lapse of time from the time the accused conceivedthe idea to commit the crime up to the time he committed the crime. What is a sufficient lapse of time(for the accused to reflect on the consequences of the crime he is planning to commit)?

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

SC is not consistent with this. - There was one decision that 1 hour was sufficient for the accused to reflect on the consequences of his act. (People vs Dumdum) - Another case, 2 hours was not sufficient (Pp vs Crisostomo) - Another, 3 hours was a sufficient lapse of time. (Pp vs Gausi 6/29/63) -JUDGE: So more or less, 3 hrs. But take note of those cases with 1 and 2 hrs.

Requisites of Evident Premeditation: (must be proven by the prosecution) 1. The time when the offender determined to commit the crime; 2. An act manifestly indicating that the culprit has clung to his determination; - There must be an external act. An example: In the morning, A told X, ―Ikaw ha, wala pa ta nahuman!‖. At noon time, A was seen sharpening his knife. (J: why was he sharpening his knife? That shows that A clung to his plan to commit the crime.) 3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will. Examples: a. Accused prepared a grave for the victim. So he planned that after he kills the victim, he‘ll bury him. There was evident premeditation Here, the accused showed acts that indicate his preparation for the commission of the crime. Take note:  When the victim is different from that intended – evident premeditation is NOT AGGRAVATING  Evident premeditation may be considered as present, even if a person other than the intended victim was killed, if it is shown that the conspirators were determined to kill not only the intended victim but also anyone who may help him put a violent resistance. (Pp vs Ubina)  It is not necessary that there is a plan to kill a particular person in order for evident premeditation to be considered.  US vs Manalinde: Manalinde was told by a ―Mamarang‖ (kanang mu barang/casts a spell) to do a certain mission, and if he accomplishes it, he will be given a new, pretty, young wife. His mission was to kill the first 2 people he sees. After 3 days, Manalinde arrived the city, he indeed killed the first 2 people he saw. He was charged with 2 counts of murder. Can evident premeditation be considered, considering

that Manalinde had no particular person in his mind to be killed? - No. It is not necessary that the accused planned to kill a particular person. There was a sufficient lapse of time to reflect on his plan. 3 days passed before he committed the killings. 14. That the craft, fraud or disguise be employed. Craft - intellectual trickery and cunning on the part of the accused – refers to an act done by the accused so that the victim will not have any suspicion that the accused is planning to commit an act against him E.g. - The accused planned to rape a newly acquainted woman. He invited the woman to have some refreshments. He slipped a drug that causes sleep in her soda. The woman passed out and so the accused was able to rape her. CRAFT! - The accused pretended to be soldiers so that they could enter the place of the victim. CRAFT! Fraud - insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design. E.g. General Bautista was called by one Osman Sali, a Muslim rebel. The latter told General that they wanted to surrender to Gen. personally; that they will meet in the city; that the military should not bring arms. General Bautista agreed to Osman‘s requests. When the 2 met in the city, many armed Muslim rebels appeared and shot General Bautista to death. Murder! Insidious words that allowed the victim to be offguard: ―We want to surrender.‖ J: So always be careful with words, makailadna.Angubanana ma biktimaog HIT and RUN! Disguise - resorting to any device to conceal identity e.g. - Accused wears a wig so that he would appear to be a woman. - Accused wears a bonnet/full-face helmet (usually seen in riding-in-tandem, murag ninja!) J stressed about his disapproval of car s with no plate numbers: ―For registration‖ – here, police officers cannot identify the car owner in the event the car owner commits road violations. This is one way to conceal identity.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 15. That advantage be taken of superior strength, or means be employed to weaken the defense. When can you say that the offender/s is/are superior in strength? - superior in number - superior in weapon/arms - superior in force **But TN that the above is not automatic. It must be shown that those people TOOK ADVANTAGE of their superiority. No advantage of superior strength in the ff: - when a quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man - when the offender attacks another with passion and obfuscation Advantage of superior strength present: -accused killed a 6 month old baby/ 5 yr old child of tender years. TN(take note) the killing of a child may be taking advantage of SS/ treachery. Means to weaken the defense e.g. - the accused let the victim drink plenty of wine until the latter got drunk and killed him - accused threw sand on the eyes of the victim/used pepper spray 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. Treachery - when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party/ victim might make. - theattack here is sudden and unexpected; the means used must be deliberate - the essence of treachery is that the victim does not have the opportunity to put up a defense e.g. The victim and the accused had an argument. Suddenly Y pulled a knife and stabbed X. Is there treachery? - No. The attack may be sudden, but it was not unexpected considering they had a heated argument. Take note:  Killing of a child of tender years is always murder. Again, Abuse of Superior Strength/Treachery is present because the child could not put up a defense.

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True even if it was not shown or proved how the attack was done. Treachery is always present. If there is treachery, normally, the prosecution must prove the means, methods and forms of attack, for it to be considered. But if the victim is a child, there is no need for the prosecution to prove these. Not necessary that wounds must be found at the back of the victim to consider treachery Though wounds are frontal, it does not necessarily follow that there was no treachery. Treachery must be established by PROOF BEYOND REASONABLE DOUBT. It can never be presumed.

Aggravating Circumstances that are absorbed in Treachery: 1. Abuse of superior strength 2. Aid of armed men 3. Band 4. Means to weaken the defense 5. Nighttime 6. Craft 7. Age 8. Sex 9. Poison Problems: 1. X and Y were having a fist fight. In the course of their fist fight, Y pulled a knife. When X noticed this, he ran away from Y and the latter chased him. X stumbled on a stone and wasn‘t able to get up anymore. Y caught up and stabbed X in the back by Y. Is there treachery? - NO.In order for treachery to be considered, treachery must be present at the inception/start of the fight. Here, at the start of the fight there was no treachery because they were having a fist fight. At the end of the fight, when Y stabbed X when latter was defenseless, treachery cannot be appreciated. 2. X planned to kill the governor. X went inside the governor‘s office and had a short talk. When X noticed that the governor was not armed, X shot and was able to hit the former‘s shoulder. The governor ran and ran until he was cornered. He found a cabinet, and so the governor went inside it and locked himself, and shouted for help. The accused, X, stopped for a while, and tried to discern by looking at the cabinet, where the head of the governor was. Afterwhich, X shot the cabinet, where he thought the head was, and the governor died. Was there treachery? - SC said that at the start of the fight, there was no treachery because the governor was able to run away. But considering that there was a break in the continuity in the attack – when X stopped for a while and tried to discern where the head of the governor was – there was already treachery. (US vs Baluyot. 40 Phil. 385) – ―If there was a break in the continuity of the aggression and at the time the fatal wound was inflicted on the deceased he was defenseless, the circumstance of treachery must be taken into account.‖ (pg445 of JBL Reyes‘ book)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D General Rule, if there is no treachery at the start, treachery cannot be appreciated even if at the end of the attack the victim was already defenseless UNLESS there is a break in the continuity of aggression.

Unlawful Entry

Remember, treachery can be appreciated even if there is error in personae or aberratio ictus. It can be appreciated even if the victim is different from that intended to be killed.

Par. 19: A WALL, ROOF, FLOOR, DOOR, OR WINDOW BE BROKEN

This is different from evident premeditation. There is no premeditation if there is a wrong victim. It cannot be appreciated if the victim is different from that person intended to be the victim.

When an entrance is effected by a way not intended for the purpose. Example is when you used the window as entrance.

This is inherent in Robbery with force upon things. It will not anymore increase the penalty Par. 20: (1) WITH THE AID OF MINORS OR (2) BY MEANS OF MOTOR VEHICLES (1) With the aid of Minors

Par. 17: IGNOMINY

(2) By means of motor vehicles

Ignominy This refers to moral suffering which adds disgrace to the material injury which is caused by the crime. PP vs. Jose, 37 SCRA 450

The motor vehicle here must be used not only for escape but as means for the commission of the crime. Meaning, the motor vehicle here is used to facilitate or to make it easier the commission of the crime and also for easy escape. Example:

The victim there was Maggie dela Riva. She was kidnapped and brought to a secluded place. The accused before raping her, ordered her to dance naked in front of them. Other examples:

Mr. Y wanted to kill Mr. X. In order for him to kill Mr. X, he borrowed a motor vehicle, followed Mr. X and after the killing, used the same motor vehicle for his easy escape. Bar Question

 When the accused put cogon grass around his organ when he raped the victim.  When a married woman was raped in the presence of the husband.  When the accused raped the victim from behind. PP vs. Regala, 329 SCRA 709 According to the SC, there is no law providing that additional Rape or Homicide committed on occasion of Robbery should be considered as aggravating circumstance. A penal law should be construed in favor of the accused and no person should be brought according to its terms if it is not clearly made so by the statute. The SC said that Rape committed on occasion or during the commission of Robbery with Homicide cannot be considered as Ignominy because there is no such law providing for such and the doubt should be resolved in favor of the accused. The SC further stated that there is no such provision as ―analogous circumstances‖ under Art. 14 – Unlike in Art. 13. Therefore, the enumeration in Art. 13 are Exclusive.

The accused was driving recklessly. He hit a pedestrian. When he looked back, he noticed that the pedestrian was still moving. So he backed up his car and killed the pedestrian. What was the crime committed? The accused committed Murder because there was treachery. What was appreciated in the case was not means of motor vehicle but treachery. What about bicycle? Is it aggravating? NO. A bicycle is not a motor vehicle. Par. 21: CRUELTY Cruelty Refers to physical suffering when the accused enjoys and delights in making his victim suffer slowly and gradually causing unnecessary physical pain in the consummation of the criminal act. Example:

Par. 18: UNLAWFUL ENTRY

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Before killing the victim, his nails were removed. After removing the nails, his fingers were dipped in vinegar. Accused here is a sadist because he finds pleasure and satisfaction in seeing the victim suffer slowly and gradually. Just like Para 17 which is about moral suffering, in Para 21, cruelty, in order to be considered the victim here must still be alive. The infliction of the injuries must be purposely done to let the victim suffer slowly. AC of cruelty is present: When the accused using his cigarette burned the mouth of the victim before killing him. Putting mud into the mouth off the victim There are MCs that are personal to the accused such as minority. This is similar to AC. There are ACs which are personal to the offenders. Example: Relationship.  H in conspiracy with A, H killed his wife. Relationship is AC as regards to H not with A. Another is Recidivism.  A committed theft but it was already A‘s 2nd time unlike B, it was his first time. AC is only personal to A. The same with Evident Premeditation  A offered reward to X to kill Y. X deliberately planned on the means and methods as well as the forms of killing Y. Evident premeditation is only appreciated to X. Article 15 Alternative or Alternating circumstances There are 3 alternating circumstances: 1. Relationship 2. Education 3. Intoxication Considered MC or AC depending on the circumstances present in the commission of the crime Intoxication MC when not habitual or not subsequent to the plan to commit the crime AC when habitual or intentional/subsequent to the plan to commit the felony  Example of ―habitual‖:  When the witness have seen the accused about 12 times or more drinking If intoxication is merely incidental, it is not appreciated, provided it is not habitual It must be established that the accused had taken such amount of alcohol that has blurred his reason to make

it MC (the accused must really be drunk). There is diminution of intelligence. Relationship Not specified when MC or AC According to jurisprudence, Aggravating when:  The victim is a relative  If crime against person According to jurisprudence it is Mitigating when:  If crime against property Education According to jurisprudence:  Mitigating when: 1. Lack of education  Accused has not finished even grade 1  it is not necessary that accused has not gone to school or has not finished grade 1 2. It must be coupled with lack of intelligence 

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Except:  Crimes against property  Murder  Against chastity  Treason

Aggravating when: 1. High degree of instruction 2. It must be taken advantage by offender

So those are the different modifying circumstances: 1. Justifying 2. Exempting 3. Mitigating 4. Aggravating 5. Alternative/alternating  These will affect the liability of the person or the penalty to be imposed upon the convict. Article 16 –Who are criminally liable -

When a crime is committed by just one person, there is not so much of a problem because he will always be the principal. When there are 2 or more persons liable, then there will be a complication.

Grave and Less Grave Felonies 1. 2. 3.

Principal Accomplice Accessory

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Light Felonies 1. 2.

Principal Accomplice

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Accessories are no longer punished in light felonies. It is important to determine the participation of an offender to: 1.

Determine the penalty to be imposed a. Accomplice – 1 degree lower than the principal b. Accessory - 2 degrees lower than the principal

X, Y, and Z committed murder. X is the principal. Y an accomplice and Z is an accessory. The court should determine their participation to correctly charge then or else all of them will be charged as principals. X will be charged with Reclusion Perpetua. It would be a grave injustice for Y as an accomplice to also be charged with Reclusion Perpetua. It is a failure of the lawyer of the accused to call the attention of the court. In old cases, some use ―defendant‖ for the accused. Now you should use ―accused‖ when answering questions. Defendant is only used for civil cases. In the commission of a crime, there are two parties involved. 1.

2.

Active Subject – the criminal a. Only natural persons may be the accused. G.R. Juridical Persons cannot be the accused - Corporations may be sued but only the officers may be criminally liable but not the corporation itself. Passive Subject – the state a. The offended party is only a witness or private complainant.

If the accused is not present at the scene of the crime, he cannot be considered as a principal by direct participation. -

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Article 17. Principals Different Kinds of Principals 1.

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Those who take a direct part in the execution of the act; (Principal by Direct Participation) Those who directly force or induce others to commit it; (Principals by Inducement) Those who cooperate in the commission of the offense by another act without which it would not have been accomplished. (Principal by Indispensable Cooperation)

2. 3.

Principals by Direct Participation 1. 2.

Present at the scene of the crime Must have taken direct participation in the commission of the crime a. Participated in the criminal resolution (the planning). There is conspiracy between them

and they carried in their plan and performed acts which directly tended to their end. Conspiracy – all conspirators are liable for all acts done for the logical or natural consequence of the crime. If the crime committed is so different from the crime agreed upon, then only the actor will be liable for such crime. o If X and Y decided to kill Mr. A and expressly stated that the family is not included. Then X killed one of the children, Y is not liable for the death of the child only for Mr. A.

Mere presence in the crime scene is not enough to hold a person as a conspirator. It must be coupled with acts towards the accomplishment of the crime to make him liable. Should not act as a look out or lending moral support Mere knowledge, acquiescence, or mere approval of the act without cooperation or agreement to cooperate does not constitute one as a conspirator. People vs. Taer June 18, 1990 To prove conspiracy, it is proven by circumstantial evidence (participation and acts during the actual commission of the crime). One may be the one who stabs, the other holds the victim and the other guards the door. If there is conspiracy but before the commission of the crime one of them desisted. The one who desists is no longer criminally liable as part of the conspiracy. People vs. Timbol August 4, 1994 G.R. Applies to crimes by Dolo. o Exc. There was a case where the professional driver, allowed his truck boy to drive the truck. The truck boy then ran over a pedestrian. SC said there was conspiracy in their case.

Principal by Inducement Principals who directly force or induce others to commit the crime. o Force  Irresistible force  Uncontrollable Fear o Induce  Price, reward or promise  Words of Command

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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In crimes committed with principals by inducement, it is understood that there are 2 or more accused. In crimes with principal by inducement by way of force, the one being forced is not criminally liable. The material executor is not liable for he is exempt from liability.

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Another way of becoming a principal by inducement is or another means of inducing another to commit a crime aside from getting a prize, reward, or promise is by words of command, advice, influence or agreement for consideration

EX: 

Your father tells you ―stab him‖. Are you paid, commanded or promised? o Words of command  When you are leader of a gang and you have minions and you tell or command them to kill someone. If you do what that person tells you then he has moral ascendancy over you since you agreed to what he has commanded o He must have a certain influence over you o He could be your father, your employer, he could be the leader of your gang Requisites: 1. The one uttering the words of command must have the intention of procuring the commission of the crime; 2. That the one who made the command must have an ascendancy or influence over the person who acted;

Principal by Inducement by Price, Reward or Promise 1. 2.

Price, reward or promise must be given before the commission of the crime. The Price, Reward or Promise must be the primary consideration why the crime was committed. a. If the person committing the crime has his own personal reason to commit the crime, then the person who is giving the reward cannot be liable as principal by inducement. i. Ex. Tom offered Jerry to kill Superman for 50k but Jerry already has a grudge against Superman for stealing his cow. Tom is not liable as a principal by induction. b. A person who induced another is only liable as principal by induction if the person who he induced will commit the crime. c. The crime committed must be in accordance with their agreement. d. A principal by inducement presupposes that there is a principal by direct participation. i. Ex. A person promised the accused a reward if he kills his mother in law. When the accused was at the verge to commit the crime, he did not have it in him to kill a woman. So instead of killing the mother in law he just snatched the bag. He then got caught. The person promising the accused is not liable as a principal by inducement for the crime induced was not the one produced.

Art. 17. Principals. — The following are considered principals: 2. Those who directly force or induce others to commit it; 
 The liability between the principal by induction and principal by direct participation is collective o There is conspiracy between them o The liability of the conspirators is collective (the same)

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EX: 

3. 4. 5.

One who made the command was your boss and you are the driver. You might be dismissed if you do not follow his orders. That the words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion; The words of command must be uttered prior to the commission of the crime; and The material executor (one who committed the crime) of the crime has no personal reason to commit the crime o If he has his own reason to commit the crime, a person giving the advice or order cannot be held liable

EX: 

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Your father told you to shot a gun at someone. Does your father have moral ascendancy over you? o Yes. He might not support you anymore if you won‘t follow his order. o Is it direct, so efficacious, so powerful as to amount to physical or moral coercion? Is it uttered prior to the commission of the crime? S, the son stabbed Y. When S was about to deliver a thrust, his father happened to pass

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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by. His father kept on cheering for him so he kept on stabbing. F, father of S as well as S was charged with murder. S as principal by direct participation because he was the one who stabbed the victim and F was the one who shouted at S while S was still in the act of stabbing Y. Are both of them liable? o There is no question as to S. o How about F? Look at the elements. (***Memorize the elements) In a subdivision, a group of females were talking about their husbands. One kept complaining about his husband that he would often come home late since he came from the bar. So her neighbor advised her to put poison. The wife also did what her neighbor advised her to do when her husband came home. The wife was charged with parricide while the neighbor was charged with murder as principal by inducement. Is the neighbor liable? (US vs Indanan) o No o A thoughtless expression without intention to produce the result is not an inducement to commit a crime o An imprudent advice does not constitute an inducement

EX:

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3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished. -

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principal by indispensable cooperation he is a principal who perform an act other than being present at the crime scene, other than being a principal by direct participation, he could be present at the crime scene he performed an act other than that performed by a principal by direct participation or other than inducing another to commit a crime, he committed an act without which the crime would not have been committed

EX:

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A municipal treasurer conspired with his coaccused to present false receipt as basis for reimbursement. F presented false receipt, falsified receipt to claim for reimbursement in conspiracy with M, a cashier or treasurer. o M can be considered principal by indispensable cooperation without his cooperation the crime of malversation could not have been committed The two accused conspired with each other in raping the victim. H and Y, conspired with

While the accused was stabbing the victim the co-accused held the victim and killed the victim. o The SC said that the one who stabbed the victim was principal by direct participation while the one who helped the victim was considered as principal by indispensable cooperation. TN of those 3 kinds of principals Art. 18. Accomplices. — Accomplices are those persons who, not being included in Art. 17, cooperate in the execution of the offense by previous or simultaneous acts.

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each other in raping W. When it was H who was having sex with W, Y was the one holding the hands and feet of W. When it was the turn of Y to have sex with W, it was H who held the hands and feet of W. (PP vs Fernandez, 183 SCRA 511) o According to the SC, two of them are liable for two counts of rape. When it was H who was committing sexual intercourse with W while Y was holding the hands, Y was considered principal by indispensable cooperation and H was considered as principal by direct participation. And vice-versa. Indispensable meaning the crime could not have been committed without the act of the accused

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Accomplice is an accused who cooperated in the commission of the crime without directly taking part in the commission of the crime, without being the principal by direct participation, without being the principal by induction, or without performing an act which is indispensable in the commission of the crime An accomplice may have performed an act but his act is not indispensable but merely necessary It must be that he is not a principal because if he is a principal then he cannot be an accomplice, he be considered a principal already It cannot be that you be a principal and at the same time an accomplice. You should only have one role. Once a principal, you cannot be an accomplice. Once an accomplice, you cannot be a principal. It cannot be that you have 2 penalties. Accomplice is a person who operate in the execution of the offense by previous or simultaneous act but he is not a principal, either principal by direct participation, principal by inducement, or principal by indispensable cooperation

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

He is not in conspiracy with the other accused or the principal o Because if he is in conspiracy with the principal then he be considered a principal already not an accomplice 2 ways of becoming an accomplice: 1. by committing an act prior to the commission of the crime, or

EX:

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X wanted to kill Y. X had a friend who had a motorcycle so he went to M and borrowed his motorcycle. M asked him what it was for and he answered that he was planning to kill Y. So X was able to kill Y with the use of the motorcycle of M. What is the liability of M? o He is an accomplice. o Is there conspiracy between them? Does M have a planning on killing Y? No, there is no conspiracy. o His liability is only that of an accomplice. He performed an act; he cooperated in the commission of the crime by previous act. Had M refused to lend his motorcycle, X could have borrowed or hired another motorcycle in order to fulfill or commit the crime. X wanted to kill Y. X borrowed a gun from M and told him about his plan on killing Y. X was able to kill Y but the police caught him. He then told the police that he borrowed the gun from M. The police asked if M knew about the plan and he answered that he did know his plan. What is the liability of M? o M is an accomplice. o Why could he not be considered a principal by indispensable cooperation? TN that X was determined to kill Y. Without the gun, X can find another way like stabbing him or look for another gun. In other words, the act of M in lending his firearm is merely necessary but not indispensable. Even if M declined or refused to lend his firearm, just the same X could have committed the crime. o The liability of M is that of an accomplice because there was no conspiracy between them. He merely concurred in the criminal plan of X. o The act of letting X borrow the motorcycle or the gun, it meant that he agreed to the plan or concurred

2.

in the evil desire of X. So he had liability.  X borrowed a firearm from M. He is now in the place of Y and saw him sleeping under the mango tree. X then thought of just stabbing him so that the gunshots would not be heard by the neighbors and Y cannot also put up a fight since he was sleeping. So X stabbed him. Someone saw X killing Y. What is the liability of M as to killing of Y? o M is not anymore liable as an accomplice. o Aside from the rule that there is no conspiracy; the act of the accomplice must have cooperated or relation with the commission of the crime. In the problem given, the act of M in lending his firearm did not anymore contribute to the killing of Y. He is not anymore liable. by an act at the time of the commission of the crime

EX: 

X boxed Y. M and X were members of Crips. M upon seeing X boxing Y also joined in. M was bringing a knife and stabbed Y. After stabbing, even if X saw M stabbing Y, X still continued boxing Y. Y then died thereafter. When autopsy examination was conducted, it was found out that the death of Y was due to the stabbing, not due to the boxing. What is the liability of the two? What are their liabilities? o M is liable as principal because his act was the cause of the death of Y. Principal by direct participation. o X could just be held liable as an accomplice because when he continued boxing Y despite the fact that he already knew that M stabbed Y, X in a way concurred in the criminal design of M.

Art. 18. Accomplices- are the persons not being included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts. Summary of liabilities: 1. 2. 3.

Separate- if the act of the accused is not found to be in concurrence with the act of the principal. Quasi- collective- if there is no conspiracy Collective- if there is conspiracy (includes implied conspiracy).

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D LIABILITY IS SEPARATE. -

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Example: The players ended up in a clash after a basketball game. X threw punches on Y. Upon seeing it, F, the teammate of X stabbed Y. X was taken aback after the stabbing, he was shocked and motionless and so they brought him to the hospital but he was dead on arrival. What is the liability of X? Ans. His liability is separate. It is merely that of physical injuries. Because he did not anymore box Mr. Y when F stabbed him. It cannot be said anymore that he concurred in the criminal design of F.

LIABILITY IS QUASI- COLLECTIVE -

LIABILITY IS THAT OF A PRINCIPAL -

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Article 19. Accessories. - Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. 2.

In the earlier example where X continued boxing Y even after F stabbed Y, their liability is quasi- collective. Here X was considered an accomplice of F.

If X and F after the basketball game agreed and decided to kill Y then there is already conspiracy, they are both principals. Case of implied conspiracy: Where while X was boxing Y, F approached and stabbed Y. Upon seeing it, X got a rock and hit Y and so the latter died. Here they are both considered principals by direct participation. There is in this case an implied conspiracy.

3.

By profiting themselves or assisting the offender to profit by the effects of the crime. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.  

Accessory before the fact- Accomplice Accessory after the fact- Accessory proper

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Q: What do you mean by accessory? Ans. Accessory- one with knowledge of the commission of the crime but has not participated in the commission thereof, either as a principal or an accomplice. He performed acts AFTER the commission the crime.

RULE: To be liable only as an accomplice there must be no conspiracy with the principal by direct participation -

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But it is necessary that the accomplice must have knowledge of the criminal design of the principal. Because if he is not aware of the criminal design, he is not liable. Example: Mr. X borrowed M‘s motorcycle in the pretence that he‘ll use it to get his daughter who works in a call center. When actually he‘ll use it to kill someone. Is Mr. M liable? NO. Because he had no knowledge of the criminal act of the accused.

Also note that: There must be a relation between the criminal act of the principal and the act of the one charged as accomplice. People vs tamayo 44 phil 38

Being present and giving moral support when a crime is being committed will make a person responsible as an accomplice in the crime committed. This may be through support, advice, encouragement or agreement. Through external acts.

SPECIFIC ACTS OF ACCESSORIES: 1.

By profiting themselves or assisting the offender to profit by the effects of the crime.

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Example: Mr. P snatched the cellphone of the victim. He then asked his friend M to sell it for a 20% commission. What is now the liability of M? Ans. He is an accessory because he obtained profit which was the commission and also he assisted the principal in selling the cellphone. So he is an ―accessory to the crime of theft‖ or he is ―liable for the crime of theft as an accessory‖ (emphasis on the nomenclature of the liability).

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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What is the liability of the buyer? He is also an accessory. Because by buying he also assisted the principal to profit by the effects of the crime. But TN that he must have knowledge regarding the theft because if he had no knowledge, he cannot be liable as an accessory for theft. You might ask how could he know the cellphone was stolen? Ans. By asking the vendor or by the price itself. The buyer must be wary and watchful because note that a buyer can also be held liable as PRINCIPAL for a violation of a special law: PD 1612 or the ANTI FENCING LAW. Fencing- is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, OR SHOULD BE KNOWN TO HIM, to have been derived from the proceeds of the crime of robbery or theft. -

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THEREFORE, A PERSON WHO WOULD BUY PROCEEDS OF THEFT OR ROBBERY COULD BE HELD LIABLE AS: 1. An ACCESSORY to the crime of theft or robbery as the case may be; AND 2. A PRINCIPAL under the Anti Fencing Law. There is no double jeopardy. Because when an act is punishable under the RPC and at the same time punishable under a special law, there is no double jeopardy because there are two different laws penalizing such act. -

But if they initially agreed that one will snatch and the other will later on sell the property, then they are both liable as principals to the crime of theft. Therefore there must be no conspiracy between the supposed -accessory and the principal.

2.

By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.

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Q: What would be these acts to conceal the crime?

So PD 1612 is applicable only to stolen or robbed items. It is not applicable to other crimes.

Fence includes any person, firm, association corporation or partnership or other organization who/which commits the act of fencing. -

So a corporation can be considered an accused here but as we already learned earlier only the officers can be held criminally liable.

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The penalty is prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos. Note that the penalty is almost the same with that in the crime of theft.

Ans. By hiding the instrument used in the commission of the crime. For example: You hid the knife used in the commission of the crime or you wiped the blood in it. This is now concealing because you are tampering the evidence that will establish the crime. -

―Body of the crime‖- the proof of the commission of the crime. This is not the body of the dead person.

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Example: You visited your neighbour and caught him in the act of concealing the body of the victim who he just killed earlier. He asked you to help him drag the body to bury it. What is your liability? Ans. You are an accessory because you performed an act to destroy the proof of the commission of the crime, or the effects or instruments thereof, in order to prevent its discovery.

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Example: Your classmate invites and treats you to Jollibee (sky is the limit!). While you were eating you asked your friend why he has a lot of money. Your friend, who happened to be the cashier in the municipal office told you that a lot had paid taxes in

Section 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. -

What do you mean by prima facie evidence of fencing? Meaning you are presumed to have stolen the property if found to be in possession of it. It is incumbent upon you to present evidence that you acquired it in good faith.

How about those engaged in buy and sell? They are required to obtain clearance from the PNP.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D the office earlier. What is the crime committed by your friend? Ans. Malversation.

natural for a relative to help the principal of the crime prompted by love and affection.

What is your liability? Ans. Accessory to the crime of Malversation. That‘s why if somebody treats you out, do not ask where he got his money because your knowledge will make you an accessory.

However you could be held liable for PD 1829 since it is a special law and the said law doesn‘t provide exemptions.

Notes:

June 15, 2016 Part 7 ANTI-FENCING LAW (PD 1612)

In paragraph 3, there are 2 accessories, those who are public officers or govt. employees and accessories who are civilians. What are these acts? By harboring, concealing or assisting the escape of the principal with abuse of your public function. If the accessory is a public officer, then he is liable for any crime committed by the principal when he/she abused his function/office to help escape the principal. Now, whereas if the person performing the acts under par. 3 is a civilian, in order to be held liable as an accessory, the crime committed by the principal should ONLY BE: Murder, parricide, attempt on the life of the Chief executive, treason or the principal is a habitual delinquent. These are the only instances wherein a civilian could be held liable as an accessory for doing acts enumerated in par. 3. So for example a civilian who knows that the principal has committed malversation would hide him in his house, is he liable as an accessory? No, since the crime committed by the principal is not those enumerated in paragraph 3. However you will instead be liable as a principal for obstruction of justice under PD 1829.

There is no Fencing if there is no Theft or Robbery committed. Question: Is it necessary that the robber/thief should also be charged with Theft or Robbery? Case in Point:

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What do you mean by Penalty? –

Suffering inflicted by the State for the transgression of the law.

What are the conditions of Penalty? – –

– – Those who are:

-with the single exception of accessories falling within the provisions of paragraph 1 of article 19 They are exempt from criminal liability if they would conceal the effects of the crime, or harbor the criminal, however not exempt if they profit from said crime under paragraph 1. Why is this? Because if they commit acts under par.1 of article 19, they are fueled with greed. Unlike in par. 2 and 3, it is but

Tan vs. People, GR 134298, August 26, 1999

ART. 21: PENALTIES THAT MAY BE IMPOSED

Article 20. Accessories who are exempt from liability

1. Spouses 2. Ascendants 3. Descendants 4. Relatives by affinity with same degree 5. Legitimate, natural, and adopted brothers and sisters

Capili vs CA, GR No. 139250, August 15, 2000

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Penalty must be productive of suffering without however affecting the integrity of human being. It must be commensurate with the offense committed – different crimes must be punished with different penalties. It must be personal – no one should be punished for the crime of another. It must be legal – it is a consequence of a judgment in accordance with law. It must be certain – no one may escape its effects. It must be equal for all. It must be correctional.

Three (3) purposes of Penalty: 1.

Retribution or Expiation

2.

Correction or Reformation

3.

Social Defense

―There is no crime if there is no law punishing it.‖ ART. 23: EFFECT OF PARDON BY THE OFFENDED PARTY What is the effect if the private offended party forgives or pardons the accused? Would the crime he committed be considered extinguished?

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D In a criminal case, a private offended party is considered a mere witness in the commission of the crime because the real offended party is the State, the government. That is why in a criminal case, the complainant is the People of the Philippines. Therefore, if ever the private offended party would forgive the accused, the crime would not be completely extinguished. What is extinguished is just the civil liability.

related, you will be subjected to preventive suspension so that you cannot tamper with the evidence or harass the witness 4.

5.

Whenever a crime is committed, there could be two (2) victims – the State and the private offended party. Now, the pardon extended by the private offended party, as a rule, would not extinguish the criminal action. Exception: Those crimes which are considered as ―private crimes‖. Examples: Abduction, Acts of Lasciviousness, Seduction, Adultery, Concubinage, and other ―Erection-related‖ offenses (Judge D) Real Talk!!! In reality, pardon by the offended party would actually result in the dismissal of the case. Why? Because, how can a case prosper when there is no more witness presented in court? The case has nowhere to go. The court has nothing to do with the case except to dismiss it. However, dismissal is not on the ground that the case is extinguished BUT because the right of the accused to speedy trial would be violated.

ART. 25: PENALTIES WHICH MAY BE IMPOSED Article 25 classifies penalties into principal and accessory Principal or Main Penalty/ies Those expressly imposed by the court in its judgment of conviction. That presupposes that the court finds the accused guilty because how can the court impose the penalty when the decision is for acquittal. Now, principal penalties are further classified into capital punishment, afflictive penalties, correctional penalties, light penalties. 1. 2.

ART. 24: MEASURES OF PREVENTION WHICH ARE NOT CONSIDERED AS PENALTIES

The arrest and temporary detention of the accused, as well as their detention of accused, as well as their detention by reason of insanity or imbecility or illness. Preventive Detention – Detention of the accused while his case is still pending – That is not considered yet as a Penalty

2. 3.

Commitment of minor to any of the institutions mentioned in Art. 80 Suspension from the employment or public office during the trial or in order to institute proceedings Preventive Suspension – Once a case is filed against you (especially public officers) and the case is service-

Capital punishment refers to Death. Afflictive penalties refer to Reclusion Perpetua, Reclusion Temporal, Perpetual or Temporary Absolute Disqualification, Perpetual or Temporary Special Disqualification and Prision Mayor. Disqualification – This is the penalty than can be imposed upon a public officer who committed a crime. – A public employee who committed a crime may be dismissed from office or may be disqualified to be a government employee or to hold public office for life (Perpetual Absolute Disqualification) or may be disqualified only during the term of the penalty (Temporary Absolute/Special Disqualification). – See Articles 226, 227 and 228

The following shall not be considered as Penalties: 1.

Fines and other corrective measures which, the exercise of their administrative or disciplinary powers, superior officials may impose upon their subordinate Deprivation of rights and the reparations which the civil law may impose in penal form – Such as deprivation of parental authority of parents found guilty of corruption of minors

3. 4. 5.

Correctional penalties refer to Prision Correctional, Arresto Mayor, Suspension and Destierro Light penalties refer to Arresto Menor and Public Censure. There are penalties common to the three preceding classes. These are fine and bond to keep the peace.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D In reality, there is no crime penalized with bond to keep the peace. Although in Article 282, 283 and 284, there was a crime penalized with ―bond for good behavior‖. But according to Boado, these two are different. Failure to post ―bond for good behavior‖ will make the accused suffer Destierro but failure to post ―bond to keep the peace‖ will make the accused suffer Detention. Accessory Penalty/ies Those that are deemed included in the imposition of the principal penalty/ies. This are those that are necessarily included if ever the court imposes a principal penalty. (Ikog) This refers to Perpetual or Temporary Absolute Disqualification, Perpetual or Temporary Special Disqualification, Suspension from Public Office, the right to vote and be voted for, Suspension from the Exercise of Profession or Calling, Civil Interdiction, Indemnification, Forfeiture or Confiscation of Instruments and Proceeds of the Offense and Payment of Cost. Now, you may notice that Disqualification and Suspension are also considered as principal penalties. At the same time, there are instances that they are used as accessory penalties. IOW, there are provisions of the RPC which uses them as principal penalty and also, accessory penalties. Civil Interdiction A person who is suffering from civil interdiction cannot exercise his rights. He is civilly dead. An example is a person found guilty of a crime penalized by Reclusion Perpetua. The court cannot impose a penalty which is not provided or different from that provided by law. Example is the imposition of hard labor in addition to penalty imposed by law. Art 26. FINE A fine will be imposed as a single or alternative penalty shall be considered as:  Afflictive – if it exceeds 6,000  Correccional – if it does not exceed 6,000  Light – if it is not less than 200 (200 or less) If the law provides a penalty of ―fine or imprisonment‖, the Court has choice to impose either fine or imprisonment. But if the law uses ―fine and imprisonment‖, it has to impose both. Art 27. DURATION OF PENALTIES (MEMORIZE) Reclusion Perpetua – 20 yrs and 1 day to 40 yrs Reclusion Temporal– 12 yrs and 1 day to 20 yrs Prision Mayor and Temporary Disqualification – 6 yrs and 1 day to 12 yrs

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PrisionCorreccional, Suspension and Destierro– 6 mons and 1 day to 6 yrs Arresto Mayor – 1 mon and 1 day to 6 mons ArrestoMenor – 1 day to 30 days

Reclusion Perpetua It has a period. (Different from Life Imprisonment which does not have a period) Has accessory penalty (unlike life imprisonment) Remains to be indivisible  Ppvs Lucas, Jan 9, 1995 – amendment to duration did not mean that it has reclassified as a divisible penalty Art. 28. Computation of Penalties if offender is imprisoned  then the computation shall start from the day the decision becomes final If offender is not imprisoned  then the computation shall start from the day that the offender is placed under the custody of the judicial authorities Before conviction, if accused is imprisoned  He is called detention prisoner  the imprisonment is not a penalty but a preventive detention Art. 29. PREVENTIVE DETENTION/IMPRISONMENT The preventive imprisonment of the accused shall be deducted from the penalty imposed  So while he is imprisoned, if he has not yet convicted, that will be deducted from his sentence imposed by the Court. Meaning, if accused will be convicted, it shall only be deducted. Shall be credited in their service of sentence which must consist of deprivation of liberty like imprisonment. Fine  Does not consist deprivation of liberty Destierro  Deprivation of liberty  Preventive detention shall be deducted from sentence When is there preventive imprisonment? 1) When he is charged with Capital offense because he cannot post bail. 2) Although charged with bailable offense but he does not have enough money, then he will be put up in jail. How much will be deducted? 100% if prisoner agrees in writing to follow the rules imposed on convicted prisoners in the facility where he is detained. But he did not sign an undertaking that he will follow the same rules, then he shall be entitled 4/5 of his

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D preventive suspension which shall be deducted from his sentence What about if the accused had undergone a period equivalent to that of the maximum penalty imposable? He will be subjected to his release although his case shall continue to be tried or without prejudice to the trial of his case. If for instance it is not equivalent to the maximum but only to the minimum?  He cannot be released but his bail bond will be reduced Destierro  He shall be released after 30days of preventive imprisonment Art. 330. PERPETUAL/TEMPORARY ABSOLUTE DISQUALIFICATION Temporary, meaning during the duration of your penalty Effects: 1) Deprivation of the public officer and employees which offender may have held even if conferred by popular election 2) Deprivation of right to vote or to be elected  Detention prisoners may vote because they are not yet convicted 3) Disqualification for offices/public employment 4) Loss of all rights to retirement pay or other pension for any office formerly held  All benefits shall be forfeited in favour of the government  Except service leave credit

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Art. 34. CIVIL INTERDICTION Shall deprive offender: 1) Parental authority 2) Guardianship 3) Marital authority 4) Manage his property and dispose such Art. 36 Pardon by the President 1) Shall not restore the right to hold public office or the right of suffrage  Except: when any or both such rights is or are expressly restored by the terms of the pardon  Pardon  One of the executive powers of the president  Only the president can grant pardon  Accused must have been convicted by final judgment  No pardon if case is still pending

 Example: The pardon granted to former president Joseph Estrada.  After the judgment, he appealed the decision to the SC. After filing appeal, former president Arroyo told Estrada that she is willing to grant him pardon. He accepted the offer of pardon. But considering that pardon cannot be extended unless the judgment of the case had become final and executory, before Arroyo gave him pardon, Estrada withdrew his appeal. The effect was that, the decision became final and executory. Then Arroyo granted him pardon.  The grant of Arroyo of pardon became a controversy. Why?  Because Estrada promised before he was given pardon that he will not run to any public office.  But Estrada filed a candidacy as Mayor of Manila. A case was filed against him. TN: Pardon will not restore the rights to hold public office unless the same is expressly stated in the pardon. The accessory penalties is not restored unless it is expressly stated in the pardon In the pardon papers particularly in the dispositive portion of the paper, it was written there that he (Estrada) is hereby restored to all his civil and political rights. So SC allowed Estrada to run. (CASE IN POINT: Risos-Vidal v COMELEC, GR No. 206666, Jan 21, 2015

Pardon:  Pardoning power shall not be extended in case of impeachment  Can only be exercised after the conviction by final judgment. And such power cannot be extended to cases of impeachment.  It will only extinguish the penalty  EXAMPLE: Accused was given pardon and the pardon did not expressly state that his civil and political rights are restored. Problem iss, when he was given pardon, he already served out his sentence. SC said that although it is not expressly stated in the pardon that his rights are restored and considering that he already served his sentence, then it is presumed that he is

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D restored to his civil and political rights. (CASE IN POINT: Pelobellovs Palatino, 72 Phil 441 

Pardon – Granted by the president extinguishes the criminal liability of the accused. o Extinguish the penalty imposed by the court.

Article 37 – Costs shall include fees and indemnities in the course of the judicial proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule. -

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Not attorney‘s fees or litigation expenses. Pecuniary liabilities Accused may be ordered by the court to pay pecuniary damages. Momentary liabilities of the accused such as payment of fine, damages and civil liabilities. Suppose the accused does not have enough money or property. Article 38 provides for the order of payment.

Article 39 – Pecuniary liabilities – Order of Payment – in case the property of the offender should not be sufficient for the payment of all pecuniary liabilities, the same shall be met in the following order: 1. 2. 3. 4.

The reparation of the damage caused. Indemnification of the consequential damages. The fine. The cost of the proceedings.

Article 39 – Subsidiary Penalty -

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If the convict has no property with which to meet the fine imposed in the sentence, he shall be subject to subsidiary imprisonment or subsidiary personal liability Article 39 was amended by RA 10159 o 1 day = highest minimum wage prevailing at the time of the promulgation in any place of the Philippines o Highest minimum wage = metro manila A person may be imprisoned if the convicted person is unable to pay what the court ordered on certain circumstances.

Ex. Supposing a person is fined with P10,000. Let‘s say 400 (as minimum wage) divide the P10,000 by 400.

Par. 1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. Par. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. -

6 months is the longest

Ex. Supposing the person is fined P1M. P1M is divided by 400(as the minimum wage). That is 2,500 days. That is 6 years and 8 months. Under paragraph 2 only 6 months will be served, the rest is bonus. The fine may be imposed together with imprisonment if the law says ―and‖. Par. 3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit. -

If the penalty imposed is prision correccional and fine, he shall not suffer any subsidiary imprisonment for non-payment of the fine.

Par. 4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. -

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For destierro, non-payment of fine will not require the accused to be imprisoned but merely extend the term of his period for destierro. If the penalty is suspension, then the period of suspension will be extended.

Par. 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him, from the fine in case his financial circumstances should improve. -

When a person‘s financial circumstance improved and he has already served subsidiary imprisonment, he will still be compelled to pay the fine even if he served subsidiary imprisonment.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

Cannot choose subsidiary imprisonment when he is able to pay the fine. Subsidiary imprisonment shall only be imposed in cases of insolvency. If he does not pay, a sheriff will be sent to get the properties.

The penalty of fine cannot be deducted by preventive imprisonment. Payment of fine does not involve deprivation of liberty. Preventive imprisonment is only deducted if there is deprivation of liberty. Suppose the accused, failed to pay the civil liability imposed on him such as moral damages. He cannot be subjected to subsidiary imprisonment. It is only imposed on non-payment of fine. In the decision the court must state, ―wherefore the court finds the accused guilty *insert crime* and hereby imposes the fine of *insert amount* with subsidiary imprisonment in case of insolvency.‖ If there is no phrase ―with subsidiary imprisonment‖ the court cannot impose subsidiary imprisonment. Without the phrase the accused cannot undergo subsidiary imprisonment. It must be expressly stated.

5.

Arresto a. Suspension of the right to hold office and the right of suffrage during the term of the sentence

For perpetual absolute disqualification, if working in the government, then he will be removed. If not yet, then he cannot work in the government. Destierro has no accessory penalty. Article 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. -

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In the crime of murder using a firearm, the firearm used in committing the crime will be forfeited in favour of the government. It includes the proceeds of the crime. Such as in the case of malversaion, the proceeds to buy cars, and mansions will be forfeited to the government. Motorcycle used by the accused to commit the crime.

Exc. When the instrument or tools used are owned by a third person not included in the crime. Article 40-44. Accessory penalties -

Accessory penalties presuppose that there is a principal penalty. 1. Death – when there is commutation or pardon a. Perpetual absolute disqualification b. Civil interdiction for 30 years, if not expressly remitted in the pardon 2. Reclusion a. Civil interdiction for life or during the sentence b. Perpetual absolute disqualification, unless expressly remitted in the pardon 3. Prision Mayor a. Temporary absolute disqualification b. Perpetual special disqualification from suffrage, unless expressly remitted in the pardon 4. Prision Correccional a. Suspension from public office or calling b. Perpetual special disqualification from suffrage, if the duration of imprisonment exceeds 18 months, unless expressly remitted in the pardon

Exc. to the Exc. If the tools owned by third persons, but not subject to lawful commerce will be forfeited in favour of the government. -

Unlicensed fire arm

The forfeiture/confiscation should be expressly stated in the decision. -

Contrary to the nature of an accessory penalty. Forfeiture is an accessory penalty. People vs. Paet 100 Phil 357

Article 46. Penalty to be imposed upon principals in general. — The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. -

Consummated crimes on principals Homicide = Reclusion Temporal Different for accomplice and accessory Different for attempted and frustrated In imposing the penalty there are factors to be considered: o Stage of the crime

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Participation Presence of mitigating and aggravating circumstances It would be an injustice to impose Reclusion Temporal on an accessory o o

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Article 47 is obsolete unless there is a re-imposition of the death penalty. June 17, 2016 Part 8 Art. 47. In what cases the death penalty shall not be imposed; Automatic review of death penalty. — The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme court, the required majority is not obtained for the imposition of the death penalty, in which cases the death penalty shall be reclusion perpetua. In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment by the court en banc, within twenty (20) days but not earlier than fifteen (15) days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter. (As amended by R.A. No. 7659) -

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There is no more death penalty but we do not know when you take the bar whether death penalty will be restored because the coming administration is intending to revive death penalty Just in case in your time death penalty would be restored It tells us the instances where death penalty cannot be imposed 1. It cannot be imposed when the accused/convict is below eighteen at the time of the commission of the crime o Of course it cannot be imposed because of his minority o He us entitled to one degree lower o If the penalty imposable is death then by reason of his minority you have to lower the degree by one degree o But remember that minority is a privilege mitigating o Privileged minority will always lower the penalty even if the penalty is indivisible. Unlike in ordinary mitigating wherein the

2. 3.

same cannot be applied to indivisible penalty o Relate to RA 9344  Those minors who are over 15 but below 18, they could only be held liable if they acted with discernment  When we say convict, that means that the party acted with discernment When the convict is more than 70 years of age When on appeal or automatic review of the case by the Supreme court, the required majority is not obtained for the imposition of the death penalty o Under the Constitution, death penalty cannot be imposed without being reviewed by the SC o Before there was this so called ―automatic review‖. Automatic meaning even if the convict does not file an appeal the record of the case shall automatically be forwarded to the SC for review.  From the RTC, it jumps to the SC = automatic. Even if no appeal filed, accused does not question the decision. o Under the existing procedure, if death penalty is imposed the case will not anymore be directly reviewed by the SC but the same shall be reviewed by the CA. This is the socalled ―intermediate review‖.  Why? 1. So that the cases would not be congested with the SC.  Once the CA finds the accused not guilty or acquits the accused, then would not be a case anymore that will reach the SC.  If the CA affirms the appeal then that is the time that the case will reach the SC. 2. If it would be reasonable to kill the accused.  

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There will now be a double review of facts. As a rule, the SC court does not review facts or factual issues. It will only review question of law. Death penalty is the only exception. It is because of the weight of the penalty. The SC would have to review the evidence or facts. (Pp vs. Mateo, GR Nos. 147678-87, July 7, 2004) o SC would double check, double review the evidence.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D o

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Instead of directly forwarding the record to the SC when the RTC imposed the penalty of death the case shall be forwarded to the CA.

This happens when the Congress will reimpose death penalty. It‘s similar to chacha. During the time of Marcos, there was death penalty. When it was the term of late Corazon Aquino, she abolished it because it is not in line with our being Catholics. But under our Constitution, it can be reimposed. 2004, when Ramos was president, he reimposed death penalty. Its main purpose is to serve as deterrence. Bad guys would be scared. But the bad guys were not scared so during the time of Arroyo, she abolished it again. Its administration said that its not death penalty that would deter the criminal but it‘s the execution, the enforcement of the law. For the most recent administration, they have plans of reviving or reinforcing it. sIs death penalty considered unusual? o There was a party who brought a case to the SC questioning the penalty stating that under the Constitution it says that one of the limitations of the powers of the State to enact laws is the imposition of a cruel and unusual penalty. o SC said death is not considered cruel and unusual. A punishment can only be considered cruel when it involves torture or lingering death or when it is barbaric or inhumane. (Ppvs Camano, 115 SCRA 688)

Article 48.Penalty for complex crimes. - When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. -

It is about complex crime and the rule on the imposition of the penalty involving a complex crime What do you mean by a complex crime? o There are 2 kinds of complex crime 1. A complex crime is when a single act would produce two or more grave or less grave felonies. o Is it possible that one act would produce 2 or more grave or less grave felonies? Yes.  EX:  Fired at somebody, the intended victim is hit but the bullet went through or the wound is through and through and the person at the back is also hit. Both of them died.

There are 2 crimes here – 2 cases of homicide because there are 2 victim.  It could also be possible that the intended victim is not hit and it is the unintended victim who died.  There are also 2 victims here. One is either attempted homicide or attempted murder for the unintended victim that was hit and for the victim who died it could be consummated murder or consummated homicide. The crime is murder with attempted murder.  There are 2 crimes with just a single act. o There is a complex crime when the 2 or more crimes are committed with just 1 single act  (Pp vs. Tabaco 270 SCRA 32, Ppvs Sanchez Aug 29, 1999): an accused used automatic firearm. A firearm, which is capable of expelling bullets by a single act of pressing or pulling the trigger unless the trigger is released. So when the accused was pulling the trigger there 5 people who got killed. Is he liable for a complex crime? o SC said that when the firearm or weapon used has a mechanism that will enable the firearm expel bullets by just a single act of pulling the trigger, there will be as many crimes as there are bullets expelled. o So when you press the trigger and it will result in 10 deaths, there will be 10 cases filed against you. No complex crime. EX: 

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When the accused threw a hand grenade and the single act of throwing the grenade there were about 5 persons died and 10 persons almost died. Is it a complex crime?  Yes because the injuries were produced by just a single act. He is liable for multiple murder with multiple frustrated murder.  If there are some who had a few wounds: multiple murder with multiple

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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frustrated murder and multiple attempted murder For it to be a complex crime, the crimes produced are grave or less grave. 2 or more grave or less grave.(***Remember the grave and less grave offenses)  What if the crime produced is a light offense or felony? There is NO complex crime.  The light felony produced could either be treated as a separate offense or absorbed by the grave offense or felony. EX: The accused boxed his teacher which resulted to slight physical injuries. The crime committed is direct assault. o What about the slight physical injury? It is absorbed. 2. When a crime is committed in order to commit another crime. When an offense is a necessary means for committing the other. The accused committed a crime as a necessary means to commit another crime EX:  You are a cashier and in order to spend the money for personal use, you changed the amount appearing in the official receipt. And thereafter you now spent the money. Instead of P50, 000.00 appearing in the receipt, you erased one of the zeroes, so P5, 000.00. He spent the P45, 000.00.  What crime did you commit by changing the amount or figure? That is falsification of public document.  There are 2 crimes here: falsification and malversation. In order for the accused to commit malversation, he committed falsification first.  This is the crime of malversation through falsification of public documents. (***no malversation WITH falsification)  Suppose the accused spent for his personal use the money that he collected. In order to hide the crime of malversation he falsified official receipts.

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The opposite of the first example. Spent the money first and so as to hide the crime, he falsified documents. What is the crime he committed? No complex crimes because he did not commit the crime in order to commit another but he commit the crime in order to hide another crime. No complex crime when one is committed to hide or conceal the other. He is liable for 2 crimes: malversation and falsification

Those are the definitions of the complex crime and under Art 48 other than giving a definition of complex crime, the article likewise gives rule as to the penalty of a complex crime Penalty: although there are 2 or more crimes committed the accused shall suffer only 1 penalty o In other words, although the accused committed 2 or more crimes the law considers or deems it that he is only liable for 1 crime and therefore he is entitled to 1 penalty EX: when he shot someone he only pulled the trigger once but there are instead 2 victims 

Although he committed 2 crimes but since he only has 1 criminal intent or plan or resolution or design, the crimes he committed shall be considered as only 1 crime and the court shall impose upon him only 1 penalty  Which penalty is going to be used? Since there were 2 crimes committed. o The penalty of the more or most serious offense and the penalty shall be imposed in the maximum period. If the accused committed homicide with attempted homicide  There are 2 crimes: homicide and attempted homicide.  Which of the penalties can be imposed upon the accused? The penalty for homicide because that is the more serious offense. And the same shall be imposed in the maximum.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

Accused raped the victim and after raping the victim, in order to eliminate all possible witnesses, he killed the victim.- Here he committed rape and because he killed the victim, he also committed either homicide or murder. Therefore the crime here is Rape with homicide.

The accused shall be liable for homicide with attempted homicide and he shall be imposed with the penalty of reclusion temporal in its maximum period. Considering that the law itself states that the penalty shall be imposed in the maximum, it cannot anymore be lowered by an ordinary mitigating circumstance. Whenever a complex crime is committed, there is only one crime. But what if the penalty of both of the offenses is the same. EX: double homicide – his act produces 2 deaths o What will be the penalty that will be used? Either because it is equal and it shall be imposed in its maximum. The crimes committed must be or both be punishable by the RPC. o If one of the crimes committed is punishable by special law, there is no complex crime.

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There are two crimes committed- Rape and homicide. But the law sees them as just one crime. They are considered as one offense, a single indivisible crime. That‘s what we call special complex crime.

Article 48. Penalty for complex crimes. When a single ct constitutes two or more grave or les grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. (As amended by Act No. 4000)

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The law likewise imposes a specific penalty. The penalty for this at present is RECLUSION PERPETUA.

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 The term homicide here is used in its generic sensethat would include murder, parricide.  There is no such thing as: Rape with murder Rape with parricide.

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Example: ROBBERY WITH HOMICIDE 

Under Art 294 of the RPC, the penalty for Robbery with homicide is RECLUSION PERPETUA.

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You see, if we follow Article 48, Homicide is the graver offense with a penalty of just Reclusion Temporal. Supposedly we are to impose only Reclusion Temporal in its maximum for Robbery with homicide. BUT NO. Because this is a special complex crime, and Article 294 expressly provides for its penalty- which is RECLUSION PERPETUA. We do not apply Article 48 in Special Complex Crimes.

When should Art. 48 NOT apply: 1. 2. 3.

Special Complex Crimes Continuous Crime Two- tiered penalty

ARTICLE 48 DOES NOT APPLY WHEN THE LAW PROVIDES ONE SINGLE PENALTY FOR SPECIAL COMPLEX CRIMES. What do you mean by special complex crime? Special Complex Crime refers to 2 or more crimes committed by the accused but these two crimes committed are just considered as components of a single indivisible offense with one specific penalty provided by law.

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COMPLEX CRIME

SPECIAL CRIME

The penalty depends on the graver crime committed

The penalty is expressly provided for by the RPC.

Example: RAPE WITH HOMICIDE.

COMPLEX

ARTICLE 48 DOES NOT APPLY TO CONTINUED, CONTINUING OR CONTNUOUS CRIME (delito continuado). In a continuing offense, the accused does not perform a single act but a series of acts, and one offense is not a necessary means for committing the other. These acts are under the law are just considered as one crime. A Continuing Crime. -

Example: REBELLION You were a rebel in 1969 and until now you are still a rebel, you must have committed several acts. You

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D must have killed several people. You must have robbed things from other people in furtherance of rebellion. You ambushed the military, you committed robbery and killed several people. You committed murder, etc. You committed several acts. But these acts you committed are just considered one crime. One crime of REBELLION. The common crimes committed by the rebel are absorbed. -

SC (in one case): the theft of the two game roosters belonging to two different persons was punished with one penalty only, the SC holding that there being only one criminal purpose in the taking of the two roosters, only one crime was committed.

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Example: When you commit robbery in a public vehicle, say there are around 18 passengers, supposedly there are 18 cases of robbery. But the accused here is liable only of 1 count of robbery. In US, that is what they call the Single Larceny Doctrine Single Larceny Doctrine- The accused has only one criminal design and because of that, the law considers him to have just committed one crime although he performed several acts. He can only be imposed of one penalty. COMPLEX CRIME

CONTINUING CRIME

Graver offense in its maximum.

As if he committed just one crime. Accused is liable only for one crime.

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Same rule applies with Complex Crimes. The rule in continuing offense also applies in Special Laws.

CASE: Santiago vs. Garchitorena, 228 SCRA 214 Before Sen. Miriam Santiago became a senator, she was appointed as commissioner of BID (Bureau of Immigration and Deportation). There were 32 foreigners who overstayed in the Philippines. In order to legalize their stay here, she required them to pay certain amounts. She was sued of 32 counts of violation of the Anti graft and corrupt practices act. So there were 32 cases filed before the Sandiganbayan. Sen. MDS denied having committed the crime and moved for the dismissal of those cases. She argued that granting she is liable, she could only be charged of 1 violation of the anti graft and corrupt practices act. SC sustained her argument and she was charged with only one count of such violation. *** Judge D: Read this case because here you will learn more about continuing offense.*** ARTICLE 48 DOES NOT APPLY WHEN THE LAW PROVIDES FOR A TWO- TIERED PENALTY. ―Two- tiered penalty‖ -

The law specifically provides that the accused shall be liable or shall suffer the penalty for each crime that he committed. Example: DIRECT BRIBERY

FILING OF THE INFORMATION. NOTE: In Complex Crime under Art. 48, in Special Complex Crimes or in Continuing crimes, the accused committed several crimes but in the eyes of the law, he only committed one crime. Considering that he only committed one crime, only one information or one complaint shall be filed against him in court. And all the crimes that he committed shall be alleged in the information. -

only of Rape or homicide, whichever is proved during the trial.

Example: RAPE WITH HOMICIDE. There shall only be one information, but in that information the elements of these two crimes shall be ALLEGED. And during the trial, the elements of these crimes shall also be PROVED. Otherwise, he cannot be convicted of the special complex crime of Rape with homicide. But

The court stenographer asked for a bribe to change a certain part of the testimony of the witness. She actually changed certain portions of the testimony of the witness. She committed two crimes there- Bribery and Falsification. There is no complex crime, he should suffer the penalty for the two crimes. CASE: Ivler vs. San Pedro November 17, 2010 (Judge D: This will come out in the 2017 BAR) Q: The accused was driving recklessly at a highspeed. While disregarding the traffic rules, he bumped another car. His reckless act resulted to the death of the driver of the car that he bumped. Aside from that, the car that he bumped was totally damaged.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Fortunately, the passenger of the car that he bumped suffered only slight physical injuries. If you are the prosecutor, what crimes are you going to file against the accused? The prosecutor in this case filed two information: 1. Reckless imprudence The accused when resulting in slight arraigned, pleaded physical injuries guilty to this case. Penalty is much lower here (public censure) because it was committed by culpa. 2. Reckless imprudence resulting in homicide with damage to property.

He pleaded NOT guilty and filed a motion to quash on the ground of double jeopardy.

They reached the SC. The prosecutor argued that, there should be 2 information because under Art 48, a light felony cannot be included in a complex crime. It should be treated as a separate offense. SC: Agreed with the accused. There should only be one information for Reckless Imprudence resulting in homicide, damage to property and slight physical injuries. Art 48 will not apply but Art. 365 of the RPC. Under Art. 365, the accused shall only be charged in one information regardless of the resulting crimes, but all crimes shall be alleged in the information. Since Article 48 will not apply then the accused shall be liable for the penalties of all the resulting crimes, although there is only 1 information. If the accused killed 5, but 5 bullets were used/fired, now he‘s liable for 5 counts of homicide. Because in a complex crime will only apply if there is only a single act Article 49.penalty imposed when there is error in personae This article is related to error in personae. This tells us the penalty to be imposed upon the accused when the crime committed is different from that intended. Now what would be the penalty imposed if the resulting crime is different from what is intended?

Now under this article, the penalty for the lesser offense shall be the one imposed upon the accused because the accused intended to commit only 1 crime. For example the accused intended to kill mr. X, but when he actually committed the crime, it turn out that what he killed was actually his father. So he is liable for parricide, however the lesser penalty of homicide shall be imposed since it is what he really intended to commit. Article 51-57 (already discussed) Article 58. Accessories falling within paragraph 3 of Article 19. Now under par.3 of art. 19, a public officer shall be held liable as an accessory, with abuse of his function, he concealed and harbor the principal, under this article, the principal shall suffer absolute permanent/temporary disqualification as the case therein if the principal is guilty of a less grave felony only. However if the principal is guilty of a grave felony, the accessory public officer shall suffer additional penalty of perpetual absolute disqualification. Article 59.Impossible crime. What is thet penalty here? Aresto Mayor. It is not really a crime, but the accused is penalized because he is a potential criminal. Article 60. Exceptions to 50-57. If there is a specific law providing for the penalty, then it should be followed. Article 61. Graduating penalties (the discussion can be explained by reading the codal provision) This is about the lowering/increasing of the penalties by 1 or 2 degrees. Example of this under par. 1, when the penalty impossible is single and indivisible, the penalty next lower in degree shall be that immediately followed by that indivisible penalty. Also refer to article 71 for the penalties. What if there are 2 penalties, for example, reclusion perpetua to death, since we don‘t have the death penalty now then disregard it, but what if it is revived? What is the penalty next lower in degree? What if the offender is a minor? Then he is entitled to 1 degree lower, now according to art. 71, the next

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D lower in degree is reclusion temporal(from perpetua). Here there are 2 indivisible penalties. There are cases/crimes that the penalty imposed is only 1 divisible penalty. Example of this is homicide, so what is 1 degree lower if this? Prision Mayor. What if there are 2 divisible penalties imposed? For example prision mayor to reclusion temporal, what is 1 degree lower of this? The penalty next lower would be prision correctional. Now another example, the penalty imposed is prision correctional in its minimum and medium periods. Now the 1 degree lower of this is aresto mayor in its medium and maximum. Article 62. Effects of attendance of mitigating/aggravating circumstances and of habitual delinquency (already discussed extensively in the previous discussions) Presence of aggravating circumstance as a rule will increase the penalty in its maximum period. Crime is committed by the offender who abused his public position, it says that the penalty shall be imposed in the maximum regardless of mitigating circumstances. Now the penalty shall not be increased in the aggravating is inherent in the commission of the crime. For example in the crime of robbery, evident premeditation is always present, how can you commit robbery without planning? It cannot be incidental. Now the aggravating circumstance of evident premeditation shall not increase the penalty since it is inherent in the crime of robbery. Now there are also instances that an aggravating circumstance will only increase the penalty imposable on an accused but not on the other co-accused. For example, Mr. H, husband, conspired with mr. X in killing W, the wife of H, now the relationship between H and W will increase the penalty with regard to mr. H but will not apply to mr. S. Another, there are also instances where the mitigating circumstance is applicable only to an accused who has knowledge on such aggravating circumstance, but cannot be applied to a co-accused who has no knowledge to an application or use of an aggravating circumstance in the commission of the crime. For example, Mr. X paid Mr. Y in order to kill Mr. A, Mr. Y in killing Mr. A, used treachery, now the aggravating circumstance will only apply to Mr. Y since Mr. X does not know of such treachery.

Article 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. This is about the presence of aggravating and mitigating circumstances as regards indivisible penalties. What are the Indivisible Penalties? - Death - Reclusion Perpetua When the penalty imposable is single and indivisible, example Reclusion Perpetua, the presence of mitigating and aggravating circumstances is IMMATERIAL. It does not increase to the maximum since it is indivisible. If there is an ordinary mitigating circumstance, it also does not decrease either. Example: Rape – penalty is reclusion perpetua. If the accused voluntarily surrenders and also pleads guilty. Now there are 2 mitigating circumstances. Will this lower the penalty? - No, since the penalty is single indivisible. But if one who rapes is a minor, then we know that that is a privileged mitigating circumstance. Now, this lowers the penalty by one degree. If the penalty imposable is 2 indivisible penalties: Accused committed murder. Before, the penalty for murder was Reclusion Perpetua to Death. o If there is an aggravating circumstance, the penalty imposed is the higher one which is Death. o If 0 aggravating circumstance and 1 mitigating, the lower one is imposed, Reclusion Perpetua. o If 2 aggravating, 1 mitigating – there‘s an offset and 1 aggravating circ is left, so Death.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D If 0 aggravating, 0 mitigating – the lower penalty is imposed, so Reclusion Perpetua You always look at the information because for Aggravating circumstances to be considered, they must be ALLEGED IN THE INFORMATION & PROVED. o

Article 64. Rules for the application of penalties which contain three periods. - In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: 1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. 2. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period. 3. When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. 4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. 6. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. 7. Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime.

If 0 aggravating, 2 mitigating – the penalty is reduced to 1 DEGREE (not period) lower – so Prision Mayor If 1 aggravating, 4 mitigating – offset, 3 mitigating left – Reclusion Temporal MINIMUM. Why? Since for 2 or more mitigating circumstances, to lower the penalty by 1 DEGREE, it is necessary that there should be no aggravating circumstance. 

In lowering the penalty to be imposed by 1 period is applicable only to the Revised Penal Code. This is not applicable to offenses in Special Laws, UNLESS that special law is using the terms of penalties under the RPC. So if the crime is penalized by a special law, no matter how many mitigating circumstances there are, they will not be appreciated. Example: Violation of RA 9165 Section 11 – Possession of Shabu: 1 gram of Shabu – penalty is 12 years and 1 day to 20 years. This is the same period as Reclusion Temporal (RT), but this is not RT. If the accused would plead guilty (mitigating), the penalty will not be lowered. It will always be between 12 years and 1 day to 20 years.

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This article will not also apply in crimes committed thru NEGLIGENCE like Reckless Imprudence resulting to Homicide.

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This will not apply when the penalty imposable is single and indivisible, but applies if there are 2 indivisible penalties like the example above in Article 63.

Article 65. Rule in cases in which the penalty is not composed of three periods. - In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions.

Example: X committed Homicide. Penalty is Reclusion Temporal

Article 66. Imposition of fines. - In imposing fines the courts may fix any amount within the limits established by law; in fixing the amount in each case attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit.

Reclusion Temporal - maximum - medium - minimum

Here the court has to consider the means or the wealth of the accused. Remember, when the law says penalty of ―imprisonment or fine,‖ the court has the option to impose either. But if the law says ―and‖, the court should impose both.

If 0 aggravating, 1 mitigating – minimum period is imposed If 1 aggravating, 0 mitigating – maximum If 2 aggravating, 1 mitigating – offset, 1 aggravating left – so maximum If 1 aggravating, 1 mitigating – offset – medium If 0 aggravating, 0 mitigating – medium

Article 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 are present. - When all the conditions required in circumstances Number 4 of Article 12 of this Code to exempt from criminal liability are not present, the penalty of arresto mayor in its maximum period to prisioncorreccional in its minimum period shall be imposed upon the culprit if he shall have

Now here, we deal with DIVISIBLE PENALTIES. Those with periods (minimum, medium, maximum).

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D been guilty of a grave felony, and arresto mayor in its minimum and medium periods, if of a less grave felony. This is the penalty for a crime when the crime is committed by mere accident but not all elements thereof are present. The penalty here is lowered. The accused here is performing a lawful act with negligence. Article 68. Penalty to be imposed upon a person under eighteen years of age. - When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. This is the privileged mitigating circumstance of MINORITY. Paragraph 1 has been repealed by RA 9344, but paragraph 2 is still followed. We already know this. If minor is over 15 and under 18, and acted with DISCERNMENT – impose the penalty next lower in degree. Article 69. Penalty to be imposed when the crime committed is not wholly excusable. - A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. This is the mitigating circumstance of Incomplete Justifying or Incomplete Exempting. When majority of the requisites are present, the court has the option to lower the penalty by 1 or 2 degrees. Example: The accused is charged with homicide and there is incomplete self defense. What‘s the penalty? - One or two degrees lower. Within the range of Prision Mayor or within the range of PrisionCorreccional. It is upon the discretion of the court. Article 70. Successive service of sentence. - When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed:

In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale: 1. Death, 2. Reclusion perpetua, 3. Reclusion temporal, 4. Prision mayor, 5. Prisioncorreccional, 6. Arresto mayor, 7. Arrestomenor, 8. Destierro, 9. Perpetual absolute disqualification, 10 Temporal absolute disqualification. 11. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and 12. Public censure. Notwithstanding the provisions of the rule next preceding, 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 forty years. In applying the provisions of this rule the duration of perpetual penalties (penaperpetua) shall be computed at thirty years. (As amended). This is a situation where the accused committed two or more crimes and the court imposes several sentences. Example: X is accused with 2 cases of Homicide, and is convicted. How should he serve his sentences? Article 70 says: First, serve the sentences simultaneously if the nature of the sentences allow it. - an example is when in 1 crime he is to serve a sentence of imprisonment, and in the other crime he is to pay a fine. Here, the accused can serve both by serving in jail and paying the fine. - another, both cases require him to pay a fine. Second, successive service of sentence by serving the most serious or severe first. - how do you determine the most severe or most serious crime? Article 70 tells us arrangement of penalties according to severity. **Compare paragraphs 7 and 8 of this Article with paragraphs 7 and 8 of Article 71.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Destierro and Arrestomenor are interchanged. Under Article 70, Arrestomenor is considered more serious/severe because it involves confinement. Destierro, though deprived of liberty, the accused is not confined/locked up. Case: Accused is convicted of 4 crimes with the ff penalties: 1. Homicide – 14 years 8 months and 1 day 2. Homicide – 17 years 4 months and 1 day 3. Homicide – 14 years and 8 months 4. Frustrated Homicide – 12 years Total: 58 years 8 months and 2 days Is he going to stay in jail for this long? - No, Under Article 70, this is what we call‖Three Fold Rule.‖ Here, the convict shall only stay in jail 3x the most severe penalty. The most severe penalty is 17 yrs 4 mos and 1 day (x3) = 52 years and 3 days. Is he going to stay that long still? - No, in no case shall he stay in jail for more than 40 years. So from 58 years 8 months and 2 days, the convict is to serve only 40 years. ** But later on you will know that he will not actually stay this long because aside from enjoying Parole, the convict who will stay in jail in good behavior is entitled to service credits which we call Good Conduct Time Allowance (GCTA). Remember that under the Three Fold Rule, the convict has to serve at least 4 sentences. If the sum of all penalties does not exceed the most severe multiplied by 3, the Three Fold Rule does not apply. Article 71. Graduated scales. - In the case in which the law prescribed a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty. The courts, in applying such lower or higher penalty, shall observe the following graduated scales: SCALE NO. 1 1. Death, 2. Reclusion perpetua, 3. Reclusion temporal, 4. Prision mayor, 5. Prisioncorreccional, 6. Arresto mayor, 7. Destierro, 8. Arrestomenor, 9. Public censure, 10. Fine.

SCALE NO. 2 1. Perpetual absolute disqualification, 2. Temporal absolute disqualification 3. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, 4. Public censure, 5. Fine. Article 72 Preference in the payment of the civil liabilities. The civil liabilities of a person found guilty of two or more offenses shall be satisfied by following the chronological order of the dates of the judgments rendered against him, beginning with the first in order of time. You pay in chronological order. ―First come, first serve.‖ Article 73. Presumption in regard to the imposition of accessory penalties. - Whenever the courts shall impose a penalty which, by provision of law, carries with it other penalties, according to the provisions of Articles 40, 41, 42, 43 and 44 of this Code, it must be understood that the accessory penalties are also imposed upon the convict. Article 74. Penalty higher than reclusion perpetua in certain cases. - In cases in which the law prescribes a penalty higher than another given penalty, without specially designating the name of the former, if such higher penalty should be that of death, the same penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty. There are crimes that when you compute for the penalty – it will be Death. Example, Qualified Theft. The penalty provided under the law here is ―2 degrees higher than that of ordinary theft.‖ So there‘s no specific penalty. We know that the penalty for Ordinary Theft is Reclusion temporal. So for qualified theft, since it says two degrees higher, what‘s the penalty when we compute? - Death! But this can‘t be imposed because Death can only be imposed when the law SPECIFICALLY PROVIDES for it. But with regards to the ACCESSORY PENALTY for death, the accused must suffer that. ART. 75: INCREASING OR DECREASING THE PENALTY OF FINE BY ONE OR MORE DEGREES Whenever it may be necessary to increase or reduce the penalty of fine by one or more degrees, it shall be increased or reduced, respectively, for each degree, by ¼ of the maximum amount. It will always be ¼ of the maximum amount. So, one degree lower, you just deduct ¼ of the maximum. ART. 76: LEGAL PERIOD OF DURATION OF DIVISIBLE PENALTIES

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Divisible Penalties are deemed divided into 3 equal periods. TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME INCLUDED IN EACH OF THEIR PERIODS Penalties

Penalty Minimum Medium Maximum in its period period period entirety

Reclusion temporal

From 12 years and 1 day to 20 years.

From 12 years and 1 day to 14 years and 8 months.

From 14 years, 8 months and 1 day to 17 years and 4 months.

From 17 years, 4 months and 1 day to 20 years.

Prision mayor, absolute disqualification and special temporary disqualification

From 6 years and 1 day to 12 years.

From 6 years and 1 day to 8 years.

From 8 years and 1 day to 10 years.

From 10 years and 1 day to 12 years.

Prision correccional, suspension and destierro

From 6 months and 1 day to 6 years.

From 6 months and 1 day to 2 years and 4 months.

From 2 years, 4 months and 1 day to 4 years and 2 months.

From 4 years, 2 months and 1 day to 6 years.

Arresto mayor

From 1 From 1 to month 2 months. and 1 day to months.

From 2 months and 1 day to 4 months.

From 4 months and 1 day to 6 months.

Arresto menor

From 1 to 30 days.

From 1 to From 11 From 21 10 days. to 20 to 30 days. days.

INDETERMINATE SENTENCE LAW (ISL) Act No. 4103 This law provides that the sentence to be imposed by the court must have a Minimum and Maximum period. Do not confuse this one with the periods provided in Divisible Penalties (Art. 76). This one is different. Take note of that. There are two (2) formulas in determining the indeterminate sentence; one formula for crimes punishable under the RPC and another formula for crimes punishable by special laws. Example: Homicide. What is the penalty for Homicide? Reclusion Temporal.

Reclusion Temporal 12 years and 1 day to 20 years

Prision Mayor 6 years and 1 day to 12 years.

Prision correccional 6 months and 1 day to 6 years.

ART. 77: COMPLEX PENALTY It is a penalty prescribed by law composed of 3 distinct penalties, each forming a period – Minimum, Medium, and Maximum. Example: Reclusion Temporal to Death Maximum – Death Minimum – Reclusion Perpetua Minimum – Reclusion Temporal

Arresto mayor 1 month and 1 day to 6 months.

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MINIMUM 12 years and 1 day to 14 years and 8 months MEDIUM 14 years, 8 months and 1 day to 17 years and 4 months MAXIMUM 17 years, 4 months and 1 day to 20 years MINIMUM 6 years and 1 day to 8 years. MEDIUM 8 years and 1 day to 10 years. MAXIMUM 10 years and 1 day to 12 years. MINIMUM 6 months and 1 day to 2 years and 4 months MEDIUM 2 years, 4 months and 1 day to 4 years and 2 months. MAXIMUM 4 years, 2 months and 1 day to 6 years. MINIMUM 1 to 2 months MEDIUM 2 months and 1 day to 4 months. MAXIMUM 4 months and 1 day to 6 months

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D A. UNDER THE RPC

Your decision then is wrong because the crime of Homicide is punishable under the RPC.

We first get the Minimum. According to the ISL, when the crime is punishable by the RPC, in order to get the Minimum of the sentence, the penalty prescribed by law shall be lowered by one degree. What is the penalty prescribed by law for Homicide? Reclusion Temporal. What is one degree lower? Prision Mayor. What is the range or duration of Prision Mayor? Six years and one day to 12 years. That is the range. The court may impose the Minimum sentence within the range of six (6) years and one day to 12 years. So, if the accused is convicted of Homicide, can the court give a Minimum sentence of six (6) years and one day? YES. 8 years? YES. 10 years? YES, because it is within the range and for as long as it is within the range. How about 6 years? NO. Not within the range. The Minimum sentence that the court can give in this case is six (6) years and one day. Now then, we get the Maximum. In order to get the Maximum of the sentence, we are now going to consider the Mitigating and Aggravating circumstances. Example #1: No Mitigating. No Aggravating. Where do you get your Maximum? From Reclusion Temporal – MEDIUM. Why Medium? Because there is no Mitigating or Aggravating circumstance that may be applied. What is the duration of Reclusion Temporal – Medium? 14 years, 8 months and 1 day to 17 years and 4 months. Can the court give a Maximum sentence of 14 years? YES. 16 years? YES. 17 years? YES. For as long as it is within the range. If the judge, after taking into consideration the Minimum and Maximum of the ISL, has decided to sentence the accused of six (6) years and one day to 15 years, he may, in his decision, write that, ―The court finds the accused guilty of Homicide and hereby sentences him to suffer the penalty of six (6) years and one day of Prision Mayor to 15 years and one day of Reclusion Temporal.‖ Why not simply write, ―six (6) years and one day to 15 years‖? Because… if walay apelyido, that will give the impression that the crime is punished under a special law.

Example #2: (1) Mitigating. No Aggravating. Where do you get your Maximum? From Reclusion Temporal – MINIMUM. Minimum because there is a mitigating circumstance. What is the duration of Reclusion Temporal – Minimum? 12 years and 1 day to 14 years and 8 months. Can the court give a Maximum sentence of 12 years and 1 day penalty? YES. 13 years? YES. 14 years? YES. For as long as it is within the range. How about 15 years? NO. Not within the range. Note: The imposition of penalties is within the sound discretion of the court. You cannot question the imposition. Example #3: No Mitigating. (1) Aggravating. Where do you get your Maximum? From Reclusion Temporal – MAXIMUM. Maximum because there is an aggravating circumstance. What is the duration of Reclusion Temporal – Maximum? 17 years, 4 months and 1 day to 20 years. Can the court give a Maximum sentence of 18 years? YES. 19 years? YES. 20 years? YES. For as long as it is within the range. How about 12 years? NO. Not within the range. Example #4: Privileged Mitigating. No Aggravating. If the accused is a Minor, that is Privileged Mitigating, you lower the penalty by one degree. That is, Prision Mayor (one degree lower from Reclusion Temporal). To determine the Minimum of the sentence, you lower it further by one degree. That is, Prision Correctional. What is the range or duration of Prision Correctional? Six (6) months and one day to six (6) years. Therefore, your Minimum now is six (6) months and one day to six (6) years. Can the court give a Minimum sentence of six (6) years and one day? YES. It is within the range. Maximum

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Where do you get your Maximum? Prision Mayor – MEDIUM. Why Medium? Because there is no more Mitigating or Aggravating circumstance that may be applied. Example #5: Privileged Mitigating; (1) Ordinary Mitigating. No Aggravating. The Minimum sentence remains the same. Where do you get your Maximum? Prision Mayor – MINIMUM. Minimum because there is a mitigating circumstance. Example #6: Privileged Mitigating; Two (2) or more Ordinary Mitigating; No Aggravating. To determine the Minimum of the sentence, you lower Example #4 further by one degree. That is, Arresto Mayor. What is the range or duration of Arresto Mayor? One (1) month and one day to six (6) months. Can the court give a Minimum sentence of two (2) months? YES. It is within the range.

already served 6 years already, he will have to serve the reaming 9 years of his sentence. It is called ―indeterminate‖ because you are not sure if you are going to finish serving your sentence or not. B.

UNDER SPECIAL LAWS

The minimum penalty imposable under Sec. 11 (Possession of Dangerous Drugs) under RA 9165 or The Comprehensive Dangerous Drugs Act is 12 years and 1 day to 20 years. To determine the Minimum in ISL In crimes punishable by special law, the minimum of the sentence should not be lower than the penalty imposable. Therefore, should not be lower than 12 years and one day. To determine the Maximum in ISL The maximum should not be higher than the maximum penalty imposable. Therefore, should not be higher than 20 years. What is the opposite of Indeterminate Sentence? Straight penalty.

Maximum Where do you get your Maximum? Prision Correctional – MEDIUM. Why Medium? Because there is no more Mitigating or Aggravating circumstance that may be applied.

Instances when the Indeterminate Sentence Law will not apply 1.

2. 3.

WHAT IS THE PURPOSE OF THE ISL? The purpose is to save the valuable human resources. The accused will be more productive when he is outside. And, the government can save a lot. Under the ISL, once the accused was able to serve the Minimum of his sentence, he can avail of parole. Meaning, the accused now will be released. And if stay in good behavior while outside the jail, he will not return anymore to serve the sentence. The remaining period of the sentence shall be deemed served. But if he will commit any infraction while outside the jail, he will return to jail to finish his sentence. The period spent outside jail will not be counted. He has to finish the remaining period of his sentence. So for example, the accused was sentenced to 15 years in prison and he has

When the penalty imposed by the court is not higher than one year. – If exactly one year, it could bestraight penalty. Will not benefit a habitual delinquent Offenses such as Rebellion, Treason, or Proposal to Commit Treason

June 19, 2016 Part 9 INDETERMINATE SENTENCE LAW Mandates that the Court in imposing a sentence upon the convict should provide a minimum period or duration of the sentence as well as the maximum Purpose of providing minimum and maximum:  Main purpose is for the convict to avail of Parole after he has served the minimum duration of his sentence Parole -

Suspension of sentence after serving the minimum period of the indeterminate sentence Convict will be released conditionally. The condition is that he should not violate any law while he is

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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outside jail until the time the maximum period of his sentence is over or the end of the maximum period When convict violates the terms, he may be required to serve the remaining portion of his sentence Rationale: to save the valuable human resources

Disqualification of Parole 1) Accused is sentenced to life imprisonment, death, reclusion perpetua  CASE IN POINT: People vs Rocha: penalty of reclusion perpetua is considered synonymous with life imprisonment for the purpose of the indeterminate sentence law only (the application of the law) 2) Those convicted of treason, rebellion, espionage, piracy, repeat offenders (habitual delinquent)  Recidivist can avail of parole 3) Those who shall have escaped or evaded sentence 4) Those whose maximum term of imprisonment does not exceed 1 year  If exactly 1 year or less, this will not apply. The court will provide for straight penalty, no minimum and no maximum  Rule on imposition of minimum and maximum penalty:  1st Rule: Offenses punishable by RPC  2nd Rule: Offenses punishable by SPL  Under special laws which uses the penalty imposed under the RPC, the rule to be followed in determining the minimum and maximum of the indeterminate sentence is the rule that is used for those crimes defined under the RPC  If 1 SPL uses terms of penalties from RPC, the formula that will be used will be that also of the RPC Probation Convict applies to Board of Pardon and Parole The Parole and Probation Office monitors the accused while outside jail. Sometimes it conducts surprise drug testing. A disposition under which an accused is released subject to conditions imposed by the court and under the supervision of a probation officer Probation is much better than Parole because in parole you have to serve the minimum of the sentence but in probation, the convict may not be able to serve even a day of his sentence. He is already convicted yet he cannot be able to stay in jail even for a minute.

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Mere privilege and not a right

When can the accused file an application for probation? It must be filed within the period to perfect an appeal or to file an appeal in the same trial court that convicted him When convict has perfected an appeal, an application for probation cannot be granted Upon the filing of application for probation, he cannot anymore file an appeal because the decision will automatically become final and executory. But the service of sentence shall be suspended. Approval for probation is not automatic  Who will conduct investigation?  The court will have to issue an order directing the Parole and Probation Office to conduct an investigation – post-sentence investigation – and submit such report to the court to determine whether the accused is qualified to avail of probation. The investigation must be done within 15 days. Qualifications (ALL MUST CONCUR) 1) The sentence imposed should not be over 6 years  The maximum period is 6 years or less 2) The crime charged should not be against crime of national security/public order  Example: Accused pleaded guilty to an offense of direct assault. He cannot apply for probation because it is a crime against public order.  Remedy:  File a Motion to Withdraw his Improvident Plea of Guilty because he did not intelligently plead guilty.  Then plead not guilty.  During pre-trial, plea bargain for another offense. Plea bargainingrequires the consent of the police officer.  Plead guilty to slight physical injuries. It is now probationable because it is a crime against person.  Then apply for probation 3) Must not have been previously convicted by final judgment of an offense punished by imprisonment of more than 6 months or a fine more than P1,000 a. Amended by RA 10707 4) Not availed of previous probation a. Probation cannot be availed more than once 5) Must not have been serving sentence at the time of application.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D All the qualifications must be alleged in the application.

The conditions imposed by the court: Conditions that make a person productive:

Can a recidivist/repeat offender apply for probation? -

1. 2. 3.

Yes, provided that the penalty imposed on him in the previous crime committed should not have been more than 6 months. 6 months or less or P1,000 fine or less.

4. 5.

Upon filing of the provision, the court will order the parole and probation office to conduct a post sentence investigation and to submit the report within 60 days. -

If the convicted person applied for probation, the judgment will become final. The accused must not withdraw his bail, so that he will not be imprisoned during the application for probation. If the probation will be approved, the bail will be returned. If he did not post bail then he may be release by way of ―release on recognizance‖ -

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6. 7. 8.

If the recommendation is favourable then the court will approve the application for probation. The application is not automatic

Promise by a responsible person that he would produce the accused in court whenever his presence is required. Respected member of the community, e.g. Barangay captain The presence of the accused is needed during the application for probation.

The most important condition is that the probationer must report once a month to the supervising probation officer. -

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The period of probation may be longer than the sentence If the court penalized the accused for 1 year of imprisonment, his probation may be for 2 years. But the probation must not exceed 6 years

If the penalty imposed is a fine -

Probation may still be applied if he is subject to subsidiary imprisonment The period of probation may not be more than twice the number of days of subsidiary imprisonment. The decision must have the stipulation for subsidiary imprisonment.

At least once a month Until the end of the probation

Failure to fulfill the conditions will warrant the revocation of his probation. -

He will be arrested and will now serve his sentence Although minor violations may only give penalties to extend his term of probation.

The effects of probation: 1.

The period of probation is different from the period of the sentence -

Community service Plant trees and care for them Not associate himself with persons with questionable character Engage in gainful employment Allow the probation office to visit a. All probationers have a supervising probation officer to follow him up Undergo seminars and recollections Surprise drug tests Not commit any infraction

Service oh his sentence is suspended (including the accessory penalties) a. He can vote even in conviction because the accessory penalty is suspended b. If the period of probation is terminated without violation of any condition, all the rights that are suspended are restored to the accused.

Probation is not automatically terminated. The probation officer must submit to the court that indeed the probationer has complied with his probation and the conditions. The court will issue an order formally terminating the probation. (Bala vs. Martinez 181 SCRA 459) -

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There was a case. When his probation was done, he left the country. (Probationers cannot change their address without permission from the court.) Travel is possible but there must be permission from the court.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

His probation was revoked even if the period was complied. When the probation came back, there was already a warrant of arrest.

There was a case. The probationer was given a condition that she will refrain from teaching. The accused questioned the condition stating that she does not know any other profession other than teaching. -

The liberality of probation should not be used as a tool by the trial courts to stipulate unrealistic terms. (mu samot nuun ug ka problemado)

An accused was charged of arbitrary detention. He was found guilty and sentenced to suffer 4 months and 1 day to 2 days and 4 months. He applied for probation. After the termination of the probation, he ran for barangay captain. There is a provision under the local government code, sec. 40 par. a., ―the following persons are disqualified from running from any elective local position. 1. a. those sentenced by final judgment for an offense involving moral turpitude or for an offence punishable for 1 year or more imprisonment within 2 years after serving sentence.‖ The opposing candidate stated that 2 years have not yet elapsed from the service of sentence. He was filed with a disqualification case. -

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SC said that the person was qualified to run During the period of probation, while the accused is under probation, the probationer is not disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. Those who have not served their sentence by reason of the grant of probation, once the person fully complied with his probation; he no longer has to serve his sentence. He should not be likewise disqualified from running in a local elective office because the 2 year period of illegibility under section 40 par. a. of the LGC does not even begin to run. There is no reckoning date for the 2 year period because he was not able to serve his sentence. (Morina vs. COMELEC Aug. 10, 2006)

The case is charged with different cases. 10 counts of BP 22 (bouncing checks) every bouncing check counts as 1 case. 10 counts mean 10 cases. The court sentenced him each case for 1 year. Service of sentence should be successive for he cannot serve it simultaneously. The court rendered the judgment of the 10 cases in one decision. When adding up all the penalties, it would reach him 10 years.

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The SC said he is qualified to avail of probation. Multiple prison terms imposed on the accused found guilty of several offenses in one decision should not be added up. The sum total is not determinative of his eligibility or disqualification to avail of probation. The law uses the word ―maximum‖ and not ―total‖. The maximum charged is only 1 year, therefore he is still qualified for probation Even if there are 100 cases and non go beyond 6 years, he is eligible for probation.

Earlier, we knew that a person who files an appeal cannot avail of probation. If the court sentences you to suffer imprisonment of 6 years and yet you did not avail of probation because you filed an appeal. In the event that the decision of the court is affirmed by the appellate court (RTC). You cannot avail of probation. Case: The accused was charged with frustrated homicide with the RTC. The accused denied having committed the crime. He reasoned out that even if it is true that I am guilty, that I inflicted injury upon the victim, I could not be convicted of frustrated homicide because there is no proof of intent to kill. But the problem is the RTC did not believe him and convicted him as charged. And because the crime charged is frustrated homicide, the sentence imposed on him was over 6 years. So he cannot avail of probation. He now appealed the decision to the CA. It was affirmed. When it reached the SC SC said there is no intent to kill and he is only liable for serious physical injuries. SC imposes a penalty of not more than 6 years. Q: Can he avail of probation? TN that the rule is: if the accused has applied or filed an appeal he cannot avail of probation. But recently the SC reversed the jurisprudence before that once a person files an appeal, one cannot file a probation. Now, one can file for probation for as long as if the sentence imposed by the RTC is not probationable. If the trial court imposes a penalty which is not probationable, but on appeal the appellate court changes the penalty imposed to a probationable one, the accused can still avail of probation and the application for probation shall be filed within 15 days from the receipt of the copy of the decision and before the decision becomes final. Where should the application be filed? Before the trial court. CASE: PP vsColinares Dec. 13, 2007

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D This decision of the SC has not been embodied in the Probation Law, RA 10707. ―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 accused shall be allowed to apply for probation based on the modified decision before such decision becomes final. The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered or in the trial court where such case has been reraffled.‖ *** secure a copy of RA 10707 Probation benefits your client. If your client is being sentenced to a crime which has an imposable penalty of 6 years below so it would be filed in the first level court, MTC. If the court would convict your client, check on the chances on whether you would win on your appeal. If the sentence to be imposed by the court is probationable and you would still appeal, you cannot anymore avail of probation. For the case of PP vsColimanares, the situation there was different since it was not due to the fault of the accused but because of the court. If you think that once you appeal the chances of winning the appeal is slim, do not file an appeal. It would be much better to advice your client to avail or apply of probation. Advantages: 1.

2.

What makes probation nice is that the probation office is under the DOJ. When you avail of probation and you get an NBI clearance, it would not affect your records there or not appear that you have been convicted. But with the court clearance, it would appear there that you have been convicted. Once your client pleads guilty to an offense and it has a short imposable sentence or you let your client plea bargain to a penalty of 1 year. You then apply for probation so he also has to serve a short time for probation.

incidents than those expressly authorized thereby. In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among themselves and other persons, the relief which they may receive, and their diet. The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. SEC 78 ―No penalty shall be executed except by virtue of a final judgment.‖ When would a decision become final and executory?‖ o After the lapse of 15 days if there is no appeal or motion for reconsideration or motion for new trial The court will now issue a warrant of arrest against the accused if he did not surrender or the service of his sentence If the penalty imposed by the court is more than 3 years imprisonment, he is considered an insular prisoner Insular prisoner – he will be imprisoned at Muntinlupa – the National Bilibid Prison, the national penitentiary o There is also a regional penitentiary, they have a branch or they decentralized it. It is at Abuyog, Leyte. o Penal colonies: Iwahig, Palawan Penal Colony, Davao Penal Colony If more than 3 years – insular prisoner and be brought to the national penitentiary If less than 3 years, only here or local –BBRC or CPDRC but now Cebu City Jail BARQ: What ismittimus? o That is now the equivalent of the writ of execution. That is the order of the court allowing or directing the transfer of the convict to the national penitentiary.

Article 78.When and how a penalty is to be executed. - No penalty shall be executed except by virtue of a final judgment.

Article 79.Suspension of the execution and service of the penalties in case of insanity. - When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases.

A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or

If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in

Chapter Five
 EXECUTION AND SERVICE OF PENALTIES Section One. - General Provisions

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D accordance with the provisions of this Code. The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. -

when the accused goes crazy, what happens? o When it is found that the accused is insane at the time of the commission of the crime: he is exempt from any criminal liability o When the accused at the time of the commission of the crime is not yet insane but while the case is pending he became insane: the proceedings will be suspended o When the accused during trial he is sane but when he learned that he is convicted and now he is confined in jail, he became insane: the service of his sentence will be suspended and he will now be placed at the mental hospital

Article 80.Suspension of sentence of minor delinquents. Whenever a minor of either sex, under sixteen years of age at the date of the commission of a grave or less grave felony, is accused thereof, the court, after hearing the evidence in the proper proceedings, instead of pronouncing judgment of conviction, shall suspend all further proceedings and shall commit such minor to the custody or care of a public or private, benevolent or charitable institution, established under the law of the care, correction or education of orphaned, homeless, defective, and delinquent children, or to the custody or care of any other responsible person in any other place subject to visitation and supervision by the Director of Public Welfare or any of his agents or representatives, if there be any, or otherwise by the superintendent of public schools or his representatives, subject to such conditions as are prescribed hereinbelow until such minor shall have reached his majority age or for such less period as the court may deem proper. The court, in committing said minor as provided above, shall take into consideration the religion of such minor, his parents or next of kin, in order to avoid his commitment to any private institution not under the control and supervision of the religious sect or denomination to which they belong. The Director of Public Welfare or his duly authorized representatives or agents, the superintendent of public schools or his representatives, or the person to whose custody or care the minor has been committed, shall submit to the court every four months and as often as required in special cases, a written report on the good or bad conduct of said minor and the moral and intellectual progress made by him. The suspension of the proceedings against a minor may be

extended or shortened by the court on the recommendation of the Director of Public Welfare or his authorized representative or agents, or the superintendent of public schools or his representatives, according as to whether the conduct of such minor has been good or not and whether he has complied with the conditions imposed upon him, or not. The provisions of the first paragraph of this article shall not, however, be affected by those contained herein. If the minor has been committed to the custody or care of any of the institutions mentioned in the first paragraph of this article, with the approval of the Director of Public Welfare and subject to such conditions as this official in accordance with law may deem proper to impose, such minor may be allowed to stay elsewhere under the care of a responsible person. If the minor has behaved properly and has complied with the conditions imposed upon him during his confinement, in accordance with the provisions of this article, he shall be returned to the court in order that the same may order his final release. In case the minor fails to behave properly or to comply with the regulations of the institution to which he has been committed or with the conditions imposed upon him when he was committed to the care of a responsible person, or in case he should be found incorrigible or his continued stay in such institution should be inadvisable, he shall be returned to the court in order that the same may render the judgment corresponding to the crime committed by him. The expenses for the maintenance of a minor delinquent confined in the institution to which he has been committed, shall be borne totally or partially by his parents or relatives or those persons liable to support him, if they are able to do so, in the discretion of the court; Provided, That in case his parents or relatives or those persons liable to support him have not been ordered to pay said expenses or are found indigent and cannot pay said expenses, the municipality in which the offense was committed shall pay one-third of said expenses; the province to which the municipality belongs shall pay one-third; and the remaining one-third shall be borne by the National Government: Provided, however, That whenever the Secretary of Finance certifies that a municipality is not able to pay its share in the expenses above mentioned, such share which is not paid by said municipality shall be borne by the National Government. Chartered cities shall pay two-thirds of said expenses; and in case a chartered city cannot pay said expenses, the internal revenue allotments which may be due to said city shall be withheld and applied in settlement of said indebtedness in accordance with section five hundred and

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D eighty-eight of the Administrative Code. Section Two. - Execution of principal penalties. Article 81.When and how the death penalty is to be executed. - The death sentence shall be executed with reference to any other and shall consist in putting the person under sentence to death by electrocution. The death sentence shall be executed under the authority of the Director of Prisons, endeavoring so far as possible to mitigate the sufferings of the person under sentence during electrocution as well as during the proceedings prior to the execution. If the person under sentence so desires, he shall be anaesthetized at the moment of the electrocution. Article 82.Notification and execution of the sentence and assistance to the culprit. - The court shall designate a working day for the execution but not the hour thereof; and such designation shall not be communicated to the offender before sunrise of said day, and the execution shall not take place until after the expiration of at least eight hours following the notification, but before sunset. During the interval between the notification and the execution, the culprit shall, in so far as possible, be furnished such assistance as he may request in order to be attended in his last moments by priests or ministers of the religion he professes and to consult lawyers, as well as in order to make a will and confer with members of his family or persons in charge of the management of his business, of the administration of his property, or of the care of his descendants. Article 83.Suspension of the execution of the death sentence. - The death sentence shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40. Article 84.Place of execution and persons who may witness the same. - The execution shall take place in the penitentiary of Bilibid in a space closed to the public view and shall be witnessed only by the priests assisting the offender and by his lawyers, and by his relatives, not exceeding six, if he so request, by the physician and the necessary personnel of the penal establishment, and by such persons as the Director of Prisons may authorize. Article 85.Provisions relative to the corpse of the person executed and its burial. - Unless claimed by his family, the corpse of the culprit shall, upon the completion of the legal proceedings

subsequent to the execution, be turned over to the institute of learning or scientific research first applying for it, for the purpose of study and investigation, provided that such institute shall take charge of the decent burial of the remains. Otherwise, the Director of Prisons shall order the burial of the body of the culprit at government expense, granting permission to be present thereat to the members of the family of the culprit and the friends of the latter. In no case shall the burial of the body of a person sentenced to death be held with pomp. -

Articles 80 – 85: repealed by PD 603 and RA 9344 About minors

Article 86.Reclusion perpetua, reclusion temporal, prision mayor, prisioncorreccional and arresto mayor. - The penalties of reclusion perpetua, reclusion temporal, prision mayor, prisioncorreccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future. -

3 years or more – insular prisoner Where will he be serving his sentence: if from Cebu then at the regional penitentiary – Abuyog, Leyte There is a proposal now that the national penitentiary at Muntinlupa will be transferred to Laguna or Nueva Ecija. There is a 50H lot there.

Article 87.Destierro. - Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. -

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The accused is prohibited from entering a certain place EX: He is prohibited from entering Cebu City. The distance should not be less than 25km. If 25km, so Naga. If he exceeds that he will now be liable for evasion of service of sentence. Imposed on cases like: 1. Concubinage Concubine is sentenced to destierro 2. For an accused or convict who killed his spouse under exceptional circumstance Like caught him on the act of sexual intercourse with another person - called death under exceptional circumstance Destierro is imposed not as a penalty but for his protection 3. After lowering the penalty by certain degrees, destierro would become the proper lower penalty Art 71

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished: 1.

2. 3. 4. 5. 6. 7.

By the death of the convict, as to the personal penalties and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment. By service of the sentence; By amnesty, which completely extinguishes the penalty and all its effects; By absolute pardon; By prescription of the crime; By prescription of the penalty; By the marriage of the offended woman, as provided in Article 344 of this Code.

What are the grounds or causes of EXTINGUISHMENT OF CRIMINAL LIABILITY: 1.

CIVIL LIABILITY But as regards his civil liability, if the decision has already become final and executory, the same shall not be affected by his death anymore. His civil liability is NOT EXTINGUISHED. And the claim shall therefore be filed against his estate. RULE: It shall be EXTINGUISHED if death occurs before final judgment. EXC: If his civil liability likewise arose out of other sources of obligations- other than the crime committed, the same shall not be extinguished and the private complainant may file a separate civil action against the estate.

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2.

By Service of Sentence. Of course if the accused has already served his sentence then there is no more criminal liability.

3.

By Amnesty Completely extinguishes the penalty and all its effects. Amnesty and pardon are the powers of the President. AMNESTY PARDON

TOTAL

By the death of the convict. CRIMINAL LIABILITY The death of the convict whether before or after final judgment extinguishes CRIMINAL LIABILITY, because one of the juridical conditions of penalty is that it is personal. -

that he was ordered to pay the value of the jewelleries that he failed to return- 1million. He appealed the decision. Pending appeal, the accused died. Q: What happens to his obligation ordered by the court to pay 1million? A: The obligation subsists. The claim for civil liability survives notwithstanding the death of the accused if the same may also be predicated on a source of obligation other than delict, such as law, contracts, quasi- contracts, and quasi delicts. Y can still file a separate civil action against the estate of Mr. X. (People vs. Bayotas, 236 SCRA 239.

Example of a civil liability arising out from a contract: Mr. X obligated himself to sell the jewelleries which he received from Y. The proceeds shall be given to Y or the jewelleries be returned to Y if they‘re not sold. What will happen if Mr. X after 1 month and after demand fails to remit the proceeds or return them if not sold? He is liable for Estafa. Let‘s say the court sentenced him to suffer imprisonment and aside from

Is a blanket pardon to classes of persons or communities who may be guilty of political offenses. May be exercised even before trial or investigation is had

Includes any crime and is exercised individually by the President

Makes an ex- convict no longer a recidivist, because it obliterates the last vestige of the crime.

Does not alter the fact that the accused is a recidivist, bec it produces the extinction only of the personal effects of the penalty.

Exercised when the person is already convicted

Both do not extinguish the civil liability of the offender. Being by Proclamation of the Chief Executive with the concurrence of Congress, is a public act of which the courts should take judicial notice.

Being a private act of the President, must be pleaded and proved by the person pardoned

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 4.

5.

6.

Absolute Pardon Two kinds of pardon: i. Absolute pardon- no condition imposed ii. Conditional pardon- usual condition is that the grantee should not commit any crime. PAROLE

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- Requires that the minimum sentence should have been served.

Prescription of the crime PRESCRIPTION OF PRESCRIPTION THE CRIME THE PENALTY

OF

The forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time.

The loss or forfeiture of the right of the Government to execute the final sentence after the lapse of a certain time.

The case has not yet been filed

Case already filed, the accused is already convicted, sentence already imposed but the accused is not yet serving his sentence because he has escaped from jail.

By the marriage of the offended party -

Those punishable by a correctional penalty shall prescribe in ten years; with the EXCEPTION of those punishable by arresto mayor, which shall prescribe in five years. The crime of libel or other similar offenses shall prescribe in one year.

PARDON It is enough that the decision has already become final and executory. No need of service.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

As provided by Art. 344 of the RPC. This Article mentions of the private crimes (Seduction, abduction, etc.). Rape is no longer considered as a private crime. It is already classified as a crime against person. Nevertheless, even if it is considered as crime against person, valid marriage between the victim and the accused will still extinguish the criminal liability.

Art. 90. Prescription of crime. — Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years.

The crime of oral defamation and slander by deed shall prescribe in six months. Light offenses prescribe in two months. When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article. (As amended by RA 4661, approved June 19, 1966). -

TN that the ―oral defamation‖ which prescribes in 6 months here refers to Grave Oral Defamation, because the prescriptive period for slight oral prescribes in only 2 months. There are two kinds of defamation: 1. Grave 2. Slight oral- only 2months.

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Example: The offended party failed to file a complaint for slight physical injuries within the prescriptive period. So instead, he filed a complaint for attempted homicide against the accused. After trial, the court finds that the crime committed is only slight physical injuries. Q: Can the accused be convicted of slight physical injuries? Ans. NO MORE. When the crime proved has already prescribed at the time the case was filed, the accused can no longer be convicted of such crime. Otherwise it would be easy to circumvent the law by just filing a case for the graver offense. Francisco vs CA, 122 SCRA 545 Art. 91. Computation of prescription of offenses. — The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philippine Archipelago. Q: When shall the prescriptive period of a crime start to run? A: From the day the crime was committed or discovered. Discovery by whom? 1. The offended party 2. Authority or 3. Agent of an authority -

Example: Supposed Mr X. planned to kill Mr. Y in a remote place. One night, he followed Mr. Y and stabbed him. He already prepared a graveyard 6 feet under the ground and there he buried Mr Y. Mr X didn‘t know that a boy witnessed the incident. But the child didn‘t have enough courage to tell what he saw because he was just 10 years old then. He got the courage to tell the authorities only when he reached 40 years old, because the victim kept on appearing in his dream asking for justice. Based on the testimony of the child (now a man), a murder charge was filed against Mr. X. The latter filed a motion to quash on the ground of prescription. If you were the judge will you grant the motion? Ans. NO. The crime has not yet prescribed. The prescriptive period did not commence to run. The commission of the crime was known only to the boy (now a man), who was not the offended party, an authority or an agent of an authority. It was discovered by the authorities only when the boy (now a man) revealed to them the commission of the crime.

Now let‘s change the facts, suppose after killing Y, Mr. X just left the body of Y and 3 days thereafter, when the relatives of the deceased found the decomposing body of Mr. Y, and upon examination, it was concluded that he died with stab wounds. The problem here is that the authorities could not get any witness. Now Mr. X did not know that W, the boy, saw the killing, however the latter did not have enough courage to report the incident to the police. He only got the courage to told the authorities only after 30yrs when he was already an adult. Now the police filed a case against Mr. X, and thereafter Mr. X filed a motion to dismiss on the ground of prescription.

Question, is the motion meritorious? Yes! Now take note here, the start of the counting is the discovery of the crime and not of the criminal. That is why in order to prevent the crime to prescribe, the authorities should exert all efforts to know who are responsible for the crime, otherwise the case would prescribe. Now this would relate to your criminal procedure. When does the prescriptive period stop to run? Now the filing of the case with the prosecutor‘s office as a rule will stop the running of the prescriptive period and will run again if the case is dismissed on grounds which are not imputable to the accused. In other words, the case is dismissed since the accused is not guilty, then the prescriptive period will be suspended. In the case of Jadewell parking system corp. Vs Bidua sr. 706 SCRA 724, SC said where the crime charged is based on ordinance, prescriptive period only stops to run upon filing of the information in COURT; not in the prosecutor‘s office. -

Prescriptive period will not run if accused is not found in the Philippines or is abroad.

Now there‘s a case, the accused executed a deed of sale, wherein a parcel of land was sold to him, when in fact it was not, now using the falsified document, Mr. X the accused have the title of the lot transferred to his name, he then registered it in the register of deeds, later on the title was changed to his name. Now after 20years, the owner discovered that the title of his lot was already in the name of the accused, he then found out that Mr. X made a falsified document. He then filed a case for falsification against Mr. X, the latter invoking prescription, stating that the falsification occurred 20 years ago. Now, the prosecution countered that the crime did not prescribe since the owner just discovered it recently. Is the motion to quash filed by X meritorious? refer to the case of Cabral vs Puno 70 SCRA 606. Article 92. Prescription of penalties This refers to the loss of the right of the state to let the convict serve his sentence. 1. Death and Reclusion perpetua – 20yrs 2. Other afflictive penalties – 15yrs 3. Correcional penalties – 10yrs; 4. Aresto Mayor – 5yrs (exception to correctional penalties) 5. Light penalties – 1yr This refers to the prescription to the PENALTY imposed by the court; Accused here is already sentenced and is serving the sentence.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Article 93.

Good Conduct Time Allowance (GCTA) This is in line with the Positivist Theory.

Prescriptive period start to run from the day the convict evades his sentence. Interrupted if the defendant should give himself up, be captured or should go to some foreign country with which the Philippines has no extradition treaty; or should commit another crime before expiration of the period of prescription. Now for example, the convict is charged with murder, but the court allowed him to post bail since the evidence against him is not strong, but after trial, the court found him guilty of murder. The accused did not anymore appear in court, now the court cancelled his bail and issued a warrant for his arrest, the accused was only arrested 40yrs later, now he filed a petition for habeas corpus on the ground that his imprisonment is already illegal because the penalty imposed on him has already prescribed. Meritorious? No! Now take note that the prescriptive period of the penalty will only start to run when the accused has evaded the service of his sentence, this presupposes he already started his sentence. It is necessary for the prescriptive period to run that the accused MUST HAVE SERVED HIS SENTENCE and later on escaped. Because if the accused did not serve his sentence and escaped, then the prescriptive period will not run. Refer to the case of Pangan vs Gatbaliti Jan. 21 2005 Article 94. Provides for the causes for partial extinction of criminal liability. 1. Conditional Pardon; 2. Commutation of the sentence; 3. Good conduct allowances which the culprit may earn while he is serving sentence. (Good Conduct Time Allowance under Article 97). However this is already amended by RA. 10592: If the accused is serving his sentence in the following: a. 1st 2yrs – 20days for each month of good behavior shall be deducted b. 3-5yrs – 23 days deduction c. 6-10yrs – 25days deduction d. 11-up – 30days - Also includes useful behavior inside the jail such as engaging in productive activities.(teaching other inmates; spreading the word of the Lord)

Article 95. Obligation incurred by person granted conditional pardon. - Any person who has been granted conditional pardon shall incur the obligation of complying strictly with the conditions imposed therein otherwise, his noncompliance with any of the conditions specified shall result in the revocation of the pardon and the provisions of Article 159 shall be applied to him. Conditional Pardon – granted by the President; and the usual condition here is that the offender should not commit any crime. If condition violated – pardon revoked and the person granted the same shall be re-arrested and required to serve the remaining portion of his sentence. Article 96. Effect of commutation of sentence. - The commutation of the original sentence for another of a different length and nature shall have the legal effect of substituting the latter in the place of the former. So effect of commutation is the reduction of penalty. Article 97. Allowance for good conduct. - The good conduct of any prisoner in any penal institution shall entitle him to the following deductions from the period of his sentence: 1. During the first two years of his imprisonment, he shall be allowed a deduction of five days for each month of good behavior; 2. During the third to the fifth year, inclusive, of his imprisonment, he shall be allowed a deduction of eight days for each month of good behavior; 3. During the following years until the tenth year, inclusive, of his imprisonment, he shall be allowed a deduction of ten days for each month of good behavior; and 4. During the eleventh and successive years of his imprisonment, he shall be allowed a deduction of fifteen days for each month of good behaviour. Article 98. Special time allowance for loyalty. - A deduction of one-fifth of the period of his sentence shall be granted to any prisoner who, having evaded the service of his sentence under the circumstances mentioned in Article 58 of this Code, gives himself up to the authorities within 48 hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe to in said article. This is another reason for granting time allowance. What is the effect if the prisoners would leave the jail facility on occasion of calamity? - Under Art 98, the leaving of the facility on occasion of calamity is not considered a crime. But so as not to be liable of evasion of service of sentence, the convict should return to the jail

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D facility within 48 hours from the announcement of the passing of the calamity. So if he surrenders within 48 hours, he does not commit any crime, and instead will be granted reduction of 1/5 of his original sentence. - so let‘s say he is sentenced to 20 years, and since he as served 10 years already, there is a remainder of 10 years for him to serve. 1/5 of 20 is 4. So from the 10 years of service left, deduct 4 yrs – he now ends up with 6 years of service left. If you did not escape at all, despite the calamity, how much is your deduction? - Under RA 10592, you are entitled to 2/5 reduction of the original sentence. If you never returned to jail, what crime did you commit? - Evasion of Service of Sentence on Occasion of Calamity We talked earlier about Time Allow Article 99. Who grants time allowances. - Whenever lawfully justified, the Director of Prisons shall grant allowances for good conduct. Such allowances once granted shall not be revoked. Who grants Time Allowance? - the Jail Warden (RA 10592) - TN time allowance may be earned by the Preventive Detention Prisoners. So, to determine if the offender has stayed in jail equivalent to the maximum period, then time allowance may be computed and earned. Article 100. Civil liability of a person guilty of felony. - Every person criminally liable for a felony is also civilly liable. This rule is due to the DUAL NATURE/CHARACTER of a crime. In most cases, when a person commits a crime, he is at fault to the State and the Private offended party. The private offended party may file a civil case against the accused to hold him civilly liable. When the complainant does not file a separate civil case, it is deemed included in the criminal case. In the prosecution of a criminal case, considering that civil liability is deemed included, the private complainant may hire a private lawyer if he can afford. If he can‘t afford, he can ask the prosecutor may file to claim civil liability from the accused after presenting evidence. Also, the court, after finding the accused guilty, may order the accused to pay damages to the private complainant. But if there is NO private complainant, a private lawyer has NO personality to appear in the case.

What are the damages to be awarded to the private offended party? 1. Actual Damages 2. Moral Damages 3. Exemplary Damages Good to know: The fact that one committed RAPE – civilly liable for 50k; if the accused is the father who committed rape– 75k Even if one is acquitted, may still be civilly liable in the ff cases: 1. Acquittal is merely based on Reasonable Doubt 2. Court finds that the liability is Purely Civil in Nature 3. On the ground of Torts/ Criminal Negligence 4. Acquittal based on Minority Article 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. This deals with civil liability in cases wherein the accused is exempt from any Criminal liability.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D In exempting circumstances, there is a crime committed but there is no criminal. Though the accused is exempt, he could be civilly liable EXCEPT in paragraphs 4 and 7. 

In paragraphs 1,2 and 3 of Art 12 (imbecile, insane, minor), civil liability is shouldered by persons who have control over the minor or the insane or imbecile unless it appears that the person who has legal authority has NO FAULT OR NEGLIGENCE.

shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. In connection with Art 102, another exception is this article. TN of the phrase ―in the discharge of their duties‖

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Art 11, Paragraph 4 (avoidance of greater injury), the person benefited in this case is civilly liable

Example: Taxi Business The driver ran over a person. He was sued for Reckless Imprudence resulting to Homicide. He was convicted. Since there was death, liable for 50k and 1m for the loss of earning capacity. Who pays if the driver is insolvent? - the Employer, as per Art 103 because the latter is engaged in an industry.

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Art 12, Paragraphs 5 and 6 (Irresistable Force/Uncontrollable Fear) – the person using violence or threats shall be held civilly liable.

If you are a Regional Director, with no business and your personal driver ran over a person. Are you liable? - No, because you are not engaged in any business.

If there is no person responsible for the insane or minor? - the minor/insane/imbecile shall be helad liable with their own property

Article 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. - In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. GR: Civil liability shall be shouldered by the person committing the crime. (one of the) Exceptions: Art 102 Subsidiary liabilityin this article happens when a person who is responsible for the commission of the crime cannot pay civil liability by reason of insolvency, then the employer of that person/owner of the business(innkeepers, etc) can be held liable. TN: Robbery in this Article refers only to Robbery with force upon things.

In a criminal case, is it necessary to include the employer in the charge? NO. Is there no violation of due process considering that you will hold him liable in the event that the employee is found criminally or civilly liable? SC: There is no violation of due process. Requirements of due process are met once a motion to execute subsidiary writ of execution is filed in court and the employer is required to comment when the motion is heard. The employer will only be held liable after proof that the accused cannot pay due to insolvency. PP vs. Pangunorum; April 11, 2005 Phil. Rabbit Bus Lines Inc. vs PP; April 14, 2004 The nature of liability is solidary. However, the employer may raise the defense of diligence of a good father of a family in the selection of his employees. Q: You are a storeowner. The security guard assigned in your store left his post, rode a jeepney and robbed a nearby establishment. Are you liable? A: You determine if the crime was made while ―in the discharge of his duties‖. The subsidiary liability does not arise from any and all offenses that the employees may commit, but limited to those which he shall be found guilty of ―in the discharge of his duties‖.

Article 103. Subsidiary civil liability of other persons. - The subsidiary liability established in the next preceding article

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D ART. 104: WHAT IS INCLUDED IN CIVIL LIABILITY Actual or compensatory damages: 1. Restitution – return of the thing taken away 2. Reparation – payment of its value 3. Indemnication for consequential damages – such as the loss income while being confined in the hospital PP vs. Pradis; July 13, 1998 Bar Q: The accused was found guilty of ten (10) counts of Rape. When convicted, in addition to imprisonment, he was ordered to pay indemnity of P50, 000 for each count.On appeal, the accused questioned the award of civil indemnity for each count arguing that there was only one and the same victim. Is the accused correct? SC: NO. Under the law, every person criminally liable is also civilly liable. The civil liability is based on the crime committed and not on the number of the victim/s. Since each count charges different felonious acts and ought to be punished differently, the concomitant civil indemnity ex delicto for every criminal act should also be adjudged. Said civil indemnity is mandatory upon a finding of the fact of Rape. It is distinct from and should not be denominated as moral damages which are based on a different moral foundation. (PP vsJalosjos; Nov. 16, 2001) ART. 105: RESTITUTION

This provision does not apply however, in cases where the thing has been acquired by the third person in the manner and under the requirements which is barred by law, such as in a public sale and provided in good faith. For example, the accused above is charged with Theft. Can the court order the pawnshop to return the thing to the private complainant? YES. Legal basis: Art. 105. ART. 105: REPARATION How made? The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party and reparation shall be made accordingly. Example: You are a victim of Robbery inside a jeepney and one of the things taken from you by one of the robbers was your wedding ring. You include that – special sentimental value. ART. 106: INDEMNIFICATION What is included? Indemnification of consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. You include here lost income; upon showing of proof thereof (pay slip, proof of hospitalization).

How made? The restitution of the thing itself must be made whenever possible, with allowance for any deterioration or diminution of value as determined by the court. The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person who may be liable to him. Q: A cellphone was snatched and was later pawned at a pawnshop. The pawnshop recovered it in good faith. Can it be recovered? A: The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person who may be liable to him. IOW, this is without prejudice to whatever action that the pawnshop against he person who pawned the item.

Formula: Indemnity for Loss Earnings Net Earning Capacity = Life Expectancy* x (Gross Annual Income – Living Expenses**) *Life Expectancy = 2/3 x (80 – age of the deceased at the time of his death. **In the absence of proof, living expenses is estimated to be 50% of the Gross Annual Income. PP vs. Mosa, Jr.; GR 1037042, June 17, 2003 ART. 108 What about if the accused is already dead but the decision is already final and executory? The payment of liability is shouldered by the heirs provided the deceased left properties.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D ART. 109: SHARE OF EACH PERSON CIVILLY LIABLE If there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must pay. ART. 110: SEVERAL AND SUBSIDIARY LIABILITY The principals, the accomplice and accessories, each within their respective bracket or category, shall be liable solidarily. ART. 111 Any person who has participated gratuitously (accessory) in the proceeds of a felony shall be bound to make restitution in the amount equivalent to the extent of such participation.

How is treason committed? 1. by levying/staging war against the government  Meaning, by taking up arms against the government.  TN: it must be in collaboration with a foreign enemy. o So even if the Philippines is at war with Chine but if a Filipino is fighting against the government but he is not in collaboration with china, he is not liable for treason. He is only liable for rebellion. 2.

ART. 112: EXTINCTION OF CIVIL LIABILITY Civil liabilities shall be extinguished in the same manner as other obligations in accordance with provisions of the Civil Code. Causes of Extinction (CC): payment, loss, condonation, confusion or merger, compensation, novation ART. 113: OBLIGATION TO SATISFY CIVIL LIABILITY What happens if the accused has been granted amnesty, has been granted parole, has been granted probation, has been granted pardon, what happens to his civil liability?The same will not affect his civil liability. His civil liability shall survive.

END OF BOOK 1!

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What is the difference between the 2 ways?  The first refers to taking up arms against the government. Whereas in the 2nd mode, the accused might not be fighting against the government but he adheres to the enemy by giving them aid or comfort. Such as:  by giving money in order to buy weapon or  by supplying vital information,  by making himself as spy for the enemy,  by giving food to the enemy

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Who can be held liable under treason?  By any citizen or by a resident alien.

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What about supplying prostitutes, the ―comfort women‖? Recruiting women or commandeering women to satisfy the lust of the enemy?  Not an act of treason. Because whatever the accused‘s collaboration with the Japanese enemy might have was only trivial and imperceptible and unintentional.

June 22, 2016 Part 10 TITLE I – CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Art 114 – Treason TREASON -

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Breach of allegiance to the government committed by a person who owes allegiance to the government Treason is a war crime. A person could only be held liable if there is a war going on between our country and another country. When the BBL was passed, those who opposed the government panel, they were charged with treason. Will that prosper?  No, because our government is not at war with any government.

by adherence to the enemies and giving them aid or comfort  Mere adherence is not sufficient.  You must have the intention to betray.  Ex: A said, ―I like the Chinese to rule our country.‖ Would he be liable for treason? No. Mere adherence will not be sufficient. There must be some physical activity that would indicate your adherence to the enemy such as by supplying arms.  By adherence, it strengthens the enemy in the conduct of war.  The 2 modes must concur because if you just give aid but you did not adhere to the enemy, you are not liable for treason.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

What about accepting public office/position?  GR: Not treason. EXP: when it is considered as policy determining. It means you are occupying a highly responsible occupation such as being a member of the cabinet.

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Is there a crime complex with treason?  Common crimes committed by the traitor are absorbed in treason such as murder. Because when you wage war against the government to help the enemy, it is necessary that you kill.  Are you liable to the ordinary crimes? o No, they are absorbed in treason. There is no crime of treason complex with murder, rebellion complex murder. Common crimes are also absorbed in rebellion. o Including rape. There is no crime as treason complex with rape because it is absorbed in treason.

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It is also considered as continuing offense just like rebellion. What is a continuing offense?  There are several acts committed but the accused is liable only for one crime.

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How can treason be proved?  It can only be proved by 2 credible witnesses testifying for the same act. If the prosecution presented 2 witnesses but the court doubts the testimony of 1, the accused cannot be convicted.  Another way is when the accused confessed in open court or the accused would plead guilty.  The penalty for treason is Reclusion Perpetua.  Treason cannot be proved by circumstantial evidence. It has to be proved by 2 credible witnesses. This is what we call the TWO WITNESS RULE

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As regards adherence, it is a mental activity manifested in the actuations of the accused.it can be proved by only 1 witness or the act itself. Because that is a mental activity. You cannot define what is in the mind of the accused. It can be proved by circumstantial evidence from the nature of the act itself. The Two Witness Rule pertains to the act. Is the defence of suspended allegiance or change in sovereignty be considered a valid defence?  NO. A citizen owes absolute and permanent allegiance to the government.

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What about defence of obedience to the de facto government? Valid defence?  Yes. Obedience to the de facto government is considered a valid defence.

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Defence of duress and uncontrollable fear?  Also a valid defence.

ART 115 – Conspiracy or proposal to commit treason -

2 concepts of conspiracy and proposal 1. It can be considered as mere preparatory act 2. Or as crimes by themselves  It can only be considered as crime if there is a particular provision of law penalizing conspiracy or proposal.  Art 115 expressly penalizes mere conspiracy and proposal to commit treason

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What about if treason is actually committed?  A person is liable for conspiracy or proposal if the accused did not wage war against the government. If the accused actually engages in war he is not liable for conspiracy or proposal to commit treason, the same will be absorbed and considered as preparatory acts.  Therefore, if you file conspiracy or proposal to commit treason, that presupposes that no treason yet has been committed. It is still in the conspiracy stage. The 2 witness rule does not apply. This can only be committed in times of war.

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ART 116 – Misprision of treason -

Every person owing allegiance to the government of the Philippines, strictly Filipino, and having knowledge about any conspiracy who conceals or who does not disclose the same when possible.

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The accused here has knowledge about conspiracy to commit Treason against the government not knowledge about treason. But he does not make known his knowledge regarding the conspiracy to the governor of the province or the city mayor or the city fiscal where he resides. AS a RULE: you cannot be held liable if you just keep to yourself what you know about the commission of a crime. But if you have knowledge regarding conspiracy to commit treason and you did not report it to the governor or city mayor or to the provincial fiscal, you are liable for misprision of treason. You are punished for your silence. You are not liable as

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D accessory but as principal to the crime of misprision of treason. ART 117 – Espionage -

Ways in committing the crime: 1. By entering a warship or naval or military establishment or reservation without authority in order to obtain any information, plans, photographs or other date related to the defence  The confidential data that the accused wants to obtain has something to do with the defence of our military. They are military secrets.  It is not necessary that the accused has actually obtained. It is consummated the moment he enters the prohibited area mentioned.  The accused here is an outsider.  If insider? Para 2 2. Being in possession by reason of public office he holds, of the articles, data, information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation.  He is a custodian of these military secrets and he discloses such contents  The information has something to do with defence of our country  What about if the information is confidential but it has nothing to do with thedefence of our country? Is he liable? o NO but liable for another crime. It could be infidelity of the custody of public records or violation of Para k, Section 3 of RA 3019 about Anti-Graft and Corrupt Practices Act. o CA 616

June 24, 2016 Part 11 Article 118. Inciting to war or giving motives for reprisals. — Elements: 1. 2.

Sabah in order to recover Sabah from the rule of Malaysia. The act of Kiram in sending armed men to Sabah would be considered as Inciting to War or Giving Motive for Reprisals. His act of sending armed men to Sabah in order to free Sabah from Malaysia may provoke Malaysia or give occasion for a war.

Article 119. Violation of neutrality. Elements: 1. 2. 3.

There is a war which Philippines is not involved There is a regulation issued by competent authority for the purpose of enforcing neutrality Offender violates the regulation

Article 120. Correspondence with hostile country. Elements: 1. 2. 3.

Time of war in which Philippines is involved Offender makes correspondence with an enemy country or occupied by enemy troops Correspondence is: a. Prohibited by Government b. Carried on in ciphers or conventional signs c. Containing notice or information which might be useful to the enemy

Ciphers or conventional signs -

Codes

If the offender intended to aid the enemy by giving notice or information, the penalty is higher.

Article 121. Flight to enemy country. Elements: 1. 2. 3. 4.

War in which the Philippines is involved Owes allegiance to the Government Offender attempts to flee or go to enemy country Going to enemy country is prohibited by competent authority

Section Three – Piracy and mutiny on the high seas in Philippine waters Article 122. Piracy in general and mutiny on the high seas.

Offender performs unlawful or unauthorized acts Acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property.

The sultanate of Sulu claims that Sabah is a part of the Philippines. Kiram was the sultan of Sulu. Sabah was paying lease to the sultanate of Sulu because the kingdom was the owner of Sabah. Kiram sent around 100 heavily armed men to

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Piracy is robbery in the sea. There is still jurisdiction even if committed beyond the Philippine territory. Piracy is punishable anywhere. Pirates can be prosecuted in our country.

2 Ways of Committing Piracy: 1.

Attacking or seizing a vessel on the high seas or in Philippine waters

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 2.

Seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers

ARTICLE 124. Arbitrary Detention Elements:

2 laws that govern Piracy:

1. 2. 3.

1. 2.

Article 122-123 RPC PD 532

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Under the RPC, only a stranger is liable for Piracy. If the one who took away the belongings of the crew or passenger is also a passenger or member of a crew, the crime is not piracy but robbery. Under PD 532, even a mere passenger can be held liable for piracy. However, PD 532 is only applicable if committed within Philippine waters. It does not mention high seas. It only mentions territorial waters.

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Arbitrary Detention - 3 Classes (Article 124, 125 and 126)

Public officer or employee Detains a person Without legal grounds -

Article 123. Qualified Piracy -

Special Complex Crime, single indivisible offense that has a specific penalty

a.

RP to Death for those who commit piracy: Whenever the offenders have seized the vessel by boarding or firing upon the same b. Whenever the pirates have abandoned their victims without means of saving themselves c. Whenever the crime is accompanied by murder, homicide, physical injuries or rape Crime is still qualified piracy regardless of the number of rape and kills or victims

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RA 6235 (Hijacking) 1. 2. 3. 4.

Robbery in the air Compel a change in the course or destination of an aircraft of Philippine registry Seize or usurp the control thereof, while it is in flight Compel an aircraft of foreign registry to land in Philippine territory to seize or usurp thereof while in the territory. Bringing inside the airplane any explosive, flammable or corrosive substance.

Only a public officer or employee can commit this offense and the public officer/employee must have the authority to detain. Legal grounds for detaining without any warrant of arrest: 1. Commission of a crime 2. Violent insanity 3. Ailment A janitor arresting his neighbour without any legal ground believing his neighbour is selling drugs. The janitor of city hall is a government employee but he is not liable for arbitrary detention. He has no authority to detain. Public officers with authority to detain: 1. Law enforcers (police, NBI) 2. Judges 3. Mayors 4. Governors 5. Barangay Captains Even with authority but without legal ground, they are liable for arbitrary detention Private individuals who conspire with public officers in detaining persons without legal ground could be held liable for arbitrary detention. Under article 124, there is no minimum period time. The penalty depends on the length of time when the victim was detained. Connect this article with section 5 rule 113 of the Criminal Procedure

Section 3 and 5 Rule 113 -

An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation.

Circumstances where a warrantless arrest can be validly effected. Outside the circumstances mentioned under the rule, the arrest will be illegal even if a person committed a crime. Arrest without warrant can only be done when the crime is committed in his presence or has personal knowledge regarding the commission of the crime and immediately arrested the person committing the crime

Detention TITLE II – CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE -

Crimes against certain provisions of the constitution

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Does not only mean actual confinement. There is detention even if the person can freely move in and out of his cell and even could take meals outside the prison but still under surveillance or escape.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

If the person detaining another is a private person or even if he is a public officer but does not have any authority to detain, the crime committed is not arbitrary detention but illegal detention.

ARTICLE 125. Delay in the Delivery of Detained Persons to the Proper Judicial Authorities. -

The arrest is with legal ground. The person detained has committed a crime however the arresting officer failed to file a case against the arrested person within the period of: 1. 12 hours – light penalties 2. 18 hours – correctional penalties 3. 36 hours – afflictive or capital penalties

A private person can arrest another if he commits a crime in his presence. Failure to file the case in court will not result in arbitrary detention but illegal detention. If the detained person wants to avail of preliminary investigation instead of inquest proceedings he must sign a waiver or abandonment of his right under Article 125 duly assisted by counsel. The article gives the arrested person the right to file a case if the arresting officer does not file the case within the reglementary period. -

Deliver

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Does not only mean the literal delivery but also the filing of the appropriate case in court.

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Criminal Procedure -

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When a person is arrested without warrant (in flagrante delicto), he is not entitled to preliminary investigation. Preliminary investigation cannot be finished within 12 hours. Instead, he is subjected to inquest proceedings. It is a summary proceeding to determine whether the arrest was legal. Police officers would not be the ones to file the case in court but will file it in the prosecutor‘s office. Suppose the prosecutor does not immediately file the case in court, the arresting officer must release the person arrested. It is not the prosecutor who will be liable for arbitrary detention because it was not the prosecutor who arrested the detained person. The arresting officer will still be liable if not filed on time.

If a police officer caught a person in the act of slight physical injuries. It is a light offense. A case must be filed in 12 hours. Suppose the person who committed the crime is arrested at 6 o‘clock in evening of Friday. Over the weekend there is no office or courts except some courts of Cebu City. The arresting officer was only able to file the case 8 o‘clock on Monday. -

The arresting officer is not liable Insuperable Cause (beyond the control of the officer) The arresting officer must file in the first hour of the next working day. Soria vs. Desierto 125 Phil 313

If the court issued a warrant of arrest then the police officer arrested the subject on a Monday but was able to bring the arrested person in court on Wednesday. The crime committed was Attempted Homicide (correctional).

The officer is not liable Article 125 is only applied in warrantless arrest There is already a pending case in court The duty of the officer is only to bring the person to the nearest police station and then to court

Remedy of the counsel for arbitrary detention would be to file for habeas corpus If the habeas corpus is granted therefore the detention is illegal, the next step would be to file for arbitrary detention against the arresting officer. The eventual filing of the case after the reglementary period will not extinguish the crime of arbitrary detention.

ARTICLE 126. Delaying Release -

Any public officer or employee who delays the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or proceedings upon any petition for the liberation of such person.

Acts punishable: 1. 2. 3.

Delaying the performance of a judicial or executive order for the release of a prisoner. Unduly delaying the service of the notice of such order to said prisoner. Unduly delaying the proceedings upon any petition for the liberation of such person.

An accused is not found guilty of the crime. The accused is under detention. Aside from ordering the dismissal of the case, the court will order the detention officer/jail warden to immediately release the accused. If the jail warden will not comply with the order of the court or immediately release the prisoner then the warden is liable under article 126. The penalty is as in article 124. The same crime is committed if a public officer is charged with the service of order but purposely delay the service of the order to the jail and the release of the detainee is delayed. The courts have a sheriff or process server. The process server delivers the order of the court to the proper address. -

The process server purposely delays the delivery of the service therefore the jail warden could not release the detained person. The process server will be the one liable for delaying release.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Unduly delaying the proceedings -

1. 2.

A petition for the issuance of a writ of habeas corpus should be treated with urgency by the court. It should be handled with preference. A court that deliberately delays the proceedings, the judge will be liable for delaying release.

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ARTICLE 129. Search Warrants Maliciously Obtained, and Abuse in the Service of Those Legally Obtained.

ARTICLE 127. Expulsion -

Prostitutes in Manila that were ordered by the mayor to be transported to Davao City. The prostitutes were forcibly brought to Davao City. The Mayor and the Chief of Police committed the crime of expulsion.

A. There is a search warrant but criminally liable because there was procurement of a search warrant without just cause.  There was no probable cause determined by the judge  The applicant of the search warrant was only making stories or the witnesses were not telling the truth and the judge issued the search warrant basing on the false testimonies. There was use of a search warrant without just cause. The public officer who procured the search warrant without just cause will be liable for Article 129 and other offenses in connection with the issuance of the search warrant. It is said under Article 129 ―in addition to the liability attaching to the offender for the commission of any other offense.‖ Lying under oath will make him liable for perjury. This will be an example of a two tiered penalty. He will be liable for each crime he committed.

Acts punished: 1. 2.

Expelling a person from the Philippines Compelling a person to change his residence. Not being authorized by law.

There are instances where a person is legally compelled to change his residence: 1. 2.

Deportation by President or Commissioner of the bureau of Immigration Ejectment Proceedings

ARTICLE 128. Violation of Domicile -

Committed by a public officer or employee not authorized by law or judicial order: 1. Entering any dwelling against the will of the owner.  Mere lack of consent is not enough  There must be an opposition or prohibition to enter 2. Searching papers or other effects found without the previous consent of such owner 3. Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave.

B.

If a police officer enters the house of his neighbour without the neighbour‘s consent and upon the arrival of the neighbour he was asked to leave and the police officer left without question. -

There was no crime under Article 128

If he enters the house and searched papers then he is liable under Article 128.

The officer is not liable for trespass to dwelling because it is only committed by private persons.

Aggravating Circumstances: Elements:

Night time Any papers were not returned immediately

Another crime under this article is exceeding his authority or using unnecessary severity in the execution of the search warrant. This presupposes that the search warrant was validly procured when he serves the search warrant. the police officer served the search warrant for illegal drugs but the police officers not only searched for illegal drugs but also other properties found in the house of the subject such as titles of land and vehicles but still subject to the Plain View Doctrine. If the contraband not subject of the search warrant is found in plain view, it can be confiscated even if not included in the search warrant. The properties talk about here in the article is not contraband.

ARTICLE 130.

If he enters in the house and just watches TV. -

The offender is a public officer or employee He is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects. There is no search warrant

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Search here is with search warrant, with court order but what makes it a crime? The search was conducted in the absence of the subject, in the absence of any lawful occupant or any member of his family But if they are all on vacation, in the presence of 2 witnesses who are residing in the same locality. EX: You serve a search warrant. The media was also there. When you arrive at the place there was no one around or no

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D one home. So you did your search in the presence of the media. Liable for violation of Art 130?  Yes, if none of the media is residing in the said barangay where the search was conducted. But if there were 2 who were residents of that barangay, no crime. What if the one searched by the law enforcers is a car parked in a parking area. Are those crimes committed? o Refer to the case of GalvantevsCasimero 552 SCRA 304 – the answer to the question ARTICLE 131 -

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This is about prohibition, interruption and dissolution of peaceful meetings TN of the word peaceful Any public officer or employee who, without legal ground, shall prohibit or interrupt the holding of a peaceful meeting, or shall dissolve the same is liable for violation for Art 131. When we say prohibit, there could be no meeting yet. So a person is prohibited from attending a meeting or if there is already a meeting, the same was interrupted or dissolved. The public officer who committed those acts could be held liable for violation of Art 131. To be held liable, the meeting dissolved must be peaceful. If the public officer dissolved the meetingbecause it has become chaotic then this crime is not committed. One of the elements: the one dissolving or interrupting the peaceful meeting should be a public officer who is a stranger, who is not part of the meeting. o If he is a private person then the crime committed will be disturbance of public order under Art 153; or o If he is a public officer but he is a participant then it could be unjust vexation TN that this article has something to do with the constitutional right of the people to peaceably assemble. The right to meet is not absolute. o The government, including LGUs including has the power to prescribe regulations to promote order and safety as well as the general welfare of the people. o In life with the police power of the state. o LGU may pass an ordinance requiring those who will assemble to secure a permit first before they are allowed to meet or to conduct a rally. Why?  So that the LGU may know who are the organizers and who can be held liable if there would be chaos. The peaceful meeting here could be a religious meeting

132 and 133 -

ARTICLE 132 -

Committed by any public officer or employee who shall prevent or disturb the ceremonies or manifestations of nay religion. Ceremony or manifestation – mass (for Catholics), service (for non-Catholics), prayer meeting If that mass or service is being interrupted, is being stopped without any valid reason then the public officer who made such interruption or who prevents the conduct of the same could be held liable for interruption of religious worship. Ceremony or manifestation may not necessarily be held inside the church. It could be held inside the house. If the holding of one is prevented or disturbed or interrupted by a public officer then the public officer is liable for interruption of religious worship. If a private person does not notoriously interrupt the religious ceremony and the purpose is not to mock or offend the religious feelings, the private person could he held liable for unjust vexation. But if the purpose of the private person is to mock or offend the religious feelings of the faithful then the crime committed could be violation of Art 133, offending the religious feelings. ARTICLE 133 -

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TITLE III – CRIMES AGAINST PUBLIC ORDER ARTICLE 134 -

Something to do with freedom of religion 132 – public officers; 133 – any person so could be a private person

The accused here performs an act which is to ridicule or aimed to mock or offend the feelings of the faithful Case of Carlo Celdran: He was against the church because he is against the RH Bill. In the middle of the mass, he brought a placard with the words ―Father Damaso‖ and walked down the aisle. Charged with violation of Art 133 but case is still pending. o According to accused he cannot be held liable for the crime because he had no intent to offend the feelings of the people who attended the mass because his purpose was just to express his feelings. He was just exercising his freedom of expression. Still pending with the CA. PP vsBaes68 Phil 203 What are some acts which are considered notoriously offensive to the feelings of the faithful? o Throwing stones at the people making a procession o Calling the pope as the commander of Satan

How is rebellion committed? Elements: 1. That there be (a) public uprising, and (b) taking arms against the Government 2. That the purpose of the uprising or movement is either:

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D A. To remove from the allegiance to said Government or its laws: (1) The territory of the Philippines or any part thereof; or (2) Any body of land, naval or other armed forces; or B. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. -

Can just 1 person commit this? This is a crime of the masses or a vast movement of men seeking to change the established or crime of the masses. Purpose: either to remove the allegiance to the government or its laws, the Philippine territory or any part thereof, or any body of land, naval, or other armed forces, or deprive the Chief Executive or Congress,wholly or partially, any of their powers What is the crime committed if thousands of armed men would attack and occupy the provincial capitol of Bohol and their purpose is to declare the Independent Republic of Bohol. Because they do not want to become part anymore of the Government of the Republic of the Philippines because the national government neglected them. What is the crime committed by the group of armed men? o That is rebellion. There is public uprising and the purpose is to remove from allegiance from the Philippine government a portion of its territory. TN that size does not matter. EX: A barangay, residents of that barangay would rise against the government and take up arms and they would declare their barangay as independent from the Republic of the Philippines. What is the crime committed? That is rebellion. There is public uprising and taking up of arms and the purpose is to remove from the allegiance to the government a portion of its territory. – Same with MILFs case, Bangsamoro EX: Thousands of armed men calling themselves ―Red Army of God‖ led by General Pacman and would attack the Congress in order to prevent the Congress from signing the divorce bill and freedom of expression bill. What is the crime committed? o The crime committed is rebellion. There is public uprising and taking up of arms against the government and the purpose is to deprive the Congress of its power. EX: A group of persons would take up arms in order to prevent the SC from exercising its powers. What is the crime committed?

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Rebellion is only a crime once it fails. If it succeeds, they become heroes. EX: EDSA 1 – if it was a failure then the leaders would have been placed behind bars, rebellion. But since it succeeded, they are heroes. -

It is a continuing offense – offender commits series of acts but his act will be considered as one crime Common crimes are absorbed in rebellion: murder, homicide, and robbery. But they cannot be held liable for common crimes if they commit these crimes in furtherance of rebellion. EX: Commit murder but not in furtherance of rebellion but for private purpose. Like killing a man since he believed that it is his wife‘s paramour, not considered as in furtherance of rebellion. Be held liable for murder. -

o

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Not rebellion, since SC is not included here. Only the Chief Executive or the President, or the Congress wholly or partially. If the purpose of the uprising and the taking of arms is to prevent the SC from exercising its powers then that could not be rebellion. It is not anymore included in the definition of rebellion. The crime could be sedition.

Common crimes committed for personal reasons and not in furtherance of rebellion are punished separately. EX: Sometime in 1988, Enrile was one of those people who started a coup d‘état against Cory Aquino (no law prohibiting coup d‘état yet). He was also part of the EDSA. Being one of the leaders,he was charged with rebellion. The penalty for rebellion is prision mayor (Why only this? Since rebellion is considered a political crime.)The government during that time didn‘t want Enrile to put up bail (prision mayor is bailable) so they complexed the crime with murder. If Art 48 is applied, the crime with the greater offense will be applied. Rebellion complexed with crime, non-bailable. Justice Secretary before was Drilon. Before this case, there were those cases similar to this like (1950s cases): PP vs Hernandez, PP vs Geronimo. SC said, rebellion cannot be complexed with common crimes because common crimes are absorbed. The government tried to argue, those killings were not done in furtherance of rebellion. (In furtherance – as a means to commit rebellion.) It was done on occasion of rebellion (there is rebellion going on and you commit murder). But SC refused to make a distinction re: in furtherance and on occasion. Whether the killing is done in furtherance of rebellion or on occasion of rebellion, common crimes are absorbed. (Enrilevs Salazar, 186 SCRA 217)

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This provision has been amended. 1. Penalty is already reclusion perpetua. 2. There is a separate provision for coup d‘état 3. The phrase before ―who while holding any public office or employment takes part therein engaging war against the forces of the government, destroying property or committing serious violence, exacting contributions or diverting funds appropriated‖. This phrase has already been deleted. The consequence of this deletion is that rebellion can now be complexed with common crimes. But there is no recent jurisprudence so the controlling

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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jurisprudence is Enrilevs Salazar. So, common crimes are absorbed in rebellion. Distinguish rebellion from treason: (**be able to know) TREASON REBELLION The purpose of staging the war is to help the enemy Adherence to the enemy and giving aid and comfort is treason

It is not

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TN: definition, who can be held liable, and the purpose of the attack ARTICLE 135

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Adherence to the rebels even giving them aid or comfort is not rebellion

EX: If the government is fighting a foreign enemy and a group of persons are also fighting against the government but not for the purpose of helping the foreign enemy. They are liable for rebellion and not for treason.

The principal offenders in coup d‘état are: military, police or persons holding public office. Penalties – before punishable only by prision mayor but now: Leaders– By reclusion perpetua, the same with coup d‘état Participants of rebellion – Reclusiontemporal so bailable Person in the government who participates or executes direction or commands of others – Reclusion temporal Civilian who supports or finances or aids in undertaking coup d‘etat – Prision mayor in its maximum If not certain who the leader is under, any person who directed the others, spoke for them (spoke to the media or spokesman), signed receipts, shall be their leader What is the crime committed if it is a group of military elite would attack the TV station and the purpose is to cease or diminish government powers? Coup d‘état.

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ARTICLE 134-A -

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This is the amendment, coup d‘etat How is it committed? The clue here is swift attack to whom or to which it is directed, and for what purpose is that attack Coup d‘état – a swift attack directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power. Who conducted or committed the swift attack – any persons belonging to the military or police, or holding any public office or employment with or without civilian support. (Civilians who support will be held liable) Swift attack accompanied by violence, intimidation, threat, strategy or stealth. REBELLION COUP D‘ETAT Requires a multitude of people.

Requires public uprising.

Does not require a multitude of people. Can be conducted by a compact and select group belonging to the military or police, or holding any public office or employment. Coup d‘état It does not also require public uprising because it relies more on the swiftness and stealth necessary for seizing power.

ARTICLE 136 -

About conspiracy and proposal to commit coup d’état, rebellion or insurrection Another instance wherein mere conspiracy and proposal are being penalized by law. As a rule, when there is no provision of law particularly penalizing proposal or conspiracy, it is merely considered as preparatory acts.

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ARTICLE 137 1.

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About disloyalty of public officers and employees Acts of disloyalty: Pubic officers or employees who have failed to resist a rebellion (in order to be held liable for this crime, there must be rebellion). Wherein he is not a participant but he failed to resist rebellion using all means within his power, or Shall continue to discharge the duties of their offices under the control of the rebels; or Would even accept appointment to office under them. If in conspiracy with the rebels so the crime would not be disloyalty but rebellion.

ARTICLE 138 About inciting to rebellion or insurrection Inciting - inducing Any person who, without taking arms or being in open hostility against the Government, shall incite others to the execution of any of the acts mentioned in Art 134 by means

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D of speeches, proclamations, writings, emblems, banners or other representations towards the same result could be held liable for inciting to rebellion or insurrection. Something to do with our freedom of expression or speech. EX: Let us make this government fall and let us make a new government, a government for the poor and oppressed. That can be considered as inciting to rebellion or insurrection. EX: If those people induced would actually fight against the government because of its inducement. What is the crime committed by the person inducing them? Rebellion, not anymore inciting to rebellion. -

Inciting to rebellion is committed when rebellion did not take place in spite of his inducement. If those people he induced would actually fight against the government because of his inducement, the crime committed is rebellion and he is considered as principal by inducement. Those people who fought against the government are considered as principals by direct participation. ***Learn to distinguish one from the other: rebellion, sedition, coup d’état. ARTICLE 139

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How is sedition committed? Sedition is committed by persons who rise publicly and tumultuously. There is also public uprising here. Cannot be committed by one person, at least 4 because of the word tumultuously. Purpose of the participant is to have redress of their grievances outside of legal means They rise publicly and tumultuously in order to attain by force, intimidation or other means outside of legal methods and any of the 5 purposes: 1. Prevent the promulgation or execution of any law of the holding of any popular election EX: What is the crime committed if a group of persons would rise publicly and tumultuously in order to prevent the holding of the May 11 election? That is sedition. -

They do not want to overthrow the government. They do not want to deliver the country to the foreign enemy. They want to achieve their goals by violence, intimidation or other means outside of legal means. EX: What is the crime committed if a group of persons, numbering from 50-100 would rise publicly and tumultuously (violently, disorderly) in order to prevent the DOH from implementing the RH law? They do not want the DOH to distribute condoms, pills, etc. Sedition is the crime committed. EX: They rise publicly or tumultuously to prevent the DAR in implementing the CARP Law. What is the crime committed? Sedition.

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Prevent the National Government, or even the Local Government or any public officer thereof to freely exercise their function of their powers, or to prevent the execution of any administrative order EX: The acting mayor issued an order for the return of the city issued cars. The barangay captains numbering to 100 rise publicly and tumultuously in order to prevent the city mayor from implementing such order. What is the crime committed? Sedition. EX: City mayor issued an order to remove all those informal settlers living along the creek/s. The informal settlers organized themselves and rise publicly and tumultuously in order to prevent the city government from removing them or driving them away. What is the crime committed? Sedition. EX: A group of policemen are trying to serve the warrant of arrest against the accused, Jaguar but the neighbors of Jaguar rise public and tumultuously in order to prevent the police from serving the warrant of arrest or arresting the accused. What is the crime committed? Sedition because they want to prevent the National government or is officers to exercise their functions.

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Inflict hate or revenge upon the person or property of the public officer or employee EX: The mayor issued an order to clear the sidewalks from all sidewalk vendors. The sidewalk vendors resisted, got angry with the mayor, marched and rise publicly and tumultuously. They went to City Hall looking for the mayor since they want to kill him or beat him black and blue. What is the crime committed? Not only direct assault but sedition. If there is no public uprising and they only attacked the mayor that is now direct assault. If the attack is coupled with public uprising, that is sedition. EX: They are looking for the mayor but they were not able to see the mayor, only his car. They vent their ire on the car of the mayor. They destroyed the car by striking it. What is the crime committed? Not only malicious mischief because there is public uprising, that is sedition.

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Commit, for ant political or social end, any act of hate or revenge against private persons or any social class TN that in sedition that the victim here could be private persons EX: A group of persons would rise publicly and tumultuously and would kill all the Chinese or Turks or gays. What is the crime committed? Sedition. 5. Despoil (take away), for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D EX: A group of persons would rise publicly and tumultuously and would forcibly open the warehouse of the NFA and take away all the sacks stored therein. What is the crime committed? Not only theft but is sedition. -

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In order to commit sedition there must be public uprising plus any of those purposes. (memorize or familiarize) PP vsUmali 96 Phil 185: About a Congressman who hired rebels in order to kill his opponent in an election. He thought that he was going to lose. So the person killed the opponent. What is the crime committed? SC said that the crime committed is sedition under Par 3, Inflict hate or revenge upon the person or property of the public officer or employee. PP vsTahil 52 Phil 318: About resisting a warrant of arrest under Par 2, Prevent the National Government, or even the Local Government or any public officer thereof to freely exercise their function of their powers, or to prevent the execution of any administrative order If there is not public uprising and any of those purposes or acts is committed that is not sedition. If there is public uprising but none of those purposes is present then there is no sedition. It should be public uprising plus any of the purposes. Common crimes are not absorbed in sedition. The accused liable for sedition can also be held liable for murder. Or could be liable for malicious mischief. ARTICLE 140

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Penalty: Leader – Prision mayor in its minimum period Mere participants – Prision correctional ARTICLE 141 There is conspiracy to commit sedition. Proposal to commit sedition is not punishable. Proposal to commit sedition is merely a preparatory act because there is no particular provision penalizing the act.

ARTICLE 142 Inciting to commit sedition Something to do with our freedom of speech, freedom of expression Clear and present danger Dangerous tendency rule Acts: 1. By speeches 2. Uttering seditious words 3. Writing or circulating scurrilous (obscene) libels June 26, 2016 Part 12 Art. 142. Inciting to Sedition

Different acts of inciting to sedition: 1.

Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems etc. This has something to do with our freedom of speech. 2. Uttering seditious words or speeches which tend to disturb the public peace. 3. Writing, publishing or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb the public peace. i. Which tend to obstruct any lawful officer in exercising the functions of his office; or ii. They tend to instigate others to cabal and meet together for unlawful purposes; or Meaning to secretly meet. iii. They suggest or incite rebellious conspiracies or riots; or iv. The lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government. This provision may affect or may have something to do with our freedom of speech or freedom of the press bec under this provision, if the speech or writing tends to disturb or obstruct any officer from executing the functions of his office. Or if such writings or speech tend to instigate others to meet together for unlawful purpose. Or tend to stir up people against the lawful authorities, then such writings or speech or words uttered may be punished under this article. Recall from Political Law: 2 RULES RELATIVE TO SEDITIOUS WORDS: 1.

CLEAR AND PRESENT DANGER RULE Meaning, if there is a danger of public uprising and such danger is both clear and imminent, the seditious words uttered can be held punishable. -

IOW, the words must be of such a nature that by uttering them there is a danger of a public uprising and that such danger should be both CLEAR and IMMINENT.

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It is required that there must be a reasonable ground to believe that the danger apprehended is

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D imminent and that he evil to be prevented is a serious one. -

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SC: He was convicted. Just by having a picture of himself and sending them to the newspaper outlets constitute sedition. Because his act tends to instigate public uprising, so the rule followed at that time was the dangerous tendency rule. As long as the words you uttered would tend to instigate others to rise against the government then that‘s punishable.

If the alleged seditious words would encourage public uprising but the danger is not clear and imminent, those utterance of those words need not be punished.

DANGEROUS TENDENCY RULE The utterance or the writings are being punished if there is a mere tendency that the same would bring public uprising. -

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If the words used tends to create a danger of public uprising, then those words could properly be the subject of this law. The mere fact that there is a tendency that by your utterances the people would be encouraged to rise against the government, then that is punishable. That would constitute inciting to sedition.

But we observe that this law (RPC) was enacted in 1930 when we were still under the Americans. Meaning our freedom then was limited. But now you see people march and rally on the streets, and we just let them. That is why now, at the present set- up we don‘t follow this dangerous tendency rule but the Clear and Present Danger. -

Even if you utter seditious words but the same would not create clear and present danger, that will just be tolerated. Case: Espuelas vs People: The accused has his picture taken, making it appear as if he were hanging lifeless at the end of a piece of rope suspended from a tree. He sent copies of the photograph to newspapers and weeklies of general circulation, with suicide note allegedly written by a fictitious suicide, Alberto Reveniera, and addresses to the latter‘s supposed wife. The note contained words that he committed suicide because he was not pleased with the administration of Pres. Roxas; and that our government is infested with many Hitlers and Mussolinis for which reason he cannot hold high brows to the world with the dirty government. He instructed his children to burn pictures of Roxas if and when they come across them.

But now, this doesn‘t apply anymore. Because we have so much freedom. Specially in the social media, sky is the limit. Again, WHAT WE FOLLOW NOW IS THE CLEAR AND PRESENT DANGER RULE. Art. 143 Acts tending to prevent the meeting of the Assembly and similar bodies. Elements: 1. That there be a projected or actual meeting of the National Assembly (meaning, the Congress) or any of its committees or subcommittees, constitutional committees or divisions thereof, or of any provincial board or city or municipal council or board. 2. That the offender who may be any person prevents such meeting by force or fraud. -

The accused here prevents the meeting.

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DISTINGUISHED FROM REBELLION. In rebellion there is public uprising and one of the purposes is to prevent the Congress from performing their functions. So if a group of persons stage public uprising in order to prevent the Congress from exercising its powers, then that is rebellion. BUT if there is no public uprising, as when a person only prevents a Congressman from attending the session, the crime committed is Art. 143.

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The purpose here is similar to Rebellion or sedition but there is no public uprising. You recall however in your Political Law that the Congress can cite a person in contempt if that person would prevent the members of Congress from attending the session or meeting. Meaning this is without prejudice to the contempt power of Congress.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Art. 144. Disturbance of proceedings. b.

Elements: 1.

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That there be a meeting of the National Assembly or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. That the offender does any of the following acts: a. He disturbs any of such meetings. b. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. Here there is already a meeting but the same is being disturbed. Or the same is being interrupted. Including the disturbance of the meeting or session of the local legislative bodies. There is a session going on but the same is being interrupted by any person.

By arresting or searching any member thereof while the National Assembly is in regular or special session, except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor. (Judge: prision mayor or higher)

Elements: 1. That the offender is a public officer or employee 2. That he arrests or searches any member of the National Assembly; 3. That the Assembly, at the time of arrest or search is in regular or special session 4. That the member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor. Art. 146 Illegal Assemblies TWO KINDS OF MEETING BEING PENALIZED:

Q: What about if what is being disturbed is the proceedings of the Prosecutor’s Office, or of the Courts, and there is no public uprising? What is the crime committed?

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Any meeting ATTENDED BY ARMED PERSONS for the purpose of committing any of the crimes punishable under the Code.

A: It could be a violation of Section 1 (par. e) of PD 1829, Obstruction of Justice. Of course if what is being disturbed are the proceedings of the court, the court has its contempt power, without prejudice to the appropriate criminal case that can be filed against the person who disturbs the proceedings.

Requisites: a. b. c.

Art. 145 Violation of parliamentary immunity 2.

Acts punishable: a.

By using force, intimidation, threats, or frauds to prevent any member of the National Assembly from attending the meetings of the Assembly or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinions or casting his vote. Elements: 1. That the offender uses force, intimidation, threats or fraud; 2. That the purpose of the offender is to prevent any member of the National Assembly from a. attending the meetings of the Assembly or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or b. expressing his opinions or c. casting his vote.

That there is a meeting, a gathering or group of persons, whether in a fixed place or moving; That the meeting is attended by armed persons; That the purpose of the meeting is to commit any of the crimes punishable under the Code.

Any meeting in which the audience, WHETHER ARMED OR NOT, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agents.

Requisites: a. That there is a meeting, a gathering or group of persons, whether in a fixed place or moving b. That the audience, whether armed or not is incited to the commission of the crime of treason, rebellion, or insurrection, sedition or direct assault. 

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There is illegal assembly if the meeting is attended by armed men and the purpose is to commit any crime in the RPC. There is also illegal assembly when the meeting is attended by armed or unarmed.

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So if the purpose of the meeting is to commit rebellion, sedition or treason, the persons attending the meeting could be without arm. The penalty is higher for the organizers or leaders than the mere participants.

Q: How do you determine who’s the leader? A: IF ANY PERSON PRESENT AT THE MEETING CARRIES AN UNLICENSED FIREARM: 1.

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It is presumed that the purpose of the meeting insofar as he is concerned is to commit acts punishable under the Code; and He is considered a leader or organizer of the meeting.

Art. 147 Illegal Association. ILLEGAL ASSMEBLY

ILLEGAL ASSOCIATION

It is necessary that there is an actual meeting or assembly of armed persons for the purpose of committing any of the crimes punishable under the Code, or of individuals who, although not armed are incited to the commission of treason, rebellion etc.

Not necessary that there be an actual meeting.

It is the meeting and attendance at such meeting that are punished.

Mere act of forming or organizing; and mere membership in that assoc is punishable.

Under the LGC, Section 388, the following are also considered persons in authority: 1. Punong Brgy/ Brgy. Captain 2. Kagawads/ Brgy. Councilors 3. Members of the Lupong Tagapamayapa

Under the last paragraph of Art 152, just for the purposes of Art 148, 149 and 151, the following shall also be deemed persons in authority. 1. teachers, professors and persons charged with the supervision of public schools or duly recognized private schools, colleges and universities and 2. lawyers in the actual performance of their professional duties or on the occasion of such performance. Q: What about an AGENT OF A PERSON IN AUTHORITY?

Art. 148 DIRECT ASSAULT- Very Important! (But first we jump to Art. 152) Art. 152 Persons in authority and Agents of persons in authority- Who shall be deemed as such. Q: What do you mean by person in authority? Are all employees in the government considered persons in authority? Who are those considered persons in authority? A PERSON IN AUTHORITY IS ONE DIRECTLY VESTED WITH JURISDICTION. -

Q: Who are these public officers who has the power to execute laws? 1. Governors 2. Mayors 3. Brgy Captain 4. Judges

It means that he has the power and authority to govern and execute laws.

A: Under the 2nd par. of Art 152, any person who by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security to life and property, such as barrio councilman, barrio policemean and barangay leader, and any person who comes to the aid of persons in authority , shall be deemed an agent of a person in authority. Examples:  Law enforcers  Policemen  NBI  Brgy. Tanod  Members of the CITOM -

They are considered agents of a person in authority because their main function is to maintain public order and the protection and security to life and property.

NOTE: Any person who comes to the aid of a person in authority shall be deemed agent of a person in authority.

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Because earlier we talked about teachers, professors and lawyers, who are considered persons in authority. It doesn‘t matter if you do not work in the government. In other words, even if you teach in San Jose, or even if you are not a PAO lawyer, meaning you do private practice, you can be considered as a person in authority.

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The same holds true here in ―Agent of a person in authority‖: There are also PRIVATE PERSONS WHO CAN BE CONSIDERED AS AGENTS OF A PERSON IN AUTHORITY: These are those persons who come to the aid of a person in authority who’s being attacked.

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Example: You saw your teacher being attacked by a parent of one student so you tried to help the teacher. But the attacker hit you as well. BY coming to the rescue of that teacher who is being attacked, automatically you become an agent of a person in authority.

(We go back to Direct Assault) Art. 148 DIRECT ASSAULT -Very Important!! Q: How is direct assault committed? 2 FORMS OF DIRECT ASSAULT: 1. Without public uprising by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition. Elements: a. The offender employs force or sedition b. The aim of the offender is to attain any of the purposes of the crime of rebellion, or any of the objects in the crime of sedition. -

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Elements: i. The offender a. makes an attack, b. employs force, c. makes a serious intimidation, or d. makes a serious resistance. ii. The person assaulted is a person in authority or his agent iii.

That at the time of the assault the person in authority or his agent a. Is engaged in the actual performance of official duties, or b. that he is assaulted by reason of the past performance of official duties.

Q: What is the difference between ―attack while in the actual performance of duty‖ and being ―attack by reason of the past performance of duty‖? Actual performance

By reason performance

Example 1: A teacher was attacked while she was teaching inside the classroom. Crime: Direct Assault

Example 1: The teacher is already off- duty. While on her way home, she was attacked by the father of her student, or the student himself, who she failed in one subject. Crime: Direct Assault.

Example 2: A Turko attacked the teacher while discussing her lessons, because of nonpayment of debt. Crime: Direct Assault

The offenders attacked public officers in order to achieve any of the purposes of rebellion or sedition, BUT without public uprising.

Without public uprising, by attacking, by employing force or by seriously intimidating or seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties or on the occasion of such performance. The common form of direct assault.

REASON OF THE ATTACK IS IMMATERIAL

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of

past

Example 2: While on her way home, the teacher was attacked by a Turko because of nonpayment of debt. Crime: PHYSICAL INJURIES. NOT direct assault because the attack has nothing to do with the past performance of her duties. REASON OF THE ATTACK OR MOTIVE IS

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D MATERIAL.

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Therefore, if the attack was on occasion of a past performance of duties, motive is necessary for the attack to constitute direct assault. 2 forms of Direct Assault: 1. offender employs force/intimidation and the aim is to commit rebellion/sedition and there is no public uprising 2.When the offender/s shall attack/use force or makes a serious intimidation or resistance against a person in authority or any of his agents, while engaged in the performance of official duties, or is assaulted by reason of his past performance of official duties; the offender knows that the person he offended is a person in authority or agents of persons in authority. - If the reason for the attack was for previous performance of duties, then motive is important or material. -what if he knows a person is a police but doesn‘t know that a police is an agent of a person in authority? Is that a defense? No, because that‘s ignorance of the law; a matter of law. Note: In criminal procedure, all the elements of the crime must be alleged and proved, hence the elements are very important. Attack – includes any offensive or antagonistic actions In order to constitute direct assault, the force used must be serious. In one case, the accused who was arrested by the police, boxed the policeman, hence the arrested person was charged with direct assault. SC in that case said there was no direct assault, why? Because when the offended party is an agent of persons of authority, the force used must be SERIOUS. Instead, the crime is serious disobedience or resistance under article 151 and not direct assault; further, as to resistance, the same must be ACTIVE. What about if the one that was boxed was a person in authority? Not just a policeman? Now that would already constitute direct assault. If the victim is a person in authority, employment of serious force is not necessary.

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What constitute serious intimidation? Example would be that the accused points a gun to the police officer. What about if the offender is also a person in authority or an agent of a person in authority? Yes. In fact that would be aggravating. What about if the PA or an APA is challenged to a fight and accepted it? Is there direct assault? Yes. Direct assault could be qualified, meaning the penalty might be higher, for example the attack is committed by a weapon or when the offender is a public officer or employee. Art. 149. Indirect Assault. Now when is indirect assault committed? It is committed whenever direct assault is committed and the victim is an APA. Now article 149 has already been amended. Now it includes any persons coming to the aid of APA on occasion of the commission of any of the crimes defined under art. 148. Notes: Now for example the mayor is being attacked, while on his way home is being attacked by a person riding on a motorcycle, and the reason of such attack is due to past performances of the mayor, he was stabbed, suppose a cigarette vendor who happened to see the attack tried to rescue the mayor by pushing the attacker away from the mayor, now the attacker turned his anger to the vendor and stabbed him. Now what crime/s is committed? Now the attacker committed 2 cases of direct assault, as regards to the mayor and as to the cigarette vendor, why is that? Because as what we have learned earlier, when a private person comes to the aid of a PA, he becomes the latter‘s agent, now in the case provided, since he helped the mayor and eventually was attacked in the process, then the crime committed as to the vendor is direct assault. What if the person being attacked is a police (APA), or a barangay ―tanod‖, suppose the police, while driving his car is being attacked by X, a cigarette vendor happened to see the attack, he then tried to help the police and was attacked in the process, now what crimes are committed? As to the police, it is Direct Assault. However as to the cigarette vendor, the crime committed is Indirect assault under article 149.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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Now, in the same case, instead of stabbing, the attacker just boxed the vendor, what‘s the crime committed? Now it is not direct assault, instead it is resistance under article 151. Pursuant to jurisprudence, if the victim is an APA, the force used must be serious in order to constitute direct assault otherwise it will only be penalized under article 151. Article 150. Disobedience to summons issued by Congress/committees/subcommittees Committed by any person who having been summoned to attend as witness, however refuses without legal excuse to obey the same, or refuses to be sworn or placed under affirmation or refuse to answer any legal inquiry or produce any books/papers in his position. Article 151. Resistance or disobedience to PA or APA (Already mentioned in the discussions in the previous articles.) Any person not being included in the preceding articles shall resist or seriously disobey any PA or APA while in the performance of duties. When the disobedience is not serious, then it‘s just simple disobedience. Elements: 1. In the performance of duty 2. Gives a lawful order Article 152. (already discussed this; definition of PA and APA) CHAPTER V. PUBLIC DISORDERS Article 153. Tumults and other disturbances of public order (refer to codal provision for the modes) Notes: (relevant matters as discussed by Judge D) If disturbance is done by more than 3 armed persons (at least 4) with threat/force/intimidation, then the same is considered as TUMULTOUS. Any person who in any meeting, association or public place shall make an outcry tending to incite rebellion/sedition or in such places, shall display placards/emblems etc. which provoke a disturbance of the public order. Now the outcry here, or outburst/shouts, must be spontaneous, meaning it is not consciously calculated to induce others to commit sedition/rebellion; otherwise the crime would be inciting to commit rebellion/sedition.

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―Shall bury with pomp the body of a person legally executed.‖ – before when there was death penalty, if a convict is to be executed, and upon burial, a person would ―shout for justice‖, then they would be liable under this article. Another example: The ―Tsunami/Chona Mae‖ incident Article 154. Unlawful use of means of publication and unlawful utterances (Refer to codal provision; discussion revolves around the provision itself) Example: False news which may endanger the public order Article 155. Alarms and Scandals (STAR PROVISION) How committed: 1.By any person within any town/public place, shall discharge any firearm/rocket/firecracker or other explosives calculated to cause alarm or danger. Example: A person firing his firearm (not aimed at anybody) at Colon Street causing panic among the people What if the firearm is only fired in a place where its only you and your neighbor in the area? That would be considered as alarms and scandals since it is not in a public place, it may only be unjust vexation. What if the firearm is aimed at a person but the latter is very far away? Now the crime here instead is illegal discharge of firearm, why is it not attempted homicide? Although the firearm is pointed at a person, the intent to kill is negated by the distance, however if the firearm is a highpowered one, then that could be considered as attempted homicide. What if the firing of the firearm or a firecracker is used inside a movie house? Now that could be public disorder under article 153. However, as to firecrackers, if the same is used during holiday season such as Christmas, then there would be no crime since it‘s a tradition. This article only presupposes that the firecracker is used to cause alarm or serious disorder. 2. Any person who shall instigate or take active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquillity. Charivari – making unnecessary noises (kanang i paka-pakaangkaldero)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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3. Any person while wandering about at night or while engaged in any other nocturnal amusements, shall disturb the public peace; Example: Your neighbor singing to the karaoke late at night in a public area/place. However if only the 2 of you are in the area, then it‘s just unjust vexation. 4. While intoxicated or otherwise, shall cause any disturbance or scandal in public places; but if the act is serious then it will fall under article 153. Some LGU have this disturbance, however if no ordinance is made regarding intoxication and causing disturbance in public places, then this could also be a basis for the arrest. Article 156. Delivering Persons From Jail Any person who shall remove from any jail, any person confined therein, or shall help the escape of such person by means of violence/ intimidation or bribery. Notes: If the escape is through bribery then the penalty is higher. Take note, Bribery will always be punished; it will not create a complex crime, so there will be 2 crimes committed, delivery of persons from jail and of bribery. What if there is no bribery or violence employed? Then the penalty would be lower. What if the prisoner is detained and is serving sentence for the crime of treason/murder/parricide? What crime is committed? Then here the offender who helped the escape is an accessory of such crime, remember article 19 par. C? Now as to the prisoner who escaped? What is his liability? Now this time it depends. If he is a convicted prisoner, then he is liable for evasion of service of sentence under the next article. What if he is a mere detention prisoner? Then he does not commit any crime.

If the prisoner who escaped is a convicted prisoner, and he was serving sentence when he escaped- liable for EVASION OF SERVICE OF SENTENCE. Connect this to Prescription of Penalty (Art 92): - Prescription of penalty starts to run when the prisoner escapes from jail while serving sentence. In other words, for it to apply, the escaping prisoner necessarily commits another crime, which is Evasion of Service of Sentence.

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If he is a mere detention prisoner – NO CRIME COMMITTED, but connect this with Crim. Procedure:  If he has been arraigned – he can be tried in absentia because he is deemed to have waived his right in the succeeding proceedings.  If he is eventually convicted – he will lose his right to appeal the decision convicting him

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If the convict is not yet serving his sentence when he escaped – not liable for Evasion of Service of Sentence

Aggravating Circumstances (Penalty shall be higher): When the escape takes place by unlawful entry, or by breaking doors, windows, gates, walls, roofs, floors; using picklocks, false keys; disguise, deceit, violence; attacking the guards, connivance with other convicts Art. 157. Evasion of Service of Sentence - applicable even if the penalty imposed is merely Destierro (prohibited from entering a certain place) Situation: X escaped because the jailguard was bribed. What are the crime/s committed by the jailguard?  Bribery  Infidelity in the Custody of Prisoner (Art. 223) – this crime could only be committed by a custodian/one charged with the custody of the prisoner at the time the latter escaped. Crime of the bribe-giver?  Corruption of Public Officer Suppose the one bribed is not the jailguard but was the janitor of the jail or the cashier? What is the crime committed?  Art. 156- Delivery of prisoners from jails So TN: Evasion of Service of Sentence is connected with Prescription of Penalty (not Crime, Penalty!) Prescriptive period RUNS: from the moment convict escapes; and STOPS: when he is recaptured OR he commits another crime while he is outside the detention facility Art. 158. Evasion of service of sentence on the occasion of disorder, conflagrations, earthquakes, or other calamities. Remember the Article in Book 1 about Loyalty of the Prisoner (On occasion of calamity he would escape) - deduction is 1/5 if he escaped on occasion of calamity and returns within 48 hours after declaration of the Pres. If prisoner did not return? What‘s his crime? - This article, Art 158 – a convict who shall evade the service of sentence by leaving the penal institution where he shall have been confined on occasion of disorder resulting from conflagration, earthquake, catastrophe or during a mutiny

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Mutiny – resistance to a superior officer; but there is no mutiny if the prisoner resisted are the jailguards only. It must be against the jail warden - if mutiny is for the purpose of escaping, this falls under Art 157, Evasion of Service of Sentence; but if you escape on occasion only of mutiny – Art 158. TN: This article only applies to those who did not escape under 157, because the reason for escape under this article is the calamity, etc. Mere leaving the penal institution on such occasion is not a criminal act. It is the failure of the prisoner to return within 48 hours from the announcement by the Chief Executive as to the passing away of the calamity. Review: If the prisoner did not leave the institution at all? What‘s the effect? – Deduction of 2/5

TN: Never forget the other kinds of Repeat Offenders: Recidivism, Habituality, etc. These are always asked in the bar. TITLE IV – CRIMES AGAINST PUBLIC INTEREST Art. 161. Counterfeiting the great seal of the Government of the Philippine Islands, forging the signature or stamp of the Chief Executive. Three Acts: 1. Counterfeiting the great seal of the Government 2. Forging the signature of the Pres. 3. Forging the stamp of the Pres. Imitating the signature of the President is NOT falsification but Forging the signature of the Pres. which has a higher penalty. Art. 162. Using forged signature or counterfeit seal or stamp. - talks about the user of the forged signature or counterfeit seal 

Art. 159. Other Cases of Evasion - this is a violation of Conditional Pardon

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TN that a prisoner is not required to serve the minimum period of his sentence. What is required is that the decision is already final and executory. In conditional pardon, the condition is that the prisoner will not commit ANY infraction (even if not a crime; ex: driving without license) while he is outside. If he violates the condition, he can be charged under Art 159. Penalty - if the remaining period is more than 6 years, NO PENALTY. He only serves the remaining period. - if less than 6 years, there is a crime – violation of Conditional Pardon which is penalized with Prision Correctional Minimum AND service of the remaining portion of his sentence. TN that the court cannot order the convict to serve the remaining period of his sentence because that power belongs to the President who granted the Conditional Pardon TN: It is a condition sine quanon that before the convict can be convicted of Art. 159 that he is first found guilty in the crime that he committed while on pardon.

If the person who forged is also the person who used – only liable for Art. 161. Only one crime/ If the person only used – liable for Art 162

Art. 163. Making and importing and uttering false coins. Uttering – means ―use‖ False coins – not authorized by BSP as legal tender even if it is of greater value Case: Accused polished a copper coin making it appear as a silver coin. He went to a store and used it. Is there a violation of Art 163? No. There is no counterfeiting here because the copper coin is genuine. False coin – Meaning the coin is not authorized by the BSP. Mutilation – Taking off part of a coin and replacing it with a metal of a lower or lesser value or inferior quality. (Irrelevant provision) In re: PD 247 ART. 165: Selling false or mutilated coins But actually it‘s not selling but possession of mutilated or false coin with intent to utter (or use) the same

Art. 160. Commission of another crime during service of penalty imposed for another offense; Penalty.

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Quasi- Recidivism – when the convict commits a crime while serving his sentence or even before service. The second crime must be a felony (violation of the RPC). - a special aggravating circumstance – states ―shall be punished by the MAXIMUM PD of the penalty prescribed by law‖

ART. 166: Forging or falsification of treasury or bank notes, certificates and other obligations and securities, payable to bearer Example: You falsify a sweepstake ticket – counterfeiting a document which is an obligation or security of the Philippine Government.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D What obligation or security includes? Bonds, certificates of indebtedness, national bank notes, coupons, treasury notes, certificate of deposits, bills, etc. Checks are EXCLUDED because when you falsify a check, you commit falsification, not under Article 166 but under Article 172, falsification of a commercial document. This article also includes counterfeiting obligations or securities issued by a foreign government such as US treasury bills or documents issued by foreign bank. Remember when we discussed Article 2, we talked about the territorial and extraterritorial effects of our penal laws. Take note that our courts have jurisdiction over such crime even though the forging or the falsification of the notes or documents issued by the Philippine government is done abroad. ART. 167: Counterfeiting, importing instruments not payable to bearer

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occasions the proper amount of change in lawful money, and when arrested and asked by the policeman to explain the possession of the same, the offender refused to make any explanation, stating he would know what to say in court. In court, he failed to explain his possession of the forged bank bills. (People vs. Co Pao, 58 Phil 545) Another, when somebody discovered that the P20-bill to be changed was forged, the owner snatched it from the one who was examining it and tore it to pieces. (People vs Quinto, 60 Phil 351) ART. 169: How forgery is committed? 1.

By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document.

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By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein.

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Where to prosecute the ―user‖? Under Article 168. ART. 168: Illegal possession and use of false treasury or bank notes and other instruments of credit So, for example you have a fake P500 bill, which you bought for P50. You used the same to buy 1 pack of cigarettes. What is the crime that you have committed? Violation of Art. 168 - Illegal possession and use of false treasury or bank notes. For example you are a store owner and you are in possession of a fake P500 bill and you place it in your table for comparison in case you come across the same fake bill. What is the crime committed? None, because there is no intent to use. Possession must be coupled with intent to use. How do you determine ―intent to use‖? Intent to use may be determined from the volume or number of said notes and the acts of the accused taken in connection therewith. So, the acts of the accused should be taken into consideration. Common defense – no knowledge that it was fake Conduct of the accused is considered to establish knowledge of forgery.

Forgery includes falsification and counterfeiting. ART. 170: Falsification of legislative documents Crime punished: Any person who, without proper authority therefor, alters any bill, resolution, or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council. ***Five Star Articles: Articles 171 and 172*** ART. 171: Falsification by public officer, employee or notary or ecclesiastical minister 1.

Counterfeiting or imitating any handwriting, signature or rubric

The word imitating includes simulating or feigning. In counterfeiting, there is an attempt or intent to imitate the signature of another. So in other words, the person whose signature you try to imitate knows how to write. But in simulating or feigning, the person does not have actually any signature. For example, making it appear that a person who does not know how to write has signed the document.

Example, when the accused bought eggs worth P0.30 at one instance, and making a purchase of P0.50 at another instance, paying in each instance a false ten peso bill, receiving in both

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D What is the crime committed when you prepare a deed of sale purportedly signed by your parents indicating that a parcel of land is sold to you when in fact they did not sign the documents and it was you who imitated their signatures? That is falsification. 2.

4. Then another is making untruthful statements in narration of facts -

Causing it to appear that persons have participated in an act or a proceeding (when in fact he did not)

In our previous example, you prepared a deed of sale purportedly signed by your parents by imitating their signatures, what acts of falsification did you commit? That is par. 1 because you imitate their signatures. And that is par. 2 also, because you made it appear that your parents have prepared the deed of sale when in fact they did not.

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So acts of falsification can be a combination of any of the acts mentioned under Art. 171. Another example is a common practice in the workplace. You texted your co-worker saying that you cannot come to the office on time so you asked him to punch your time card in. What crime did you commit? That is falsification. You made it appear that he had punched his time card in on time when in fact he did not. Or for example you took the civil service exam for your brother. What crime did you commit? That is falsification, because you made it appear that he took the exam when in fact he did not. If there was conspiracy between the two of you, then the both of you should be held liable for falsification.

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Or when you vote for and in behalf of another. That is also falsification because you made it appear that he voted when in fact he did not. 3.

Attributing to persons who have participated in any act or proceeding statements other than those in fact made by them

This is the act of twisting words or putting words in the mouth of the offended party. So for example, you agreed to execute a real estate mortgage but because the other party does not know about these transactions, instead of executing a real estate mortgage, you executed a deed of sale. That is attributing to persons who have participated in any act or proceeding statements other than those in fact made by them.

The accused here has the obligation to narrate facts The offender makes in documents statements in narration of facts that he has the legal obligation to disclose the truth of the facts narrated by him but the facts narrated are absolutely false, contrary to his obligation. The perversion of the truth is made with the wrongful intent injuring the third person. What is ―making untruthful statements in the narration of facts?‖  Example: when you take the BAR, you will be required to answer ―Have you ever been convicted to any crime involving moral turpitude?‖ You have the obligation to tell the truth. If you have been charged and you answered No, that is making untruthful statements in a narration of facts. That is falsification.  But for instance your statement is a form of affidavit but false, that is not falsification because false statement in an affidavit is not considered falsification but perjury. One of the important requirements is that there must be an obligation imposed by law for the accused to tell the truth.  Example: The accused in order to secure a driver's license, he secured a residence certificate. In the residence certificate, he made false information to the clerk as to his full name, place and date of birth, citizenship, civil status, length of residence in the Phils as well as in the city or municipality issued. He was convicted of falsification. What is the act? Making a false statement as to the narration of facts because he has the legal obligation to disclose the truth in his residence certificate.

5. Another, altering true dates -

The date must be material. Art 125, delay in the delivery of arrested person or delay in the filing of appropriate case against the arrested person. What is the reglementary period? 12, 18, 36.  There was once case where the arresting policeman, in order not to be charged by Art

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 125, he changed the date of the arrest. Instead of June 20, he changed it to June 24. Why did he change? In order to avoid prosecution for violation of Article 125. Is the date material? Yes.

in Civil Law from 63 to 73, Remedial Law from 58 to 64. The average was changed from 72.8 to 75. What crime or crimes did she commit? The crime is FALSIFICATION. Under what Acts?  Par 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;  Par. 3, Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;  Par. 6, Making any alteration or intercalation in a genuine document which changes its meaning.  People vs. Romualdez and Mabunay, 57 Phil 14

6. Another, is making alteration or intercalation (insert) in a genuine document which changes its meaning -

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What is the crime committed in case of dagdagbawas? Or you change the amount appearing in the official receipt. For instance, the amount is 5000, you erased the last 0. It changed the amount. It is falsification. Take note: if the purpose of committing falsification is to commit another crime, there is a complex crime. So relate to Art 48.the crime committed is malversation of public funds through falsification of public document.

7. another act is, issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to or different from that of the genuine original. -

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It can only be committed by a custodian. Example: what is the crime committed by the LCR if he issues a certification that there you have a birth certificate when in fact you do not have one? That is falsification. Example: Changing the ―IL‖ in illegitimate to LEGITIMATE in a birth certificate. That is falsification. The act is para 7, contrary to or different from that of the genuine original.

8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. -

Example: A worked in a law firm and noticed in one of his cases that the 15-day period has lapsed. A asked the postmaster to insert a wrong date of mailing because the date of mailing is the date of filing.

So these are the acts of falsification. They can be combined. -

There was a case, the accused who is a lawyer was the secretary of Justice Romualdez who was the Chairman of the 1926 BAR exam. Estela Romualdez was the secretary of her uncle, Justice Rumualdez. Her co-accused, Mabunay took the bar for the 3rd time. Her friend failed to pass the bar, but the official results were not yet released. She changed her score

Let‘s go back to Article 171. Under this Article, when the accused is a public officer or public employee or a notary public or ecclesiastical minister, the same penalty shall be imposed for committing any of the offenses enumerated with respect to record or document of such character that each falsification may affect the civil status of persons. Otherwise, they will only be liable as private persons. The document falsified must affect the civil status of the person. What is the difference in Art 171 and Art 172? -

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The penalty for Art 171 is higher compared to Art 172. Why? Because these are crimes committed by public officers and the documents are official or public documents. What is public document and official document?  Official document – a document issued by a public officer in the exercise of his public function.  Police clearance issued by a public officer in the exercise of his public function.  Transcript of stenographic notes, a public document issued by a court officer in the exercise of his function.  It can also be considered as a public document but not all public documents are official documents. Why? Because documents which are duly acknowledged by a notary public are also considered as public documents.  Ex. Deed of Sale duly notarized by a notary public is a public document but not an official document because it is not acknowledged by a public officer.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

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Commercial Document – documents regulated by the code of commerce or used by merchants to promote trade transactions. Example: a check.  Private document – one executed by a private person without intervention of a notary public.  Document - any written statement by which a right is established or an obligation extinguished. It is a writing by which a fact may be proven or established. In Article 171, it refers to public or official documents and the one who falsifies is a public officer or employee with abuse of their function. It could be that he is a custodian or he has a participation in the preparation of the document. Penalty is prision mayor and a fine not to exceed 5,000. Art 172, penalty is lower.

What about if a public officer falsified a public or official document but no participation in the preparation and not a custodian? Where should he be prosecuted? Under Article 172. The crime would still be falsification but under ART 172. So public officers who did not abuse their position in committing falsification is liable under Art 172 together with private persons who executed public documents. Example: Deed of sale and you made it appear that it was sold by your parents to you. You notarized it by asking your lawyer-friend. What is the crime committed?  Falsification of public documents but considering that you are a private person, you will be prosecuted under Art 172. When the document falsified is a private document, it is necessary that the falsification must have resulted to the damage of third person. In public document, damage to third person is not necessary. Another act punished in Art 172 is introduction of evidence in court of such falsified document.  There is a falsified document. And if you present it as evidence in court, that would constitute violation of Art 172.  Example: you are the author, one crime will be filed against you and that is falsification. No more crime of introduction of such falsified document as evidence in court.

June 29, 2016 Part 13 There could be a complex crime of Direct Assault with Homicide; or Direct Assault with Serious Physical Injuries. Remember the rule of Complex Crimes when 1 of the resulting crimes is just a Light Offense - As regards Direct Assault, Slight Physical Injuries could be absorbed. Instances When a Private Individual could be a Victim of Direct Assault: 1. When he is deemed to be a person in authority - ex: lawyer 2. When a private individual comes to the help of a person of authority who is attacked - the private person is deemed by law to be an agent of a person in authority 3. When a private person is being attacked and the offender‘s purpose is among the purposes of sedition or rebellion. 

Falsification may also result in a complex crime. - ex: X falsifies public documents in order to commit malversation. (Malversation through Falsification of Public Documents) If the offender is not the custodian of public funds, the crime could be Estafa thru Falsification of Public Documents.

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If the accused committed malversation, and thereafter he falsified the documents to hide the crime – there are 2 crimes committed; no complex crime.

TN: If the offender makes untruthful statements in an affidavit – crime is Perjury. 

When the document falsified is a public document,damage to 3rd persons is not required.

Art 172. Falsification by private individual and use of falsified documents. Who are liable? 1. Private Individuals. But this term private individuals include Public Officers/Employees or Notaries Public who did not take advantage of their position Acts are the same in Art 171. The difference lies only in the offender and the kind of document is falsified.  Art 172 – includes Private and Commercial Docs  Art 171 – Official or Public Docs Acts punished: 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document;

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D - ex: Private person who changes the amount appearing in a check. A check is a kind of commercial document. 2.

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Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. - refers to falsification of private documents - ex: X, debtor prepares a purported receipt signed by Y the creditor showing that he has paid Y when in fact Y did not execute such receipt. Receipt here is a private document. - ex: X prepares a falsified Transcript of Records (TOR) purportedly issued by USJR. The TOR here is a private document. But if the TOR is purportedly issued by a public school (CNU, UP), the crime is falsification of a public/officialinstrument because such is prepared by the school register of such public school, who is a public officer in the course of the performance of his official duty. But considering that he is a private person, he shall be prosecuted under 172. Art 171 is reserved for public officers who take advantage of his position – so he could be a custodian or he has some participation in the preparation of the document by reason of his position. Connect this to Art 14 (Aggravating). Considering that taking advantage of the position is already an element of the crime, the same will not anymore increase the penalty to its maximum period. There could be no complex crime of Estafa thru Falsification of Private Documents. It will not result in a complex crime. - ex: A cashier in a private company falsifies the receipts so that she could spend the money for her personal use, the crime committed is NOT Estafa thru Falsification of Private Documents. It is either Estafa alone orFalisifcation of Private Documents alone. It depends upon which crime is committed first. - Why doesn‘t it result to a complex crime? This is so because one of the elements of Falsification of Private Documents is damage to 3rd persons. This is the same with Estafa. So they have the same element. Thus, there is no complex crime of Estafa thru falsification of Private Doc. Actual damage is not necessary. See par.2 of Art 172, ―any person who, to the damage of a 3rd party, OR with the intent to cause such damage‖ it is enough that the falsification is committed to cause damage to 3rd persons.‖ - ―Damage‖ may include damage to the honor of a 3rd person.

3 acts penalized in Art 172: 1. Falsification of a Private, Official or Commercial document by a Private Individual or Public

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Officers/Employees or Notaries Public who did not take advantage of their position Falsification of Private Document by any person The Use of falsified document - under the 3rd par. Of Art 172, it says, ―Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.‖ - so if the offender knowing that a document is falsified, introduces it in court – then he is liable of Use of Falsified Document. But if he is the author, he will be liable for Falsification under par 1 or 2 of Art 172, . - use could also mean use in any transaction even if not a judicial proceeding. Ex: the falsified document is used in applying for a job, but he is not the author of the falsification, liable for Use of Falsified Document.

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POSSESSOR OF A DOCUMENT IS PRESUMED TO BE THE AUTHOR OF THE FALSIFATION. (People vs Sindaydigeo 81 SCRA 120)

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There could be a crime of Falsification of Commercial Documents thru Reckless Imprudence. Ex: You signed a falsified document without examining it. You signed it right away.

Private Documents considered as Public Documents: 1. Deed of Sale acknowledged before a Notary Public - if not acknowledged, it is private 2. When a document becomes part of an official record - ex: a receipt when made by your office as a support of your liquidation. Now the receipt becomes a public record. TN: If the document falsified is Public, Official or Commercial - Falsification may be complexed with another crime. - damage to 3rd person is not required because the principal thing that is punished is the violation of public faith and the perversion of truth. Art. 173. Falsification of wireless, cable, telegraph and telephone messages, and use of said falsified messages. May already be OBSOLETE since there are no more telegrams. Case: the telegraph operator who received 2 telegrams for transmission purposely reduced it by 12 and 8 words and he pocketed the differences in the prices. (the longer the message in a telegram, the more expensive.) Art. 174. False medical certificates, false certificates of merits or service, etc. Persons liable for falsification of certificates

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 1.

Physician or surgeon who, in connection with the practice of his profession, issued a false certificate.

For example, you were absent from work because you were partying the night before. You asked your doctor-friend to issue a medical certificate indicating therein that you suffered from LBM. What is the liability of the doctor? He could be held liable under article par. (1) Article 174, Issuance of false certificate. Or, you were punched and although the wounds could heal in just five (5) days, you made it fifty (50) days so that the penalty will be higher, it will become serious physical injuries, because sometimes, in physical injuries cases, the gravity of the offense will depend on the number of healing period. What is the liability of the physician? Issuance of false certificate. 2.

Public officer who issued a false certificate of merit or service, good conduct or similar circumstances.

For example, you applied for a position in the government. The position requires 3 years of experience. You asked for a certificate signifying that you have years of experience when in fact you just graduated. What is the liability of the one issuing the certificate? Issuance of false certificate. If the one who issued the same certificate is a private company or person, the offense is the same although the penalty will be lower. Example if your mother would like to avail of the Cebu City‘s allowance for senior citizens. To avail, you must be a resident in the barangay for at least six months. If your barangay captain will issue a certificate signifying that you have been residing in the place for more than six months when in truth and in fact you just transferred the other day, the barangay captain is liable for issuing false certificate. 3. Private individual Certification from the call center that applicant was employed for 7 years, when in fact, one month only. Supervisor who issues false certificate is liable for Issuance of false certificate. Art. 175. Using false certificates. Any one who shall knowingly use any of the false certificates mentioned in the next preceding article shall be liable. Art. 176. Making and possession of instruments or implements for falsification. There are two acts here:

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Making or introducing into the Philippine Islands any stamps, dies, marks, or other instruments or implements intended to be used in the commission of the offenses of counterfeiting or falsification mentioned in the preceding sections of this Chapter shall be held liable under this Article.

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Mere possession, with the intention of using them, is likewise punishable under this Article.

Article 177. Usurpation of authority There are 2 crimes here: 1.

Usurpation of authority

―Any person who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any foreign government‖ What is the liability of person representing himself as a policeman when in fact he is not? Usurpation of authority under Article 177. How about for example, you pretended to be a priest because the priest is absent, are you liable under this Article? No. To be liable under this article, the person must falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any foreign government. If he pretended to be a priest when in fact he is not, he cannot be charged under Article 177. 2.

Usurpation of official functions

―One, who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or any foreign government, or any agency thereof, without being lawfully entitled to do so‖ For example, without saying anything, you man the traffic. You saw someone violating traffic rules; you flagged the motorist and asked for his license. What is your liability? Usurpation of official functions, because you performed an act pertaining to a person in authority or public officer. These two acts, usurpation of authority and usurpation of official functions, may be considered only as one crime. People vs. Silvano, 99 Phil 655 The mayor is temporarily on leave. Instead of the vice-mayor, it was the councilor who acted as acting mayor. Because he represents himself as a mayor, he solemnized marriages, he

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D appointed policemen. The SC convicted him of usurpation of authority and usurpation of official functions under Article 177. Article 178. Using Fictitious Name There are 2 crimes here: 1.

Any person who shall publicly and improperly make use of insignia, uniforms or dress pertaining to an office not held by such person or to a class of persons of which he is not a member is penalized under this article. The crime is illegal use of uniforms or insignia. For example, wearing of military uniform or police uniform, when you are not a military or a police, what is the crime committed? Illegal use of uniforms or insignia.

Using fictitious name

Fictitious name: Any name other than the registered name. For example, Mario is gay, he feels like a woman, acts like a woman and thinks like a woman and so he changed his name from Mario to Mary. Is he liable under Article 178 for using fictitious name? No, because to be held liable under Article 178 for using fictitious name, it is necessary that the accused shall publicly use a fictitious name for the purpose of concealing a crime, evading the execution of a judgment or causing damage. So if Mario, aside from being gay, used the name Mary in order to hide his identity because he has committed a crime and he has been convicted, then he could be held liable for using fictitious name under Article 178. US vs To Lee Piu, 35 Phil 4 The SC convicted the accused for publicly using fictitious name. A Chinese national, instead of using his real name To Lee Piu, in an application for passport, he used Toribio Jalijali. 2. Concealing true name In our previous example, can Mario be held liable for concealing true name? No. To be held liable for concealing true name, the offender, aside from concealing his true name, must have also concealed his other personal circumstances. *Commonwealth Act No 142, Anti-Alias Law Under this law, the use of name other than the registered name is punishable unless authorized by the court or if the purpose is for literary, cinema, television, radio or other entertainment purposes and in athletic events. For example, Joseph Estrada, ―Erap‖. That is allowed. Manny Pacquiao, ―Pacman‖. Allowed. Read: PP vs Estrada, for using the name Jose Velarde for opening an account in the bank. Try to see if Estrada was convicted. Art. 179. Illegal use of uniforms or insignia.

How about when you wear the ―sotana‖ of the priest? Are you liable? YES! Because uniform or dress you wear pertains to an office not held by you or to a class of persons of which you are not a member. Republic Act No. 75 This Act punishes the unauthorized wearing of any naval, military, police or other official uniform, decoration or regalia of a foreign State or nearly resembling the same with intent to deceive or mislead. Executive Order No. 297 Prohibits the illegal manufacture, sale, distribution and sale of PNP uniforms, insignia and other outfits. Articles 180, 181, 182, 183, & 184 STAR Provisions!!! What do you mean by false testimony? -

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Committed by a person who, being under oath, is required to testify as to the truth of a matter at a hearing before a competent authority, shall deny the truth or say something contrary to it. Art 180 is false testimony against the accused. Art 180 says that any person who shall give false testimony against the accused in any criminal case shall suffer the penalty of reclusion temporal if the accused shall have been sentenced to death. The penalty of prision mayor if the accused shall have been sentenced to reclusion temporal or perpetua. The penalty of prision correctional if the accused shall have been sentenced to any other afflictive penalty.

What is the crime committed if a woman would falsely testify that he had been raped by the accused when in fact she was not? -

If the testimony is given in court, that is false testimony against the accused. If the accused is convicted.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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What about if the accused is acquitted? Is the woman liable?  Yes. False testimony against the accused but penalty is lower. Paragraph 4 says the penalty of arresto mayor if the accused shall have been sentenced to a correctional penalty or a fine or shall have been acquitted. You‘ll notice that the penalty imposed on the false witness depends upon the penalty imposed on the accused. Because of that, it is a condition sine qua non that the case of the accused should be terminated first before the false witness shall be prosecuted for false testimony. It is a prerequisite. The accused cannot be prosecuted before the case filed against the accused against whom the false witness testified.

What about if the false testimony is favorable to the accused but the testimony is false? He testified that the accused was elsewhere when in fact the accused actually committed a crime? What is the crime committed by the false witness? -

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False testimony favourable to the accused. Any person who shall give false testimony in favor of the accused shall suffer the penalties of arresto mayor in its maximum period to prisioncorreccional in its minimum period a fine not to exceed 1,000 pesos, if the prosecution is for a felony punishable by an afflictive penalty, and the penalty of arresto mayor in any other case. Is there a need to terminate the accused first before the false witness be prosecuted?  No because the penalty here does not differentiate whether the accused is convicted or acquitted because of the testimony. Suppose it is the accused himself who testified falsely in favour of himself?  Even the accused testifying in his favor could be liable under this provision because the law does not distinguish. (if you will be strict with the letter of the law)  But according to Justice Regalado, this would be impractical or unrealistic for it would give the accused no other option but to plead guilty of the crime charged against him otherwise he would have no other defence at all.

U.S. vsSoliman, 36 Phil. 5 -The accused was charged with estafa. When it was his turn to testify, he said that one of the evidence presented before him, an extrajudicial admission made before the police, was not true because he was allegedly forced and threatened to make such admission. He imputed to the policemen a serious offense, that he was tortured by them in order to admit the crime. The Supreme Court convicted him under Article 181. In this case, the accused could only be convicted under this provision if aside from giving a false testimony he imputes to some other person a commission of a grave offense. But if he merely denies his participation in the commission of the crime charged, he should not be prosecuted under this article. Art 182 What about if the false witness testified in a civil case? Liable?  Any person found guilty of false testimony in a civil case.  The penalty shall depend on the amount of the controversy. Art 182 is applicable only in civil cases. It does not apply to special proceedings or administrative cases. What about if the witness falsely testified in that administrative case or in a special proceeding? Art 183. The crime is perjury. But it is still false testimony but such is given in an administrative case or other proceedings other than criminal or civil proceedings. 2 ways of committing perjury: 1. 2.

by making false testimony, under oath, other than in criminal or civil cases; bymaking/executing a false affidavit.

Example: -

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A woman testified in prosecutor‘s office that he was raped when in fact she was not? The crime committed is perjury. What about if the testimony is given in court? The crime committed is false testimony against the accused.

Elements of perjury: 1.

That the accused made a statement under oath or execute an affidavit upon a material matter

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

2.

3.

4.

Material matter – refers to the subject of the case. Evidence which directly proves a fact (e.g. executing an affidavit alleging that you were rape but it turned out to be false, is the affidavit material to the charge of rape? YES)

That the statement was made before a competent officer authorized to receive and administer an oath Who can notarize or are authorized to administer oath?  Notary public or an ex-officio notary public. Who is an ex-officio notary public?  Those who can notarize by reason of their position such as the judges. We can notarize affidavits but not deed of sale but only those in relation to our function. Mayors, they can notarize but only those in relation to the performance of their functions. Police Officers in the rank of Inspectors can notarize in relation to performance of their function. So, examples: notary public, judges (notary public ex officio), mayors, policemen (in relation to the performance of their functions) That in that statement or affidavit, the accused made a wilful and deliberate assertion of a falsehood; and wilful and deliberate assertion of a falsehood  He knows that what he is stating under oath is false.  Example: A claimed that she was raped although she knew that she was not raped. A made a wilful and deliberate assertion of falsehood because she knew that it was not the truth but still asserted the claim as a fact.  When you lost your ID and you executed an Affidavit of Loss when in fact you did not lose it. Liable? Look at element 4. That the sworn statement or affidavit containing the falsity is required by law.

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So when you execute an Affidavit of Loss, is it required by law or just a policy of the school? Policy only of the school. But if you file it with the Prosecutor‘s Office it must be under oath because it is required by law. It is provided in the criminal procedure. It must be notarized by the Fiscal. If Fiscal is not available, notary public. Therefore, if you execute an affidavit claiming that you were raped and filed it before the Prosecutor‘s Office, and it was made under oath, made with an officer competent to administer oath, then you can be held liable for perjury because all the elements are present; (1) you execute an affidavit on a material matter; (2) it was made before a competent officer; (3) the false statement was deliberately made; (4)and the execution of the affidavit is required by law. Thus, you are liable for perjury.

People v Bansil (CA Case) - The accused was charged with immorality before the Civil Service because she committed adultery. During the trial of the administrative case, before the accused could testify, she was asked about her personal circumstances. She falsely said that she is single when in fact she is already married. She was charged criminally for perjury. Is she liable?  Look at the 4 elements of perjury.  When she lied about her civil status, is it material to the charge of immorality? It does not matter. Her being married or single does not matter as long as she committed an illicit sexual relationship. It was not material to the charge. She was acquitted. The false statement must be material to the case, must refer to the material matter. Wilful and deliberate -

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If the accused is in good faith, if the accused made a false statement but in good faith, he cannot be made liable for perjury. Good faith is a defence.

Flordelis vs. Himalaloan July 31, 1978 - Accused filed an answer in court and it is verified. It contained false statements. Example, it was alleged in the complaint that he obtained a loan but in his answer, he denied. Is it not false? It is false. But is he liable for perjury in in his verified answer? Remember that verification as a rule is not required in a pleading. It is

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D only required if it is required by law or rules of court. Answer need not be verified. If defendant submitted an answer and the same is verified, verification is a surplusage.

stay away from an auction by threats, gifts, promises or any other artifice with intent to cause the reduction of the price of the thing auctioned.

July 3, 2016 Part 14

There was a lampshade that was bid. There were two bidders. One said that they will just settle it and give me P100 and the lampshade is yours. It is a violation under this article.

Offering False Testimony The alleged rape victim executed an affidavit and filed a complaint before the prosecutor‘s office. After preliminary investigation, a case was filed in court. During the trial the alleged rape victim testified that it was not true that she was raped by the accused. In reality it was another person. Is she liable for Perjury making 2 contradicting statements? - The mere fact that a person executed 2 contradictory sworn statements is not enough to convict such person - It is not sufficient basis - Must prove which sworn statement is false US vs. Capistrano 40 Phil 902 Subornation of perjury - The act of securing a witness to falsely testify against another - The one securing the witness is liable as principal by inducement for perjury ARTICLE 184. Offering False Testimony in Evidence - any person who knowingly offer a false witness or testimony in any judicial proceeding shall be guilty of offering false testimony - convicted shall be imposed the penalty as in False Testimony Offender did not coach or induce the witness to falsely testify - If he is the one who coached the witness then he is liable under Article 80, 81, or 82 as principal by inducement Offered in court is a falsified document - The crime committed is under Article 172 last paragraph (Falsification of Private Document) ARTICLE 185. Machinations in Public Auction Cases in public auction: 1. Foreclosure of mortgage 2. Collection of Sum of Money Purpose of public auction - To get the buyer who can offer the highest price - Highest bidding price Any person who shall solicit any gift or promise as a consideration for refraining from taking part in any public auction, and any person who shall attempt to cause bidders to

In auction there is a time and place stated in the notice. One of the bidders would tell the others that the auction is cancelled or postponed. It is considered as an artifice. He is liable for machination in public auction. Diaz vs. Capunan 45 Phil 482 - Both bidders agreed that only one will bid ARTICLE 186. Monopolies and Combinations in Restraint of Trade. - prohibits monopoly - when there is competition, the price of an item is lower - if there is monopoly then only one company will determine the price 1. Any person who shall enter into any contract or agreement or shall take part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market; 2. Any person who shall monopolize any merchandise or object of trade or commerce, or shall combine with any other person or persons to monopolize and merchandise or object in order to alter the price thereof by spreading false rumors or making use of any other article to restrain free competition in the market; 3. Any person who, being a manufacturer, producer, or processor of any merchandise or object of commerce or an importer of any merchandise or object of commerce from any foreign country, either as principal or agent, wholesaler or retailer, shall combine, conspire or agree in any manner with any person likewise engaged in the manufacture, production, processing, assembling or importation of such merchandise or object of commerce or with any other persons not so similarly engaged for the purpose of making transactions prejudicial to lawful commerce, or of increasing the market price in any part of the Philippines, of any such merchandise or object of commerce manufactured, produced, processed, assembled in or imported into the Philippines, or of any article in the manufacture of which such manufactured, produced, or imported merchandise or object of commerce is used. Oil companies

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D - The only companies controlling the oil industry are Petron, Shell and Caltex. They were thought to settle among themselves an agreed price. That is why small oil companies were allowed to enter the industry such as Seaoil, Flying V and Phoenix to have free competition. - It is hard to prove combination. If the item or object is affected by the combination would involve any food, substance, motor fuel or lubricants. - Aggravating circumstance If it is a corporation, it is the officers who knowingly permit or failed to prevent monopoly or combination shall be held liable US vs. Forgeras 4 Phil 432 - Accused made rumours to reduce prime commodities or else there will be a flood. - convicted of spreading false rumours to restrain free competition ARTICLE 187. Importation and Disposition of Falsely - Punishable for any person who shall knowingly import or sell or dispose of any article or merchandise made of gold, silver, or other precious metals, or their alloys, with stamps, brands, or marks which fail to indicate the actual fineness or quality of said metals or alloys. Under this article, there must be proper marking. Gold has a certain quality. It may be 24k, 18k, 14k, 10k. The actual fineness of the gold must be indicated. Example: 14k gold placed with only 8k then it is punishable. The same with diamonds ARTICLE 188 - 189 Repealed by RA8293 IPL ARTICLE 190 -193 Repealed by RA 6425 then RA 9165 - Comprehensive Dangerous Drugs Act

- Established usage Elements: 1. The offender performs an act or acts 2. Such act or acts are highly scandalous being offending against decency and good customs 3. The highly scandalous conduct is not expressly falling within any other article of this Code. 4. The act or acts complained of be committed in a public place or within the public view Highly scandalous conduct that is against decency or good customs - Ex. Lovers have sexual intercourse in the movie house. Although the movie house is a private place, it is still scandalous because it is within public view. 2 piece in colon. That is highly scandalous. Offensive against decency - If you do that in the beach it is alright - It is an exempting circumstance If you go to the beach and go nude. It is now offensive against decency and good custom. In oblation, it is not a violation of Article 200. It is an exercise of freedom of expression. In the news, there was a drunken policeman in the inter-island who got naked and kept passing the hallways. It is against decency and good custom. In Bantayan, during Holy Week an artist was wearing a 2 piece in the streets. She was caught and charged but the case was dismissed. Exhibition in the parking area. The car is converted into a bedroom. The parking area in Ayala. The car was turned on and the guard looked inside. The guard looked inside the care and saw something not meant to be seen. The fiscal dismissed the case because the car was not in public view because it was heavily tinted.

ARTICLE 195-199. Illegal Gambling repealed by PD 1602 amended by RA 9287

Grave Scandal same as an impossible crime - Charged when the accused is not liable for any other crime in the RPC. - Considered as a catch all provision

ARTICLE 200. Grave Scandal - Any person who shall offend against decency or good customs by any highly scandalous conduct not

ARTICLE 201. Immoral Doctrines, Obscene Publications and Exhibitions and Indecent Shows - Affects right to free expression

TITLE VI – CRIMES AGAINST PUBLIC MORALS

Decency - Propriety of conduct - Proper observance of the requirements of modesty

1.

Custom

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Those who shall publicly expound or proclaim doctrines openly contrary to public morals; Ex. Someone on the internet posted that having extra marital relations is alright Exchange partners

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 2.

3.

(a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).

US vs. Kottinger 45 Phil 352 Determine when it will be considered obscene

part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. -

If you are a public officer and you commit an act or omission which would constitute a crime and it is in relation in the performance of your duties, you will immediately be charged with 3 cases: 1. 2. 3.

Prostitutes (par. 5). A women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. If a woman engages in sexual intercourse for money but only once, is not considered as a prostitute. There must be habituality If a woman engages in sexual intercourse frequently but not for money or profit then still not considered a prostitute. Prostitutes under the Anti-Trafficking in Persons Act Prostitutes are considered as victims and not criminals

1. 2. 3.

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Used in its generic sense.

Any person who, by direct provision of the law, popular election or appointment by competent authority, shall take

Malfeasance – performance of some act which ought not to be done Masfeasance – improper performance of some act which might be lawfully done Nonfeasance – omission of an act which ought to be done

204:Knowingly rendering unjust judgment Elements: 1. 2.

The offender is a judge He renders a judgment in a case submitted to him for decision 3. The judgment is unjust 4. The judge knows very well that his judgment is unjust ―Judgment or decision is unjust‖ -

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TITLE VII – CRIMES COMMITTED BY PUBLIC OFFICERS ARTICLE 203. Who Are Public Officers

Criminally Civilly – if there is a victim Administratively – something to do with your job. So you can be suspended, or removed from position.

Crimes that can be committed by public officers:

Virula vs. Angeles Feb. 28, 2005 Obscene publication or literature Accused gave obscene magazine/publication to another person ARTICLE 202. Vagrants and prostitutes Vagrancy has been decriminalized by RA 10158 1- 4 has been repealed Par. 5 still valid (prostitution) Prostitution is a crime

The definition is all embracing. It does not only refer to a high ranking government official. From president to the town councillors From the janitors to the highest appointed positions

1. 2. 3.

When the same is contrary to law or contrary to the evidence presented Decision of the court must always be based on facts (evidence) presented during the trial or law – what did the witnesses say, what did the complainant say, what did the accused say If the decision is not based on the facts or if the facts are stated but the the law applied is wrong and he knows that it is wrong then that is an unjust decision If it is: Contrary to law; or Contrary to facts; or Both

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Condition sine qua non: Declaration from higher court An unjust decision can sometimes be subjective especially when the party loses Before the judge will be convicted for knowingly rendering unjust judgment there must be a declaration by the higher court that indeed the decision is unjust Without this declaration, the judge cannot be prosecuted for knowingly rendering unjust judgment How does the higher court declare? o Through a petition for certiorari by the aggrieved party; or o Administrative case against the judge Purpose for the manner of review -

Justices of the SC are also capable of making mistakes Judge being a human being will also be able to commit errors in the appreciation of facts and application of law But if the mistake is not malicious, without malice, not intentional then he cannot be disciplined The judge can abuse his discretion. What law prohibits is grave abuse.

Source of unjust judgment 1. Bribe – there are others which cannot be contented 2. Ill will 3. Error CASE De Vera vsPelayo, July 6, 2000 205: Judgment rendered through negligence -

Kind of misfeasance The law to be applied is so basic but the judge fails to apply the same Court renders unjust judgment but the same is rendered without malice but with inexcusable negligence or gross ignorance EX: Court convicted the accused of vagrancy without knowing that the same has been decriminalized so inexcusable negligence or ignorance. The judge must keep himself updated with the decisions of the SC and the laws Condition sine qua non: Declaration from higher court -

Same rule with Art 204 Before the judge will be convicted for rendering judgment through inexcusable negligence or ignorance there must be a declaration by the higher court that indeed the decision is unjust

206: Knowingly rendering an unjust interlocutory order or decree -

Judge here issued an interlocutory order

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EX: Judge issues a TRO but the TRO issued is unjust because it is not supported by the allegations in the complaint. Or the issuance is contrary to law. Just in case a court issues an interlocutory order which is unjust so it is contrary to law or not supported by the allegations in the complaint then the judge may be held criminally liable and of course administratively liable Gross ignorance is a ground for dismissal

Kinds of order 1.

Final order – when it finally disposes of the case. There is nothing more to be done by the court. EX: order of dismissal 2. Interlocutory order – there is something more to be done in the case by the court EX: TRO Source of unjust interlocutory order Bribe – there are others which cannot be contented EX: Binay case (rumor) – Mayor of Makati was ordered suspended by the Office of the Ombudsman but the CA issued a TRO and Trillanes accused or alleged that the justices who issued the TRO were paid. Condition sine qua non: Declaration from higher court Same rule with Art 204 Before the judge will be convicted for an unjust interlocutory order there must be a declaration by the higher court that indeed the decision is unjust How could the aggrieved party declare a declaration? o Through a petition for certiorari by the aggrieved party; or o Administrative case against the judge 207: Malicious delay in the administration of justice Intentionally done Reasons for delay in the administration of justice: 1. 2. 3.

Heavy case load of courts Lack of judges Lack of lawyers – prosecutors, PAO lawyers

Article 207. Malicious delay in the administration of justice. Elements: 1. 2. 3. 4.

The offender is a judge That there is a proceeding in his court He delays the administration of justice The delay is MALICIOUS- that is, the delay is caused by the judge with deliberate intent to inflict damage on either party in the case.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

Ans. That is betrayal of trust or dereliction of duty or prevaricacion. Because you refrained from prosecuting the violators or at least you tolerated the commission of the offense.

Mere delay without malice is not punishable. Judge D: Before when I was still with PAO, I used to be assigned in 5 courts. When I transferred to the Judiciary, I thought it would be different. But no, cause there was a time when I was assigned as judge in Barile, then Legria, then Lapu- lapu because of lack of judges. You know you can‘t say no to the SC. (Point being that delay is possible though not necessarily malicious. Hence not punishable)

It is different when you are a public officer and you tolerated the use of illegal drugs, because here you can be prosecuted under RA. No 9165 which has a higher penalty. -

Example: What crime did you commit when instead of arresting an illegal logger, you escorted him to the place? That is dereliction of duty because as a law enforcer you owe to arrest and file the appropriate case against the violator but instead of arresting him, you did not, rather you escorted him.

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Example: Murder was committed but instead of arresting the perpetrator, you hid him in your house. What crime is committed? Note that the penalty for an accessory to the crime of Murder is lighter than that in Art 208. You can be charged here for Dereliction of Duty.

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(Refer to Articles 203- 205, Knowingly rendering unjust judgment). Aside from imprisonment, there is an additional penalty of disqualification. That disqualification is imposed as a principal penalty. Because as you can recall, disqualification either temporary or permanent can either be an accessory penalty or a principal penalty.

Article 208. Prosecution of offenses; negligence and tolerance. -

The case here is Betrayal of trust or Prevaricacion or Dereliction of duty.

Elements of dereliction of duty in the prosecution of offenses: 1.

2.

3.

The offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses. There is dereliction of duties of his office; that is knowing the commission of the crime, he does not cause the prosecution of the criminal or knowing that a crime is about to be committed, he tolerates its commission. The offender acts with malice and deliberate intent to favour the violator of the law.

Who can be the offenders here? 1. Public officer 2. Officer of the law. Acts punishable: 1. By maliciously refraining from instituting prosecution against violators of the law; 2. By maliciously tolerating the commission of offenses. -

So the public officer is duty-bound to file a criminal case but he refused or failed to file the appropriate case in court. Or he is charged with the enforcement of the law but he failed to file the appropriate case in court.

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Example: You are a police officer or a barangay captain, instead of apprehending those who you know are engaged in gambling you ended up joining them or you tolerated the commission of the same. What crime did you commit?

Why is there an additional penalty? Because when it‘s public officer, disqualification is automatic- either temporary or permanent. Article 209. Betrayal of trust by an attorney or solicitorRevelation of secrets. -

This is a stray provision because we are talking of crimes committed by a public officer but the accused here in Art. 209 could be a private person, a private lawyer.

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Penalty shall be imposed upon: 1. An Attorney at law- meaning licensed; or 2. A Solicitor- this is not applicable here because we do not have a solicitor in the Philippines.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Acts punished: 1.

THREE FORMS OF DIRECT BRIBERY:

Causing damage to his client, either a. By any malicious breach of professional duty or b. By inexcusable negligence or ignorance

1.

Example: A lawyer fails to file a notice of appeal. Will that prejudice the client? Yes. Therefore he can be penalized under ART. 209, aside from other penalties.

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Example: Failure to file an answer in a case. That will prejudice the client. So he can also be punished under Art. 209. 2.

By revealing any of the secrets of his client learned by him in his professional capacity. -

3.

By undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of said first client or after having received confidential information from said client.

Elements: 1. The offender is a public officer 2. He accepts an offer or a promise or receives a gift or present by himself or through another. 3. It was received in view of a. Committing some crime b. In consideration of the execution of an act which does not constitute a crime, but the act must be unjust or c. To refrain from doing something which it is his official duty to do so. -

So the purpose of giving a gift to the public officer is for that public officer to perform some act, and that act must be in connection with the performance of his duty or duties as a public officer.

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There must be an agreement to perform an act or to refrain from performing an act which is his duty to do.

The penalty here is higher. Example: You are a policeman. You apprehended a robber. The wife of the victim was so mad because the latter was not only robbed but was also killed. And so the wife approached you to kill the robber. So what’s the crime that (you) the policeman, agreed of committing? Ans. Murder. What’s the reason why the policeman would kill the robber? Because of the bribe. So the policeman, who is a public officer agrees to commit murder by reason of the bribe. And the crime that he agreed to commit, which is Murder has a relation to his duty as a policeman. So THE POLICEMAN IS LIABLE FOR MURDER AND FOR DIRECT BRIBERY.

Take note of the Lawyer- client privilege under the Law on Evidence.

Article 210 (5 STAR PROVISION). Direct Bribery

By agreeing to perform, or by performing, in consideration of any offer, promise, gift or presentan act constituting a crime, in connection with the performance of his official duties.

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Take note that when the act agreed upon constitutes a crime, MERE PROMISE TO GIVE AND MERE PROMISE ON THE PART OF THE PUBLIC OFFICER TO COMMIT THE CRIME CONSTITUTES DIRECT BRIBERY. Actual receipt of the bribe, and actual commission of the act agreed upon is not necessary.

2.

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 duty.

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Here the act does not constitute a crime, but is unjust.

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Example: The treasurer who in consideration of money, awards certain stalls in the market to a Chinese despite the fact that there are other Filipinos who have better right.- Here the act of the treasurer is unjust but does not constitute a crime- Direct Bribery.

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Case: Direct bribery is committed when a police officer directly received the bribe money in exchange for the recovery of stolen cylinder tanks, which was an act not constituting a crime, and his act of receiving money was connected with his duty as a police officer. People vs Marifosque

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D FIRST FORM OF DIRECT BRIBERY

SECOND FORM OF DIRECT BRIBERY

Gift or offer need not be accepted

The gift must be accepted by the public officer. Mere promise is not sufficient.

3.

By agreeing to refrain or by refraining from doing something which it is his official duty to do, in consideration of gift or promise.

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Example: A sanitary inspector from the DOH or the city health inspects a restaurant and found the same to be unsanitary. The owner of the establishment gave the inspector a gift so he would not submit a report that may cause the closure of the establishment. The inspector refrained from performing his duties. Here the public inspector is liable for Direct bribery.

persons who prosecutes or in charge of the prosecution of an offender; a judge is not included in this article since the latter is not entrusted with law enforcement Note: Mere offer is sufficient Discussion: What if the crime committed is not punishable of reclusion perpetua to death? What is the crime committed by the officer who did not file the appropriate case or did not arrest the offender? That would be violation of article 208, dereliction of duty. Now bribery is one form of extortion, actually extortion is used in a generic or general sense. One form of extortion is direct bribery, another form is robbery, another one is kidnapping for ransom, all of which are forms of extortion. There is no crime in the revised penal code which punishes extortion, since there are different forms, hence you should specify such as direct bribery, robbery etc2.

Art. 211. Indirect Bribery

Art. 212. Corruption of public officials

Is committed when a public officer accepts a gift offered to him by reason of his office

Same penalty imposed as that of the officer being corrupted.

For example you‘re a judge, you just celebrated your birthday, and a litigant gave you lechon as a birthday gift out of generosity, you receive it, did you commit a crime? Yes, that is indirect bribery, that lechon is given by reason of your office. Note: The gift given could be in anticipation of a favor; or it could be a reward of past favors given in connection with the performance of duty. (take note of the distinctions between direct bribery from indirect bribery; a frequent question in the BAR) Now one distinction would be that: Direct Bribery

Indirect Bribery

There is an agreement between parties for the public officer to perform or not to perform as the case may be

Usually there is no such agreement

Art. 211 – A. Qualified Bribery

Now what is the liability of the one giving the bribe? Or one who offers the promise? He is liable for corruption of public officers under this article. What if the public officer did not accept the bribe? What‘s the crime committed by the giver? It‘s attempted corruption of a public officer, he can be arrested immediately. Note: Now there‘s a law giving immunity for the giver of the bribe, he can be immune from suit provided he will testify against the public officer, that is pursuant to PD 749; he is exempt from prosecution. Art 213. Frauds against the public treasury and similar offenses. 2 crimes penalized: Par 1 - Fraud against public treasury ―any public officer who: 1. In his official capacity, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds, shall enter into an agreement with any interested party or speculator or make use of any other scheme, to defraud the Government‖ 

Public officers entrusted with law enforcement, refrains from arresting/prosecuting an offender who committed a crime with a penalty of reclusion perpetua to death in consideration of any offer/promise/gift; also includes public officers to

Accused here enters into a contract or agreement with another person in order to defraud the government, such as by overpricing supplies. The price on top of the original price is then kept by the public officer.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

Government here is made to pay more than what should be paid out of the government funds

There is a special law related to this: RA 9134 Government Procurement Reform Act Par 2 - Illegal exaction ―any public officer who: 2. Being entrusted with the collection of taxes, licenses, fees and other imposts, shall be guilty or any of the following acts or omissions:  

The officer here is in-charge of collection of taxes, licenses or fees and other imposts. Ex: cashier

(a) Demanding, directly, or indirectly, the payment of sums different from or larger than those authorized by law.  

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Ex: payable is 300php but you asked for 3000. If payable is 1000php but you asked for 500php, that is also illegal exaction because you are demanding an amount different from that is set by law. So it could be a larger or lesser amount. Q: What is the crime committed if the amount payable is 500php and you asked for 1000php and you used the whole amount for personal use? A: 2 crimes - Illegal Exaction because you demanded an amount different from what is set by law, and Malversationbecause you spent the money for your personal use. You may ask why the additional 500php you got is still under malversation? It is because that additional amount forms part of public funds. Regalado said 3 crimes are committed: Illegal Exaction, Malversation (with regards to the amount set by law), Estafa (additional amount) Reyes and Gregorio said there are only 2 crimes: Illegal Exaction and Malversation. They are the experts in Criminal Law.

(b) Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially.  Self–explanatory. Take note of the word VOLUNTARILY, because it may be that they just ran out of receipts. No more supply. Sometimes you are given a temporary receipt. (c) Collecting or receiving, directly or indirectly, by way of payment or otherwise things or objects of a nature different from that provided by law. 

So instead of receiving money as payment, you ask for material things. That is still a form of illegal exaction.

In Illegal exaction, misappropriation of the money is not necessary.

Art. 214. Other frauds. This Article does not define any crime but merely imposes additional penalties for estafa when the accused is a public officer with abuse of his position. So in addition to imprisonment, there shall be temporary/permanent special disqualification. This article applies only when there is abuse of position. Art. 215. Prohibited transaction An appointive public officer here is prohibited from engaging in commerce within his jurisdiction. He cannot engage in any transaction with exchange or speculation within his territory. Example: Buying and selling of stocks listed in the stock exchange by an official of the SEC. He can only buy shares as investment, but not buying AND selling of such shares. Case: Justice of the Peace was convicted because he took part in the execution sale. (Gantingco vs Pabuingit 35 Phil 81) Art. 216. Position of Prohibited Interest by a Public Officer ―a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene.‖  This is a crime committed by a Mayor who entered into a contract of lease over a parcel of land owned by a municipality wherein he is the mayor. So there is a conflict of interest. (US vs Udarbe 28 Phil 382) ―applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted, and to the guardians and executors with respect to the property belonging to their wards or estate.‖  An administrator is not allowed to buy the estate or property that you are administrating. Same goes with a guardian over the property of his ward. Art 217. Malversationof public Presumption of malversation.

funds

or

property;

5 STAR PROVISION! Who are liable? - Public officers who are also considered ACCOUNTABLE OFFICERS. He or she must be a CUSTODIAN of public funds or properties. - ex: cashier, treasurer ** So, not all public officers may be liable for malversation. Only those stated above. Punished acts:

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D ―shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property‖

Is demand to pay or to produce the public property an indispensable requirement before the accountable public officer be held liable for malversation? No. Demand is not an indispensable requirement. But although, not a requirement, there is usually a demand.

Ex: 1.

A, a cashier who has the duty to receive real estate tax lent money to her son who needed to enroll for school. – Malversation!

2.

A, cashier who has the duty to receive real estate tax allowed his friend to borrow the money A had custody of because A pitied her friend. Is that malversation? - Yes. Malversation is committed not only by misappropriating of the money by the custodian, but also by consenting another to use or misuse the funds under one‘s custody.

3.

A, cashier had to rush out of the office to fetch her son from school and so she was not able to put the money under her custody in the vault, and merely placed the money inside the drawer of her desk. Later, the janitor saw the money and got them all. What is the crime committed by A? - Malversation because of her negligence. - So Malversation could be committed by mere negligence too. The penalty here is the same with a situation wherein the public officer used the money/property for his personal use.

TN: Malversation covers both PUBLIC FUNDS and PUBLIC PROPERTY. Ex: A custodian of ballpens and papers, brought home some paper for her children – That is Malversation of PUBLIC PROPERTY. If you are not an accountable officer or custodian, then you may be liable of THEFT.

Take Note: Malversation can only be committed by a public officer who is at the same time the custodian of the money or property. Another term for Malversation is Embezzlement. Last par. Article 217: ―The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.‖ (As amended by RA 1060).

Demand merely raises a prima facie presumption that the missing funds have been put to personal use. Whenever there is a demand made such as by the COA, but the public officer, who is the custodian, failed to produce the amount or the property under his custody, the same shall be considered as a prima facie evidence of malversation. You are presumed to have committed malversation. Republic vs Sandiganbayan, July 15, 2003; The constitutionality of this provision has been challenged because under the Constitution, you have learned that a person is presumed innocent until proven guilty. So, is it not a violation of the provision of the Constitution which provides for the presumption of innocence of the accused. According to the SC, it does not violate the constitutional presumption of innocence. What is established here is not presumption of innocence but the presumption of guilt, because the accused is presumed to have malversed, to have misused funds for his personal use. According to the SC, it is within the power of the Congress to enact such law. And besides, what is established is merely a rebuttable presumption. The accused could still present evidence to overthrow such presumption and if successful, he will not be convicted. Bacaslot vs Sandiganbayan, November 5, 1987 According to the SC, the legislature may provide for a prima facie evidence of guilt provided there be a rational connection between the facts proved and the ultimate facts presumed. What do you mean by Accountable Officer? It does not refer only to the cashier, disbursing officer or property custodian. Could be any person who has the custody of public funds or property and who is accountable thereto. If the accumulated ill-gotten wealth in the crimes of Malversation, Direct Bribery, Indirect Bribery or Qualified Bribery would amount to P50 Million, the crime is – Plunder.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Are there instances that private funds be the subject of Malversation? Yes. If those private funds are considered ―trust funds‖, such as payment collected by a public school teacher of employee for the BSP, GSP, or Red Cross (these are private entities). But if the person collecting the amount is a private school teacher or employee, the crime is not Malversation. Postal money orders. It may also be the subject of Malversation if the same is misappropriated by the postman. Money received by the sheriff as redemption price may also be the subject of Malversation because it partakes of the nature of public funds. What about private property? May it also be the subject of Malversation? Yes. If the private property, for example, is confiscated from a private person by a law enforcer. For example, during a checkpoint the police confiscated an unlicensed firearm, but did not report the same so he can use it for his own benefit, the crime is Malversation. What about using government cars for family outing. That could be Malversation. For example, the cashier, with intent to use the money in her custody, rode a jeepney going to school to pay the tuition of her son. However, while boarding a jeep, somebody declared ―hold-up‖ and took the money. Is she liable for Malversation? Yes. Malversation has the same concept as that of Theft. As long as the accused has complete control over the item taken, the crime is consummated.

There could be a complex crime of Malversation through Falsification of Public Documents. If falsification is committed to misuse the amount. If Malversation is committed first, there are two crimes committed. Art. 218. Failure of accountable officer to render accounts Any public officer, whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Insular Auditor, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered.

Art 218 -

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Art 219 -

Failure of a responsible public officer to render accounts before leaving the country The accountable officer leaves the country or attempts to go abroad without securing clearance from Commission on Audit.

Art 220 -

What if the public officer immediately reimbursed the mount, is he liable? Yes. The return of the funds malversed is merely mitigating.

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However, in the case of US vs Feliciano, 15 Phil 147, the SC acquitted the accused

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If at the very moment when the shortage was discovered and the treasurer was notified he at once presented the money, no prima facie evidence of the crime of misappropriation can be established nor any proof whatever that there was such misappropriation.

Failure of accountable officer to render accounts before he is separated from service or before he is allowed to resign. Mere failure, consummates the crime. Malversation is not necessary. Mere failure to render an account after required to do so.

This is technical malversationor illegal use of public funds or juggling of funds. The public officer here commits technical malversation when he would use public funds or property to any other purpose other than that authorized by law or ordinance. Example: The city counsel appropriated 50M for the construction of gymnasium in certain barangays. Then the incoming Mayor, who does not belong to the same party of the preceding Mayor, converted the 50M for the construction of public schools. Liable?  Yes. He could be liable for technical malversation if he will realign the budget without any authority from the counsel. The money should be used in that particular

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D



purpose. Liable even if the purpose is still for public use. Look at the case of People vsYsidoro, Nov 14, 2012.

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Failure to make delivery of public funds or property An accountable officer fails to make payment from government funds in his possession. The failure to make payment must be with malice. 2ndpara: any public officer ordered by competent authority to deliver any property in his custody or under his administration refuse to make such delivery. The refusal must also be with malice.

Article 223 -

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Art 222 -

This is an exception to the rule. We learned that the ones convicted are public officers only. A private person can be convicted of malversation even if he is not in conspiracy with a public officer. When?  The provisions of this chapter shall apply to private individuals who in any capacity have charge of any insular, provincial, municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.  Here, the private property is placed under the custody of a public officer.  Example: a car subject to an attachment and placed under the custody of the court. If the sheriff uses the car to fetch his children in school, he could be held liable for malversation.  AzarconvsSandiganbayan, 268 SCRA 747

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Repeat: -

when he conspires with the public officer when he is an accessory or accomplice in malversation

Infidelity of Public Officers

Art 221. -

2. 3.

In what instances are private individuals held liable for malversation? 1. private individuals who in any capacity have charge of any insular, provincial, municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual; or

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conniving with or consenting to evasion the crime is infidelity in the custody of prisoner The conniving with or consenting to evasion is just a mode for the crime of infidelity in the custody of the prisoner. In order to be held liable, the public officer must be the one in custody of the prisoner at the time he committed the crime/when the prisoner escaped If he is a custodian and on duty and if If he connives with the escaping prisoner, he is liable under Art 223. If he is not a custodian, or he is off duty at the time of escape and he connives with the escaping prisoner, he could be held liable for delivering prisoner from jail underArt 156. What about the escaping prisoner? What could be his liability?  If he is a convicted prisoner, then he is liable for evasion of service of sentence.  If he is a detention prisoner, the liability of the jail guard is just the same. The prisoner who escaped could be convicted. The penalty is however lower. If the police officer arrested in a buy bust and while on the way to the police station, there was a negotiation, he will be allowed to escape, what is the liability of the police man as regards the escape of the arrested person?  To be held liable under Art 223, the escaping prisoner must have already been arrested and charged with the crime. If not yet charged, art 223 is not violated. But it does not mean that the arresting officer have no liability. He could be held liable for another crime. But suppose the prisoner was ordered to buy fish in the market and did not go back to the prison jail? What is the liability of the police?  Relaxation of imprisonment if considered infidelity.  Example: the prisoner was ordered to clean the house of the police officer, or asked to cook food for lunch.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

A mayor who allowed a prisoner to do domestic chores in his house may be held liable under this article if he is the custodian of such prisoner.

July 6, 2016 Part 15 217 Malversation of public funds or property

Repeat: 1. The prisoner involved could either be a convicted or detained prisoner. 2. The prisoner must have been charged and placed in jail. 3. Liability of the convicted prisoner who escaped: evasion of service of sentence 4. If he is a detention prisoner: no criminal liability

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Art 224 -

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Evasion through negligence The public officer is the custodian and prisoner was able to escape because of his negligence Example: while he is on duty, he was sleeping and the keys fell on the ground which was stolen by the prisoner. But what if the public officer was able to re-arrest or recapture the escapee? What is the effect of the immediate arrest on the liability of the public officer?  The same is not considered as exempting circumstance only a mitigating circumstance. Could a private person be held liable also for infidelity of custody of prisoner?  Yes if he is in-charge with the custody of the prisoner.  Example: the prisoner hires private guards, they will be held liable.

Art 225 -

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Any private person to whom the conveyance or custody or a prisoner or person under arrest shall have been confided, who shall commit any of the offenses mentioned in the two preceding articles. Example: A police officer was running after 2 prisoners. He caught 1 and told the cigarette vendor to look after such prisoner so he could run after the 2nd prisoner. The cigarette vendor allowed the apprehended prisoner to escape. What is the liability of the cigarette vendor?  The cigarette vendor could be held liable for infidelity of prisoner.

Could be held liable for malversation if he is entrusted with public funds: national, provincial, or municipal or public property A private property could also be subject of malversation if the same has been attached, seized or deposited by public authority even such property belongs to private individual EX: By virtue of a court order, an attachment order has been issued and the sheriff attached certain properties of the defendant or private individual but the sheriff has misappropriated such property. The sheriff can be held liable for malversation even if the property under his custody is a private property.

222 Officers included in the preceding provisions -

The term administrator refers to a sheriff or a receiver But the same does not apply to an administrator of the estate of a deceased person because the estate of a deceased person is not attached, impounded or placed or deposited in the court 226 Infidelity in the custody of documents -

The public officer here as part of his duties is charged with the keeping of public documents He is officially entrusted with the documents but such officer removes, destroys, or conceals such documents or papers under his custody EX of a public officer who can be charged with the keeping of the documents:  School registrar of a public school – is in charge with the keeping of records of the students  Record custodian  Clerk of court – custodian of a court records  Postmaster or postman – custodian of the mails deposited in the post office EX: If Clerk of court would destroy the records under his custody, that would constitute infidelity in the custody of documents. EX: If the postman: o

o o

Instead of delivering the letter or mail, he would instead open the mail because when he felt the contents, it felt like there was money – liable for infidelity in the custody of documents. Delivers it to the wrong party – liable for infidelity in the custody of documents. Receives letters, or envelopes containing money orders for transmission and the money orders

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D are not sent to the addressee – liable for infidelity in the custody of documents o Has a postal money order (postal money order is similar to a check) and the postman would sign or falsify the signature and encash the same – liable for malversation and falsification. o Spends the postal money order – liable for 1) malversation and falsification, 2) qualified theft (committed when what is taken away is a mail matter), 3) infidelity in the custody of documents if he did not falsify EX: In a buy bust operation there is money involved there. Suppose the money used as buy-bust money is presented in court as evidence and thereafter entrusted in the custody of the Clerk of Court. Suppose the Clerk of Court would spend the money would spend the money, was is the crime committed?

228 Opening of closed documents -

Crime would still be infidelity in the custody of documents but the document here is closed but not sealed

229 Revelation of secrets by an officer The officer here or the secret here that is revealed is not a state secret or a secret which has nothing to do with our national defense If the secret that is being revealed is a state secret then the crime is espionage EX: A police officer revealed or told the accused that he has a pending warrant of arrest so the accused ran away. Supposed to be the existence of the warrant of arrest should not be revealed and must be kept secret from the concerned accused. If that is revealed then the police officer would be held liable under Art 229.

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The crime committed is infidelity on the custody of documents because money bills exhibited in court, according to the SC are considered papers or documents. CASE: Ppvs Abraham, February 17, 1922 o A deputy Clerk of Court who having received in his official capacity several paper money as exhibits in a case afterward took away the said money is guilty of infidelity in the custody of documents. o What about if the case has already been decided? According to Justice Regalado, if the case has already been terminated and the Clerk of Court, the custodian of the bills would misappropriate the money used as evidence the crime would be malversation. Not anymore infidelity in the custody of documents. Damage caused to a third party is not required. So even if there is no damage caused to third parties then the crime is still infidelity in the custody of documents. Committed when there is damage caused to public interest 227 Officer breaking seal -

Crime would still be infidelity in the custody of documents EX: When the ballot boxes deposited with the treasurer‘s office are broken or the treasurers office allowed them to be broken then the treasurer could be held liable under Art 227. o Ballot boxes that have 3 locks and it also has a seal. EX: the election returns are placed in a sealed envelope. If they are destroyed or the seal is broken or the document is opened that is infidelity in the custody of documents punishable under Art 227.

230 Public officer revealing secrets of private individuals The private individual here confided his secret to such public officer by reason of his office but such pubic officer revealed such secret to other person EX of public officer: a guidance counselor of a pubic school – students confide in him about their problem which should be kept secret by him EX: lawyer – Art 209 231 Open disobedience The accused here is a public officer in the judicial or executive branch and he refused to execute the judgment, decision or order of his superior EX: The newly-elected mayor ordered the municipal secretary to give to the mayor the keys to the door of the municipal building but the municipal secretary refused to do so. This can be considered open disobedience. EX: A lower court judge refused to comply with the order of a higher court. That would not only warrant disciplinary action but it can be a ground for criminal action under Art 231. 232 Disobedience to order of superior officer, when said order was suspended by inferior officer The accused or offender is a subordinate and the superior issues an order but the subordinate suspended its execution. When the superior learned about the suspension or non-compliance with his order, the superior orders the subordinate to comply but the subordinate still refuses to comply with the order. It does not warrant an administrative charge, insubordination but it may also warrant the filing of the criminal charge, for violation of Art 232. Elements: 1. The offender is a public officer

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 2. 3. 4. 5.

That an order is issued by his superior for execution The he has for any reason suspended the execution of such order Superior disapproved of the suspension of the execution Offender continues to disobey his superior despite the disapproval of the suspension

same time they are required to take photos or pictures on the items confiscated in the presence of the accused and any elected public officials (e.g. barangay councilor, barangay captain). If the barangay captain or barangay councilor would not go since he is still playing mahjong then he could be charged under Art 233 for refusing to render assistance. It would cause damage because without his presence, the confiscated items presented in court, as evidence may not be admitted for failure to comply with such requirement under Sec 21. If admitted, it will not be given evidentiary value and it may result to the acquittal of the accused. It is without prejudice to possible administrative action.

233 Refusal of assistance -

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Public officer is requested to assist him, or to render his assistance towards the administration of justice or public service but such request is refused or that the public officer who is requested to lend his cooperation refused or failed to comply with such request and such failure results in serious damage to public interest or third party EX: The Office of the Ombudsman is very popular. They can investigate even if it is based on news report or rumors. They do not require a complaint from people. If their officer personally gets to read the news that a public officer commits malfeasance or misfeasance or nonfeasance they can immediately initiate an action against a public officer. If they are not experts on a certain topic, they can request assistance from any government agency. If the crime involves malversation then they can request from COA auditors to be sent and to conduct audit on a certain office. If the request of the Office of the Ombudsman is ignored by the officer of the COA to which it is addressed, the officer concerned can be held liable under Art 233, refusal of assistance. EX: When there is a case filed a prosecutor sends a subpoena to a party so that the respondent can answer to any case filed against them. The problem there is if the respondent lives in a far away place, how will the subpoena be served?Sometimesthe Prosecutor‘s office request assistance from the police. So the subpoena will be sent to the Chief of Police then they request that it will be served to the respondent. Suppose the Chief of Police will not comply, the Chief of Police could be held liable for refusal of assistance. CASE:US vs Castro, March 16, 1923 When a Chief of Police failed to serve a subpoena upon the request of the Prosecutors was found liable under Art 233. CASE: A government employee was requested to testify in court as a prosecution witness but that government employee refused to testify He was found liable under this article. EX: Under Section 21 of RA 9165, if the law enforcers confiscate in a checkpoint drug paraphernalia or drugs then they are required to conduct inventory and at the

234 Refusal to discharge elective office -

Obsolete provisionbecause today many people want to serve

Art. 234 Refusal to discharge elective office (According to judge this provision is obsolete because everybody now wants to serve the public. But just study this for the Bar.) Elements: 1. 2. 3.

That the offender is elected by popular election to a public office That he refuses to be sworn in or to discharge the duties of said office That there is no legal motive for such refusal to be sworn in or to discharge the duties of said office.

But there is an issue now relating to this. Mark Villar has been elected as Congressman of Las Pinas. He was also appointed as Secretary of DPWH, I‘m not sure if he took oath. Now he refuses to be sworn in as Congressman. Probably he‘ll use absence of the element of ―no legal motive for such refusal‖. Art. 235 Maltreatment of prisoners -

The penalty of prision correccional in its medium period to prision mayor in its minimum period, in addition to his liability for the physical injuries or damage caused shall be imposed.

Elements: 1. 2. 3.

That the offender is a public officer or employee That he has under his charge a prisoner or detention prisoner That he maltreats such prisoner in either of the following manners:

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D a.

By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either: i. ii.

b.

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By imposition of punishments not authorized by the regulations, or By inflicting such punishements (those authorized) in a cruel and humiliating manner, or

By maltreating such prisoner to extort a confession or to obtain some information from the prisoner.

Q: What shall a public officer do, either appointive or elective, before discharging his office? A: He has to take oath. Q: What happens if he assumes office without taking oath first? A: He can be liable for a violation of Art. 236. Anticipation of duties of a public officer. ―To give the bond required by law‖ -

The public officer here have actual charge of the prisoner or the detention prisoner but he overdoes in the correction or handling of such prisoner; or he inflicted punishment in a cruel and humiliating manner.

PENALTY: it is possible that the offender will be convicted for two crimes because the penalty here is in addition to the penalty he‘ll be meted with for physical injuries. This is another example of a two- tiered penalty. Recall: Two- tiered penalty, meaning the accused shall suffer the penalty for every crime that he committed. Qualifying Circumstance: -

If the purpose of the maltreatment is to extort a confession or to obtain some information from the prisoner, then the penalty is higher. There is a special law related to this- the Anti Torture Act (there will be a separate discussion on this).

THE PRISONER HERE MUST HAVE BEEN PLACED IN JAIL. Because if he was maltreated before he was placed in jail, he cannot be considered as a prisoner (convict or a detention prisoner). In order to commit this crime, the person maltreated must be placed in jail. Art. 236 Anticipation of duties of a public officer

If they perform their duties before furnishing the required bond, they can be held liable for violation of Art. 236 Anticipation of duties of a public officer. Art. 237 Prolonging performance of duties and powers Art. 236 Anticipation

Art. 237 Prolonging

The public officer assumed the performance of his duties without taking oath or paying the required bond.

The public officer continues to exercise his duties even after the period for him to hold office has already expired.

2. 3. 4.

That the offender is entitled to hold a public office or employment, either by election or appointment. That the law requires that he should first be sworn in and/ or should first give a bond He assumes the performance of the duties and powers of such office That he has not taken his oath of office and/ or given the bond required by law.

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Either he has been suspended, separated or dismissed.

Elements: 1. 2.

3.

Elements: 1.

There are some public officers where before they can assume office they would be required first to pay bond. Especially those that involve the handling of money. Example are the cashiers, treasurers etc.

That the offender is holding a public office That the period provided by law, regulations or special provisions for holding such office, has already expired. That he continues to exercise the duties and powers of such office.

PENALTIES: Because the offender is a public officer, aside from imprisonment there is also a special temporary disqualification. So there are the penalties of imprisonment, fine and temporary disqualification. Art. 238 Abandonment of office or position (before the acceptance of his resignation) Elements: 1.

That the offender is a public officer

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That he formally resigns from his position His resignation has not yet been accepted He abandons his office to the detriment of the public service.

Example: A government nurse who applied for work abroad. While still employed here, his visa and application for work abroad have been accepted and so he files a formal resignation. But because its acceptance took quite long, he just left his resignation letter on the HR‘s desk and abandoned his work. He can be liable under Art. 238.

If the purpose is to evade the discharge of the duties of preventing, prosecuting or punishing any of the crimes falling under Crimes against National Security and the Law of Nations.

In the Judiciary, your resignation has to be accepted En banc. It‘s a long process. (But there’s a technique to this- you run for public office because then you’ll be deemed resigned) Art. 239 Usurpation of legislative powers Elements: 1. The offender is an executive or judicial officer 2. That he: a. Makes general rules or regulations beyond the scope of his authority or b. Attempts to repeal a law or c. Suspends the execution thereof. Who can be liable here? -

The executive or the judicial officers.

Art. 240 Usurpation of executive functions Elements: 1. 2.

The offender is a judge That he a. Assumes a power pertaining to the executive authorities or b. Obstructs the executive authorities in the lawful exercise of their powers

Art. 241Usurpation of judicial functions Elements: 1. 2.

That the offender is an officer of the executive branch of the government That he

Assumes judicial powers or Obstructs the execution of any order or decision rendered by any judge within his jurisdiction.

Example: There‘s a writ of execution or writ of demolition issued by a judge but the mayor prevents the sheriff from serving such writ. The mayor can be liable under this article. Art. 242 Disobeying request for disqualification Elements: 1. 2.

AGGRAVATING CIRCUMSTANCE: -

a. b.

3.

4. 5.

That the offender is a public officer That a proceeding is pending before such public officer That there is a question brought before the proper authority regarding his jurisdiction, which is not yet decided That he has been lawfully required to refrain from continuing the proceeding That he continues the proceeding.

Example: The public officer is conducting an investigation or a trial, but his power from conducting the same is being questioned. Despite the order for him to inhibit or to refrain or to suspend the proceedings, he continued the proceedings. He can be liable under this article, disobeying request for disqualification. Example: A TRO has been issued, but he ignored such TRO. That is not only contemptuous but is also penalized under Art. 242 disobeying request for disqualification. Art. 243 Orders or requests by executive officers to any judicial authority. Elements: 1. 2. 3.

The offender is an executive officer That he addresses any order or suggestion to any judicial authority That the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice.

Note that these crimes (Articles 239- 243) pertain to the separation of powers. Art. 244 Unlawful Appointments Elements: 1. That the offender is a public officer 2. He nominates or appoints a person to a public office

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That such person lacks the legal qualifications therefor That the offender knows that his nominee or appointee lacks the qualifications at the time he made the nomination or appointment.

The accused here is the appointing authority, or has the power to nominate. So he is a high- ranking official. Examples are the mayor, the regional director, the president. But the president is immune from suit so you‘ll have to wait til he finishes his term before you can sue him. Example: The president appoints his favourite beautician to be the commissioner of the COMELEC. That is a violation of this article, unlawful appointments. Example: The regional director of DEPED appoints an applicant for school teacher who did not pass the board exam. That is also a violation of this article. Art. 245 Abuses against chastity Elements: 1. That the offender is a public officer 2. That he solicits or makes immoral or indecent advances to a woman 3. That such woman must be a. Interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer or b. Under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or c. The wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender.

Note: The mother of the person in the custody of the offender is not included.

-

Or if such public officer doesn‘t render decisions or orders, he is required to submit a report to or consult with a superior officer for recommendations. OFFENDED PARTY: -

The offended party, is a woman who is interested in matters or in cases pending before such officer for decision (and this public officer makes an immoral or indecent advances).

Take Note: MERE SOLICITING IS ENOUGH. This crime is consummated by mere proposal because it is sufficient that there is soliciting or making immoral or indecent advances to the woman. -

The crime is without prejudice to the crime actually committed. So you can be liable for Abuses against chastity (for mere solicitation) AND for acts of lasciviousness or unjust vexation as the case may be.

US vs. Morelos: PROOF OF SOLICITATION IS NOT NECESSARY WHEN THERE IS SEXUAL INTERCOURSE. Facts: The appellant was in charge of the prisoners, among them a woman in the Tondo police station. He entered the cell of the woman and had illicit relations with her. The appellant argues that the proof fails to show that he solicited a woman in his custody. It was proven however that his illicit relations were consummated. SC: It would be a strange interpretation to place upon said law. That a failure in the proof to show a ―solicitation‖ was sufficient to relieve the defendant from responsibility, when the act solicited was consummated. R.A. 3019 Anti-Graft and Corrupt Practices Act Background: This is one of the laws authored by the late Jovito Salonga. Enacted to promote morality in public service; In line with the principle that public office is public trust.

OFFENDER:

Terms:

-

―Government‖ here includes the national govt/ local/ GOCC/ and all other instrumentalities

Probably the offender is a high- ranking official because he can make decisions or orders. Examples are:  A judge or  prosecutor- because he makes resolutions; or  regional director- because he renders decisions in administrative cases.

―Public Officer‖ includes all elective and appointive officials employees whether permanent or temporary or whether classified or unclassified receiving compensation even nominal

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D from the government as defined in the preceding sub paragraph. ―Receiving any gift‖ includes the act of accepting directly or indirectly from a person other than a member of the public officer‘s immediate family in behalf of himself or of any member of his family or relative within the 4th civil degree either by consanguinity or affinity even on occasion of family celebration or national festivity; If the value of the gift under the circumstances is manifestly excessive. Corrupt Practices: (a) Persuading/inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter or allow himself to be persuaded/induced or influenced to commit such violation or offense. Notes: Under this paragraph, there are 2 public officers involved here; this can‘t be committed by 1 only; 1 public officer is inducing another public officer to perform/commit an act in violation of an existing rules/laws and the other officer who is being induced, allowed himself to be induced/persuaded to commit such violation or offense. For example the mayor would tell the members of the bids and awards committee not to make bidding on a certain project of the municipality; by inducing/persuading the members not to conduct any bidding is a violation of existing laws/rules since every public project should always undergo public bidding. (b) Directly/indirectly requesting or receiving any gift/benefit/present/share/percentage for himself or for any other person in connection with any contract or transaction between the govt. and any other party wherein the public officer in his official capacity has to intervene under the law Notes: Public officer here is a high ranking officer since such officer represents in behalf of the govt. as to any transaction or contract for the government. There is liability if you ask for a share/gift or even if you did not request but you received something. At the same time, the public officer could also be held liable for direct bribery.

There is a case, a fiscal held a preliminary investigation and asked for money in return for a favorable resolution, now he is charged under this paragraph, now the Supreme Court acquitted him, why? Because a preliminary investigation conducted by a fiscal is not considered as a contract or transaction as to bring it under this paragraph. However such act falls squarely under direct bribery punishable under the RPC. In People vs Peligrino 415 PHIL 94, BIR examiner here was assigned to examine the tax liabilities of a doctor, now the doctor has a tax liability more than P500,000, he was told by the examiner that it can be lessen to P200,000 but requested that the receipt would only reflect P51,858.57. The examiner was entrapped and is liable under this paragraph. (c) Directly/indirectly requesting/receiving any gift/present or other pecuniary/material for himself or for another, from any person for whom the public officer or in any manner or capacity has secured or obtained or will secure/obtain any govt. permit/license in consideration for the help given or to be given without prejudice to section 13 of this act. Notes: Tecson vs Sandiganbayan, now in this case, the mayor here is asking and has receive 4,000 pesos in exchange for the issuance for a business permit for an upcoming fiesta. He is charged for violation under this paragraph, liable? Ofcourse. July 8, 2016 Part 16 Continuation of RA 3019 (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. Persons liable: 1. Public officer 2. Any member of his family - ex: A public officer‘s son accepts employment in a private enterprise which has pending official business with the public officer Is employment with the private enterprise which has transaction with the public officer totally prohibited?  No. The prohibition is only during the pendency of the business or within 1 year after its termination  -ex: A cement factory secures an environmental compliance cert. with the DENR and the child of the Regional Director (RD) of the DENRis allowed to be

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D employed with that cement factory – here the RD has committed a violation of par. D (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.  One of the commonly violated provisions in this law! So take note of this!! Prohibited acts: 1. Causing undue injury to any party including the government  Undue Injury – synonymous to actual damages 3 modes of causing Undue Injury 1. Thru manifest partiality – biased; in favor of one party which excited a disposition to see and report matters as they are wished for rather than as they are 2. Thru evident bad faith – dishonest purpose 3. Thru gross inexcusable negligence – notice the double adjectives; lack of slight care (―palabihangkadanghag‖) 2.

By giving any private party (excluding the government) any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions. Modes of Giving Unwarranted Benefits/Advantage 1. Manifest partiality 2. Evident bad faith 3. Gross inexcusable negligence (same as Undue Injury)

Q: What is the crime committed when the city engineer uses the backhoe of the city government for personal use? - if he is the accountable officer, it‘s MALVERSATION - if he is not the accountable officer, he violates par. e. particularly causing undue injury to the government thru evident bad faith (Amper vs Sandiganbayan 279 SCRA 434) Why undue injury? - because if you would‘ve allowed the backhoe to be rented, the government would have earned from it. Q: If you are working in the DPWH, and there is road construction which needs an acquisition of right of way of a certain lot. If you overprice the lot, is there undue injury to the government? - Yes. Thru evident bad faith. (Mijorada v Sandiganbayan 151 SCRA 399)

Alviso v. Sandiganbayan 406 SCRA 311 – a very huge case - ―Multi-million Highway Scandal‖ - This involved officials of DPWH. They made reports that the roads of Cebu were being cemented, when in fact there weren‘t any projects. The violation was committed in conspiracy with COA auditors. Read more on this… - This caused undue injury to the government thru evident bad faith Q: What is the crime committed by the public officer when he paid the contractor of the town market almost 100% of the contract price when in fact the construction of the market was only 36% finished. Was there undue injury? Did the government suffer pecuniary damage? Actual damage? - Yes. Undue injury to the government thru evident bad faith and manifest partiality.Biased in favor of the contractor. So the 3 modes may be combined in just 1 complaint. (Kibal v. Sandiganbayan 244 SCRA 224) TN! The victim here could be a private party. Ex: DENR officials issued free patent titles to certain individuals when in fact the lands are already titled in the names of other persons. – there was undue injury to a private party. Ex: A ship full of smuggled rice was allowed by the customs to sail out of the country. Undue injury? - Yes! Thru manifest partiality in favor of the owner of the cargo; and evident bad faith because of your fraudulent purpose. - if in the same case, the customs officer was not able to notice the ship to sail because he slept while on duty? Then that‘s gross inexcusable negligence. (Kadakoanangbarko!) (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

Prohibited acts: 1. Public officer refused or neglected a request or demand without justifiable cause 2. Failed to act within reasonable time on any matter pending before him after due demand or request Q: The judge refused to rule on a motion to put up a supersedeas bond because he wanted to have a share from that supersedeas bond. What is the crime? - Par f! For what purpose?TN that there must be a reason for neglecting/refusing to act on that matter. So here, it is for the reason of obtaining directly/indirectly some pecuniary benefit or advantage. (Veracruz v. Sandiganbayan 269 SCRA 52) Possible purposes under this paragraph:

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obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage for the purpose of favoring his own interest or giving undue advantage in favor of an interested party discriminating against any other interested party.

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.  Another commonly violated paragraph  Public officer here is a high-ranking public official because he enters into contract in the name of the government (RD of an office, head of LGU – Gov, Mayor)  Instead of protecting the interest of the government, he enters into the contract which is grossly and manifestly disadvantageous to the government (Mere entering in to the disadvantageous contract is not a violation) - ex: Mayor enters into a contract of sale over cargo trucks, the price of which is equivalent to brand new ones but what were delivered were 2nd hand cargo trucks. – the contract here is GROSSLY DISADVANTAGEOUS. - ex: A lamppost which costs 16k but in the deed of sale the price of each lamppost is 110k. – GROSSLY DISADVANTAGEOUS TN: 



Mere entering constitutes the crime already. If the officer merely recommended, then he is not liable. It is the officer who entered is the one liable. Validity of the contract need not be proved

Read: Luciano v Estrella 34 SCRA 769 Arias v SGB 80 SCRA 309: The usual defense of the public officers is that they just relied on their subordinates, and did not read each page of the document you signed. SC said all heads of office have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare deeds, or those who enter into negotiations. There are hundreds of documents, vouchers that pass thru a public officer‘s hands. In otherwords, the officer can raise GOOD FAITH unless there is a clear case of conspiracy of reckless imprudence on his part. - this defense was also raised in Alviso v SGB. But the SC said it is inapplicable when the accused were knowing participants in the conspiracy considering that in spite the patent irregularities in the documents presented to them, they still affixed their signature thereto. (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is

prohibited by the Constitution or by any law from having any interest.  There is conflict of interest here.  Ex: Mayor enters into a contract of lease and the lot is owned by the city and the Mayor was the one who rented. - So here the Mayor has pecuniary interest in the contract.  ―in which he is prohibited by the Constitution or by any law from having any interest.‖ - remember in the Constitution where members of congress, Pres, VP, Cabinet Members are prohibited to enter into certain transactions. – if they violate this, they could be charged.  Case: A mayor built a cockpit (buwangan) thru another perso (a dummy), in his own town where he is the mayor. Under the LGC, a mayor is prohibited to have financial interest in a cockpit in his own town. – charged with par h of RA 3019 (Teves v SGB 12/17/04) (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.  Public officer here is a member of a board, group or panel. (ex: provincial board, sangguniangbayan, city council)  How violated? There is a transaction which requires the approval of the board, group or panel in which he is a member. But at the same time, he is interested in that transaction.  There is a conflict of interest  Violation is committed even if he voted against the approval of the contract/ even he does not participate in the action of the board. So your remedy here if you are a member is you resign. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.  Public officer here grants a license, permit, privilege to one who is not qualified.  Ex: RD of the LTFRB grants a franchise to operate a taxi to a foreigner. (this is prohibited under the law) – so the RD violated par. j. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

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

Public officer here acquired confidential information and released without authorization. Ex: You are the stenographer in court and when you went out, the medial asked you about the decision of the judge. You told the media. – You could be held liable for violation of Anti-Graft, aside from possible administrative charge TN that this law does not only deal with funds or money but also of abuse of function

A Private person in conspiracy with a public officer could be charged with a violation of Anti-Graft. Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.  This is what you call ―influence peddling‖  Close personal relation – social and fraternal connections and professional employment (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.  Again, the private person can be charged together with a public officer Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the VicePresident of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.  Remember the ZTE scandal during Arroyo‘s time where Mike Arroyo (Gloria‘s husband) transacted when he was not supposed to (nag apil-apil)

Section 6. Prohibition on Members of Congress. It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term. The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency. It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest. -

-

He must not have received any pecuniary interest in any specific business enterprise which will directly and particularly favored by any law or resolution offered by him. The RH Law, manufacturers of condoms and pills will be benefited by the law. The government will allocate funds for population control. A congressman ,who is a principal author and is given funds by the such manufacturing companies, will be in violation if this section.

Section 7. Statement of assets and liabilities. SALN - Statements of Assets, Liabilities and Net worth (SALN) - Every public officer - Times to file SALN 1. Within thirty of assumption of office 2. Every April 30 3. Upon resignation or separation - This would determine whether you acquired unexplained wealth o If you are unable to explain the acquisition of luxurious properties then you are liable. Section 8. Dismissal Due to Unexplained Wealth - If the assets are manifestly out of proportion to the salary and other lawful income, the same shall be ground for removal or dismissal. - RA 1405 Bank Secrecy Laws o One of the exceptions to the bank secrecy law are those bank deposits which are subjects of cases involving RA 3019.  Except dollar accounts. RA 1405 only applies to peso deposits. It can only be opened with authorization by the account holder. Section 9. Penalties for Violation

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D - Section 3,4,5 and 6 o 6 years and 1 month to 15 years imprisonment o Perpetual Disqualification from public office o Confiscation or Forfeiture of the Government of any prohibited interest or unexplained wealth manifestly out of proportion to his salary or lawful income. - Banco Filipino vs. Purisima 161 SCRA 576 Section 13. Suspension and Loss of Benefits - If a public officer is charged for violation of this act as well as any crime falling under Title VII of the RPC, in order to prevent him from harassing the witnesses that will testify against him, tampering with the evidence presented against him and committing further malfeasance while the case is pending, they will have to be suspended. Preventive suspension is not yet a penalty. It is similar to preventive detention. - Preventive suspension is 90 days under this act o There are also other preventive suspensions in other cases.  Under Administrative cases under civil service 60 days  Local Government 60 days  Ombudsman 6 months (warrants dismissal and evidence is strong) no prior hearing required o 90 day suspension applies to crimes under the RA 3019 and Title VII of the RPC o Sandiganbayan or regular courts - If the public officer is acquitted of the charges, he shall be entitled to all benefits due to him during the period of his suspension. - If he is convicted even if the penalty is only a fine, he shall forfeit all benefits under the period of his suspension. Perpetual disqualification may also be applied. - He may be suspended upon the filing of the criminal case in court for: 1. Violation of RA 3019 2. Violation of Title VII of the RPC 3. Any offence involving Fraud involving government funds or property - Before suspension, there must be a hearing first because the condition sine qua non is that the public officer shall only be suspended under a valid information. o Upon the issuance of the information then the court shall issue a ―show cause order‖ requiring the public officer why he should not be suspended. He must be given a chance to explain. If the court is not satisfied with his explanation then he shall be suspended. o

excused if: 1. The accused himself filed a motion to quash.  If the motion to quash is denied then it presupposes that the information is valid and so there is no need for the court to issue a show cause order 2. When the prosecution itself files a motion to place the accused under preventive suspension.  This presupposes there is a hearing - The accused is already occupying a different position when the case is filed in court o The accused committed a violation under RA 3019 while he was a mayor. Later on he ran for Congressman and the case was filed in court while he was already a congressman. He shall still be suspended. Purposes of preventive suspension: 1. Prevent intervention with the proceedings (harass witness and tamper with the evidence) 2. Prevent Further Malfeasance o Re-election cannot be a basis for nonimplementation of preventive suspension o Aguinaldo Doctrine is no longer applicable - If the prosecution is already done with the presentation of its evidence, the suspension will still be implemented until the end of the suspension period. - If the 90 day period is over and the proceedings of the case has not yet terminated. o The public officer will be reinstated without prejudice to the continuation of the case. - The cancelation of the project that gave ground for the suspension shall not be a ground for the nonimplementation of the 90 day period. RA 1379. AN ACT DECLARING FORFEITURE IN FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS THEREFOR. - Petition for forfeiture of ill-gotten wealth of a public officer - The solicitor general will file the petition in court upon filing of a complaint by any taxpayer before the city or provincial fiscal. This is akin to a criminal case. There is a complaint filed in the fiscal‘s office. There will be a preliminary investigation to show if the wealth is not proportionate to the lawful income of the respondent, then the proper petition of forfeiture will be filed in court in the RTC. The respondent public officer will be required to respond to the petition. If the court finds sufficient ground that the wealth is unexplained then there will be an order for forfeiture in favor of the government.

The issuance of a show cause order will be

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D RA 6713. Code of Conduct and Ethical Standards for Public Officers and Employees Section 3. Definition of terms: The definitions are more or less the same with the Anti-Graft and Corrupt Practices act. 1. Government 2. Public Officials 3. Gift - refers to a thing or a right to dispose of gratuitously, or any act or liberality, in favor of another who accepts it, and shall include a simulated sale or an ostensibly onerous disposition thereof. It shall not include an unsolicited gift of nominal or insignificant value not given in anticipation of, or in exchange for, a favor from a public official or employee. Insignificant value depends on the position of the public officer 4. Receiving any gift - includes the act of accepting directly or indirectly, a gift from a person other than a member of his family or relative as defined in this Act, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is neither nominal nor insignificant, or the gift is given in anticipation of, or in exchange for, a favor. xxx 9. Conflict of interest - arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty. 10. Divestment - is the transfer of title or disposal of interest in property by voluntarily, completely and actually depriving or dispossessing oneself of his right or title to it in favor of a person or persons other than his spouse and relatives as defined in this Act. 11. Relatives - refers to any and all persons related to a public official or employee within the fourth civil degree of consanguinity or affinity, including bilas, inso and balae. Section 4. Eight standards of personal conduct 1. Commitment to Public Interest - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. Habitual absenteeism/tardiness affects commitment to public interest Overtime cannot make up for tardiness 2. Professionalism - Public officials and employees shall

perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. When entering into government, there must be competence Must not only be knowledgeable but also hardworking Must not include hardworking in stealing 3. Justness and Sincerity - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs. Shall not discriminate anyone 4. Political Neutrality - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. Must give service to everyone 5. Responsiveness to the Public - Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socioeconomic conditions prevailing in the country, especially in the depressed rural and urban areas. 6. Nationalism and Patriotism - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 7. Commitment to Democracy - Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. Quezon "my loyalty to my political party ends when my loyalty to my country begins" 8. Simple Living - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. Ostentatious display Even if you are truly rich, you must still live a humble life Including their families Section 5. Duties of Public Officials and Employees 1. Act Promptly on Letters and Requests - All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request. a. Anti- red tape act reduces to 10 days 2. Submit Annual Performance Reports - All heads or other responsible officers of offices and agencies of the government and of government-owned or controlled corporations shall, within forty-five (45) working days from the end of the year, render a performance report of the agency or office or corporation concerned. Such report shall be open and available to the public within regular office hours. a. Reply must be in writing 3. Process Documents and Papers Expeditiously - All official papers and documents must be processed and completed within a reasonable time from the preparation thereof and must contain, as far as practicable, not more than three (3) signatories therein. In the absence of duly authorized signatories, the official next-in-rank or officer in charge shall sign for and in their behalf. 4. Act Immediately on the Public's Personal Transactions - All public officials and employees must attend to anyone who wants to avail himself of the services of their offices and must, at all times, act promptly and expeditiously.

5. Make Documents Accessible to the Public - All public documents must be made accessible to, and readily available for inspection by, the public within reasonable working hours. a. Freedom in Information order (executive branch only) Sec. 7. Prohibited acts and transactions -

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(a) Financial and material interest. - Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office.  For example, you are an official in the DENR and you have a factory. You have to sell your factory because it affects your function, there will be conflict of interest or not accept the office. (b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not: 1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law;  Example: A DENR official is allowed to become a consultant of cement factories supervised by an office. A DepEd official can‘t be a consultant to employees of private schools. 2. Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or If allowed, you have to seek permission.  Example: if you are a CPA hired by COA, you can‘t accept private practice.  A Lawyer can‘t also engage in private practice except when authorized by the head of office. For instance, you are in the city legal office and you are authorized by the mayor to engage in private practice, then you can. But if you appear in court, you have to take a leave of absence.If you are in the DPWH, you can have private practice

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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provided you are authorized by the Regional Director, then you take leave of absence once you appear in court.  Judges, the same. But they are allowed to teach or render lectures provided they have been given authority by their executive judge. 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.  Mere recommendation is a violation. These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the 1 year prohibition shall likewise apply. (c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: 1. To further their private interests, or give undue advantage to anyone; or 2. To prejudice the public interest.  This is a provision prohibiting divulging private information. The law on transparency rather than secrecy, the confidential information are not included.  For example, you‘re a clerk of court and you disclosed the decision before it was promulgated. Or you are a police officer, and you knew that B has a warrant of arrest and you told C. that is an example of violation of disclosure and or misuse of confidential information. (d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

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For example, the director of the BIR solicits lechon and some amount of money for the prizes of the Christmas party from the clients. Are you liable for any crime? Yes in violation of R.A. 6713 and could also be a violation of RPC as indirect bribery because these gifts are given by reason of your office although there is no agreement. If you did not ask, just the same because you accept.

Section 8.Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. -

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Again, this requires the submission of SALN. There are two laws which requires the submission of SALN: 1. the anti-graft and corrupt practices act 2. this law, R.A. 6713. Mere failure to submit SALN is a violation. If you also submit but you do not disclose the all and true assets and liabilities, also liable.

Section 9.Divestment. - A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and/or divest himself of his shareholdings or interest within sixty (60) days from such assumption. If you are employed in a private establishment but your interest would be in conflict with your present position, so you have to resign. Example, you own a school and you were appointed as a secretary of Education, necessarily, you have to resign from that school. Or if you are the owner and you don‘t have a position in the school, you have to divest your private interests. If you are a banker and appointed a position in Central Bank, you have to give up your interests in the bank. The same rule shall apply where the public official or employee is a partner in a partnership. The requirement of divestment shall not apply to those who serve the Government in an honorary

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D capacity nor to laborers and casual or temporary workers.  Take note of this, the last paragraph. 

Example, you are serving as honorary consul to Korea or Japan. You need not give up your investment.

PD No. 46 - MAKING IT PUNISHABLE FOR PUBLIC OFFICIALS AND EMPLOYEES TO RECEIVE, AND FOR PRIVATE PERSONS TO GIVE, GIFTS ON ANY OCCASION, INCLUDING CHRISTMAS -

This is a law which prohibits the solicitation or acceptance gifts of the officials.

RA 7080 - AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER -

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This is about plunder. Public Officer- means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. Ill-gotten wealth - means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (TN of these) 1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; 2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; 4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or

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participation including promise of future employment in any business enterprise or undertaking; 5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or 6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.  These 6 schemes are the so-called predicate acts or criminal acts. These acts are penalized already wither by RPC or SPL. Example, NO 4 is bribery.  Why is it that they still enacted the Law on Plunder when there are existing laws already?  This is because the purpose of plunder law is to make it easier to prosecute the public officer. Why easier to prosecute? Just imagine, for example the president serving for 6 years. Just imagine Pres. Marcos who served for 20 years on how many cases of malversation he committed as well as bribery if he is corrupt. Example, if he committed 50 acts of bribery, each act would constitute a crime. So you have to file 50 cases of information on bribery. But through plunder, 1 information only. All the acts, or series or combination of acts will be considered or there is a combination. These are the schemes. There is no plunder if there is only one act. Even if the amount obtained amounted to 50M, that is not plunder. It could be bribery or malversation. It could not be plunder because plunder requires series or combination of schemes. Who can be held liable in the crime of plunder? Can it be committed by just 1 person?  Yes. It could be.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

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Sec 2 - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth.  through a combination or series of overt or criminal acts as described in Section 1(d) hereof,  in the aggregate amount or total value of at least 50M shall be guilty of the crime of plunder  Can a private person be charged of plunder?  Yes. Sec 2 provides that ―Any person who participated with said public officer in the commission of plunder shall likewise be punished‖ for such offense The ill-gotten wealth shall be forfeited in favour of the government upon conviction. Estrada vsSandiganbayan, Feb 26, 2002 PpvsEnrile, GR No 213455, August 11, 2015

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July 10, 2016 Part 17 Elements of the Crime of Plunder: 1.

2. 3.

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committed by any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, that public officer amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts mentioned in Section 1(d), in the aggregate amount or total value of at least 50M pesos

The different criminal acts or predicate criminal acts are: 1. 2.

3.

Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or

any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

Series or combination of criminal acts Plunder cannot be committed through a single transaction even if the ill-gotten wealth acquired amounted to 50M or more. It must be through series or combination of criminal acts mentioned. Any person who participated with said public officer in the commission of plunder shall likewise be punished for such offense. This refers to private persons who could also be charged provided he conspired with the public officer. The essence of plunder is the amassing, accumulating or acquiring ill-gotten wealth by a public officer or his associates or subordinates

Estrada v Sandiganbayan 2 kinds of conspiracy in the crime of plunder 1. Wheel or circle conspiracy –there is 1 person or group in the center of the conspiracy. Those surrounding him are his associates. All of them are working for one goal. 2. Chain conspiracy – here, from the manufacturer goes to his wholesaler then to the distributor/retailer then to the consumer or user. SC said the conspiracy followed in the case of Estrada and company is the wheel or circle conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common goal in the overall conspiracy which is the amassing, accumulation and acquisition of illgotten wealth. How did Estrada commit plunder?

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

According to the Sandiganbayan, Estrada committed plunder by the following: 1. By a series of acts of receiving bimonthly collections from jueteng which is a form of illegal gambling during the period beginning Nov 1998-august 2000 in the total amount of 545,291,000.00, 200M of which was deposited in the Erap Muslim Youth Foundation. 2. By series of 2 acts of ordering the GSIS and SSS to purchase shares of stocks of Belle Corporation and collecting or receiving commissions from such purchase or sales in the amount of 189,700,000 which became part of the deposit in the Jose Velarde account.

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―Jose Velarde‖ - This was a violation of CA 142, the use of another name other than your registered name except when such other name is used in the entertainment, cinema, tv or radio, athletics. In these instances, there‘s no need of a court order. But in another alias, they should ask permission from the court to use such alias name. Remember again that the purpose of plunder is to prosecute public officers who would have acquired ill-gotten wealth. Section 3. Competent Court - Until otherwise provided by law, all prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan.  Connect this to the Rules on Criminal Procedure. It does not mean that the Sandiganbayan has the exclusive jurisdiction over all plunder cases. It depends upon the position or salary grade of the public officer. So RTC also has jurisdiction over plunder cases, except those who have higher salary grades or those expressly mentioned by the Sandiganbayan to be under its jurisdiction. Section 4. Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.  Example, there are 50 information. It is not necessary for the prosecution to prove all the 50

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acts. Because of this law, all the 50 criminal acts are contained in 1 information. So during the trial, there is no need for the prosecution to prove all the 50 criminal acts to convict the accused. It is not necessary. All the prosecution has to do is to establish a pattern. For instance, if prosecution can prove 10 acts out of the 50 acts, and among these 10acts he acquired 50M, then it is sufficient to convict the accused of the crime of plunder. Section 5. Suspension and Loss of Benefits  Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.  There is no mention how many days will the public officer be suspended  If we follow the provision of the Anti—graft Act, suspension is for 90 days.  There must be a prior hearing  Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law,  but if he is acquitted, he shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him. Section 6. Prescription of Crimes  The crime punishable under this act shall prescribe in 20 years. After the lapse of 20 years, if there is no case filed against him, he shall not be prosecuted anymore.  However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.

TAKE NOTE OF THOSE CRIMES THAT CAN BE CHARGED AGAINST PUBLIC OFFICERS.  TITLE VIII: CRIMES AGAINST PERSONS Article 246: Parricide

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D What do you mean by parricide? ―Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide.‖

X wanted to kill Y. Because he wanted to kill Y, he waited for Y at nighttime. Upon seeing a figure resembling that of Y, X fired at the person. It so happen that it was his own father. What is the crime committed? –

Parricide is the killing of ascendants or descendants, except only the spouse. Brothers and sisters –

If the elder brother kills the younger brother or vice versa, the crime is not Parricide. That is either Homicide or Murder.

Relatives by affinity –

If the accused kills his father-in-law, that is not Parricide. That is either Homicide or Murder.

Article 247 Article 247 does not define a crime. It is in the nature of an exempting circumstance, a defense. It says: ―A legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury.‖ –

Adopted child and adoptive parent –

That is not Parricide. That is either Homicide or Murder.

Either Homicide or Murder.

The relationship of the spouses must be legitimate. –

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The penalty is merely Destierro, which, according to the SC, is not actually a penalty. This is a sort of protection to the accused from possible revenge from the relatives of the deceased. The relationship must be legitimate. They must be legally married.

Situation:

Stranger who conspires with the spouse –

Parricide. The law does not require knowledge of relationship between them.

So the one killed is a common law spouse, that not Parricide. That is either Homicide or Murder.

With regards the father, the mother and the child the relationship could be legitimate or illegitimate. But as regards the other ascendants or descendants, the relationship should be legitimate. Example: GF (Father of F) F (Illegitimate father of S)

The husband saw his wife and her paramour in a ―kissing scene‖. Then and there the husband killed her husband and the paramour. Is he liable? –

―Immediately thereafter‖ For example, the wife and her paramour were in the act of having sexual intercourse. When the husband caught them, the paramour jumped off the window. The husband pursued the paramour. After overtaking him, the husband killed him. Is he liable? –

S (Illegitimate Son of F)

Yes. Because they are not in the act of sexual intercourse. The law says, ―in the act of committing sexual intercourse‖. So be patient, you wait! 

No. It is still exempting. The law says, ―In the act or immediately thereafter‖.

PP vs Abarca, 153 SCRA 735 If GF here would kill S, that is not Parricide. That is either Homicide or Murder. The same if it is S who kills GF. Now if S is less than 3 years old, that is Infanticide. Situation:

Abarca was reviewing for the Bar in 1983 in Manila for 6 months. While away, the wife was having an extramarital affair. On the morning of July 15 1984, the accused asked permission from his wife that he will go fetch their daughter in Samar. The bus is scheduled to leave only

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D twice in a day – one in the morning and another in the afternoon. He was not able to catch the morning trip. So he waited for the afternoon trip. Unfortunately, the bus was not able to proceed with its trip because its engine broke down. What he did, he visited his father first then went home. When he reached home, he heard moaning from inside the house. So, he proceeded immediately. There he found his wife having sexual intercourse with her paramour. The paramour, upon seeing the husband, immediately grabbed his revolver and pointed at the husband. The husband ran away and went to the house of his soldier-friend and took the latter‘s armalite riffle. Thereafter, he returned to his house but the paramour was no longer there. So he went to the place where the paramour would usually hang out. Upon reaching the place, he saw him playing mahjong. Then and there, he fired at the paramour, killing him instantly.

crying, the husband decided to follow the wife to the store but could not find his wife there. He therefore decided to return home. But on his way home, he tripped on a wire lying across the way. When he stopped, he observed the leaves of the bamboo grass moving. He saw his wife in the act of sexual intercourse with her paramour. The accused, upon seeing them, drew a fan knife and pursued the paramour. Because he was not able to overtake him, he returned to his house where he found his wife in the act of climbing the stairs. He then stabbed her several times. She died as a result. The husband was charged with Parricide. Is he liable? –

Is Abarca liable for the killing of the paramour? –

No. The SC acquitted him. According to the SC, the RPC, in requiring that the accused ―shall kill any of them or both of them… immediately‖ after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon the accused in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse and must have been influenced by external factors. The killing must be the direct by-product of the accused‘s rage.

On occasion of the firing at the paramour, stray bullets hit a couple in another room. He was charged with Frustrated Murder. Is Abarca liable? –

Yes, but not of Frustrated Murder. The SC ruled that the accused, although he was committing a legitimate act, should be held liable for the injuries inflicted on the unintended victims. According to the SC, there was negligence on his part. The accused did not exercise caution, not taking into consideration that he was armed with a very powerful firearm. Crime committed is Reckless Imprudence resulting in Serious Physical Injuries. Criminally as well as civilly liable.

PP vs Alano, 32 Phil 383-384 One evening, the wife asked permission from the husband that she would go to a nearby store. Considering that the wife did not return immediately their sick child was already

No. The SC held that, the unfaithful wife was not killed in the very place where she was caught, for the reason that the wronged husband preferred to first attack the despoiler of his honor and afterwards the adulterous wife who succeeded in getting away from the place where she was caught with her paramour. The assault of the woman must be understood to be a continuation of the act of the wronged husband‘s pursuit of her paramour, who had the good fortune to escape and immediately get away. According to the SC, the discovery, the escape, the pursuit and the killing must all form part of one continuous act.

Another case: The husband caught his wife in the act of sexual intercourse. The paramour was able to escape through the window. But the wife received a severe scolding from the husband and was ordered to leave the house. Calling her husband names, the wife gathered her clothes and took a bolo from the kitchen. When her husband followed her, she attacked him with the bolo, wounding him in the abdomen twice. Wrestling the bolo from his wife, the husband stabbed the wife in the breast. She died from the wounds that night. The husband, though seriously wounded, survived. The husband was charged with Parricide for killing his wife. Is he liable? – –

According to the SC, the husband is liable. (Dili na kasab-an, patyon na dayon. Kelangan walay interval) Again, the SC said, the discovery, the escape, the pursuit and the killing must all form part of one continuous act. The killing must be the by-product of the accused‘s rage.

Inflicted merely physical injuries

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D –

Example, weighing the victims‘ bodies with a cement and hub cap and tying their wrists and ankles with nylon card and wire (PP vs Maguddatu). Another example, that of the Baramida sisters, whose bodies were placed inside a barrel, cemented and thrown in the sea. The cutting off of the head of the victim is also outraging.

For example, if the husband boxed the wife. Accused is exempt from punishment.

―These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.‖ So, the father (for example) may kill the seducer of his daughter as well as the daughter itself. –

―Scoffing‖ means to mock, to jeer; this implies a showing of irreverence.

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Judge D. Opinion: This should be repealed. Why should you include your minor daughter? The law is unreasonable.

―Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.‖ Article 248: Murder

Example, the killer removed the intestines of the victim and hung them around the neck of the victim‘s brother ―as a necklace‖ and the lungs and liver were facetiously described as ―pulutan‖. (PP vs Carmina) Do you remember that bombing incident right after the Bar in 2010? There was a grenade thrown by the accused. The victim did not die. What‘s the committed?

What is murder?

The crime committed is Frustrated Murder. The aggravating circumstance present is ―use of explosives‖, paragraph 3, Article 248. You remember the aggravating circumstances mentioned.

– It is the unlawful killing of any person which is not Parricide or Infanticide, provided any of the following circumstances are present: 1.

With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. In consideration of a price, reward, or promise. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. With evident premeditation. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

2. 3.

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5. 6.

―Outraging or scoffing at his person or corpse‖

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Note: If in the killing of the victim there are 2 or more aggravating circumstances, only (1) will qualify the killing to Murder. The other aggravating circumstances, if any, will only be considered generic aggravating circumstances. Art. 248 Murder Elements: 1. 2. 3. 4.

That a person was killed That the accused killed him That the killing was attended by any of the qualifying circumstances That the killing is not parricide or infanticide.

Take note: Other aggravating circumstances are found in Special Penal Laws. Example: The use of an unlicensed firearm; The use of drugs.

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The only aggravating circumstance not found in the Article 14.

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―Outraging‖ means to commit an extremely vicious or deeply insulting act.

Under RA 9165, if the accused is found to be under the influence of drugs at the time of the commission of crime, the use of drugs will be considered as a qualifying aggravating circumstance. So although the crime committed is homicide, the use of drugs can qualify the crime of homicide to murder.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Art. 249 Homicide -

SPECIFIC INTENT TO KILL.

the unlawful killing of any person which is neither murder, parricide nor infanticide.

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Aside from proving the general criminal intent, the prosecution has to establish the specific criminal intent to kill.

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If what was proved was only a general intent to inflict physical injuries. Then the crime is only that of Physical injuries.

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Example: Suppose the accused only boxed the victim. And so was charged with Physical injuries (which may be serious, less serious or slight depending on the wound or wounds inflicted). Later on, the victim died. Q: What crime was committed, suppose there was no intent to kill?

Penalty- Reclusion Temporal Elements: 1. 2. 3. 4.

A person was killed That the accused killed him without any justifying circumstance That the accused had the intention to kill, which is presumed That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.

IN BOTH MURDER AND HOMICIDE, INTENT TO KILL IS PRESUMED. -

Ans. HOMICIDE. Because even if there was no intent to kill, such intent is conclusively presumed when the act committed resulted to death.

If the victim doesn‘t die, intent to kill is not presumed. The prosecution must prove and establish intent to kill. Q: How can the prosecution prove that there was intent to kill on the part of the accused? A: By showing to the court: 1. The weapon used- If the accused used a firearm, that may show intent to kill; 2. Location of the wounds If the wounds are for example located in the vital parts of the body, for example the head, that may indicate intent to kill.

FRUSTRATED HOMICIDE

Q: Why do we have to put ―murder or homicide‖ A: Because if any of the aggravating circumstances of murder are present, the crime is frustrated murder. Otherwise just frustrated homicide.

CONSUMMATED HOMICIDE

Specific criminal intent to kill must be established.

Intent to kill is presumed.

THERE IS NO SUCH CRIME AS RECKLESS IMPRUDENCE RESULTING TO FRUSTRATED MURDER -

ATTEMPTED HOMICIDE

- If the wound is mortal or - If the wounds are not fatal; fatal, and had it not for the or timely medical assistance, - If there‘s no wound at all, the victim would have for instance the victim was died. hit by a bullet in the head but because he‘s hardheaded the bullet did injure him.

FRUSTRATED/ ATTEMPTED

Because frustrated murder presupposes intent to kill. Considering that there is no intent to kill, the crime committed is only Reckless Imprudence resulting to Serious or less serious physical injuries, as the case may be.

Art. 250 Penalty for frustrated parricide, murder or homicide. -

Courts may impose a penalty two degrees lower for frustrated parricide, murder or homicide;

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Courts may impose a penalty three degrees lower for attempted parricide, murder or homicide.

Art. 251 Death caused in a tumultuous affray Tumultuous affray- In art. 153, it means that the disturbance is caused by more than 3 persons who are armed or are provided with means of violence.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Penalty: The crime committed is HOMICIDE IN TUMULTUOUS AFFRAY. The penalty is prision mayor. Notice that it is lower than that of homicide. Elements: (Emphasis supplied for the important elements) 1. 2.

3. 4. 5. 6.

There be several persons They did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally That these several persons quarrelled and assaulted one another in a confused and tumultuous manner That someone was killed in the course of the affray That it cannot be ascertained who actually killed the deceased That the person or persons who inflicted serious physical injuries or who used violence can be identified.

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Art. 253 Giving assistance to suicide Acts punishable: 1. 2.

What are the forms of assistance? Example: Handing a knife, gun or poison to a person wanting to commit suicide. Or assisting one to hang himself up the rope. Q: What if the one who rendered assistance was the one who killed the suicide victim? Ans. That is AGGRAVATING. By lending his assistance to another to commit suicide to the extent of doing the killing himself, he can be meted with a penalty of prision temporal, the same with that of homicide.

A: Note that this article only applies when the persons involved in the fight do not compose a group. Like that which we call a carambola. (Judge D didn’t provide for the answer but probably homicide).

A: The one who inflicted serious physical injuries if can be indentified shall be held liable for homicide in tumultuous affray. Art. 252 Physical injuries inflicted in a tumultuous affray Elements: 1. 2.

3. 4.

That there is a tumultuous affray as referred to in the preceding article That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only. That the person responsible therefor cannot be identified. That all those who appear to have used violence upon the person of the offended party are known.

By assisting another to commit suicide, whether the suicide is consummated or not By lending his assistance to another to commit suicide to the extent of doing the killing himself.

As what we have learned, committing suicide is not a crime. What is punishable here is giving assistance to a person who would like to commit suicide.

Example: ACRO vs. Tau Gamma Phi. In the course of their fight, one member of ACRO died, and it cannot be determined who among the members of TGP killed the victim. Q: What’s the crime committed?

Q: If it cannot be ascertained who actually killed the deceased, then how do we determine who’s liable?

If the injuries inflicted are only slight physical injuries, then there‘s no crime committed.

Case: There was this instructor before in Cebu Institute of Technology who believed that 3 days after death, he would resurrect. So he wanted to prove it. With the knowledge of the media, he went to Plaza Independencia bringing with him a gallon of gasoline. When we was already about to burn himself, he requested one of the spectators to light the match for him. And so one of the spectators obliged. The victim died. RTC acquitted the accused because according to the judge, the victim was not committing suicide. Because when you commit suicide you want to die. Which wasn‘t the case here. According to the court it was a religious belief and so he was acquitted, perhaps based on reasonable doubt. Art 254 Discharge of firearms Elements: 1. The offender discharges a firearm against or at another person 2. The offender has no intention to kill that person. -

The accused here fired at another person but the act would not constitute attempted homicide or attempted

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D parricide or attempted murder. Why? Because there is no intent to kill. How can there be no intent to kill when the offender discharged the firearm against the victim? -

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Because of the distance. The possibility of hitting the victim is remote. Except of course when the offender used a high- powered firearm. If the distance was not so far, but still the victim was not hit. The crime is ATTEMPTED HOMICIDE OR ATTEMPTED MURDER. Legal basis: definition of an attempted felony.

What if the pregnant woman is taken to the doctor and it is the latter who prescribed the abortive pills? Now that doctor/physician has a higher penalty; What if the abortion is with the consent of the pregnant woman? The penalty would be lower; Article 257. Unintentional Abortyion Scenario: Suppose the husband and the wife had a quarrel, and the husband was able to lay hands unto his wife which resulted to the unintentional abortion, crime here is unintentional abortion; caused an abortion through violence but unintentional. Notes:

Illegal discharge of firearm presupposes that there is no intent to kill; the purpose of the offender is merely to frighten the victim; no intent to kill, merely to intimidate.

Purpose of the violence inflicted is not to cause an abortion;

-People vs. Agbuya 57 SCRA 238; the distance of 200 meters was so great that it is difficult to impute an intention on the part of the offender to kill the offended party.

Ex:A pregnant woman attempted to commit suicide, upon taking the poison, the board mates of the pregnant woman noticed her unconscious, so she was rushed to the hospital, fortunately the pregnant woman was saved, however the fetus inside the womb died. Is the pregnant woman liable for unintentional abortion? No. In the first place committing suicide is not a crime, and unintentional abortion can only be committed through violence.

Article 255. Infanticide Killing of a child/infant less than 3days of age; Date of birth is material for the conviction of the accused, hence date of birth must be stated in the information. Note: Killing a child of tender years is always murder even if the manner of killing is not proved by the prosecution; mere fact that the victim is a minor is sufficient Mitigating circumstance: if the killing is done by the mother to conceal dishonor; penalty is prision mayor in its med-max periods instead of reclusion perpetua to death; if said crime is committed by same purpose by the maternal grandparents (not paternal), penalty is reclusion temporal. The baby must be born alive and fully developed that is, it can sustain an independent life. Article 256. Intentional Abortion

Could only be committed through violence;

Could the accused be held liable for abortion even if he did not know that the woman is pregnant? Yes. (US vs Jeffry 15 PHIL 394) Unintentional abortion could also be committed through negligence or imprudence. For example the pregnant woman was killed, the crime is homicide with unintentional abortion. Article 258. Abortion practiced by the woman herself or by her parents Notes: Prisioncorreccional in its med-max periods shall be imposed upon a woman who shall practice abortion upon herself or consent to any other person to do the same.

Any person who shall intentionally/willfully cause an abortion shall suffer the penalty of reclusion temporal if used any violence upon the person of the pregnant woman; purposely to abort the child

Any woman who shall commit this offense to conceal dishonor shall suffer only the min.-med periods of the same penalty mentioned above.

Notes:

259 Abortion practiced by a physician or midwife and dispensing of abortives

What if the father let the daughter take abortive pills? Still intentional abortion but considering there is no violence, then the penalty would be lower;

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Penalty for the physicians and midwifes for dispensing abortives

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

Physician or midwife are educated, sworn to save life but if they would use their knowledge in order to abort or to kill that is aggravating Knowledge is aggravating The same story with a pharmacist who, without a proper prescription from a physician shall dispense any abortive to a pregnant woman o Mere dispensing is enough o The pharmacist should never give the abortive without a prescription

260 Responsibility of participants in a duel -

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Not applicable anymore in the Philippines, only in Europe Duel – formal or regular combat previously concerted between two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight. This is the same with boxing or stick fighting. There are referees or seconds or assistants who facilitate the game. They also have rules. If someone joins a duel then he will be charged with homicide and not for violation of Art 260.

261 Challenging to a duel EX:If someone calls you out to a fight but you don‘t fight back then he calls you a ―scaredy cat‖. -

CASE: Pp vs. Tacomoy, GR L-4798, July 16, 1951 o Accused here was nursing ill feelings and moved by hatred, challenged the offended party to a duel, inciting the latter to accept said challenge by uttering: ―Come down, let us measure your prowess, we shall see whose intestine will come out. You are a coward if you do not come down.‖ The offended party refused to come down and accept the challenge. Later, when the accused saw the offended party running toward a nearby house, the former ran after the latter, but desisted upon seeing that the offended party had a companion.  He was charged with challenging to a duel but convicted of light threats only.

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The victim here is only a male, as regards par 1 – the penalty for mutilating an organ for reproduction is higher What about ―any other intention ―mutilation‖, what is the penalty? Prision mayor in its medium and maximum periods. EX: What is the crime committed if the accused would intentionally cut off the fingers of another person? That is intentional mutilation. EX: What is the crime committed if the accused would intentionally cut off the tongue of another person? That is intentional mutilation. EX: What is the crime committed if Mr X armed with a bolo, with intent to kill hacked Mr Y. Mr Y in an attempt to parry the attack, he used his hand. But in so doing, his fingers were hit by the bolo. Three of his fingers were cutoff. What crime/s are committed by Mr X? He is charged with mutilation. Is the charge proper? TN that the mutilation or cutting off of the part of the body of the victim should not be the result of the commission of another crime. So the cutting of a part of the body of the victim should be done deliberately or intentionally. If the cutting off of some part of the body is a result of the wound inflicted or the result of another crime, Art 262 is not the crime committed but it could be attempted homicide or attempted murder. -

263 Serious physical injuries -

262 Mutilation -

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What is the crime committed by the wife who is already tired of her husband who is a womanizer, a habitual drunkard who cut off the penis of her husband? That is mutilation. Penalty: Reclusion temporal to reclusion perpetua

CASE:Aguirevs Secretary of the DOJ, GR No. 170723, March 3, 2008 o The adoptive father let his mentally retarded adopted child undergo a vasectomy. His adoptive child had a girlfriend-boyfriend relationship with his legitimate child. So that the adopted child and the legitimate child could not bear a child, he had a friend who was a doctor so he let him undergo vasectomy. The daughter or the legitimate child filed a case for mutilation against her father and the doctor who conducted the vasectomy on her adopted brother. Liable?

When can you say that the physical injuries committed are serious? Penalty depends on the seriousness of the physical injuries. What about if the victim would later on die? The prosecution charged him with serious physical injuries because there is no intent to kill but later on the victim dies? The crime is homicide because once the victim dies the intent to kill is presumed.

Par 4, Art 263

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

TN more than 30 days – minimum number of days If it is only 30 days or less, up to 10 days – less serious Penalty: arresto mayor in its maximum period to prision correctional in its minimum period ―The physical injuries caused illness or incapacity for labor‖ – he cannot perform any habitual work for more than 30 days

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Par 3, Art 263 -

Penalty is higher ―In consequence of the physical injuries, the person injured shall have become deformed‖ – suffers deformity If the victim suffers deformity, number of days is disregarded EX: Accused boxed the victim in the mouth and as a consequence, the victim lost his two front teeth. According to the doctor, the injury would heal in two weeks. What is the crime committed? The crime committed is serious physical injuries because the injury caused deformity. Reasons why this is considered serious physical injuries: 1. Would cause deformity 2. Would lose part of your body EX: The wife got really mad at a girl who she thinks is the concubine of her husband. He scratched her face. The injuries healed in five days. But later on the scars protruded in such a way that her face got deformed. What is the crime committed? That is serious physical injuries because the injuries caused deformity. -

In order to be considered as a deformity, the same must be conspicuous and visible as well as permanent and definite abnormality Deformity – physical ugliness, permanent and definite abnormality. It must be conspicuous. Front teeth is considered serious for two reasons: 1. It will cause deformity 2. You would lose a part of your body EX: What if instead of becoming ugly, you become handsome or pretty? -

CASE: PpvsBalubar, 60 Phil 699 The injury contemplated by the Code is an injury that cannot be repaired by the action of nature. The fact that the offended party may have artificial teeth, if he has necessary means and so desires, does not repair the injury, although it may lessen the disfigurement. The case of a child or an old man is an exception to the rule. o Even if the false teeth would be replaced, the same would still be considered serious physical injuries. o Case would be different if it was a child or an old man. ―Deformity, or loses any other member of the body, or the use therefor‖ EX: Hands were pounded on. It cannot anymore be clinched. o

EX: You were boxed at the right ear and now you cannot hear anymore. Lost the use of the right ear so serious physical injuries. ―Or becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days‖ o Penalty would be higher if the period of incapacity would be more than 90 days o 31-90 days – serious physical injuries o 91 days or over – serious physical injuries but the penalty would be higher Par 2, Art 263 -

More serious penalty ―Injured person loses use of speech‖ – person cannot anymore speak, ha to use sign language ―Or the power to hear‖ – so if only 1 ear still serious physical injuries but lower penalty, since it would fall under par 3. If both ears cannot hear anymore, then apply par 2 which carries with it a higher penalty. ―Or smell‖ – cannot smell anymore ―Or shall have lost an eye‖ – only one eye ―Hand, foot, arm, or leg, or loses use of any such member or becomes incapacitated for work in which he was habitually engaged‖ –he cannot anymore perform his habitual work. Under par 3 he can still perform but not more than 90 days, here in par 2 there is permanent disability here.

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Par 1, Art 263 -

―Become blind‖ – two eyes are already useless Penalty: prision mayor This presupposes that there is not intent to kill on the part of the accused or the prosecution even if there was intent to kill, prosecution failed to prove intent

―If the offense shall have been committed against any of the persons enumerated in Art 246‖ -

Persons in parricide

―Or with attendance of any of the circumstances in Art 248‖ -

Remember the aggravating circumstance EX: During nighttime you waited for the victim then you boxed. There is treachery there or evident premeditation although there is no intent to kill. The crime is serious physical injuries. The penalty is higher if as a result of the physical injuries the victim would become insane, impotent or blind

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D ―The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement‖ -

Applicable to parents who overdo Purpose is to discipline the child but the parent can be charged for child abuse The parent who shall impose excessive chastisement would be liable for child abuse

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266 Slight physical injuries

265 Less serious physical injuries -

There must be a medical certificate - so as to prove to the court the number of days you were incapacitated or made to rest. So one should see a doctor. If one does not see a doctor the accused can still be convicted but only for slight physical injuries. ―Any person who shall inflict upon another physical injuries not described in the preceding articles, but which shall incapacitate the offended party for labor for ten days or more‖ o ―More‖ – less than 30 days o Penalty: arresto mayor o There must be actual medication because if there is none then the crime would be slight physical injuries o One should go the doctor ―Whenever less serious physical injuries shall have been inflicted with the manifest intent to insult or offend the injured person, or under circumstances adding ignominy to the offense, in addition to the penalty of arrest mayor a fine not exceeding 500 pesos shall be imposed.‖ o Penalty shall be higher EX: You were boxed in front of your classmates.  If injuries would require medical attendance for 10 days or more then the crime would be less serious physical injuries. But considering that there is intent to intent the injured person, there is an additional fine of 500. EX: You were slapped in front of your gate. Medical attendance would only require 3-5 days rest. Slight physical injuries is the result but there is intent to insult. What is the crime committed?

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

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o

in authority or his agent is in the actual performance of his duties or by reason of his past performance of his duties, the crime would be direct assault with less serious physical injuries But if it has no connection with his work or he was not physically injured while in the performance of his duty, then it would be less serious physical injuries

Slight physical injuries + intent to insult = grave slander by deed  Slight physical injuries + no intent to insult = slight physical injuries  Less serious physical injuries + intent to insult = intent becomes an aggravating circumstance ―Any less serious physical injuries inflicted upon the offender’s parents‖ o Relationship here is aggravating ―Ascendants, guardians, curators, teachers, or persons in authority, shall be punished by prision correctional in its minimum and medium periods‖ o If the victim is a person in authority or agent and the crime is committed while the person

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9 days to none No need for injuries Or ―maltreatment‖ If the purpose is to embarrass or insult the victim = slander by deed and could be grave sander by deed

July 13, 2016 Part 18 (7/13/16) Review from last meeting THE ELEMENTS OF A CRIME MUST BE BOTH ALLEGED AND PROVED. 

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IN PHYSICAL INJURIES- the number of days that the injuries require medical attendance or by reason of which the victim is incapacitated to work is important. -

In either slight, less serious or serious physical injuries, INTENT TO KILL IS ABSENT; or If there was intent to kill, the same was not alleged in the information.

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Or even if it was alleged in the information, the same was not proved during the trial. Because in criminal cases, the elements of a crime must be ALLEGED AND PROVED.

IN ATTEMPTED HOMICIDE OR ATTEMPTED MURDER OR FRUSTRATED HOMICIDE OR FRUSTRATED MURDER- the specific criminal intent to kill is an element for its commission. Hence it must be ALLEGED in the information AND PROVED during the trial.

In the Crime of Less Serious Physical Injuries, THE MEDICAL CERTIFICATE OF THE DOCTOR IS IMPORTANT.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

Even if the injuries of the victim healed in 20 days but he did not go to a doctor for a treatment, or he wasn‘t able to present a medical certificate, the accused cannot be convicted of Less Serious Physical Injuries.

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At most, he could only be convicted of Slight Physical Injuries because in the crime of slight physical injuries, injury is not even necessary.

Q: Can there be treachery in the crime of Physical Injuries? A: YES.

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2 KINDS OF RAPE under the amendment: 1. 2.

Elements: i. The offender is a man ii. He had carnal knowledge of a woman iii. That such act is accomplished under any of the following circumstances:

Ans. Treachery and that the crime was committed in nighttime.

a. b.

Remember: 1. those aggravating circumstances that are absorbed in Treachery- one of which is nighttime; 2. Remember also that treachery, especially in the crime of murder must be present at the initial stage of the attack. If there was no treachery at the start of the attack, treachery cannot be appreciated even if towards the end of the attack, the victim was killed defencelessly. EXC: When there are 2 stages of the attack. Remember the case of Pp. vs Baluyot.

c. d.

a)

Art. 266- A. Rape, When and How Committed. Rape used to be classified as a crime against chastity. Later on it has been reclassified as a crime against persons. Crimes against chastity are private crimes.

By using force, threat or intimidation When the woman is deprived of reason or otherwise unconscious or By means of fraudulent machination or grave abuse of authority or When the woman is under 12 years of age or demented.

―By force‖ meaning there is violence inflicted. Example: the man struck or stabbed the victim. ―Threat or intimidation‖ Example: pointing a knife or a gun at the woman in order to force her to have sexual intercourse with him.

Case: Pp. vs Baluyot: Where the victim was the governor of Bataan. At the start of the attack there was no treachery but towards the end the accused stopped for awhile and tried to discern where was the head of the governor. The governor was inside the closet. Treachery was not appreciated in this case. ******************************************************

RAPE BY CARNAL KNOWLEDGE RAPE BY SEXUAL ASSAULT

Rape by Carnal Knowledge

Example: Mr. X, purposely waited for Mr Y at a dark place and when MR. Y passed by the place, Mr. X coming from nowhere boxed Mr. Y. What is/are the aggravating circumstance/s present?

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They cannot be prosecuted de officio. Meaning there should be a complaint signed by the private complainant. Unlike in other crimes the complaint of the private complainant is not necessary but of course it is advantageous.

SC: When the accused is the father, or is the uncle etc of the victim, force, threat or intimidation is not necessary. Meaning there can be rape even if the victim did not resist. Why? Because of the moral ascendancy of the offender over the victim. b)

―When the offended party is deprived of reason‖ Example: when the victim is insane or the victim is mentally retarded. COMPLETE DEPRIVATION OF REASON IS NOT REQUIRED. MERE ABNORMALITY IS ENOUGH. Here there might be no resistance on the part of the offended party but since she is

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D deprived of reason, she is incapable of giving consent.

TN: that Carnal knowledge is different from sexual intercourse.

―or otherwise unconscious‖ Example: The offender drugged the victim. Do you know that there is already a liquid ecstasy. It knocks you out for one or three hours. You wouldn‘t even notice the drug because it just looks like a candy.

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Example: when victim is asleep. Being asleep is synonymous to being unconscious.

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 

 Q: How can the crime of rape be proved when the victim is unconscious? Ans: By circumstantial evidence. The prosecution has to establish circumstances to prove the crime of rape. c)

―By means of fraudulent machination or grave abuse of authority‖ this is one of the recent amendments of the crime of rape. No jurisprudence yet on this. Example: The offender has a girlfriend who doesn‘t want to have sexual intercourse with him unless they get married. So he contacted a friend who pretended to be a judge to ―solemnize‖ their marriage. Now because in her mind they are already married, the woman acceded to the request of the man, who is now her husband to have sexual intercourse. She then found out that the marriage was a sham. Here, the man succeeded to have sexual intercourse with her through fraudulent machination.

Q: Can a woman be held liable for Rape? Ans. YES. But not by direct participation. She could be liable by inducement. Example: If she induces another to rape the mistress of her husband. She can be held liable as principal by inducement. Rape by Sexual Assault -

d)

―When the woman is under 12 years of age or demented‖- STATUTORY RAPE -

The girl here may have given her consent to the sexual intercourse but the law considers it to be Rape because THE GIRL AS A MINOR, IS INCAPABLE OF GIVING A VALID CONSENT TO THE SEXUAL INTERCOURSE.

This is one of the recent amendments of rape. This used to be acts of lasciviousness. Here, rape can be committed by a male or a female, the victim too could be a woman or a man.

Elements: 1. 2.

The offender commits an act of sexual assault That the act of sexual assault is committed by any of the following means a. By inserting his penis into another person‘s mouth or anal orifice or b. By inserting any instrument or object into the genital or anal orifice of another person

3.

That the act of sexual intercourse is accomplished under any of the following circumstances: a. By using force or intimidation b. When the woman is deprived of reason or otherwise unconscious or c. By means of fraudulent machination or grave abuse of authority or d. When the woman is under 12 years of age or demented.

―Grave abuse of authority‖ Example: A jailguard promised a female prisoner that the latter can be released provided she‘d have sexual intercourse with him. Believing that she could indeed be released, she acceded to have sexual intercourse with the jailguard.

There is rape by carnal knowledge even if there was no full penetration. Rape by carnal knowledge is consummated even if the tip of the penis has only kissed the lips of the vagina. But there must be penetration. Because if there is no penetration, there is no consummated rape. SLIGHTEST PENETRATION IS ENOUGH TO CONSUMMATE RAPE. The presence of Semen is not also required.

Q: What is the crime committed if the man, instead of inserting his penis to the anal orifice of the woman, inserted his pen? Ans. Rape by Sexual Assault.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Notes: What about if he inserted his finger into the genital? That is rape by sexual assault. But there was an accused charged with rape by sexual assault who argued that a finger is not an object as described in the RPC, SC said that a finger is still considered an object.(People vs Soriano); Although the SC mentioned it in passing, in the case of PP vsBunaagwa, the SC said that even the tongue of a man which merely touches the outer lips of the vagina, is considered as rape through sexual assault; What about if you insert the tongue in the anal orifice? Rape by sexual assault. Penalties: 1. Rape by carnal knowledge – reclusion perpetua 2. Rape by sexual assault – prision mayor 3. When rape is committed with use of deadly weapons – reclusion perpetua to death 4. if by reason of rape the victim became insane – reclusion perpetua to death Now there is a special complex crime under this provision, where 2 or more crimes are committed but under the law it is only considered as 1 indivisible crime and the law provides a specific penalty thereof; it says when rape is committed and homicide is committed on occasion thereof, the penalty is reclusion perpetua to death Now if the crime is attempted rape with homicide (special complex crime) What if the victim did not die? Now article 48 will apply (penalty depends upon the more serious offense). Homicide here is used in its generic sense; even if the killing constitutes murder, the crime is still rape with homicide. Qualifying circumstances: 1. Victim is under 18yrs old and the offender is the parent/ascendant/step parent/relative by consanguinity/affinity within the 3rd civil degree or the common law spouse of the parent of the victim. 2. When the victim is under the custody of the police/military authorities or any law enforcement/penal institution. 3. When the rape is committed in full view of the spouse/parent, any of the children/other relatives within the 3rd civil degree of consanguinity

4. When the victim is religious engaged in legitimate religious vocation and offender personally knows before or at the time of the commission of the crime. 5. When the victim is below 7yrs old 6. When the offender knows he is afflicted with HIV/AIDS or any other STDs and the virus/disease is transmitted to the victim 7. When committed by any member of the AFP/paramilitary units/any law enforcement agency or penal institution and offender took advantage of his position 8. When victim suffered permanent physical mutilation/disability 9. When offender knew the victim is pregnant at the time during the commission of rape 10. When offender knew of the mental disability/emotional disorder and or physical handicap of the victim. Rape is committed when victim is deprived of reason or is unconscious; even if the victim is asleep, it is considered as being unconscious Note: there is only a hairline difference between attempted rape and acts of lasciviousness so be careful TN that there is only a hairline difference between attempted rape and acts of lasciviousness. Attempted Rape is committed when there is evidence that the accused has committed overt acts which show intent to rape the victim.  Case: Accused after raising the dress of a woman who was asleep, placed himself on top of her. When the woman was awaken, the accused threatened her with a knife. But because of the woman‘s continued shouting, people came to her rescue. So here, there was an attempt of the accused to have sexual intercourse with the woman.  Overt acts here: raising the dress, placing himself on top of the woman 

Case: Pp vs Dayo 62 Phil 102 - In this case, the victim was asleep when the accused entered her room and committed sexual intercourse with her. When prosecuted for rape, the accused contented that the woman consented because when the latter woke up, she did not resist. SC said that the crime committed was consummated rape and the offended party‘s final consent after she realized the outrage perpetrated against her is not of the character to exclude the consent in the crime of rape.  TN that when the woman woke up, the crime of rape was already consummated;

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D and her failure to resist will not extinguish rape. Character of the woman is not material in the crime of rape.  A prostitute may be a victim of rape. In rape with homicide, the main purpose of the accused must be to rape.  Case: The main purpose of the accused was to kill the victim. When the victim was already dying, he had sexual intercourse with her. SC said the crime was murder and the act of raping the victim when dying was aggravating – ignominy/cruelty. The moment the prosecution establishes the crime of rape, it is mandatory for the court to award: (proof of damages not necessary; even if victim did not testify that she suffered mental anguish.)  Rape – P50,000  Qualified Rape – P75,000  Rape with homicide – P100,000 TN: P50,000 is the minimum only There are only 2 persons when the crime of rape is committed. During the trial, the prosecution only has 1 witness- the victim. The doctor may testify but that testimony would only be corroborative (As regards the injuries of the victim) Q: Is the testimony of the woman (victim) sufficient to convict the accused? A: Yes, if credible. SC said, ―When a woman says that she has been raped, if credible, she says all that is necessary to prove that rape was committed.‖ (Pp vs Robles 550 SCRA 463) Physical Resistance is immaterial in rape when the victim is sufficiently intimidated by her assailant and she submits against her will for fear of her life. If threat or intimidation is used, there could be no resistance. Actual penetration or rupture of hymen is not required. Slightest touching or penetration of the lips of the organ is sufficient to constitute rape. (Pp vs Ortega 562 SCRA 450) TN that there must be penetration but very slight. If there is no penetration, but there is intent to rape – Attempted Rape. Usual defense of the accused:  Sweetheart Defense – valid but much abused. It is similar to denial and cannot prevail over positive testimony that rape has been committed. (PP vs Tuason) Delay in the reporting of the commission of rape will not affect the credibility of victim. This is what we call vacillation. Delay in reporting the crime of rape due to death threats is not an indication of fabricated charge. The charge of rape is doubtful only if delay is unreasonable and unexplained. So when delay can be explained and the reason is justifiable, it will not affect

the credibility. (Pp vs Macapanas 620 SCRA 54) – this applies to any crime! Q: Can treachery be appreciated in the crime of rape? A: Yes. Treachery is only applicable in crimes against persons. Since rape is now classified as crimes against persons, it follows that there could be treacher. Ex: putting sleeping pills in the drink of the woman so that she can be raped later. Q: Can a husband be held liable for rape? A: Yes. Pp vs Jumawan – a landmark case! Read to know the rationale why the husband was convicted. Part of ruling said: Marriage license does not give the husband a license to rape. The subsequent valid marriage between offender and the offended party shall extinguish the penalty imposed. Marriage must be valid. TN: if they are already married when the crime was committed, you can extinguish rape thru PARDON. Even if a case of rape was already filed in court, pardon by the wife will extinguish the crime. But in acts of lasciviousness, seduction – to extinguish the crime, pardon by the offended party must be given BEFORE FILING IN COURT. Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A  Remember PP vs Jalosjos – it is per case not per victim. July 15, 2016 Part 19 TITLE IX – CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Art. 267: Kidnapping and Serious Illegal Detention –

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Kidnapping and illegal detention are technically different because there can be detention without kidnapping. When you say kidnapping, that is the taking of a person to another place; detention does not require the taking away of a person to another place. In fact, a person could be detained even in his own home. IOW, there can be detention even without kidnapping. Kidnapping need not necessarily be followed by detention. Such as, where the taking was only to briefly restrain the victim in order to kill him.

When is kidnapping and serious illegal detention committed? Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty shall be liable

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D for kidnapping and serious illegal detention in any of the following circumstances:

The crime committed would still be serious illegal detention or kidnap for ransom. Kidnapping is another form of extortion. Extortion is the act of ―asking for money‖. Kidnapping for ransom can be committed even if the offender has not actually demanded for ransom as long as the purpose of such kidnapping or detention is to ask for ransom.

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1. 2.

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If the kidnapping or detention shall have lasted more than three (3) days. If it shall have been committed simulating public authority. – If the offenders pretended to be police officers, flagged down the victim who was driving his car. Thinking that the offenders were really police officers conducting checkpoint, the victims stopped. But when he stopped, he was kidnapped and detained elsewhere. The crime is serious illegal detention. – Suppose a day after his kidnap, the victim was rescued. The crime committed is still serious illegal detention because the kidnapping was committed by simulating public authority. Notwithstanding the kidnapping did not last for more than (3) days. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. – Do you recall the case of actor Vhong Navarro? He was detained and while detained, he was subjected to serious physical injuries. The crime is serious illegal detention even if the circumstances mentioned in paragraphs 1 and 2 are not present. If the person kidnapped or detained shall be a minor, female or a public officer. – What is the crime committed if a child (2 years old) was kidnapped but after two days, he was rescued. The crime is serious illegal detention even if the circumstances mentioned in paragraphs 1, 2 and 3 are not present. If the victim is a female or when the victim is a public officer. – What is the crime committed when the kidnap victim is a female public school teacher. The crime is serious illegal detention even if the circumstances mentioned in paragraphs 1, 2 and 3 are not present. – What circumstance/s that made the crime serious illegal detention? The fact that the victim is female and the fact that she is a public officer, being a public school teacher.

Can a parent be held liable for serious illegal detention? –

YES. Example, when the spouses have legally separated or their marriage annulled, and the custody of a child has been awarded to the wife. Without the consent of the wife, the father took the child away with him and brought the child elsewhere. The crime committed is kidnapping but the penalty there is lower under Art. 271.

What is the crime committed if the purpose of the kidnapping is to extort money or to ask for ransom from the victim‘s family?

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What do you mean by ransom? – Money, prize or consideration paid or demanded for the redemption of a captured person/s or a payment that releases from captivity the victim. It is not limited to the payment of money. In one case, the accused was kidnapped in order to compel him to pay the hospital bills of another person. The crime committed his kidnapping for ransom.  Kidnap for ransom is committed even if none of the circumstances earlier mentioned is committed. Special Complex Crime When the victim is killed or dies as a consequence of the detention or is raped or is subjected to torture or dehumanizing acts. A single, indivisible offense. Kidnapping with homicide, kidnapping with rape.

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PP vs. DELIM, GR. NO. 142773, January 28, 2003 If the primary and ultimate purpose of the offender is to kill the victim, the incidental deprivation of the victim‘s liberty does not constitute kidnapping but merely a preparatory act to the killing. Hence, the same is merged into or absorbed by the killing of the victim. The crime committed would either be murder or homicide. CASES: PP vs. ESTACIO, JR., July 22, 2009 PP vs. RAMOS, 297 SCRA 618 PP vs. SOLANGON, November 21, 2007 How about the practice of hospitals of not releasing their patients unless they pay their hospital bills? –

The crime committed is serious illegal detention.

Essence of Illegal Detention –

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The intention of the offender to deprive the victim of his liberty. If the accused does not have the intent to deprive the victim of his liberty, the crime committed may not be illegal detention. For example, if the main purpose of the offender is to kill the victim and in order to carry out his intention, he took the victim and brought him to another place and there he was killed, the crime is

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D murder, not kidnapping with homicide. The kidnapping was just done as a means to achieve his purpose. Not necessary that the victim be placed in an enclosure –

Illegal detention may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty.

US vs. SOL 9 PHIL 265 The robbers, after robbing the victims, brought them to some distance in order to prevent them from reporting the incident to the authorities. The crime committed is only robbery.

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What about if the victim was kidnapped and thereafter she was raped? What’s the crime? -

Kidnapping with rape.  What about if in order to do away with the witness, the victim was killed?  Pp. vsLaranaga, 421 SCRA 530

Suppose the taking of the woman, because one of the circumstances that could make the crime serious illegal detention is when the victim is a woman, suppose the taking of the woman by the offender is with lewd design, what is the crime? -

It is forcible abduction. NOT serious illegal detention.

Slight illegal detention -

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Art 269 – Unlawful Arrest -

When none of the circumstances mentioned in Art 267 are present, the crime is only slight illegal detention. What is the liability of the person who would furnish the place for the detention of the victim? He was not included in the conspiracy but the victim was detained in his house even if he knows about the crime?  He is an ACCOMPLICE.  But under Art 268, the penalty of the accomplice is the same with that of the principal.  ―The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.‖  There is a privileged mitigating mentioned in the last paragraph. When we say privileged mitigating, penalty is lower by one degree.  Here, it says that ―If the offender shall voluntarily release the person

so kidnapped or detained within three days from the commencementof the detention, without having attained the purpose intended, and before the institution of criminal proceedingsagainst him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding sevenhundred pesos.‖ There are 3 requisites: 1. the offender voluntarily released the person so kidnapped or detained 2. within three days from the commencement of the detention without having attained the purpose intended, and 3. before the institution of criminal proceedings against him It is only available to slight illegal detention. It does not apply to serious illegal detention.

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Any person who, in any case other than those authorized by law, or without reasonable ground therefore, shall arrest or detain another for the purpose of delivering him to the proper authorities. So the accused here arrested another person but the purpose of arresting is to bring him to proper judicial authorities. X is having vacation in Bohol. He was told by his helper that her neighbour took away his rooster a day after X left for Bohol. After knowing about it, X went to the house of Y and dragged him to the police station, forcibly. What is the crime committed by X?  Unlawful arrest. Why? The arrest could not fall under valid warrantless arrest because the crime was committed days ago therefore it is unlawful and the purpose is to bring him to proper judicial authorities.  Suppose X, instead of bringing Y to the police authorities would detain Y in the former‘s house? The crime now would be illegal detention because the purpose is not

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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anymore to deliver the person to proper judicial authorities but to detain him. So the crime is illegal detention. And if the detention would last more than 3 days, serious illegal detention. What about if the one arresting Y is a police officer? Arbitrary detention because he is a public officer and has authority to detain but detained without any legal ground. So TAKE NOTE of the purpose.

Art 270. Kidnapping and failure to return a minor -

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The victim is a minor. The minor is entrusted to the accused but he failed to restore custody to the person in-charge of the minor. If you have a neighbour and told you that he would bring your child to the mall because he would buy some gift for your child. Then you entrusted the minor to such neighbour. But your friend did not anymore return the minor. What‘s the crime?  Kidnapping and failure to return a minor. The minor is entrusted to the accused but he deliberately failed to restore such minor to the person in-charge of the minor. This can be committed by parents but the penalty is lower as provided in the next article. Ppvs Marquez, GR No. 181440, 2011 case.

Art 271. Inducing a minor to abandon his home. -

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Anyone who shall induce a minor to abandon the home of his parent or guardiansor the persons entrusted with his custody. The accused is a maid who worked in Manila. When she went home, she told the minors that Manila wasa big city with tall buildings. The minors went with her in Manila. She was charged with inducing a minor toabandon his home. Is she liable?  According to the CA, accused is not guilty of the crime charged.  ―In order for an inducement of a minor to abandon the home of his parents, it is essential that the inducement be actual, committed with criminal intent, and determined by will to cause damage.‖  So intent is necessary. In the present case, the CA said that ―the conversation made by the accused was an innocent talk. The representations made by the accused to the minors highly praising the city of Manila andher offer and promise to take them to

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that city clearly do not institute that inducement which is essential to theact.‖  The phrase ―to induce‖ means ―to influence; to prevail on; to move by persuasion; to incite by motives.‖  ―Since there was very little difference in their ages, and there could not have been much difference in the degreeof their intelligence, it cannot be supposed that the accused commanded such ascendancy over the offendedminors to be able to prevail on them, or that the latter were so gullible as to believe outright the promise of a mere maid, a minor like them, with no other source of income except the small salary that she was receiving as such. The probabilities are that these girls abandoned their respective homes moved by the irresponsible spirit of restlessness and adventure which is commonly found in the youth of today, and not because of the offer and promise made by the accused.‖ 2ndpara of Art 271 refers to the penalty to parents who would kidnap their own child. If the person committing any of the crimes covered by the two preceding articles, Arts 270 and 272,shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding three hundred pesos, or both.

ARTICLE 272. Slavery any person who shall purchase, sell, kidnap, or detain a human being for the purpose of enslaving him to lower the penalty of kidnapping/serious illegal detention, turn him into a slave so that the penalty will only be Prision Mayor 2 degrees lower than kidnapping If the crime be committed for the purpose of assigning the offended part to some immoral traffic imposed in its maximum period Related to a special law RA 9208 slavery as a serious offense trafficking in person life imprisonment ARTICLE 273. Exploitation of Child Labor another form of slavery Anyone who under the pretext of reimbursement himself of a debt incurred by an ascendant, guardian, or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service. Not a star provision unlike the previous one but it came out.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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The offender is a creditor. The debtor fails to pay his loan. In order to pay the loan, the creditor requires the minor child of the debtor to work in his service This is also found in Trafficking in persons o Debt bondage o The minor is working against his will, this may also be considered as child abuse If done against the will of the minor then it is exploitation of labor.

Debt Bondage You don't know when the service will end The cost of services is not clear, there is no clear liquidation You don't know when the debt is done ARTICLE 274. Services Rendered Under Compulsion in Payment of Debt Any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer. the debtor himself is required to work for his debt as household servant or farm laborer if working as a driver then it is not covered ARTICLE 275. Abandonment of Persons in Danger and Abandonment of One's Own Victim Felony by omission, one is required to do but fails to perform 1. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. -

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If people went island hopping in Nalusuan Island. On your way, you found a fisherman whose boat capsized and asked for help. You looked the other way and abandoned him. You are liable under this paragraph. The middle of the sea is an uninhabited place. He is in danger of dying. If you find a person stabbed and left dying. He asked for help but you ignored him. If he was found in an uninhabited then you are liable. If he was found in Colon then you are not liable because the place is not uninhabited. Important to note that the place must be an uninhabited place or detriment to himself

2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured.

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He is the author of the injury by accident but did not render assistance

3. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place. There is a child left at the gate of your house. If not helped then you are liable under paragraph 3 of Article 275. You must deliver the child to DSWD or Barangay captain. ARTICLE 276. Abandoning a Minor Imposed upon any one who shall abandon a child under seven years of age, the custody of which is incumbent upon him shall result from such abandonment -

When finding a child then doing nothing = Art. 275. For those who abandon the child = Art. 276 Offender has no intent to kill but he left the child in front of the gate because he could not care for the child. If the purpose of the abandonment is to lose the civil status of the child o The crime is violation of Art. 347 o If the purpose is just to abandon then the crime is Abandoning a Minor

ARTICLE 277. Abandonment of Minor by Person Entrusted with His Custody; Indifference of Parents. Par. 1 Abandonment of minor by persons entrusted with his custody Any person who, having charge of the rearing or education of a minor, shall deliver said minor to a public institution or other persons, without the consent of the one who entrusted such child to his care or, in the absence of the latter, without the consent of the proper authorities. Ex. The mother is working abroad and the aunt was left with the kid. The kid was left with another person and another person was to care for the child. Par. 2 Indifference of Parents Parents who shall neglect their children by not giving them the education which their station in life requires and financial condition permits. Violation of RA 7610 Violation Against Women and Children ARTICLE 278. Exploitation of Minors 1. Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing, physical strength, or contortion. -

Letting a child become acrobats or contortionists

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 2. Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants. When letting a child become a snake charmer 3. Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve years of age in such dangerous exhibitions. 4. Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority.

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―Dwelling place‖ -

EX: boarding house – there are a lot of rooms, when you enter another room or another boarders room against his will that is trespass to dwelling

ENTRANCE INTO DWELLING MUST BE AGAINST THE WILL OF OWNER OR OCCUPANT -

Different in Art. 271, the person engaging the service of a minor is not an acrobat or activities under paragraph 2.

ARTICLE 280. Qualified Trespass to Dwelling Any private person who shall enter the dwelling of another against the latter's will -

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The crime is trespass to dwelling and when the crime of trespassing is committed by means of violence and intimidation then the crime is qualified trespass to dwelling against the latter's will

Ex. Mr. X and Mr. Y are neighbors. Mr. X wanted to borrow money and went to Mr. Y's house. Mr. X called out the name of Y. Mr. Y did not reply. The door was open so Mr. X went in the house of Mr. Y. There is no crime of trespass to dwelling. It is not enough that the offender went in the house

Refers to any building or structure exclusively devoted for rest and comfort

DWELLING INCLUDES A ROOM WHEN OCCUPIED BY ANOTHER PERSON

5. Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar. -

without consent. It must be against the owner‘s will. There must be a prohibition or opposition to the entry. Mere lack of consent does not constitute trespass to dwelling There must be a prohibition (expressed or implied) Cannot be committed by stealth or strategy

It could be express or implied o IMPLIED EX:  When the door is closed;  Where the door was a jar and unlocked but the sole occupant of the room was asleep;  When it is already late hour of the night ―SC said that it is a well settled rule that whoever enters the dwelling of another at late hour of the night after he inmates have retired and closed their doors does so against their will.‖ – so when the door is closed and it is already night time it is an implied prohibition  ―The fact that the door of the room was only fastened by a string too weak and inadequate to hold it fast, does not alter the fact that the offended party wished it to be understood that she did not desire anyone to enter without her express consent.‖

PROHIBITION IS IMPLIED IN ENTRANCE THROUGH THE WINDOW -

When the door is closed but the windows are open and the person passed by the window, there is an implied prohibition to trespass to dwelling

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D PROHIBTION WHEN THERE IS A STRAINED RELATION BETWEEN OCCUPANT AND THE ACCUSED -

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Even if the door is open but you are enemies then you cannot enter

NO TRESPASSING WHEN THE ACCUSED ENTERED WITH THE CONSENT GIVEN BY THE BOARDER IN THE HOUSE WHO WAS HIS MISTRESS -

Any member of the household is presumed to have authority to extend an invitation to enter the house In one case, even the consent extended by a girl 12 years old, an inmate thereof, was held sufficient permission to enter (US vs. Dulfo, 11 Phil 75)

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QUALIFIED TRESPASS TO DWELLING -

Penalty is higher if the entrance is done by means of violence EX: The occupant is boxed by the offender, the crime is qualified trespass to dwelling.

If you went in the house and stabbed the owner of the house then the crime is homicide. Trespass to dwelling is not considered a crime but considered as an aggravating circumstance. EX: Accused wanted to take away the laptop which was placed on the table, in order to take away the laptop, the accused passes through the open window then he went to the table where the laptop was placed. Before he could take away the laptop, the occupant caught him. What is the crime committed? The crime committed is trespass to dwelling. – He was not yet able to pick up the laptop. His overt act would merely indicate trespass to dwelling. But if he were able to pick up the laptop then the crime would be attempted robbery. If he were able to get out of the house safely, then that would be consummated robbery. EX: If he was only able to remove a portion of the wall but before he could enter, he was caught by the roving barangay tanod. What is the crime committed? Attempted trespass to dwelling – the overt act of removing a portion of the wall was still connected to trespass to dwelling and not to robbery

MUST VIOLENCE REFER TO PERSON ONLY? -

Violence does not refer only to person. There could also be violence to force upon things. EX: when the accused loosened the bars of the doors by means of bolo and screwdriver, qualified trespass to dwelling was committed.

ACTS WHICH MAY JUSTIFY THE ENTRY OF ANOTHER PERSON TO ANOTHER PERSONS DWELLING 1.

If the entrance to another‘s dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person EX: His enemy was chasing him and in order to save his life, he went inside another person‘s dwelling against the will of the occupant. What is the crime committed?

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No crime committed EX of prevent serious harm to occupant: The husband wanted to stab his wife but the neighbor went inside the house and held the hands od the husband so that he cannot anymore cause pain to the wife. Did he commit any crime? No

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If the purpose is to render some service to humanity or justice No jurisprudence as to this yet EX: If you saw that your neighbors house is a burning and you knew that he is not inside so you went in and you put off the fire. Or if the fire was big enough, you got his clothes for him.

TRESPASS BY MEANS OF VIOLENCE 1.

When the accused closed the door violently and maltreated the occupants after entry. When the offender cut off the ribbon or string which the door latch of a closed room was fastened. The cutting of the fastenings of the door was an act of violence.

2.

THE VIOLENCE OR INTIMIDATION MAY TAKE PLACE IMMEDIATELY AFTER THE ENTRANCE -

This is still considered qualified trespass to dwelling

ALL TRESPASSERS ORDINARILY HAVE INTENTION TO COMMIT ANOTHER CRIME, BUT IF THERE IS NO OVERT ACT OF THE CRIME INTENDED TO BE COMMITTED, THE CRIME IS ONLY TRESPASS TO DWELLING

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EX of intentions to commit another crime: rape the occupant; steal But if there is no overt act then that would indicate that the other crime that the person is intending to commit, the other crime would only be trespass to dwelling

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3. 4.

If the place where entrance is made is a cafe, tavern, inn and other public houses, while the same are open. Running after a person who was committing a crime in your presence

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D EX: When someone snatches your phone from you then you ran after him. The thief went inside a house. It is considered hot pursuit.

TRESPASS TO DWELLING, WHEN SEPARATE FROM OTHER OFFENSES COMMITTED IN THE DWELLING -

CASE: Ppvs Medina, 59 Phil 134 (pg 615, Reyes) ―The accused entered the dwelling of a captain by forcing his way through the window.‖ What is the crime committee? Trespass to dwelling. ―His purpose during that time was not to kill, however when found inside, the occupants who tried to arrest him, the accused resisted arrest and stabbed the son of the captain, inflicting a mortal wound. In his effort to escape, he also assaulted the captain, his wife and daughter. The son did not die.‖ What is the crime committed? According to the SC he committed 3 crimes: qualified trespass to dwelling, frustrated homicide and less serious physical injuries. His intention here was not merely to kill but if his purpose was to kill then the dwelling would have been considered as aggravating. 281 Other forms of trespass EX: You have a property and then you fence it. What is the purpose of fencing your property? So that no one can enter. You placed a ―No Trespassing‖ sign but still someone went in. ENTERING A WAREHOUSE MAY BE TRESPASS UNDER THIS ARTICLE An example of ―closed premises‖ EX: There is an empty warehouse with a prohibition ―No Entry‖ but still the person went it. The crime is other forms of trespass. PROHIBITION TO ENTER MUST BE MANIFEST OR KNOWN -

Put a sign ―No Trespassing‖ The ―No Trespassing‖ sign is one which makes it a crime

282 Grave Threats Accused threatened to commit a crime against the victim The accused threatens another with the infliction of a wrong that constitutes a crime EX: ―I will kill you‖ What is being threatened to you? That he will kill you. Is it a crime that he will kill you? That is a crime.

―UPON HIS PERSON OR HIS FAMILY‖ EX: I will kill your mother and father. There is a threat and the infliction of the crime of homicide or murder THREATS COULD BE THRU WORDS OR ACTS Words – it is said out loud ACT THREATENED CONSTITUTES A CRIME -

Threatening another with the infliction of an act or wrong constitutes a crime or if the act threatened constitutes a crime then grave threats EX: ―I will burn your house.‖ Grave threats because the act of burning a house is arson. ―The infliction of a wrong which constitutes a crime.‖

THREAT IS SUBJECT TO A CONDITION, PENALTY HIGHER When the acts threatened to be committed is subjected to a condition, the penalty would be higher – ―penalty next lower in degree than that prescribed by law for the crime he threatened to commit if the offender shall have mad the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose‖ EX: You impregnated your girlfriend. The father of your girlfriend told you, ―If you do not marry my daughter, I will cut off your head.‖ What is the crime threatened to you? Either murder or homicide. What is the condition? You marry the daughter. Penalty is not fixed because it depends on the crime threatened If the offender has attained his purpose – penalty is one degree higher than the penalty imposed for the crime threatened EX: If the crime threatened is murder and he has attained his purpose, the penalty for grave threats would be reclusion temporal If the offender was not able to attain his purpose – penalty is 2 degrees lower

GRAVE THREATS NOT SUBJECT TO ANY CONDITION -

Penalty is arresto mayor and fine not exceeding 500

THREAT MADE IN WRITING OR THROUGH A MIDDLEMAN EX: Threat made in writing and it had a skeletons mark. It was written there, ―If you do not marry my daughter, you will be killed.‖ The penalty be imposed in the maximum period – aggravating circumstance

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

IF THE ACT THREATENED DOES NOT CONSTITUTE A CRIME, THE CRIME IS NOT GRAVE THREATS EX: If he is about to take the bar then the father says, ―Marry my daughter, if not I will file a complaint against you with the SC stopping you from taking the bar so that the petition you filed in taking the bar will not be approved.‖ Does it constitute a crime, a threat to file a petition to disapprove your petition? No, it does not constitute a crime. It is not grave threats but light threats under Art 283.

WITHOUT PERSISTING IN THE IDEA INVOLVED IN HIS THREAT EX: You were fighting or having an argument, and then in the course of the argument your enemy told you that she would choke or kill you. The crime is light threats because the threating words are uttered in the heat of anger. -

SUMMARY -

283 Light Threats -

A form of blackmailing and another form of extortion EX: I will kill you if you do not give me this amount of money. CASE: PpvsHao Chao, CA, 54 OG 5334 (pg 625, Reyes) The accused threatened to report the victim to the BIR for tax evasion if they would not give the offender 1000php.

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BLACKMAILING MAY BE PUNISHED UNDER ART 283 EX: A threatens B with accusation or exposure, if B does not give a certain amount. HARM THREATENED MUST BE FUTURE EX: If you do not give me money, if you will not do this, I will kill you. -

If the harm is immediate and not future, for example: the offender demanded for your money, the crime committed is not grave threats but robbery

What makes it light threats is anger

If the act threatened is a crime, that would constitute grave threats under Art 282 and the grave threats could be with or without condition If the threats uttered is done in the pursuit of anger but the accused did not persist in the idea involved in his threat the crime would be other light threats If the act threatened is not a crime, that be would light threats under Art 283 if there is any condition or other light threats under Art 285 if the same is not subjected to any condition

CAN THREATS BE COMMITTED EVEN IF THE PERSON TO WHOM IT IS DIRECTED IS ABSENT? -

Yes there could be grave threats even if the person to whom it is directed is not present EX: ―Where is your father? Because I will cut off this neck.‖ Your father is not there but a crime is not committed.

284 Bond for good behavior 285 Other light threats -

CASE: PpvsCalu-ag, March 4, 2009

THREATENING ANOTHER WITH A WEAPON, OR BY DRAWING SUCH WEAPON IN A QUARREL EX: X and Y were arguing with each other and in the course of their argument Mr. X put out his weapon or firearm and pointed it at Mr. Y. The crime is light threats. ORALLY THREATENING ANOTHER, IN THE HEAT OF ANGER, WITH SOME HARM CONSTITUTING A CRIME,

July 24, 2016

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Part 20 Review:

Note: The word ―not‖ here is enclosed in parenthesis because the inclusion of that word is a mistake.

Q: What crime is committed when the father says, ―Marry my daughter otherwise I’ll kill you.‖

Q: Can there be grave or light threats when the subject of the threat is not around? For example, if one says ―Hey when your dad arrives, tell him that if you do not leave this house I‘ll behead all of you, I‘ll burn this house!‖. The father here is not around. Can there be grave/light threats? A: Yes.

A: GRAVE THREATS. Q: If he says, ―Marry my daughter otherwise I’ll file a case to disbar you on the ground of immorality‖? A: LIGHT THREATS. In light threats, there is also a threat to commit a wrong which does not constitute a crime. It is not grave threats because in grave threats the act threatened must constitute a crime. Here, the act threatened does not constitute a crime. It does not also constitute a wrong because it is the right of every person to file a case. People vs. Hao Chao The accused were convicted of light threats for asking money in the amount of P1,000 with the threat that they would file a tax evasion case against the victim. The accused were convicted of light threats. TAKE NOTE: LIGHT THREATS

GRAVE THREATS

the act threatened is a wrong but does not constitute a crime. LIGHT THREAT BLACKMAILING.

MAY

the act threatened is a wrong and constitutes a crime

ALSO

AMOUNT

TO

Elements: 1. That the person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will, be it right or wrong. 2. That the prevention or compulsion be effected by violence, threats or intimidation and 3. That the person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words that the restraint shall not be made under authority of law or in the exercise of any lawful right. There are two keywords here: prevent and compel. 2 Kinds of Grave Coercion:

2.

The offender prevents another from doing a lawful act either by violence or intimidation. The accused compels another to do an act by means of violence or intimidation, either lawful or unlawful, or right or wrong.

Grave threats and grave coercion are similar but not the same. GRAVE THREATS

Article 285 Other Light Threats This could be grave threats but considering that the acts here, or the words uttered or done were in the heat of anger, the crime committed is other light threats. Acts punished:

2.

By orally threatening to do another harm not constituting a felony.

Article 286. Grave Coercion

1.

Example: ―If you don‘t give me 1M, I will divulge your vices to your wife‖, that is blackmailing. That is a crime.

1.

3.

By threatening another with a weapon, or by drawing such weapon in a quarrel unless it be in lawful selfdefense. By orally threatening another in the heat of anger with some harm (not) constituting a crime, without persisting in the idea involved in his threat.

GRAVE COERCION

There is violence or there is threat or intimidation

Example: The drivers stage a transport strike but some of the drivers did not heed to the call of the other drivers, accordingly some of them continued picking up passengers. The striking drivers stopped them and threatened them that if they will not stop (from picking up passengers) the offenders would harm them. Or some of them would throw stones or even burn tires in the middle of the road, so as to compel and prevent those drivers who aren‘t sympathizing with them from driving. What crime is committed?

Case: Pp vs. Caluag March 4, 2009

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D A:They can be charged with grave coercion because they prevented the other drivers from driving by means of violence, threats, intimidation. Grave Threats vs. Grave Coercion GRAVE THREATS If the threat is future

GRAVE COERCION Threat must be imminent and actual.

Example: The police officer saw another person in the act of committing a crime and so the police officer arrested the person. But the latter resisted. And so the policeman compelled the offender and forcibly brought him to the police station where he was then detained. What crime is committed? A: None. He is not liable for any crime because it is with authority of law. Commission of a crime is one of the legal grounds for arresting a person. People vs Timoner

Example: One day Mr. X lost his necklace. The next day he saw Mr. Y using that same necklace that he lost. Mr X took a knife and pointed it to Mr. Y. ―Give me back my necklace or else I‘ll kill you!‖ What crime is committed? GRAVE COERCION. Not grave threats because in grave threats, the act threatened to be done is not imminent but a future harm. Here, the threat is actual, it‘s on the point of happening and so it is GRAVE COERCION, not grave threats. See difference based on the above example: GRAVE COERCION Mr. X owns the property and he just wanted to recover it, but there‘s no intent to gain and the threat is imminent.

GRAVE THREATS Same with grave coercion except that here, the offender intended to inflict a future harm.

ROBBERY If Mr. X pointed the knife just to get the necklace, but he actually didn’t own it. Meaning there’s intent to gain.

(Last par. ) IF THE COERCION IS COMMITTED IN VIOLATION OF THE EXERCISE OF THE RIGHT TO SUFFRAGE, the penalty is higher. Example: Mr X is a candidate for mayor and he says, ―You have to vote for me otherwise, I‘ll eject all of you!‖- that is GRAVE COERCION and the penalty next higher in degree shall be imposed, meaning its aggravating. Instances when higher penalty shall be imposed: 1. 2. 3.

If the coercion is committed in violation of the exercise of the right of suffrage If the coercion is committed to compel another to perform any religious act If the coercion is committed to prevent another from performing any religious act.

The accused who is a municipal mayor authorized the fencing of a barber shop which has been recommended for closure by the municipal health officer for noncompliance of health and sanitation requirements. Apart from that, it wasn‘t given a permit to operate because it was built on a sidewalk. And so the mayor forcible closed it. He was charged with grave coercion. Is the charge correct? SC: No. Because it was with authority of law. A mayor can summarily remove or close a nuisance. Here it is considered a nuisance because it occupied a portion of the sidewalk. And aside from that the mayor acted with good faith and in the performance of its duty. Recent case: This involves the cutting of electricity by a power company for non-payment of electric bills. The personnel of the electric company who cut-off the power supply were charged of grave coercion. Does it constitute grave coercion? A: Look at the case of Barbasa vs Tuquero, 575 SCRA 102 Another case: Alejandro vs Bernas GR NO. 179243 September 17, 2011 Example: You own a house and a tenant failed to pay his rents for 3months already. You told him to vacate and pay his rents but he refused and just ignored your demands. What you did was, with a long bolo you went to the house of the tenant and forcibly dragged him out from the place and locked out the house. Did you commit any crime? Ans. Yes, grave coercion. The procedure should‘ve been to file an ejectment case in court. You cannot simply drag him out and lock the house.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D TN that the rationale behind penalizing grave coercion is to prevent people from taking the law in his own hands.

The items taken are used to pay off the loan.

Q: Suppose that the lessor locked the room while the tenant was away. What crime is committed?

(Judge D: But if you are the counsel for the plaintiff, you better file a case for Robbery to intimidate the accused, and just leave it to the fiscal to determine)

A: No crime, because there is no grave coercion when there is no violence, intimidation or threat. There are instances when the act of preventing another would constitute another crime: 1.

A public officer who by means of violence, threat or intimidation prevents the ceremonies of any religion. Interruption of Religious Worship.

2.

A public officer not being authorized by law, compels a person to change residence without any authority of law. Expulsion

3.

A creditor who would kidnap or detain a debtor in order to compel him to pay his debt. Kidnapping for ransom.

Note: Grave coercion is one of the crimes against liberty and security. Article 287 Light Coercions Elements: 1. The offender must be a creditor 2. He seizes anything belonging to his debtor 3. The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation 4. That the purpose of the offender is to apply the same to the payment of his debt. KIDNAPPING FOR RANSOM

LIGHT COERCION

The person detained is the debtor himself.

When instead of detaining the debtor, the creditor seizes anything belonging to his debtor for the purpose of applying the same to the payment of the debt.

LIGHT COERCION

ROBBERY

In both crimes, taking is done by means of violence or intimidation.

There is no loan.

UNJUST VEXATION Q: What about if the taking of the property is without violence but by misrepresentation, or deceit. Example: ―Bai, may I borrow your laptop I just have to work on something‖. You were allowed to borrow but when asked to return it you withheld the laptop saying you‘re not gonna return it, instead you‘ll apply it to his debt. What crime is committed? A: Unjust vexation. Unjust vexation also covers any act which is irritating, annoying and vexing. Here it is not light coercion because light coercion presupposes violence. Touching the private parts when done in public, is unjust vexation because it negates lewd design. When it is with lewd design, it is acts of lasciviousness. Example: If Justin Bieber holds a concert and the person behind you, instead of just dancing in his place keeps moving back and forth. What crime is committed? A: That could be Unjust Vexation.

Unjust vexation–any act which causes annoyance/ irritation/ vexation/torment/distress/disturbance; so the definition is quite broad; Example, touching of private parts in public; If done in private then that would be acts of lasciviousness. When the property of the debtor is taken thru violence of the creditor to pay off a loan, that‘s light coercion; but it is taken through deceit or misrepresentation, then that would be unjust vexation. Art. 288-289. (repealed by the Labor code) Art. 290. Discovering secrets thru seizure of correspondence -thru seizing letters/papers and reveal the contents thereof

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Exception: does not apply to parents/guardians/persons entrusted with custody of minors with respect to the papers/letters of the children/minors under their custody nor to spouses as between them.

In robbery, the violence/intimidation or threat must be present or must be used immediately before or during the actual taking of the property, because if during the taking there is no violence, there is no threat or intimidation, the crime is not robbery but what is committed is theft.

There‘s a case, the husband suspected his wife of having an affair, the wife forcibly opened the drawer of the husband‘s office, and saw pictures/documents showing that her husband has another woman, now she filed an administrative case against her husband. Issue, are the docs/papers presented by the wife be used as evidence against the husband? Look at this case Zuluetavs CA GR 107383

Example: Suppose you are walking while using your cellphone, suddenly somebody poke a knife behind you and told you to give your cellphone or you will die, the crime here is robbery, since the threat was made immediately before the taking. General rule: in robbery with violence/intimidation against persons, the violence/intimidation must be present immediately before or during the taking.

Art. 291. Revealing secrets with abuse of office (codal) Art. 292. Revelation of industrial secrets (codal)

(threat in robbery is absorbed since the same is an element)

TITLE X. CRIMES AGAINST PROPERTY Art. 293. Who are guilty of robbery -

However, if the threat/violence is made after the unlawful taking, then there could be 2 crimes committed.

With intent to gain, shall take any personal property of another by means of violence/force/intimidation or using force upon anything.

Exception: when killing occurs by reason or on occasion of robbery, the crime committed is robbery with homicide even if the taking is already complete.

Now there are 2 kinds of robbery: 1. Robbery with violence/intimidation of persons

More situations: Your loop earrings were snatched. They were pulled from your ears. Crime? – Robbery because there is violence.

2. Robbery with force upon things -offender here must be inside the building; Notes: In theft, the taking is complete the moment the offender has possession/custody of the personal property; the same rule is applicable to robbery with violence/intimidation of persons; However it is different in robbery with force upon things, in order for it to be consummated, the offender must also be able to get out of the building otherwise it will only be frustrated robbery with force upon things; unlike in theft, there is no such thing as frustrated theft. There can be robbery even if the item is stolen or if the item is a prohibited item or a contraband such as shabu; hence the victim need not be the owner of the item stolen. (US vsAlbao 29 PHIL 86) Another element of robbery is intent to gain, the same is presumed when the taking is unlawful.

If you were texting and it was snatched. Crime? - Theft. There is no violence, intimidation or threat (VIT) during the taking. If you were texting and when you saw the hand of the offender, you held to your cellphone tightly, and fell to the ground. Crime? – Robbery. There is violence because you sustained injury. Art. 295. Robbery with violence against or intimidation of persons  

The violence or intimidation should be present immediately before or during the taking. Threat, intimidation, violence, or physical injuries (slight and less serious physical injuries only) are absorbed in ROBBERY.

SPECIAL COMPLEX CRIMES in this Article: – a single indivisible offense with 1 specific penalty. (Art 48 does not apply) 1.

Robbery with Homicide  Homicide is used in its generic sense. It includes parricide, infanticide, murder, or multiplemurder.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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There is no such crime as robbery with multiple homicide. the person killed could be the robber, victim, law enforcers, or bystanders killing could be intentional or accidental Even if the killing happenedimmediately before, during the actual taking or even after the taking of the property – as long as the killing has connection with the crime of robbery - - the crime is robbery with homicide. Prosecution has to prove and allege all the elements of both robbery and homicide

Ex: After robbing the bank, the 4 robbers went out and then engaged in a shoot-out with police officers. In the course of the fire-fight, one of the policemen died. Crime? – Robbery with Homicide. Suppose in the same scenario, If a bystander was killed. Crime?Robbery with Homicide.

Case: A robbery victim, aside from being raped, was also killed. SC: Crime is Robbery with Homicide, and the rape is considered as aggravating. (Pp vs Timple 238 SCRA 52) 3.

Robbery with Intentional Mutilation  same concept: mutilation could occur immediately before, during or after the taking

4.

Robbery with Arson

5.

Robbery with Serious Physical Injuries  Refers to those under par 1, Art 263: when the victim becomes insane, blind, deaf  ―by reason or on occasion of such robbery‖ – as long as there is a connection with the robbery  

Same scenario, the robbers boarded a vehicle and ran over a pedestrian while being chased by the police. The pedestrian died. Crime? – Robbery with Homicide. This could be committed accidentally. Same scenario, one person was killed and 10 pedestrian were injured. Crime?Robbery with Homicide.

―xxx-or when the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by sub-divisions 3 and 4 of said Article 23‖ -victim of the physical injuries should not be a fellow robber.

Same scenario, 4 pedestrian died. Crime?Robbery with homicide. Other deaths/homicide are absorbed. Pp vs Sorela, Jr (6/15/08): As long as the intention of the felons was to rob, the killing may occur before, after or during the robbery. It is immaterial that death would supervene by mere accident, or the victim of homicide is other than the victim of robbery, or that 2 or more persons are killed. It is likewise not necessary to identify who among the conspirators inflicted the wound. Once a homicide is committed by reason or on occasion of robbery, the crime committed is the special complex crime of Robbery with Homicide. 2.

Robbery with Rape  By reason or on occasion of robbery, the latter is accompanied by rape  The main intention of the accused should be robbery. Otherwise, there will be 2 crimes – rape and robbery.  Just like Robbery with Homicide, in Robbery with Rape, the other ‗rapes‘ or counts of rape are absorbed. They are not considered aggravating. (Pp vs Regala GR 130508, Pp vs Sultan 4/27/00) SC: there is no legal basis for considering the other rapes as aggravating because Art 14, unlike Art 13, there are no analogous circumstances.

Penalty for Robbery depends on the seriousness of the injuries inflicted. Par 4 of Art 294: ―if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, xxx― - ex: after taking the item, the robbers hogtied the victim. The act of hogtying the victim is already unnecessary because they have already taken the property.

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Par 5 of Art 294: Simple Robbery (this is the general rule as explained already) - The violence or intimidation should be present immediately before or during the taking. The threat, intimidation, violence, or physical injuries (slight and less serious physical injuries only) are absorbed in ROBBERY.

PP vs. Opero, 6-11-1981 After robbing the victim, the victim was hog-tied and so he could not shout, a ―pandesal‖ was stuffed into his mouth. The victim died of choking. What was the crime commited? According to the SC, the crime committed is robbery with homicide.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Rape with Homicide In rape with homicide, the victim of the killing could also be the victim of rape, or it could be another person. For example, the accused is raping the wife. While the accused is raping the wife, the husband of the rape victim arrived. The accused stabbed the husband? What crime or crime is committed? The crime committed is rape with homicide, because the killing is connected with the commission of the crime of rape. Primary Intention Take note that in the crimes of robbery with rape, robbery with homicide, robbery with arson, the primary intention of the accused is to rob. If the primary intention of the accused is to kill and the taking of the property of the victim is a mere afterthought, there are two crimes committed – murder or homicide (as the case may be) and theft. If the main intention of the accused is to rape and the taking of the property of the victim just came after raping the victim, there are two crimes committed. Bribery vs. Robbery Both crimes involve extortion. Just like kidnapping for ransom, grave threats and blackmailing. When the giving of the money is voluntary, that would be bribery.

If the offenses mentioned in subdivisions three, four, and five of the next preceding article shall have been committed in an uninhabited place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by entering the passenger's compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances, or on a street, road, highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties Article 295 does not apply to cases of robbery with homicide, or robbery with rape or robbery with serious physical injuries (under par. 1, Article 263). Reason: Article 295 mentions subdivisions 3, 4 and 5 of Article 294, omitting subdivisions 1 and 2 which refer to robbery with homicide, robbery with rape, robbery with intentional mutilation, and robbery with serious physical injuries. Art. 296. Definition of a band and penalty incurred by the members thereof. Band When more than three armed malefactors take part in the commission of a robbery, it shall be deemed to have been committed by a band. When any of the arms used in the commission of the offense be an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice of the criminal liability for illegal possession of such unlicensed firearms.

When the giving of the money is due to intimidation or force, that is robbery. Example: You are a suspected drug lord as per intelligence report. Members of the police approached you and informed you regarding the situation. They told you that you may settle the case in consideration of P100, 000. And if you won‘t, they will file a case against you. Art.295.Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley. This Article does not define a crime, but only provides for qualifying or aggravating circumstances.

Rule on Conspiracy Any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. Illustration I – logically connected to the crime agreed: A, B, C, and D agreed to rob Mr. X. Their agreement was only to commit the crime of robbery. But suppose during the actual robbery, Mr. X fought back and boxed Mr. A. Mr. A in turn

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D stabbed him. What is the liability of B, C and D as regards the killing? They are liable. Although the killing was not agreed upon, the killing was logically connected to the crime agreed upon (robbery). Illustration II – not logically connected: A, B, C, and D agreed to rob Ms. X. Their agreement was only to commit the crime of robbery. But suppose Mr. A raped Ms. X. What is the liability of B, C and D as regards the rape? If they are only three (3), only the accused who actually committed the rape is liable. The others are only liable for the crime of robbery. Because the crime of rape cannot be considered logically connected to the crime of robbery agreed upon. If they would constitute a band, ALL shall be liable for all the crimes committed even though such crime is not logically connected to the crime agreed upon. Unless, the conspirator who did not participate, tried to prevent the commission of such crime which was not agreed upon. Art. 297. Attempted and frustrated robbery committed under certain circumstances. Why is only attempted or frustrated?

The crime committed is robbery. The offender here compels another to sign a document purportedly showing that a property has already been transferred to him. Suppose the victim is killed so that he could not file a case for annulment of contract, for example, the crime is robbery with homicide.

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What distinguishes grave coercion from robbery under Art. 298, is the ―intent to defraud‖. Example, Mr. X bought a parcel of land from Mr. Y. He has already paid the purchase price, but Mr. Y refused to execute the deed of sale. Mr. X got angry, took his long bolo, went to Mr. Y and asked the latter to sign the deed of sale otherwise he would kill him. Mr. Y signed. What was the crime committed? The crime committed is grave coercion because there is no intent to defraud. Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship. Two (2) kinds of Robbery: 1.

Robbery with violence against or intimidation of persons Robbery with force upon things

2.

Because the victim fought back. And because he fought back, he was killed. What is the crime? The crime is special complex crime of attempted robbery with homicide or frustrated robbery with homicide. Art. 298. Execution of deeds by means of violence or intimidation. So, any person who, with intent to defraud another, by means of violence or intimidation, shall compel him to sign, execute or deliver any public instrument or documents, shall be held guilty of robbery. Example, Mr. X forced Mr. Y to sign a document purportedly showing that Mr. Y has sold his parcel of land to Mr. Y, when in fact, Mr. Y did not. He was just forced to sign the document. What is the crime committed?

The document here could be public or private document.

Mr. X pointed a knife to Mr. Y and ordered Mr. Y to give his cellphone. Mr. Y refused, prompting Mr. X to stab him and thereafter Mr. X took away Mr. Y‘s cellphone. What was the crime committed? The crime committed was robbery with homicide. So as your legal basis, you give the elements of robbery and add that, when by reason or on occasion of robbery somebody is killed, the crime is robbery with homicide. Therefore, the crime committed is robbery with homicide. Article 299 -

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In Robbery with Force upon Things, for the offender to be convicted of such crime, he must be able to enter the building. And upon entering the building, he took properties therein. For instance, the accused removed a portion of the wall and inserted his hand into the whole and took away valuable items? What the crime?

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

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THEFT and not Robbery because he did not enter into the building. 2 Kinds of Robbery with Force Upon Things: 1. Robbery in an inhabited place 2. Robbery in an uninhabited place  There‘s really no substantial difference between the two with respect to the manner of committing the crime, only with the penalty.  In robbery in an uninhabited building, it has a lesser penalty compared to robbery in an inhabited building.

Modes of committing Robbery with Force Upon Things

Inhabited house  Inhabited house means any shelter, ship or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed.  Under 2nd par, All interior courts, corrals, waterhouses, granaries, barns, coach-houses, stables or other departments or enclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole, shall be deemed dependencies of an inhabited house, public building or building dedicated to religious worship. Dependency (extension), part of the house?Because if not, it is not robbery in an inhabited house or public building.  The garage, if it is contiguous to the building having an interior entrance connected therewith and it forms part of the whole house, that can be considered as inhabited.  Why is it important to know whether it is inhabited or uninhabited?  Because the penalty is higher when robbery is omitted in an inhabited place.  Orchards and other lands used for cultivation or production are not included in the terms of the next preceding paragraph,

Article 299 – Robbery committed in an inhabited house or public building or edifice devoted to religious worship  These building, structures have higher penalty. Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed 250 pesos, and if: o The malefactors shall enter the house or building in which the robbery was committed, by any of the following means: 1. Througha opening not intended for entrance or egress.  The offender did not use the door. He could have entered through the window or he used a ladder. 2. By breaking any wall, roof, or floor or breaking any door or window.  The door itself must be broken. Not just the doorknob. It must be an outside door (the one which leads us outside). If not broken it would just be theft. 3. By using false keys, picklocks or similar tools.  False key includes original key stolen from the owner and used in opening a door. 4. By using any fictitious name or pretending the exercise of public authority.  He enters the building by pretending or using any fictitious name or exercise of public authority.  For example, someone pretended to be an officemate of your boss/employer and instructed you to give him your employer‘s laptop or other gadgets because it will be used in the office. What is the crime committed? ESTAFA. Because there is deceit. -

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Article 301 -

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even if closed, contiguous to the building and having direct connection therewith. The term "public building" includes every building owned by the Government or belonging to a private person not included used or rented by the Government, although temporarily unoccupied by the same.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D If he enters the building, it is robbery. If he did not enter the building, it is estafa.  Can robbery with force upon things be committed by a person who is already inside the building, such as he is a helper? YES when he would break the doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle. o Example, breaking of drawer, robbery. o Breaking of your piggy bank by your brother outside your house. It could still be robbery with force upon things. Para 2 says by taking such furniture or objects to be broken or forced open outside the place of the robbery. o But what if he wasn’t able to open or break because it is made of steel, what’s the crime? Robbery. Consummated robbery because the law says to be broken. It is not necessary that it be actually broken. The purpose is to break it open outside. o When the offenders do not carry arms, and the value of the property taken exceeds 250 pesos, the penalty next lower in degree shall be imposed.  The penalty is reclusion temporal.  The penalty is higher if they carry arms because the offender is dangerous. TN: Justifying circumstances. The defense of property would only be justifiable if the same is coupled with attack on the person who is a custodian property. o The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed 250 pesos. o When said offenders do not carry arms and the value of the property taken does not exceed. o If the robbery be committed in one of the dependencies of an inhabited house, 

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public building, or building dedicated to religious worship, the penalties next lower in degree shall be imposed. Can a guest observant commit robbery with force upon things? YES under Para b. it can be committed by an insider.  Formula under Para A: ENTER + Take personal = Robbery  ENTER alone = Trespass to dwelling  Example: your car parked outside, if the window was broken and stereo was taken, what is the crime committed? THEFT only because the offender did not enter into a building. (If kamotragipalusot, theft only)

TAKE NOTE again: Article 301 gives us the definition. -

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Inhabited house means any shelter, ship or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. Example: A sink sank including boxes containing valuables. The accused dive down inside the ship and took away the silver coins inside those boxes. Crime committed?  Robbery because a ship is considered an inhabited place. An inhabited house includes a house that is inhabited although the inhabitants there are temporarily out

ARTICLE 302. Robbery in an Uninhabited Place - Robbery in an uninhabited place or building such as a warehouse that no one lives in or a private school. - Robbery with violence = tulis - Robbery with force upon things = lungkab - Penalty is lower PC in its med and max period because there is no person or risk involved. The entrance is made through: If the entrance has been effected through any opening not intended for entrance or egress. 2. If any wall, roof, flour or outside door or window has been broken. 3. If the entrance has been effected through the use of false keys, picklo cks or other similar tools. 4. If any dorm, wardrobe, chest or by sealed or closed furniture or receptacle has been broken. 1.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 5.

If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed even if the same to broken open elsewhere. - All circumstances are present in 299 except use of fictitious name because there is no person to use the fictitious name to. - When the property taken is a mail matter or large cattle the penalty is higher in degree. It is aggravating.  Before houses were taller and below the house is storage for cattle. If you take the cattle then the penalty is higher.  If what was taken was a pig, in order for it to be a dwelling, the building must be habitable. If not it will only be theft ARTICLE 303. Robbery of Cereals, Fruits, or Firewood in an Uninhabited Place or Private Building. - Does not define a crime it only gives a penalty - What was taken are cereals (seedlings), fruits or firewood. ARTICLE 304. Possession of picklocks or similar tools. — - Mere possession is punishable, such as possession of master key - The person who makes such tools is a locksmith, the penalty shall be higher. ARTICLE 305. False Keys - Genuine keys stolen from the owner are included as false keys ARTICLE 306. Brigandage - Brigandage refers to the formation of a band of robbers for the purpose of committing robbery in the highway or kidnapping of persons - Mere membership is already sufficient - The purpose is to penalize the formation of a group for the commission of robbery in the highway or kidnapping Highway Robbery

Limited Highway

in

the

Robbery in the Highway Jurisdiction

Indiscriminately, against all persons who uses the highway

Committed

Frequency

Commission

Not limited in the highway, incidental that the robbery was committed in the highway Against a particular person or predetermined person

Merely robber

incidental, is not a

brigand

Brigandage is amended by PD 532 - Refers to highway robbery Brigandage - If under 306. consists of at least 4 robbers - If under PD 532. It is no longer required that there are at least 4 armed persons. It only requires that persons were organized for the purpose of committing highway robbery indiscriminately. Under PD 532 - The penalty is higher than under Article 306 of the RPC - It penalizes Highway Robbery - It must be established that the robbery is committed indiscriminately against persons who commute in such highway regardless of the potentiality they offer. - There is frequency in the commission of robbery in the highway against persons traveling thereat. - The offender is a brigand who carries out robbery in the highway as a venue. Philippine Highway under PD 532 - It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both. - Even if only a person may pass through, it is still considered a highway. - If there is a person, who‘s jurisdiction is only that small passage way/ street and he robbed a lot of persons there, he can be convicted of highway robbery. One cannot be convicted of highway robbery if there is no proof he committed robbery in the same street/road before. - Failure to prove that he committed robbery before in the same place; he cannot be convicted under PD 532. He can only be convicted of robbery under the RPC - PD 532 has a higher penalty than the RPC - PC max to PM med for simple robbery - PD 532 - lowest penalty is RT minimum To be convicted of Highway Robbery there must be: 1. Prior conviction of Robbery in that road indiscriminately 2. There is frequency in commission of Highway Robbery If there is a robbery in a Jeepney there is only one robbery committed even if there are a lot of passengers. - Single Larceny Doctrine - only one act

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D People vs. Abay Jr. Sept. 19, 2008 People vs.Puno 219 SCRA 85 - Puno was convicted of HR for staging robbery on board a jeepney. He was charged of HR. The SC convicted him but modified the ruling of the lower courts. He cannot be convicted of HR because it was not proven that he was convicted before of Robbery. What is the liability of persons who aid or abet brigands? - Liable as accomplices - Under PD 532 it is higher - Under Art. 307 PM med to PM min ARTICLE 308. Who are Liable for Theft - Committed by any person, who with intent to gain but without violence against, or intimidation of persons nor force upon things, shall take personal property of another without the latter‘s consent. The offender went inside the convenience store. Once inside, he took away goods. Without his knowledge, the owner of the convenience store saw what he did because there was a CCTV camera installed. The offender was charged with theft but he argued that he is not liable for theft because the taking was with the knowledge of the owner. Is he liable? - Yes, although there was knowledge there was no consent. There must be intent to gain. - Actual gain is not necessary - Mere intent is sufficient - Intent to gain is presumed from the unlawful taking of the property. Gain may include personal satisfaction - There was taking but there was no gain in your part because the items taken were also given to the poor. There is still theft because of the personal satisfaction because it is considered as gain. The fact that a person is satisfied with what he did in giving the stolen items to the poor, it is still gain. 308 Simple theft MEANING OF ―TAKING‖ IN THEFT Taking is complete the moment the offender has control or custody of the item taken, just like in robbery Opportunity to dispose of the item is not required The moment that he has control, possession or custody over the item, the taking is considered complete and because the taking is already complete, the crime is considered consummated

SC said: there is no frustrated theft. Theft is either attempted or consummated. Because the moment the offender has control or custody over item taken, the taking is complete. It is just the same with robbery with force upon things. EX: Robbers went inside the bank and told the teller to give the money. The teller gave the money and placed it on top of the counter. The policemen arrived. The money is consummated because the money is in the possession of the robbers. He already has control, possession or custody over the item which is the subject of the robbery. OTHER MEANS OF COMMITTING THEFT 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; EX: Someone left his or her cellphone in the classroom; you got the cellphone and shouted, ―Who owns this cellphone?‖ No one answers so you placed it inside your pocket. Did you commit any crime? Yes, theft. What is the proper thing to do if you found something? You give it back to owner, if you know who owns it. If not, you give it to the proper authorities. EX: Suppose the finder delivered it to the police but the police did not deliver it to the owner but he spent it for personal use. What is the crime committed? Theft. Why theft even if he was not the finder? He is considered as finder in law. His position is considered as an extension of the finder in fact or similar to that of the actual finder. The law considers him also as a finder. [(2008 Bar, Q5) Similar question but the suggested answer of the UP Law Center is: malversation. But there is already jurisprudence: Ppvs Avila. SC said crime is theft.] 2.

Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and

EX: There‘s a pig that went in your property and you slaughtered it. What is the crime committed? Malicious mischief. But if you told you son to buy some ingredients to flavor the pig, the crime would be theft. 3.

Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

Here, this does not cover fishponds. If this was a fishpond, that is qualified theft. It can be a tiny pond here.

THERE IS NO CRIME OF FRUSTRATED THEFT CASE: Pp vs Valenzuela, June 21, 2007

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D If you just enter the farm and not gather fruits once inside, that is other form of trespass. But if you gather some fruits, that is theft. ―Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.‖ JOY RIDE OR USING CAR OF ANOTHER TO LEARN HOW TO DRIVE IS SUFFICIENT GAIN Ppvs Fernandez, CA case, 38 OG 985 The owners of the house were not around so the driver used the car and let his girlfriend ride the car with him. Is there theft? There is theft because they derived utility, satisfaction, enjoyment, and pleasure, or what amounts to the same thing, real gain. This is equivalent to gain. Referring to above example, If you were driving it and you caused an accident. Can you hold the insurance liable? Yes because that is considered as theft. (Villacortavs Insurance Commission, 100 SCRA 407) (AbuevsFieldmans Insurance, 124 SCRA 618) Joy ride is considered theft RETURN OF THE ITEM, HOW IS IT CONSIDERED Mitigate only – analogous circumstance of voluntary surrender or voluntary plea guilty PRESUMPTION AS TO POSSESSION OF STOLEN PROPERTY Possessor of stolen property is presumed to be the thief Concept is similar to falsification EX: The laptop that you are bringing is stolen. You are presumed to be the thief. If that is a stolen property, then you are presumed to be the owner.

310 Qualified theft PENALTY IS TWO DEGREES HIGHER Provides for qualifying aggravating circumstances Penalty is higher by 2 degrees than that prescribed in Art 309 THEFT IS QUALIFIED 1. If the theft is committed by a domestic servant EX: If you have a new yaya, you told your wife ―Our yaya is new, watch over her since she might steal from us.‖ A few days later, she stole some of your belongings. What is the crime committed? You did not trust her. Why would it be qualified theft? Even if you do not trust but the fact that she is a domestic servant would qualify the crime to qualified theft. 2.

There must be proof of abuse of confidence. That the offender has confidence in the accused and their confidence has been gravely abused. EX: Teller of a bank, credit collector  Estafa  Qualified thef  It must be proven that the offended party has reposed his confidence on the accused, that the trust and confidence has been gravely abused. If there is no proof that you trusted that person, the crime is merely simple theft. In case of doubt, the same shall be presumed in favor of the accused. Between simple theft and qualified theft, which is more favorable? Simple theft. CASE: PpvsPuig, August 28, 2008 3.

THEFT IS NOT A CONTINUING CRIME

If the theft is committee with grave abuse of confidence

If he property stolen is a A. Motor vehicle,

309 Penalties BASIS OF PENALTY IN THEFT It depends on the value of the item taking. EX: Value of the thing taken- 2M Penalty –the same shall not exceed 20 years – the maximum penalty shall be termed as prision mayor or reclusion temporal WHEN THERE IS NO EVIDENCE OF VALUE OF PROPERTY STOLEN It is presumed that the value of the item taken is P5.00 EX: Your bicycle was stolen and you were not able to prove the value or unable to present a receipt, it would be presumed that its value is P5.00.

This has already been repealed by the Anti-Carnapping Act because when the subject of theft is a motor vehicle, the crime committed is violation of the Anti-Carnapping Act (RA 6539). Not all motor vehicles are covered by RA 6539. If these motor vehicles are taken as the subject of theft, the crime committed is qualified theft. For those motor vehicles that do not fall under those enumerated in RA 6539, the crime committed would still fall under qualified theft.  Grader  Bulldozer  Road rollers  Tractor B.

Mail matter, or

What is the crime committed by a postman who opened a mail matter and took away the contents. What is the crime

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D committed? If the mail matter came from the US and it contained dollars. The postman then got the dollars. What is the crime committed?  Qualified theft – if you want a higher penalty then file this case because it would be 2 degrees higher  Infidelity on the custody of documents  Falsification – if it involves postal money order that was falsified If the amount was $200. If converted into peso so P8, 000.00+. Refer to 309, so if it was simple theft – prision correctional in its medium and maximum. 2 degrees of prision correctional in its medium and maximum would be imposed – SOLVE. C.

4.

If the property consists of coconuts taken from the premises of a plantation EX: If you took a coconut. The price of one is for P25.00. The penalty imposed if it would be simple theft is arresto mayor (Art 309), so two degrees higher – prision mayor It should come from a plantation. Not from the backyard of your neighbor who has 1-2 coconut tress. The coconuts must be taken from the tree within the plantation. If the coconuts were already taken from the tree and placed outside the plantation, the crime would only be simple theft. If the property stolen is fish taken from a fishpond or fishery

Why would it be qualified theft if you take property from a plantation or fishpond? It is so hard to watch over these properties. 6.

ANTI-CATTLE RUSTLING LAW OF 1974 (PD 533) Cattle rustling is the taking away of large cattle with or without profit, with or without violence. Large cattle shall include the cow, carabao, horse, mule, ass, or other domesticated member of the bovine family. EX: If your Persian cat was stolen. That is only simple theft. A cat is not part of the large cattle definition. ANTI-FENCING LAW (PD 1612) It is committed when there is robbery or theft. The penalty is the same with theft under Art 309.

Large cattle

Repealed already by PD 533 – the taking of large cattle, with or without violence

5.

other forest products shall be punished by the penalty under Art 310, in relation to Art 309

If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance

EX: There is fire and you remove your belongings from your house. When you left it behind, a person takes away some if it. The crime committed is qualified theft. EX: When an accident occurs at Manipis, the people there would kill the victim so that they can take away their property. That is robbery with homicide. TIMBER SMUGGLING FROM, AND ILLEGAL CUTTING OF LOGS IN, PUBLIC FOREST AND FOREST RESERVES ARE PUNISHED AS QUALIFIED THEFT BY PD 705 If you cut trees in the kalasangan, that is violation of the Forestry Code (PD 705) but the penalty is the same with qualified theft. The cutting, gathering, or collecting timber or

311 Theft of the property of the National Library and National Museum Penalty here is higher. There is no value mentioned here unlike in ordinary theft. So, regardless of its value – it has a fixed penalty 312 Occupation of real property or usurpation of real rights in property ―Any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another‖ EX: Someone enters your property, you call out his attention but then the person points a gun, knife or long bolo at you. So there is violence. The crime committed is violation of Art 312. How do you eject? You go to court, file a case for forcible entry against the intruder. The crime is without prejudice to the filing of another crime involving the violence executed by the offender. So he can be charged with grave threats, or with physical injuries if there is violence. – An example of a two-tiered penalty 313 Altering boundaries or landmarks ―Any person who shall alter the boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same‖ If you think that a monument has encroached your property, what is the proper thing to do? Do a relocation survey and there must be a geodetic engineer. If you do it on your own, you commit the crime of Art 313. 314 Fraudulent Insolvency ―Any person who shall abscond with his property to the prejudice of his creditors‖ Offender here is a debtor and he abscond with his property in order that his properties could no longer be reached by his creditors.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D The term ―abscond‖ includes disposing or selling of real property to defraud the creditors. It is not necessary that the debtor be declared as bankrupt. It is enough that he has loans and he absconds with his property in order to prejudice his creditor. So that he cannot anymore be reached by the creditors. July 28, 2016 Part 21 Review: ROBBERY WITH HOMICIDE -

The concept of this is the same with that of Rape with Homicide. In Robbery with homicide, the victim of the killing could be different with that of Robbery. The same with Rape with homicide where the victim of the killing could be a different person from that who was the victim of Rape. Read: People vs Laug, GR No. 178321 October 5, 2011 THEFT

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There is a kind of theft wherein the item subject of the theft is delivered to the offender, because we have learned that in the crime of theft, the offender takes away an item from the owner or possessor. This kind of theft is different because the item is not taken away by the offender but is delivered by the owner or the possessor of the item to the offender. HOWEVER, the kind of possession that the possessor has over the item is merely material or physical possession. He doesn‘t have the so called juridical possession. JURIDICAL POSSESSION

MATERIAL/ PHYSICAL POSSESSION

a kind of possession which gives the transferee or holder a right over the thing which the transferee may set up even against the owner himself.

- He is merely the keeper or the custodian of the property. - His possession is merely an extension of that of the owner. - He cannot withhold

possession. Example: Contract of Lease. If you are renting a book for 1semester, the owner cannot just take the book away from you before the end of the semester. The possession that you have over the book is juridical. Example: You rent a car for 1 day or 2 days. The owner cannot just take it away from you before the end of the period agreed upon. You have the right to withhold possession even against the owner. If the possessor fails to return the item to the owner after demand, he could be held liable for ESTAFA.

Example: Mr. X found a gold bar but he wasn‘t sure if it was a real gold. And so he asked Mr. Y to bring the gold bar to a pawnshop to have it examined and to verify if the same is pure gold. The latter agreed but then failed to return the gold bar. Liability? Ans. THEFT because the nature of his possession is only material or physical. He does not have the right to withhold its return to the owner, Mr. X. If the possessor fails to return the item to the owner upon demand, he could be held liable for THEFT.

(You should already be able to distinguish by now possession from ownership.) THEFT

ESTAFA

If possession is merely material or physical and possessor fails to return upon demand.

If possession is juridical possession and the possessor fails to return upon demand.

Article 315Swindling (Estafa) Elements of estafa in general: 1. That the accused defrauded another a. By abuse of confidence or b. By means of deceit or false pretenses 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. 2 WAYS OF COMMITTING ESTAFA, either by:

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D a. b.

Unfaithfulness or abuse of confidence or By means of false pretences or deceitful acts.

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The accused here received an item or property by virtue of a trust or for commission or for administration. This is what we referred to earlier as juridical possession.

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The offender has the obligation to return or to deliver the same item.

ABUSE OF CONFIDENCE DIFFERENT ACTS THAT CONSTITUTE ABUSE OF CONFIDENCE: par. 1. par. 2. par. 3.

By altering the substance, quality or quantity By misappropriating By taking undue advantage of the signature

RECEIVED ON COMMISSION Example: Mr. X delivered to Mr. Y a gold bar with an agreement that Mr. Y would sell the gold bar for 500K within 1month. That if sold, Mr. Y should remit the proceeds to Mr. X otherwise he has to return the gold bar. After a month, Mr. Y did not remit the proceeds nor did he return the gold bar assuming the same wasn‘t sold. Q: Did Mr. Y commit any crime?

Under par. 1a The offender here has an obligation to deliver. Probably a Contract of Sale. ALTERING THE QUANTITY Example: You bought 1 sack of rice, that is supposed to be 50kilos. But when the same was delivered, it only weighed 45 kilos. Were you defrauded? YES. By altering the quantity.

Ans. YES. Estafa under par. 1b. There is abuse of confidence by misappropriating or converting to his personal use the item that he received with an obligation to deliver or to return the same item. That is what we call ―received on commission‖

ALTERING THE QUALITY Example: You bought ganador rice but when the same was delivered to you, you realized it was mixed with NFA rice that smelled like cockroach. Q: Were you defrauded? YES. Under paragraph a, by altering the substance, quality or quantity. EVEN THOUGH SUCH OBLIGATION BE BASED ON AN IMMORAL OR ILLEGAL CONSIDERATION Example: You bought 1kilo of shabu but you were given only one half kilo of shabu and the other half was actually just tawas. What crime was committed against you? Ans. ESTAFA under Article 315(1)(a). So again, the offender here has an obligation to deliver but he alters the substance, the quality or the quantity. Under par. 1b By misappropriating or converting to the prejudice of another personal property received in trust. This is the common kind of estafa committed by abuse of confidence.

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Received on commission Meaning you are acting as an agent. IOW the contract between X and Y is a contract of agency to sell. Mr Y is acting as an agent or a representative of Mr. X.

RECEIVED IN TRUST -

Almost the same with a property received on commission. The property was delivered to you with an obligation to return it.

RECEIVED FOR ADMINISTRATION -

Example: The court appointed you as administrator of the estate of the deceased but you misappropriated the property under your administration. Q: What crime is committed? Ans. ESTAFA under par. 1b. Because the properties were entrusted to you for administration but you abused the confidence by misappropriating the properties which you administer.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

Example: Contract of Commodatum. You borrowed a book and promised to return the same by the end of the semester. Suppose you do not return the book despite demand. Q: What crime did you commit?

ownership. Note: If what was transferred is only material possession and not ownership, there is estafa.

Ans. ESTAFA. -

Example: You borrowed a gold choker or a necklace during your wedding. But you failed to return it thereafter. Q: What crime did you commit?

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Ans. ESTAFA. Abuse of confidence by misappropriating the property which you received with an obligation to return the item. Worse if you deny having received such property. -

Example: You‘re on your way to manila. Your friend gave you 10k to buy the dress displayed in MOA, which she long wanted to buy, so she gave you 10k. You did not buy the dress, or if you did buy it, you did not deliver the same to your friend. Q: What crime did you commit?

Example: X delivered a gold necklace to Y. The agreement was that Y would pay for it by the end of the month otherwise return it. Y failed to pay for it, likewise to return it by the end of the month despite demands. Q: What crime if any did he commit? Ans. NO CRIME. Only civil liability. Because the contract between X and Y is not a contract of agency to sell but a contract of sale. CONTRACT TO SELL

CONTRACT OF SALE

There is no transfer of ownership because the obligor/ agent undertakes himself to sell the item or to return the same by the end of the period agreed upon. Here there can be estafa.

There is transfer of ownership and the obligation of the buyer is only to pay the purchase price.

No Estafa there is transfer

because already of

Example: If the 10k earlier sent by your friend was a loan, which you promised to pay upon return from manila. But you failed to pay such loan. Q: What crime was committed? Ans. NOT Estafa because the obligor had no obligation to return the same money, but to pay the same amount.

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Example: You deposited money in the bank but the bank failed to pay you the amount deposited. Q: What crime was committed by the bank? Ans. Same, no crime. Because the contract with the bank is a contract of loan, not a contract of deposit. Thus the relationship between the depositor and the bank is similar to that of a creditor and a debtor.

Ans. ESTAFA. Because you had the obligation to return the money if you weren‘t able to buy the dress. -

If what was transferred was ownership, there can be no estafa.

Contract of deposit is different. Because if the deposit is misappropriated, there could be estafa. (c) taking undue advantage of the signature of the offended party in blank, and offender used such signature, to the prejudice of the offended party or any third person. -Offender, with abuse of confidence, wrote something above the signature, offender takes advantage of such and writes obligations/statements which can bind the offended party due to such signature. 2. By means of deceitful act/false pretense: (a) By using a fictitious name, or falsely pretending to possess power/influence/qualifications/business or imaginary transactions; or by means of other similar deceits; Notes: Ex: you want to secure a visa for the US, the accused told you that he can secure one for 100k and stated that he has friends in the Embassy, when in fact he does not. Another, you pretended to be a lawyer when in fact you are not, this is considered as false pretenses; or pretended to be an agent or a recruiter for work abroad (illegal recruitment; no double jeopardy since illegal recruitment is a special law)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (b) By altering the quality/fineness/weight of anything pertaining to his art/business; Notes: -as distinguished in paragraph 1(a), here in 2(b) there is no obligation to deliver Ex: a fish vendor, upon the act selling a particular fish, altered its quality, then liable under 1(a); however if the quality of the fish is already altered and making it look like it was never changed upon selling, then 2(b) applies. (c) By pretending to have bribed any govt. employee without prejudice to the action for calumny which offended party may deem proper to bring against the offender; Notes:

of any false pretense or abandoning or surreptitiously removing any part of his baggage without paying for his food/refreshment/accommodation. Notes: Question: can a check be a subject of theft? Yes, since the check has a value, hence the amount of the check will be the basis for the penalty for the crime of theft. Suppose the stolen check was cashed in the bank and then later on dishonored, see People vs Jacinto. Through any of the following fraudulent means: (a) By inducing another by means of deceit to sign any document; This differs in falsification, since here, the signature is really genuine, but the offender was able to secure the signature thru deceit or inducement.

Calumny- defamation Ex: you want to secure a franchise for a public utility, then a fixer approaches you and tells you to give him 200k, 50k for the franchise and the rest as ―padulas‖, when in fact, there was really no bribe given, you only pretended that you bribed the govt. employees responsible for the issuance of the franchise. (d) By issuing a check in payment of an obligation when offender had no funds in the bank or his funds are insufficient to cover the amount of such check; Notes: -There are 2 crimes committed here, estafa and violation of BP 22. Take not that in this paragraph, the accused issue/delivered a check, either postdated or currently dated and at the time he issued the check, he issued money/property from the offended party; suppose he issue the check as a payment of a loan that he incurred a month ago, and the same was dishonored, here there was no estafa, since the time he issued the check he did not receive any money/property instead the issuance was for a pre-existing loan/obligation. -Under this paragraph, the criminal liability of the offender could be extinguished if within 3days (banking days) after demand to pay or notice of dishonor, he would pay in full the amount of the check.

(b) Fraudulent practice to insure success in gambling (c) By removing/concealing/destroying in whole or in part any court record/files/docs or any other paper Ex: the accused is pretending to be lawyer, asked the clerk of court for certain documents. Malversation

Estafa by misappropriation

Accused is a public officer, although a private person could also be liable for malversation in conspiracy with the public officer. And the public officer is the custodian of public funds/property;

Cannot be held liable if misappropriated by another due to negligence

or either by dulo or culpa, by allowing other people to misappropriate public fund/property under his custody

-under PD 818, estafa here has a higher penalty thru issuance of a check -this paragraph is considered as asimultaneous transactions, because the offender issues a check and at the same time the offender party delivers money/property to the offender. (e) By obtaining any food/refreshment/accommodation at a hotel/inn/restaurant/boarding house/apartment and the like without paying thereof with intent to defraud the proprietor or manager, or by obtaining credit at said establishments by use

Malversation

Estafa by Misappropriation [1(b)]

- the accused could be held liable if he, as the custodian of public funds or property, allows another, through his negligence, to

- such rule is not applicable here. He can‘t be held liable if the property he received in trust or commission and which he has the obligation

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D misappropriate such funds or property

to return, is being misappropriated by another person because of his or her negligence - demand to pay is not necessary before filing the case in court, IF there is CLEAR EVIDENCE OF MISAPPROPRIATION by the offender. But if there is a demand even if there is clear evidence of misapp, the failure of the accused to return the item is considered as a Circumstantial evidence of misappropriation. (Pp vs Lee 4/11/05) **demand need not be in writing. It could be oral

Ex: X delivers to Y a necklace worth 100k to be sold within 1 month and the proceeds shall be credited to X, but if not sold it shall be returned. Y in his effort to sell the item, contacted A and agreed with the latter to sell the necklace within 1 month, if not he has to return the same. A did not return the item. Is Y liable for estafa to X? No. The agents to whom personal property was entrusted for sale, conclusively proves the inability to return the same is solely due to malfeasance of a subagent to whom the first agent had actually entrusted the property in good faith, and for the same purpose for which it was received; there being no prohibition to do so and the chattel being delivered to the subagent before the owner demands its return or before such return becomes due, we hold that the first agent cannot be held guilty of estafa by either misappropriation or conversion. The abuse of confidence that is characteristic of this offense is missing under the circumstances. In cases of estafa the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in permitting another to take advantage or benefit from the entrusted chattel cannot constitute estafa under Article 315, paragraph 1-b, of the Revised Penal Code; unless of course the evidence should disclose that the agent acted in conspiracy or connivance with the one who carried out the actual misappropriation, then the accused would be answerable for the acts of his coconspirators. If there is no such evidence, direct or circumstantial, and if the proof is clear that the accused herself was the innocent victim of her sub-agents faithlessness, her acquittal is in order. (Serona vs CA Gr 130423 11/18/02; Pp vs Nepumoceno 4/30/08)

Example: You rented a car and didn‘t return – ESTAFA If you stole the car directly – CARNAPPING Instance where contract of lease has no transfer of juridical possession to the lessee:  Boundary System – usually used in renting taxis and PUJs  Traffic Code: Transfer of Juridical possession is not allowed in the boundary system  Nature of possession of the jeep driver is only material possession  If such driver fails to return the PUJ or taxi, he could be held liable for CARNAPPING, not estafa. (Pp vs Bustenera 6/8/04) If the Contract to sell has been novated Case: X delivers to Y a gold necklace worth 100k to be sold within 1 month and if not sold, the item shall be returned; if sold, he is to remit the proceeds. After 1 month, Y failed to return the necklace and remit the proceeds. – Crime is Estafa by Misappropriation. There is abuse of confidence. When X sent Y a demand to pay, Y begged to pay for the necklace within 10 months. X acceded. 10 months later, Y never paid. Estafa was filed. Is Y liable? SC: if there has been novation or a change of the contract and such occurred before the filing of the case in court, the novation extinguished the insipient criminal liability of the accused. (Guingona Jr vs City Fiscal of Manila; Pp vs Neri 10 SCRA 244) In the case, the first contract was a Contract to Sell/Agency to Sell. But they changed the contract to a Contract of Sale. TN: novation must occur prior to the filing of the case in court. BP 22 -AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT FUNDS OR CREDIT AND FOR OTHER PURPOSES Section 1. Checks without sufficient funds. - Any person who makes or draws and issues 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 in full upon its presentment,xxx 

Issue a check to apply on account – you have an existing obligation to pay For value – the obligation is contracted on the time of the issuance of the check (this is what makes it estafa)

- xxx which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, xxx

Review: What is an example of Juridical Possession?  a Contract of Lease

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D  

The drawer has insufficient funds but he issued a stop payment order to the bank. The drawer could still be held liable. The offender here is only the drawer or the maker. Indorser can‘t be liable unless in conspiracy with the maker or drawer.

- xxx shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.  Suppose at the time of the making of the check he has sufficient funds, but later on he withdrew the amount and at the time was presented it was dishonored because of insufficiency of funds. Liable? Yes! Elements of violation of BP 22 1. A person makes or draws a check 2.

Check is made or drawn and issued to apply on account or for value

3.

The person who makes or draws and issues the check knows 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 in full upon its presentment

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The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

―Knowledge of the drawer or maker of the insufficiency of funds at the time of making the check‖ - this is hard to prove because it‘s a mental activity. - Knowledge of insufficiency is PRESUMED. But such presumption arises if the check is presented within the period of 90 days from the date appearing thereon. - If after 90 days, you need to present evidence to prove. There will be no presumption by then. How will the drawer know that the check has been dishonored? - Notice of Dishonor - Under Sec 2, the drawer or maker is given 5 days (estafa 3 days) form receipt of notice of dishonor to make good of his check or to pay full value OR to make arrangement with the bank for the full payment of the check.

- Sending of notice of dishonor is very important because unless the drawee or maker can receive the notice of dishonor, the counting of the 5-day period will not run and therefore you cannot hold him liable. (This is the same principle as estafa by drawing a check) During the trial, how can the prosecution prove that there was a notice of Dishonor? - If thru post office, let the postman make an affidavit that the signature in the return receipt is the drawer‘s or maker‘s - SC: Presentation of registry receipt and the registry return is not sufficient to prove that the maker has received notice of dishonor.

Aug. 3, 2016 Part 22 Additional note under Probation! –

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Under the present amendment of the Probation Law, crimes against public order are now probationable, provided that the penalty imposed by the court is also probationable. The crimes that are not probationable now are those crimes against national security.

Art. 315 Juridical possession, as compared to material or physical possession –

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Juridical possession is a kind of possession which gives the transferee the right to possess the thing which the transferee may set up even against the owner. He has superior right in possession over the owner himself. Example, contract of lease. The owner cannot get the property leased before the expiration of the contract of lease. The lessee can hold on to his possession over the property even against the owner himself. Failure to return the property upon demand (when the contract has already expired), he could be held liable for Estafa. In material or physical possession, the possessor is merely considered as a keeper or custodian of the property. He cannot refuse to turn over the property when the owner so demands for the same. His possession is merely an extension of that of the owner. He could be held liable for Theft if he fails to return the property upon demand.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Note: If one is charged with Theft, he could be convicted of Estafa, and vice versa. Estafa by Misappropriation ―By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.‖ One of its elements is demand. However, if there is a clear evidence of misappropriation, demand for the return of the property is not necessary. If there is demand to return and there is failure to return despite demand, this failure to return is a circumstantial evidence of misappropriation.

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Boundary System – –

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Depositor and bank – –

Governed by the laws of the contract of loan If the bank fails to pay the depositor, there is no Estafa, the liability of the bank is merely civil in nature

Received on commission –

When the offender is given authority by the offended party to act as his ―agent‖, such as in the contract of agency to sell. Failure to return the property upon demand is Estafa

Thing was received for administrator –

Other contracts

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Which the offender has the obligation to return. Including quasi-contracts

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When a personal property is erroneously delivered to another person, that person to whom the property the property was erroneously delivered has the obligation to return it. If fails to return, he could be held liable for Estafa

Contract of Bailment

What is transferred is ownership, there is no Estafa The obligation of the receiver is merely civil in nature

Contract of agency to sell

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Quasi-Contracts –

The offender received property in trust from the offended party but fails to return the same Similar with contract of agency to sell

Contract of sale on credit

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Arrangement between operator and driver In a boundary system involving a public utility vehicle, if the driver fails to return the car, the crime committed is Carnapping. Why not Estafa? Because under the Traffic Code, the transfer of juridical possession to the driver is prohibited. The driver is considered, under the Traffic Code, as an employee or worker or agent of the operator. Being a mere agent or employee of the operator, what is transferred to the driver is merely material or physical possession. So that, in the event that the driver fails to return the motor vehicle that is entrusted to him under the boundary system, he could be held liable for violation of the AntiCarnapping law, which is actually theft of motor vehicle. (PP vs Bustenera , June 8, 2004, citing the case of PP vs Isaac, 96 Phil 931)

PD 115 (Trust Receipts Law)

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A person is appointed by the court as administrator for the estate but he misappropriates the property or money received by him as administrator, he could be held liable for Estafa because he has the obligation to administer the property and return them to the heirs

Such as contract of deposit. The personal property is deposited for safekeeping to another person. He has the obligation to return the property upon demand Contract of Lease Contract of Commodatum In all these contracts, the keeper or receiver of the property has the obligation to return the same property

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The breach of contract of agency to sell may give rise to a criminal liability for Estafa If the accused failed to return the items taken and failed to pay as well the amount of the items, and demand was sent with threat that should he fail to return or pay the items, a case for Estafa will be filed in court. The accused asked for an extension of time to pay on installment. Was there a novation of the contract? Yes. From contract of agency to sell, it has now become a contract of sale on installment. The novation now would extinguish the incipient criminal liability of the accused, provided that the

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D novation must have occurred prior to the filing of the case in court. 2.

Teller of the Bank –

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If she misappropriates the money that she collected from the depositors, she would be liable Theft. And considering that the teller abused the trust and confidence reposed in her by the bank, then she could be held liable for Qualified Theft. The nature of her possession over the money is merely material or physical. The same applies to credit collectors

Theft vs Estafa –

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If the owner expects an immediate return of the thing to him, then that would be theft. What is transferred to the receiver is merely material or physical possession. And that is theft if the property is not returned But if the owner does not expect immediate return of property delivered to another person, and the same is being misappropriated, that is Estafa If the offender is your domestic servant, it would always be Qualified Theft

Estafa by Issuance of Check –

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If at the time of the issuance of the check, the offender has received in return money or property from the victim because the latter believed that the check is funded or has sufficient funds – simultaneous transaction – there is Estafa through deceit. The offender can extinguish his criminal liability by paying the full value of the check within (3) days after he received the notice of dishonor. This is some sort of amnesty If he fails to pay within a period of (3) days, there would be a presumption of deceit Non-payment of the full value of the check, despite receipt of the notice of dishonor, would create the presumption of deceit on the part of the offender. The burden of evidence would be shifted to him, to prove that there is no deceit. Otherwise, he will be convicted

2 ways of committing violation of BP 22: 1.

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 by having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check and fails to keep sufficient funds or maintain a credit to cover the full amount of the check until the time that the check becomes stale

The check becomes stale after the lapse of 180 days, after the lapse of 6 months Under the negotiable instruments law, the check must be presented to the bank within the reasonable period of time from its issuance.  The law did not specify when it should be presented to the bank but in practice, a check should be presented within a period of 6 months or 180 days from the date appearing in the check.  Beyond the period, it would become a stale check and would no longer be presented to the bank for payment  If a check is not presented in the bank within the period of 180 days, the drawer would be held liable for violation of BP 22 if the same is dishonoured but he could only be civilly liable.  What is meant by the 90 days?  Sec 1, 2ndpara – the 90 days which requires the presentation of the check for payment is only necessary for the presumption of knowledge on the part of the drawer that at the time that he issued the check he has knowledge of the insufficiency of his funds.  One of the elements of BP 22 is that the drawer must have knowledge of insufficiency of his funds at the time he issued the check.  The knowledge of insufficiency is hard to prove because that is a mental activity. This is the reason why the law created the presumption on the knowledge of insufficiency of funds.  When will the presumption arise? These 2 must be present: 1) If the check is presented for payment within a period of 90 days from the date appearing in the check 2) The check is dishonoured  Suppose the payee presented the check beyond the 90 day period. Does that mean that the drawer could not be held liable if the check was dishonoured? o NO. The drawer could still be held liable but the prosecution has to prove that indeed the

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

o

drawer has knowledge of the insufficiency of the funds. HOW? He can prove it by alleging that the drawer was still able to withdraw 2 days or even a day before he issued the check. Through such transaction, the drawer must have known of his balance in the bank. That could be considered as evidence. So, Section 2. Evidence of knowledge of insufficient funds.  The making, drawing and issuance of a check payment which is refused by the drawee because of insufficiency of funds when presented within 90 days from the date of the check, shall be prima facie evidence of the knowledge of such insufficiency of funds or credit unless within 5 banking days after receiving notice such check is fully paid or the drawer would make arrangement with the bank.  The period of 2 days is equivalent to the period of 3 days in Estafa. If he can pay within a period of 5 days from the receipt by the drawer of the notice of dishonour and he immediately pays the amountor if he can make arrangement with the bank, his criminal liability will be completely extinguished. So, payment is a complete defense.  TN: the reckoning period is 5 days from the receipt by the drawer of the notice of dishonour. So if he did not receive a notice of dishonour, the 5 day period will not run.

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sufficiently familiar with the signature of the drawer can prove the same. The problem is when the payee is not familiar with the signature. It is therefore important to present the postman who delivered the notice. If the drawer receives the notice of dishonour, he must pay within a period of 5 days. Case: the accused paid the whole amount of the check when the case was already filed in the prosecutor‘s office. It is beyond the 5 day period already. SC said that accused is relieved from criminal liability provided the same is not yet filed in court. (Pp v Lim, GR No 190838, Dec 3 2014) Even if filed in court, it can be subject to mediation. If they agree that the check be paid, then it can be settled without court action.

TAKE NOTE: The prosecution should prove who served the notice of dishonour. It could be the drawee bank or the payee. So the prosecution has to prove that the drawer has actually received the notice of dishonour. This is very important! If the recipient is other than the drawer, it must be proved that the person who received is duly authorized by the drawer to receive the notice. If the check is issued by a corporation, notice to the corporation is not sufficient. There must be a notice of dishonour to the treasurer to make it liable. Violation of PD 705 – Forestry Code -

The determination of penalty is the same with qualified theft.

Why is notice of dishonour important? -

In order for the drawer to be given an opportunity to extinguish his criminal liability as provided by law.

Who can prove that there is receipt of notice of dishonour? Who has the burden of proof? How can it be proven? -

The burden lies with the prosecution. It can be proven by showing drawer‘s signature in the letter. If it was done through postal not personal delivery? Take note that mere presentation of the postal receipt and the return receipt is not sufficient. There must be a person who can testify that it was the drawer‘s signature. The payee, even if not around but is

Article 316 – Other forms of swindling There is still deceit here The penalty is lower. Imprisonment and fine.  Aresto mayor in its min and med periods and a fine not less than the value of the damage caused and not more than 3 times such value. It shall be imposed upon: 1. Any person who, pretending to be owner of any real property, shall convey, sell, encumber or mortgage the same. The offender here is not the owner or no longer the owner of the real property sold.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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Ex: Double sale. You sold the property to A then sold it also to B. by the time you sold the property to B, you are no longer the owner. So you commit other forms of swindling. Or if you mortgage the same property to other person.

2. Any person, who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. You already mortgaged it then you also sold the same. Take note of the word ―knowing‖. Even if the encumbrance is not recorded. Why is there deceit here? Because the encumbrance was not made known to the buyer.

5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor. -

3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person. -

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Ex: You have cellphone and you pawned it. After you pawned the same, you snatched it and ran away. What is the crime committed?  That would not be theft because you are the owner. That would be other forms of swindling. (―who shall wrongfully take it from its lawful possessor‖) Case: There was one person working in a pawnshop. The things pawned in such pawnshop were at the same time pawned by her in other pawnshop. One time she asked her friend who was working in the other pawnshop to get/borrow the same thing pawned by her because they were auditing. She did not return the thing anymore. That is other forms of swindling.

4. Any person who, to the prejudice of another, shall execute any fictitious contract. -

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Such as a fictitious contract to defraud creditors. You owe someone money. In order for you to protect your properties from attachment, you mortgaged your properties to other persons when in fact it was fictitious because there was no consideration. That is other forms of swindling. But if not fictitious because you really mortgaged it to third person, that would be fraudulent insolvency under Article 314.

You received your salary when in fact you did not go to work. That would be other forms of swindling. But if you are working in the government and you only go to work during the 15th and 30th, you submit a DTR, what is the crime committed?  That would be FALSIFICATION. ESTAFA through FALSIFICATION because your DTR is a public document.  That would not be malversation because you are not the custodian.  You could also be charged with violation of ANTI-GRAFT because you caused damage to the government, undue injury to the government. You would be liable under para e, causing undue injury to the government.

6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation. -

You are familiar with property bond. When you sell the property without asking permission from the court, that would be other forms of swindling.

ARTICLE 317. Swindling a Minor Any person who taking advantage of the inexperience or emotions or feelings of a minor, to his detriment, shall induce him to assume any obligation or to give any release or execute a transfer of any property right in consideration of some loan of money, credit or other personal property  If there is a loan on a minor for P500 and he was paid only 200 since he is in need of money for shabu, that is swindling a minor ARTICLE 318. Other Deceits The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter. - Other forms of swindling and other deceits are different from each other - This is a catch all provision; If it does not fall under 315,316, and 317 then it is under 318

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D - If mamukong ka sakyanan then it is other deceits - If there is a person who goes in as a helper then she asked for an advance and then won't push though then it is other deceits - Included here are interpreter of dreams or fortune tellers for profit Any person who, for profit or gain, shall interpret dreams, make forecasts, tell fortunes, or take advantage of the credulity of the public in any other similar manner. - A person asks for money to determine what your dreams really meant. - There is a patron saint in your house and use it as a means to fool the public. - Any other deceit not included is under this article. ARTICLE 319. Removal, Sale, or Pledge of Mortgaged Property Par. 1 - Any person who shall knowingly remove any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of the execution of the mortgage, without the written consent of the mortgagee, or his executors, administrators or assigns. - The personal property is mortgaged under the chattel mortgage law - The personal property may be a car, and the mortgage is registered under the RD PLEDGE Delivered to the creditor. E.g. jewelry

MORTGAGE Possession of the property remains with the debtor

- Under par. 1, the personal property is removed or transferred to another place. It constitutes a criminal act. - It does not mean a mortgage property cannot be sold, but there must be consent of the creditor Par. 2 - Any mortgagor who shall sell or pledge personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record hereof in the office of the Register of Deeds of the province where such property is located. - Personal property subject to pledge - If a pledged item is sold without the consent of the pledgee then it will constitute a criminal act under par. 2 ARSON 2 laws applicable to arson: 1. PD 1613 2. ARTICLE 320 of the RPC 321-326 are no longer effective. They are repealed - Destruction of property by the use of fire - Setting fire to the property of another

Two types of arson: 1. Simple arson 2. Destructive arson (par. 2) Section 2. Destructive Arson PD 1613 - Any building is set on fire and the building is situated in a congested area - A person may be liable for burning his own property if it gives rise to danger to other person's life or property - If he set fire to his own property in a secluded place then he is not liable for arson. Can personal property be subject to arson? - Some say no - But in the definition of arson says any person who burns or sets fire to the property of another shall be liable for arson. The law does not distinguish whether it is personal or real property - If a car is set on fire then it can be arson In a 2004 bar exam - An attaché case with personal property was burned, the suggested answer was arson, not malicious mischief - Some authors believe that the burning of personal property would only constitute malicious mischief -

There are personal properties where it is destructive arson, under PD 1613 under paragraph 4.

Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transpiration of persons or property. -

Trains, vessel or watercraft such as pump boats are personal property but are still under destructive arson

Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. -

If you burn a building to claim insurance

People vs. Malngan Look at the purpose of burning  If the purpose is to kill then it is murder  If the purpose is to destroy the building then it is arson even if a person is killed o There is no arson with homicide  If the building is burned to hide the killing then there are two crimes committed. Take note of the instances of destructive arson The bar may ask for 5 instances for destructive arson Take note of the definition of arson In arson there could be conspiracy to commit

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D arson, one instance where mere conspiracy may be penalized There are also aggravating circumstances in arson

The crime of malicious mischief is committed when damage to property is deliberately done for the purpose of damaging the property.

Arson is one crime where you look at the manner of commission to determine attempted, frustrated or consummated. Look at how the crime is committed

If the damage to property is caused or done due to the commission of another crime, there is no malicious mischief. The damage to property does not constitute malicious mischief.

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Attempted - The offender is caught while burning materials but has not yet lighted a match then it is attempted arson. Frustrated - If he is able to light or set fire to the rags but it was put off before any part of the building was burned. US vs. Valdez 39 Phil 240 Consummated - A part of the building is burned even if it is a just a little. Setting fire to the contents of a building constitutes arson even if no part of the building was burned. If there are documents burned but does not include any part of the building then it is still arson. Chapter Nine – Malicious Mischief MALICIOUS MISCHIEF, DEFINED Is the deliberate or willful damaging of another‘s property for the sake of causing damage due to hate, revenge or other evil motive. Art 327 Who are liable for malicious mischief ELEMENTS: 1. 2. 3.

That the offender deliberately caused damage to the property of another That such act does not constitute arson or other crimes involving destruction That the act of damaging another‘s property be committed merely for the sake of damaging it

EX: Mr X fired at Y. Y was not hit. What was hit instead was his car. Can X charged with malicious mischief and attempted homicide or murder? No because the damage to the car was a result of the commission of another crime which is attempted homicide or murder. IF NO MALICE, ONLY CIVIL LIABILITY If the damage is done due to or as a result of the commission of a crime, there is no malicious mischief. But the accused could be held civilly liable for the damage. That will be part of his civil liability. ―SHALL DELIBERATELY CAUSE TO THE PROPERTY OF ANOTHER ANY DAMAGE‖ So in order to constitute malicious mischief, the damage to the property must be done just for the sole purpose of causing damage to that property because if the damage to the property is done or caused as a result of the commission of another crime, there is no malicious mischief. EX: You are driving your car recklessly and as a result of your reckless driving you bumped another car and caused damage to that car. Are you liable for malicious mischief? No, it was not deliberately done. You are liable for reckless imprudence resulting to damage to property.

Presupposes that the offender acted due to hate, revenge or other evil motive

But suppose you got angry at the driver of the car. The driver suddenly encroached your lane and you were almost bumped by the car he is driving because of that you chased the driver and when you caught up with him you intentionally bumped his car. What is the crime committed? Malicious mischief because the causing of the damage is intentional or deliberate.

EXAMPLES

VANDALISM IF A FORM OF MALICIOUS MISCHIEF

THIRD ELEMENT

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Your car, parked along the roadside is struck with stone. – Malicious mischief If the side window of your car is struck with stone and thereafter, took away your car stereo. – Theft

DAMAGING OF PROPERTY MUST NOT RESULT FROM CRIME

EX: Your car, a brand new Nissan pickup, there is a design which shows the word ―Calibre‖.The accused when he passed by, he had a pentel pen with him and added to the word Calibre ―45‖. What is the crime committed? Malicious mischief.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D EX: You car is a 4-wheel drive, there is a mark ―4x4‖. The accused writes ―=16‖. What is the crime committed? Malicious mischief. KILLING A PIG IS A FORM OF MALICIOUS MISCHIEF If the offender after causing damage to the property of another makes use of the fruit of his crime. EX: What about if after killing the pig, the offender cooks the pig? That would be theft. Art 328 Special Cases of Malicious Mischief THESE ARE CALLED QUALIFIED MALICIOUS MISCHIEF The cases of malicious mischief enumerated in this article are the so-called qualified malicious mischief. ANY PERSON WHO: 1.

2.

3.

4. 5.

―SHALL CAUSE DAMAGE TO OBSTRUCT THE PERFORMANCE OF PUBLIC FUNCTIONS‖; EX: You destroyed the amplifier so that there would be no sound system anymore. That would fall under special cases of malicious mischief because you caused damage to the property of another in order to obstruct or disrupt the performance of public functions. ―USING ANY POISONOUS SUBSTANCE‖; EX: The servant got angry with her employer decided to poison the pet dog of her employer. What is the crime committed? The crime committed is special cases of malicious mischief or qualified malicious mischief. It carried a higher penalty. ―USING ANY CORROSIVE SUBSTANCE‖; EX: You are working in a company and you are always late. So that you wont be late anymore, you put salt into the bandiclock so that it would not work anymore and be destroyed and you would not be able to use it. The crime committed is qualified malicious mischief. ―SPREADING ANY INFECTION OR CONTAGION AMONG CATTLE‖;or ―CAUSING DAMAGE TO THE PROPERTY OF THE NATIONAL MUSEUM OR NATIONAL LIBRARY, OR TO AN ARCHIVE OR REGISTRY, WATERWORKS, ROAD, PROMENADE, OR ANY OTHER THING USED IN COMMON BY THE PUBLIC‖ EX: There was a visitor of a National Museum, she was not careful so she broke a vase while inside the museum. The caretaker told her that the vase was a 500-year-old vase. She cannot be held liable for malicious mischief because it was not done intentionally but only reckless imprudence resulting to damage to property.

EX: The lights in the plaza are broken by bystanders. That is qualified malicious mischief. PENALTY FOR MALICIOUS MISCHIEF, SAME WITH ESTAFA The penalty for malicious mischief is based on the value of the property damaged. Just like estafa, the value of the damage must be stated in the information. Art 329 Other mischiefs MALICIOUS MISCHIEF OTHER MENTIONED IN ART 327 AND 328

THAN

THOSE

Malicious mischief under 327 gives us the definition of malicious mischief. 328 mention the penalty for qualified malicious mischief. OTHER MISCHIEFS SHOULD NOT BE INCLUDED IN ARTICLE 328 – BASIS OF PENALTY The penalty depends upon the value of the damage. EX: If your BMW be struck by a bat, the amount for the repair would be valued at around P10, 000 - 15, 000. The penalty would only be arresto mayor in its medium and maximum periods. Art 330 Damage and obstruction to means of communication WHEN A PERSON OR PERSONS ARE KILLED The damaging of the railway must be without intent to kill. If it is done with intent to kill then that is murder. If the damage done to the railway is without intent to kill but the damage eventually caused death of a person it may cause a complex crime. The crime is damage to the railway or means of communication with homicide. Art 331 Destroying or damaging statues, public monuments, or painting Chapter Ten – Exemption from Criminal Liability in Crimes Against Property Art 332 Persons exempt from criminal liability ANOTHER EXEMPTING CIRCUMSTANCE The enumeration in Art 12, exempting circumstances is not exclusive. There are other exempting circumstances in the

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D different articles of the Revised Penal Code. One of this is under Art 332. CRIMES INVOLVED IN THE EXEMPTION 1. 2. 3.

committed by S? That is estafa, pretending to be an agent of his father when in fact she is not. Is he liable? No because the victim is not his father. Art 332 is applicable only when he offender and the offended party are relatives and their relationship is any of those mentioned in said article.

Theft Swindling (Estafa) Malicious mischief

THE EXEMPTION DOES NOT INCLUDE ROBBERY PERSONS EXMEPTED FROM CRIMINAL LIABILITY 1. 2. 3.

Spouses, ascendants and descendants, or relatives by affinity in the same line; The widowed spouse with respect to the property which belonged to the deceased spouse before same passed into the possession of another; Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

THERE IS ONLY CIVIL LIABILITY No criminal, but only civil liability shall result from the commission of the crime of theft, swindling, or malicious mischief, committed or caused mutually by those persons. EFFECT OF DEATH ON RELATIONSHIP BY AFFINITY AS ABSOLUTORY CAUSE Relationship by affinity created between the surviving spouse and the blood relatives of the deceased spouse survives the death of either party to the marriage whichcreated the affinity. (Intestate Estate of Manolita Gonzales Vda. De CarungcongvsPp, GR 181409, February 11, 2010)

If the crime committed would constitute robbery, the provision of Art 332 does not apply because Art 332 the exemption is only applicable to any of the crimes mentioned in this article. BROTHERS AND SISTERS, AND BROTHERS-IN-LAW AND SISTERS-IN-LAW MUST BE LIVING TOGETHER AT THE TIME OF THE COMMISSION OF ANY OF THE CRIMES OF THEFT, ESTAFA, OR MALICIOUS MISCHIEF EX: When you addict brother would still your cellphone and sells it. What is the crime committed? Theft. But is he liable? No. In exempting circumstance, there is a crime committed but only that the offender is not punished. The offender is required to face civil liability but not imposed any criminal liability because he is exempt. Condition: Should be living together. If they are living separately then the exemption will not apply. Or if the crime is committed is robbery, there is no exemption because the exemption only extends to the crime of theft, swindling, or malicious mischief.

Even if the husband or the wife is already dead, relationship by affinity still exists.

THIS ARTICLE DOES NOT APPLY TO STRANGERS WHO PARTICIPATES IN THE COMMISSION OF THE CRIME

THE WIDOWED SPOUSE WHO COMMITS THEFT, ESTAFA, OR MALICIOUS MISCHIEF WITH RESPECT TO PROPERTY OF THE DECEASED

Strangers who participate in the commission of the crime are not exempt from criminal liability. They are not covered by the exemption. They are liable.

To be exempt from criminal liability, it is required that

ART 332 APLIES TO COMMON LAW SPOUSES, STEPFATHER, ADOPTED FATHER, ILLEGITIMATE CHILDREN, CONCUBINE, PARAMOUR, ADOPTED CHILD

1. 2.

The property belongs to the deceased spouse; and It has not passed into the possession of a third person

―COMMITTED OR CAUSED MUTUALLY‖ EX: D was indebted to F. S, the son of F, without the knowledge or consent of the latter, went to D and falsely represented to him that F sent him to collect. Believing the statement of S, D gave him the payment. What is the crime

EX: If you are living with someone who is married, they can steal from you or you can seal from you (vice-versa) and you are exempt from criminal liability. TITLE XI: CRIMES AGAINST CHASTITY -

These are otherwise known as private crimes.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Private crimes because they cannot be filed in court unless the offended parties themselves execute the affidavit or sign the complaint. They cannot be filed de oficio. They cannot be filed by any other person. -

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This is because the law respects their right to privacy. They may prefer to just suffer in silence. -

Article 333 Adultery Elements: 1. 2. 3.

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The woman is married She has sexual intercourse with a man not her husband That as regards the man with whom she has sexual intercourse, he must know her to be married.

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Q: What about the man? Can he be held liable for adultery? A: YES. If he knows that the woman he had sexual intercourse with is a married woman. It must be alleged in the information that the man knows that the woman is married. Note that knowledge is a mental activity. You have to prove that indeed he knows you are married. (For example if you are colleagues or officemates, most likely you know that she‘s married. But if you just met for the first time probably you can be exempt from liability)

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The fact that he did not know that the woman is married is just a matter of defense because it is required in adultery that the two must be charged.

NOTE: In adultery and concubinage, both the wife or the husband as the case may be, and the paramour or concubine shall be jointly charged.  

Kabit of the woman- paramour Kabit of the man- concubine -

Q: Suppose the man is also married and both of them knows that they are both married. What crime or crimes are committed? Aside from adultery, they can also be held liable for concubinage. Both of them.

REMEMBER: -

ADULTERY IS NOT A CONTINUING OFFENSE. Each act of sexual intercourse constitutes one crime of adultery.

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CARNAL KNOWLEDGE CAN BE PROVED BY CIRCUMSTANTIAL EVIDENCE. Example: It can be proved by the fact that the woman is now pregnant; Love letters; text messages; testimony of witnesses that the two accused were seen together in one room.

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IF THE OFFENDED HUSBAND, AFTER KNOWING THE UNFAITHFULNESS OF HIS WIFE WOULD

It is very easy to prove adultery. If you get pregnant while your husband is away (ie. an OFW), that would be adultery.

THE FOLLOWING ARE NOT DEFENSES IN ADULTERY: The marriage is subsequently declared void.

Case: Estrada vs Escritor 492 SCRA 1 The woman here, a court stenographer is married. She is separated with her husband. Now she found another man, the man was also married and was likewise separated. The woman was administratively charged with immorality and so she interposed the defense of religion as the same was allowed in Jehovah’s witness. SC absolved the woman on the ground that their relationship was approved by their religion. Take note that the case filed was only administrative, not criminal. There‘s no jurisprudence yet relating to a criminal case acquitting an accused for adultery on the ground of religion.

Example: You‘re a married woman, you look for a callboy and go to queensland. You can be charged of adultery because the moment you have sexual intercourse with a man other than your husband, you commit this crime.

LIABILITY OF THE MAN

The fact that the woman was abandoned by her husband without justification.- This is only a special mitigating circumstance (meaning, one degree lower). Thus if the husband left for work abroad, the wife is liable for adultery without any mitigating circumstance because the abandonment was temporary and with justification.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D HAVE SEXUAL INTERCOURSE WITH HER, that would be considered as implied pardon. CONSENT Given before the act

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PARDON Given after the act

AGREEMENT TO SEPARATE. While the agreement is void in law, it is nevertheless competent evidence to explain the husband‘s inaction after he knew of his wife‘s living with her co- accused. He may be considered as having consented to the infidelity of the wife which bars him from instituting the criminal complaint.

Article 334 Concubinage

The ratio of the framers why it is harder to prove concubinage than adultery is that, {at the time when the RPC was enacted) the woman is the only person who can determine who the father of her child is. While the man cannot be so sure that he is the father of her wife‘s child. Now we already have DNA testing that is why these provisions are included in the proposed amendments of the RPC. ―Mistress‖ -

Elements: 1. 2.

3.

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The man must be married He committed any of the following acts: a. Keeping a mistress in the conjugal dwelling b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife c. Cohabiting with her in any other place. That as regards the woman, she must know him to be married. Example: Suppose the husband goes to Kamagayan and would have sexual intercourse with a sexual worker of queensland, can he be held liable for concubinage? A: NO. That is the discrepancy of this law. Concubinage is not committed by mere having sexual intercourse with a woman. ―Having sexual intercourse under scandalous circumstances with a woman who is not his wife‖

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Cannot be translated literally.

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SC: Having sexual intercourse under scandalous circumstance means keeping a mistress elsewhere and commits acts which are highly reprehensible or acts that are offensive to public conscience.

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Example: they appear together in public while holding hands. ―Cohabiting with her in any other place‖

This means that the man shall sleep with the woman in another place. If you just rent an apartment or a townhouse for her but you do not sleep there let‘s say for a week, a month or a year, there‘s no concubinage.

The woman must be taken in as a concubine. In one case, the woman was brought to the conjugal dwelling because she was treated as an adopted daughter. SC: She is not considered a mistress. It is necessary that the woman is taken by the accused into the conjugal dwelling as a concubine. People vs Hilao 52 OG 904

Article 336. Acts of lasciviousness -

What do you mean by lasciviousness/lewdness? Refers to obscene lustful, indecent or lecherous act carried on a wanton manner; People vs Dominguez

Notes: -

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-Any person who shall commit any acts of lasciviousness upon other persons of either sex shall be liable for acts of lasciviousness. -in this article, there is no sexual intercourse or intent to rape, because the circumstances therein are the same in acts of lasciviousness (force/threat/deprived of reason etc.). -Now take note that there is just a minimal difference between acts of lasciviousness and attempted rape, the only difference is that in the latter, there is intent to have sexual intercourse with the victim as held in People vs Cruz g.r. no. 166441. -An example of this article is the touching of the private parts of a woman. Or kissing and touching the breast of the woman. However if these acts are done in PUBLIC or in PUBLIC VIEW, it would only be considered as UNJUST VEXATION; the doing of these acts in public or in public view would eliminate/negate lewd designs, hence the acts would only constitute unjust vexation. -For example a woman is sleeping, and you touched her private parts, then that would constitute acts of lasciviousness. However if you undress her, and tried

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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to mount on top, then that would constitute attempted rape.

Article 339. Acts of lasciviousness with the consent of the offended party

Article 337. Qualified Seduction Seduction – refers to the act of enticing a woman to an unlawful sexual intercourse; it presupposes sexual intercourse, hence there is no seduction if there is no sexual intercourse; may be done through promise to marry or other means persuasion without use of force

-This is quite similar to seduction; -Under this article, it is any other acts of lasciviousness committed by the same person under the same circumstances as those provided in 337 and 338. - This is seduction without sexual intercourse Article 340. Corruption of Minors

There are 2 kinds of seduction: 1. Qualified seduction 2. Simple seduction -

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Notes: How is qualified seduction committed? The seduction of a virgin over 12years old (if below 12 then that would be rape) and under 18, committed by any person in public authority, priest, house servant, teacher or any person in any capacity who is entrusted with the education or custody of a woman seduced, so the accused here is liable for qualified seduction. -So can a law professor be liable for qualified seduction? No, first you are no longer 18, second you are no longer a virgin. However the word virgin here does not mean physical virginity, but refers to good reputation. -Can a parent or a relative commit seduction? Yes. The penalty would be higher if the victim is his sister/descendant, here age is immaterial. WON the woman is of good reputation if the victim is his sister/daughter. -Can a female teacher charge with seduction? No. because the victim must be a woman. -How about in adultery? How about the paramour is with the same sex? Is there adultery? No, since sexual intercourse presupposes that it is committed between a man and a woman. - Also seduction presupposes that the sexual intercourse is with the consent of the victim, although the same was obtained thru deceit or influence. Cuz if the sexual intercourse was done through force, intimidation or threat, then it would constitute rape, otherwise it would only be simple seduction. -Deceit here takes form in an unfulfilled promise of marriage; such promise must be done prior to the sexual intercourse -suppose the sexual intercourse was done without any enticement or influence with the minor? Then there can be no seduction or child abuse; People vsOlayon (see this case, judge said it is very controversial) - Promise of marriage made by a married man is not considered a deceit

-This also known as ―pimping‖ - Corruption means to satisfy the lust of another -Any person who shall promote or facilitate the prostitute/corruption of minors for the lust of another -Connect this to RA 9208, or the human trafficking law. If the victim of trafficking is a minor, then the same is qualified. White slave trade – any person, who in any manner or under any pretext, shall engage in the business of prostitution and profit from the same. What‘s the difference with corruption with minors? The victims are minors, either male/female. Art. 342. Forcible abduction. — The abduction of any woman against her will and with lewd designs shall be punished by reclusion temporal. The same penalty shall be imposed in every case, if the female abducted be under twelve years of age. Elements: 1. That the person abducted is any woman, regardless of her age, civil status or reputation. 2. That the abduction is against her will 3. That the abduction is with lewd designs. The taking away of a woman with lewd design. Kidnapping and Serious Illegal Detention - taking is without lewd design - penalty: Reclusion Perpetua - TN victim here may be a woman

Forcible Abduction - taking is with with lewd design - penalty: Reclusion Temporal - victim is always a woman

Lewd design is a mental activity o Case: The accused took away the accused with lewd design because while inside the car, the accused kissed and embraced the victim and often attempted to take hold of her body. Forcible Abduction with Rape - This is a complex crime under Art 48

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Although taking is motivated with lewd design, having sexual intercourse with the victim is not necessary. Sexual intercourse is not absorbed If there is more than 1 rape, the accused could be liable for separate rapes. Ex: Victim was raped 5x. Only 1 rape will make a complex crime of Forcible Abduction with Rape. The rest of the 4 rape incidents are treated as separate crimes. TN: if the MAIN PURPOSE IS TO RAPE, then the crime is RAPE. Forcible abduction is absorbed (Pp vs San Pedro, Pp v Toledo 83 Phil 777)

If the victim of the taking away with lewd design is a minor below 12 yrs old, the crime is still FORCIBLE ABDUCTION. Can a husband be held liable for forcible abduction? For example a couple broke up and the husband really wanted that they get back together. Is there forcible abduction? - No, because there is no lewd design. The crime may be Grave Coercion.

Answer: No. Kim was not taken away from her house. There was no solicitation, enticement or cajolery. 

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. 

Private crimes cannot be filed in court except upon complaint of the offended party.

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In cases of seduction, abduction, rape or acts of lasciviousness – this presupposes that the victim is a minor, the crime could be filed through a complaint signed by the offended party, her parents, grandparents, guardians.

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In adultery and concubinage, this could only be filed with the offended spouse.  This is in an information or criminal complaint, signed by the offended party himself or herself.  Adultery – complaint signed by the offended husband  Concubinage – complaint signed by the offended wife  If it is filed in court thru an information, that would be dismissed on the ground of lack of jurisdiction.

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If the offended party has consented or pardoned the act, the case would be dismissed. o Pardon is extended after the commission of the act but before the filing of the case in court because once the case is filed in court, that cannot be dismissed by mere pardon of the offended party.

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In seduction, abduction, acts of lasciviousness or rape, (SARAL) the marriage of the offender with the offended party shall extinguish the criminal action and the penalty. - this provision shall also apply to co-principals, accomplices and their accessories - this shall not apply to gang rape. (where there are several accused and all of them raped the victim)

Art. 343. Consented abduction. — The abduction of a virgin over twelve years and under eighteen years of age, carried out with her consent and with lewd designs, shall be punished by the penalty of prisioncorreccional in its minimum and medium periods. Elements: 1. That the offended party must be a virgin. 2. That she must be over 12 and under 18 years of age 3. That the taking away of the offended party must be WITH HER CONSENT after solicitation or cajolery from the offender 4. That the taking away of the offended party must be with lewd designs. Cajolery – enticement; coaxing or flattery intended to persuade someone to do something. TN! Crimes where VIRGINITY is an element: 1. Qualified Seduction 2. Consented Abduction  

The abduction here is with the consent of the victim, but with enticement or cajolery or solicitation. This crime presupposes the accused enticing a minor to elope with him

Bar Question: Kim, 16 years old went home late one evening. Her mother scolded her. Kim went out of their house and went to her boyfriend‘s house Tristan. Tristan‘s mother tried her best to send Kim home but the latter refused. That night, Kim slept in Tristan‘s room and they had sexual intercourse. Kim‘s mother filed a case of consented abduction against Tristan. Will the case prosper?

The purpose of this law is not to punish the wrong done to the girl because she consents thereto, but to prescribe punishment for the disgrace to her family and the alarm caused therein by the disappearance of the one who, is by her age and sex, susceptible to cajolery and deceit. (US v Reyes)

Art. 345. Civil liability of persons guilty of crimes against chastity. 1. 2.

Indemnification Acknowledge the offspring (unless the law says not to)

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Support of the offspring

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In seduction, abduction or rape – there is sexual intercourse, so the civil liability of the offender would consist of indemnification. In simple rape – P50,000 as indemnity + automatic P50,000 as moral damages Qualified rape – P100,000 as indemnification

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(b) That he contracted a second marriage (c) First marriage has not yet been legally dissolved or in case his or her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code (d) The second marriage must have all the requisites of a valid marriage except for the fact that it is bigamous

Art. 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party. - punished as principals although they are considered as accomplices.

Affidavit of Cohabitation

Article 347: Simulation of Births, Substitution of One Child for Another and Concealment or Abandonment of a Legitimate Child

If the first marriage is void

(A) Simulation of Births –

Example, a childless couple registered the baby as their own, when in fact it was the child of their helper

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(Review on the essential and formal requisites of a valid marriage)

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The fact that the first marriage is void is not a defense in bigamy

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There must be a judicial declaration of the nullity of the first marriage

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There can be no prejudicial question. Even if there is a pending case for the declaration of the nullity of marriage, there can be bigamy, for so long as there has been no judicial declaration of the first marriage

(B) Substitution of One Child for Another –

Example, ―Mara-Clara‖

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Or placing a live child of a woman in place of a dead one of another woman

(C) Concealment or Abandonment of a Legitimate Child –

Example, parents leave their child at the doorsteps of the church in order for the child not to inherit from the family

Art. 348. Usurpation of civil status Any person who shall usurp the civil status of another, should he do so for the purpose of defrauding the offended part or his heirs –

For example, a well-off person died. The offender introduced himself as an illegitimate child of the deceased, when in fact he is not.

Art. 349. Bigamy

Liability of the second spouse –

He is liable for bigamy as an ―accomplice‖ provided that there was knowledge of the first marriage

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PP vs Santiago, July 15, 2015

Can the parties be held liable for adultery or concubinage, aside from bigamy? –

YES, if the requisites of adultery and concubinage are present, they may be held liable

Who can be the private complainant? –

Not necessarily the first spouse, it could be the second spouse

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Tenebro vs. CA, GR No. 150758, Feb. 18, 2004

Sulu Islamic Association vs Malik, 226 SCRA 193

Any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings –

Take the place of a valid marriage license

Presupposed two (2) marriages

PP vs Capili, GR No. 183805, 2013 PP vs Morrego, GR No. 145226, Feb. 6, 2004 –

Accused married twice. Why was he absolved? You read the case!

PP vs Jarillo, Sept. 29, 2009

Elements

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(a) Offender has been legally married

Prescription of the crime of bigamy

Art. 350. Marriage contracted against provisions of laws

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The offender contracted a marriage and he knew at the time he contracted the marriage that the requirements were not complied with or that there was legal impediment to the marriage

Art. 351. Premature marriages –

Already repealed by RA 10655

Art. 352. Performance of illegal marriage ceremony Who can be held liable? – – –

The solemnizing officer He must be authorized to solemnize marriage He was aware that the requisites for a valid marriage were not complied with

If the person who solemnized is not authorized –

He could be held liable for usurpation of official functions

July 7, 2016 Part 23 Concubinage One of the means of committing concubinage is by having sexual intercourse under scandalous circumstances. US vs Rueda - Wife in order to find a way to catch her husband together with his mistress employed private detectives. SC said there is no scandalous circumstance. The fact that the offended party has to hire private detectives or spies in order to catch her husband is a proof that there is no scandalous circumstance. Bigamy When the nullity of the first marriage is questioned, there could never be a prejudicial question. But if the validity of the 2nd marriage is questioned, there could be prejudicial question because one of the requisites of bigamy is that the 2nd marriage must have all the requisites of a valid marriage. Art. 352. Performance of illegal marriage ceremony. -

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This refers to crime committed by solemnizing officers who solemnize any illegal marriage ceremonies. When the requirements set forth by law are not complied with, knowing that the requirements are not complied with, and yet the solemnizing officer solemnizes the marriage, he could be held liable for

solemnizing illegal marriage performance of illegal marriage.

ceremony

on

Ronulovs People, July 2, 2014 – SC said that While Article 352 of the RPC, as amended, does not specifically define a ―marriage ceremony‖ and what constitutes its ―illegal‖ performance, Articles 3(3) and 6 of the Family Code are clear on these matters… Even prior to the date of the enactment of Article 352 of the RPC, the rule was clear that no prescribed form of religious rite for the solemnization of the marriage is required. However, the law sets the minimum requirements constituting a marriage ceremony: first, there should be the personal appearance of the contracting parties before a solemnizing officer; and second, their declaration in the presence of not less than two witnesses that they take each other as husband and wife. Article 353 - Definition of libel Article 353 gives us the definition of defamation. Libel is a form of defamation. Although Art 353 states definition of libel, it is not only applicable to libel. It is applicable to all forms of defamation. Forms of defamation: -

Libel if defamation is done through writing, painting, etc. Defamation done orally Or by deed, slander by deed

Defamation – is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead The offended party of the defamation, libel, oral, it could be a natural, juridical or a dead person.

Defamation: a)

there should be an imputation of a crime.

Ex: You are called a drug lord. There is an imputation that you are selling drugs. Ex: You are called a thief. There is an imputation that you steal properties.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Ex: You are called a corrupt. The crime of being a thief or being corrupt is imputed to you.

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Ex: You are a killer. There is an imputation of the crime of murder or homicide. Ex: You are called a drug addict. Is using drug a crime? Yes. That is penalized under sec15 or RA 9165. Ex: ―Burikatka!‖ The crime of prostitution is imputed to you.

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Ex: You are a mistress. The crime imputed is concubinage. b)

imputation of a vice or defect

Ex: That person is a drunkard. It is not a crime but it is a vice. Ex: ―Boangka!‖ is an imputation of mental illness or defect. c)

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Imputation of any act, omission, condition, status, or circumstance.

tending to cause the dishonor, discredit, or contempt of a natural or juridical person,

Ex: That person is always borrowing money. It is not a crime or a vice but an omission. Ex: That person is gay (even if that person is a straight guy). The person is a son of a smuggler or a drug lord. It is not a crime but a condition or circumstance. A corporation can file for libel even if without feelings – it has a good will (reputation).

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For example, a letter was sent and the envelope was sealed. The letter contains defamatory contents. No libel because the envelope is sealed.  If it was opened, there could still be no libel if the same was sent to the addressee.  But if you sent it to a middleman or a messenger, there could be libel. Why? Because the person could read the letter. Without publication, defamation will not prosper. 3. That it must be malicious. There must be malice or ill-will or intent to injure the reputation of offended party. Malice is presumed. The moment it is established that the words uttered are defamatory, malice is presumed. This is MALICE IN LAW.

Malice is not presumed in the following instances: a) When the communication is considered privileged. Ex: those speeches delivered by members of congress, no matter how defamatory, the congressman who delivered the defamatory speech cannot be charged with libel or oral defamation. That is absolutely privileged. 2 kinds of privileged communication: a) Absolute privileged communication b) Qualified privileged communication – Art 354: i. A private communication made by any person to another in the performance of any legal, moral or social duty;

Elements: 1.

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ii.

A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions; and

iii.

Fair comments on the acts and conducts of public officials or persons considered as public figures.

There must be an imputation of a crime.

2. The imputation must be made publicly. Publication means that it is being heard or known to by a 3rd person. Ex: A person was called thief. If somebody heard it even if he‘s the only one who heard it, that is publication. There is now imputation and publication. This is what we call Element of Publicity. If you were called in the office of your employer. There was no other person around except the 2 of you. You were called a thief. There is no defamation because there was no publication. What crime could have been committed? It could be unjust vexation.

Does it mean that when the communication is privileged, the offender could no longer be held criminally liable? -

As regards absolute privileged communication, the congressman or senator who made such speech

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D cannot be held criminally liable. The congress has the sole power of disciplining such congressman or senator. No criminal liability. -

As regards qualified privileged communication, the offender could be held criminally liable for any slanderous statements considering that malice is not anymore presumed. The prosecution has to present proof or evidence of actual malice on the part of the offender. This is ACTUAL MALICE OR MALICE IN FACT.

there could be libel there if there is undue publicity. Such as calling for a press conference. -

Ex: You have a complaint against the principal. But you published it to let the whole world know about it, then that is undue publicity. It must be personally directed to the principal.

4.

The imputation must be directed against a natural or juridical person or one that is dead. In other words, the offended party must be identifiable. Ex: Some of the employees of the BIR are corrupt. It is not defamatory because the offended party cannot be identified. If not named but there are descriptions. Ex: Mayor of a certain town in the south selling ampao. It is identifiable; Such as, ―our incumbent mayor‖. A corporation can file for libel even if without feelings – it has a good will (reputation).

Considering that malice is presumed the moment the offender utters defamatory words, the prosecution is not required to present evidence to establish malice. This is the same with presumption of innocence. But the moment the presumption is gone/lost, he has to prove such evidence establishing malice. What is the possible evidence to establish actual malice? Or the accused has ill-will or ill motive? -

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Proof of ill-will or actual malice or malice in fact: a) The parties at the time the offender uttered or wrote the slanderous statement already have strained relations between them or prior to the utterance of the slanderous statement. b) Knowledge of falsity of the statement. Ex: You wrote in your facebook (internet libel) that a person was charged with rape. You knew that the charge was already dismissed but you intentionally withheld the information that it was already dismissed just to dishonour that person. c)

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There were no efforts exerted to verify the veracity of the information Ex: You are a commentator. Somebody told you that such person was charged with anti-graft and you did not exert efforts to verify if it is true or not and you just reported it in the radio or tv or wrote an article about it. Even if it is a comment on the act or conduct of public officials, the accused can be convicted of libel because of ill-will or actual malice. Why? because there were no efforts to verify the information received whether it is true or not. d) Undue publicity Ex:You filed a violation of anti-graft or rape against a particular person. You are exercising your duty. But

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The imputation must tend to cause the dishonor, discredit of the person defamed. Naturally if the words are defamatory.

Reversing the Statement Ex. ―Pagka-bright judnya‖ [sarcastic] Ex. ―Pagka-tarungjudaningasawanimo‖ [sarcastic] -

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Still libellous. Where the comments are insincere and intended to ridicule rather than to praise the plaintiff, the publication is libellous. Praise underserved is libel in disguise. Includes those intended for humor, when the language used passed from the bound of playful gist.

Take note: The meaning of the writer is immaterial. It is not the intention of the writer or speaker or understanding of the plaintiff by which the actionable quality of words is to be determined but the meaning by which the words in fact convey on the minds of the persons of reasonable understanding, discretion or candor. The accused need not be the author of the defamatory statement. There are instances when the author can be the offended person himself.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D US vsEguia, 38 Phil 857: A woman was writing pervert (igat2) letter to a guy. When they broke up, the guy published the letter. Is there libel? YES. The accused need not be the author of the defamatory imputation. There can be libel even if theoffended party is the author herselfthat is the married woman who wrote the love letters which the accused maliciously published. Take note of the meaning of defamation or libel. It came out in the BAR several times. What about if in one statement or in an utterance, there are several offended parties? How many cases will be filed? -

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Every dafamatory statement is presumed to be with malice If you were called a prostitute and it is in fact true. Libellous?  YES. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown.

2 kinds of qualified privileged communication: 1. A private communication made by any person to another in the performance of any legal, moral or social duty. -

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A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

When filing a case in the prosecutor‘s office but in fact it was false:  Liable for perjury because that is under oath Libel   

There are as many offenses as there were persons defamed. (Ppvs Del Rosario, April 20, 1950)

Article 354. Requirement for publicity -

2.

Ex: A police officer tasked to conduct investigation on whether it is true that a person is a drug lord. It was found out that the reports and evidence would point that he is a drug lord. Libellous? No. that is a communication made in the performance of a legal duty. Ex: Your parish priest is a drunkard. You wrote the cardinal to transfer the parish priest in another parish. Your communication sent to the cardinal, is there publicity? YES. Is there imputation of a vice? YES. But that is a qualified privileged communication because it was made in the performance of a moral or social duty. The word ―private‖ in the provision is not actually limited to private communication.That may also include public communication. So even a public communication is a privilege communication.

When making a statement not under oath Making a false statement to the media Even a text message is libellous

Oral Defamation  Making false statement to other persons 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. a. There is a girl who filed a case for rape in the prosecutor‘s office but in truth it was false. She could be held liable for perjury  The reporters there in the court cannot be charged with perjury because it was a fair and true report made in good faith. It was just a statement of fact there is no addition or omission of facts.  it is a qualified or conditional Requisites 1. That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; 2. Made in good faith 3. Without any comments or remarks -

If there is only a statement of fact without any comment or remark is under the privilege If President Duterte names the people involved in drugs in his speech and a reporter reports it in the news, the reporter will not be liable because it is only a fair and true report of what transpired if there is no comment or remarks to the information.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

The president is not liable in this case because he is immune from suit

Commentaries or Columnists They are found in jurisprudence Fair comment of the conduct or acts of public officers. Borhal vs. CA 301 SCRA 1 Doctrine of Fair Comment 3 conditional privileged communication already Public Officer Government employee If a radio commentator would comment on the conduct or acts of a public officer, it is a qualified privileged communication Malice is not presumed If the commentary is libellous, the commentator can still be convicted if there is proof of ill will/actual malice/ malice in fact Private person who is considered as a public figure or celebrity Can be subjected to fair comment Kris Aquino can still be commented on because she is a public figure or celebrity Guinguing vs. CA 471 SCRA 196 Comment must be on the conduct or act not on the private person If the private life is commented then it is not included under the privileged communication. The problem is when the private life affects the duty, then it will be included in the privileged communication If the communication is absolute (privileged) There can never be a crime of libel Malice is not presumed Privileged nature of the communication does away with malice it does not mean he cannot be convicted but only does away with malice Another Absolute Privileged Communication is Judicial Proceedings: Allegations in judicial proceedings are absolutely privileged if they are relevant or pertinent to the issues Comment on the qualification of candidates It is privileged The mental/moral/physical fitness of candidates of elections may be the object of comment and criticism When Pnoy ran, the comment was that he is "autistic" But if it appears that it was with actual malice and it is defamatory in nature then it is criminal libel

Privileged Communication Fair comment on a matter of public interest The public officer who suffer under a hostile or unjust accusation, the wound can be assuaged with the balm of a clear conscience. The policy of a public official may be attacked rightly or wrongly with every argument which ability could find or eligibility given. On the other hand the public officer must not be too thin skinned with reference to comments upon his official acts, only thus can the intelligence and dignity of the individual be sulked. The public office may suffer under unjust and hostile accusations. The wound can be assuaged with the balm of clear conscience. US vs. Bustos 37 Phil 731 A judge was filed a report for his irregularity. It was found to be false. He filed a case for libel. There was no libel in this case. ARTICLE 355. Libel means by writings or similar means. A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished in addition to the civil action which may be brought by the offended party. -

Defamation through microphone is not libel but oral defamation. Defamation through amplifier is oral defamation Painting placed with horns and a tail is libel In TV is found under "any similar means" People vs. Castile. Any similar means is a catch all provision.

Facebook is included under Cyber Crime Act RA 10175 Cyber Libel It has a higher penalty (1 degree higher) If one is charged with internet libel, he cannot be charged with Libel under the RPC Decine vs. DOJ Feb 18 2014 The internet is under any similar means PM is not probationable, be careful Syhunliong vs. Rivera June 4 2014 Text message could be libel Must prove that there is publicity, someone else must have been using the phone and read it to be considered as publication The court has the discretion to impose imprisonment or fine  Under SC circular AM 08-2008 Jan. 28, 2008 SC encourage the courts to impose the penalty of fine.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Art 356 Threatening to publish and offer to prevent such publication for a compensation ACTS PUNISHED 1. 2.

1. 2. 3.

By threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family By offering to prevent the publication of such libel for compensation, or money consideration

A FORM OF BLACKMAIL

That the offender is a reporter, editor or manager of a newspaper daily or magazine That he publishes facts connected with the private life of another That such facts are offensive to the honor, virtue and reputation of said person

There could be a fair comment or report on the conduct for acts of public officers or of those private persons that are considered as public figures or celebrities.

The accused threatened to publish in a weekly periodical certain letters amorous in nature, written by a married woman and addressed by her to a man unless she paid P4,000 to them.

TN: private persons

Blackmail, in it metaphorical sense, may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime – hush money. (US vsEguia, et al., 38 Phil 857)

358 Slander

EX: The accused threatens to publish the libel and if the offended party would refuse to give him money as consideration for an obligation. EX: Give me money because if you would not give me such amount, I will publish this article. THREAT NOT TO PUBLISH IS LIGHT THREATS When what is threatened is not to publish, it is light threats. But if the threat consists a threat to publish to a libelous matter, or libelous statement, then that would be blackmail or a violation under Art 356. THIS IS ANOTHER FORM OF EXTORTION If there is a demand for money that is extortion. There a lot of forms under extortion like kidnap for ransom, grave threats, light threats, or under Art 356, threatening to publish libel if the offended party fails to give him money. EX: In the media, there is a thing called AC-DC. AC is Attack Collect, DC is Defend Collect. When you are attacked and you go near the person you give him money, the person then goes silent. It can also be that you pay such person and he attacks the other person. 357 Prohibited publication of acts referred to in the course of official proceedings ELEMENTS

This will not apply to a public officer.

WHAT IS SLANDER This is another form of defamation. This is oral defamation. Libel is publishing a defamatory statement through writing, painting, TV, internet, etc. But if it is done orally, the crime is oral defamation. TWO KINDS OF ORAL DEFAMATION 1. 2.

Light or slight slander; and Grave slander, when it is of a serious and insulting nature

FACTORS THAT DETERMINE THE GRAVITY OF ORAL DEFAMATION The law does not state what constitutes grave oral defamation. But jurisprudence made by the Supreme Court states that to constitute grave oral defamation certain circumstances must be taken into consideration by the court. 1. Social standing of the offended party EX: If he is richer, than that could be grave. 2. Position of the offended party – rank EX: The one you are pointing to shame is a mayor or governor or judge, then that would be grave oral defamation. But if the one you are pointing to shame is one who sells fish, janitor, then that could only be light oral defamation. 3. Utterances itself, whether it is strong – the expressions used EX: When you call someone a thief or a devil.

The circumstances such as those uttered because of argument, the social standing of the offended party, the expressions used

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D – these are the matters that could be taken into consideration by the court in deciding what is the crime committed. WORDS UTTERED IN ANGER COULD ONLY BE LIGHT ORAL DEFAMATION Defamatory words uttered in the heat of anger could only be light oral defamation. Threats uttered in the heat of anger are only considered light threats. EX: You had an appointment with someone and then she did not push through, she just texted you that you‘d meet some other time. You replied to her, ―Crazy!‖ Is that defamatory? That is an expression of anger. But does it mean that it is not anymore defamatory when you are being told that you are ―Crazy!‖? Defamatory but the circumstances are looked into. But if in your expressions or statements it can be seen that what you are referring to is really the meaning of the word ―Crazy!‖ which is a mental defect then that could be defamatory and not just a mere expression of anger. The same with ―Puta/Putang Ina‖. That could be an expression of anger, that could be an expression of displeasure but it does not mean that every time your utter such word you would not be held liable because it could be that you really mean what you say. EX: You are a thief or a relative of a crazy person. That is defamatory. That could not only be said that it is an expression of anger. It could already mean that you are referring to the definition of the word itself. TRUTH AS A VALID DEFENSE But if you really have a relative that is crazy, TN even if it is true, if there is no justifiable reason or good motive for uttering then you can be liable. Truth alone is not a defense in defamation.Truth can be a defense if it is coupled with justifiable reason and good motive or good intention. EX: You have a sister who is looking for a guard then there is a guard who applies. You know the applicant, you then inform your sister not to accept the applicant because he is a thief or a convicted thief. Upon saying those words, someone heard it. The person who heard it told the applicant. Defamatory? There is justifiable reason and good motive or intention. Truth, for it to be valid defense must be coupled with good intention and justifiable reason.

PRESCRIPTIVE PERIOD Oral defamation (Art 90) – 6 months Light oral defamation – 60 days 359 Slander by deed ELEMENTS 1. That the offender performs any act not included in any other crime against honor 2. That such act is performed in the presence of other person/s 3. That such act casts dishonor, discredit or contempt upon the offended party

SLANDER BY DEED Committed by any person who shall perform any act which is not included or cannot be considered as oral defamation or libel which casts dishonor, discredit, or contempt upon another person. TWO KINDS OF SLANDER OF DEED 1. 2.

Grave slander by deed; and Light or slight slander by deed

The court takes into consideration the circumstances regarding the slanderous acts or deeds.

SLAPPING THE FACE OF ANOTHER IS SLANDER BY DEED IF THE INTENTION OF THE ACCUSED IS TO CAUSE SHAME AND HUMILIATION Slapping another person in the presence of another person with intent to dishonor, discredit or contempt upon that person. EX: You think that your husband has a mistress who is a law student. You waited for her outside the gate. When she went out the gate, you slapped her infront of her classmates and told her ―You have no shame!‖ That is slander by deed. ACT ONLY PRODUCE SLIGHT PHYSICAL INJURIES Slander by deed is committed when the act would only constitute or produce slight physical injuries. If the act would produce serious or less serious physical injuries, like boxing another and he loses his front teeth, the crime committed would be serious physical injuries. And what would now happen

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D to the slanderous act? That would be considered as an aggravating circumstance, ignominy.

Unjust Vexation- any act that would irritate or annoy. If the crime doesn‘t fall under acts of lasciviousness, it is UNJUST VEXATION.

If the act would constitute serious or less serious physical injuries the humiliation or embarrassment suffered by the victim would be considered an aggravating circumstance, ignominy. MALTREATMENT

If it does not constitute oral defamation because there was no publicity, UNJUST VEXATION. Article 360 Persons responsible for libel

It is slight physical injuries without any injury. Slight physical injuries committing any act or infliction of violence which does not produce injury.

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This crime is more appropriate in traditional media and not so in the social media. Because in traditional media, there are different editors. Unlike in social media where the one who posted the libellous statement is the only person responsible.

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That is why there are many editors because they make sure that there are no libellous statements in their publications. For they too can be held liable for another person‘s article if they (as editors) miss to edit the same.

EX: You were slapped but since you have a thick face, nothing happened. There was no injury so it is only maltreatment. But if there is an injury which is slight only, it heals in less than 9 days so that is slander by deed. ―IF THERE IS INTENT TO HUMILIATE OR EMBARRASS THE OFFENDED PARTY‖ Humiliate – when there are a lot people and you slap another. You look at the other persons intention.

The persons responsible for libel are: 1.

EX: Spitting at another person. 2. 3. ORAL DEFAMATION AND SLANDER BY DEED These are different provisions so are penalized by different articles. That could be another crime because by uttering, the other person is also humiliated. That could be light oral defamation. Then you slapped her that could be slander by deed. POINTING A DIRTY FINGER CONSTITUTES SIMPLE SLANDER BY DEED Pointing a dirty finger that is a slight or light slander by deed. (Ppvs Villanueva, 487 SCRA 42)

4.

The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. The author or editor of a book or pamphlet The editor or business manager of a daily newspaper magazine or serial publication The owner of the printing plant which publishes a libellous article with his consent and all other persons who in any way participate in or have connection with its publication.

Note: THE VENUE HERE IS DIFFERENT. CRIMINAL cases

CIVIL cases

Where the crime is committed

Option of the plaintiff

LIBEL (Both criminal and Civil) 

ALLEGED IN THE INFORMATION The nature of the crime is determined in the allegations in the information. To constitute grave slander and grave oral defamation, it must be alleged in the information that the words uttered must be of serious nature and insulting. Without the word ―serious‖, then that would mean that the crime charged is light oral defamation or light slander.

RTC where the libellous article was first printed or Where the party actually the time commission offense.

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If the offended party is

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offended resides at of the of the

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D a public officer- City or province where the libellous article is first printed and published. 

Public officer whose office at the time of the commission of the offense is in ManilaCFI of the City or Province where he held office at the time of the publication.

Again, TRUTH ALONE IS NOT A DEFENSE. IT MUST BE COUPLED WITH GOOD MOTIVES AND JUSTIFIABLE REASONS. Example of a justifiable reason: Performance of a duty. It is our duty to make sure our public officials perform their duties. For example a mayor, or governor or other pub officer does not perform his duties because of his being a drunkard. If the offended party is a public officer: -

The accused may be allowed to present proof that the imputation he made is true if the act imputed against the offended party constitutes a crime.

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Note that what may be libellous to others may not be libellous to some. Example: Some old people would prefer to be called thieves than be called, old. To them it‘s already defamatory. It‘s essentially a case to case basis.

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But if you are identified publicly as a protector of the druglords, that is clearly defamatory because what was imputed against you is a crime.

―Private Libel‖ -

A kind of libel that imputes a private crime (ie. Adultery, concubinage etc). Just like a private crime, the complaint shall be signed by the private offended party. It cannot be inititated through an information. It can only be filed in court through a complaint.

TRUTH ALONE IS NOT A DEFENSE IN LIBEL. -

A defamatory statement is presumed to be malicious even if it is true.

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Truth shall be coupled with: 1. Justifiable reasons and 2. Good intention or good motive.

Earlier we mentioned that malice is presumed EXCEPT in privileged communication. Considering that malice is presumed in libel, the prosecution is no longer required to present evidence to establish malice. But does that mean that every person accused of libel or defamation would already be convicted? Ans. NO. Because although malice is presumed, the accused can still rebut malice by presenting evidence that he uttered the slanderous words with malice. How can the presumption be rebutted? Article 361. If he can prove that the imputation is true and that he uttered or published the same with good motives and justifiable reasons or ends. In that situation, the defendant should be acquitted. Article 361 Proof of truth

If the offended party is a private person: -

Proof of truth is allowed only when the act imputed constitutes a crime. If it does not constitute a crime, then that is libellous because here proof of truth is not allowed.

If the offended party is a private person but is a public figure (ie. a celebrity): -

He is similar to a public officer.

Article 362 Libellous remarks -

Even if the comments or remarks are considered privileged, if the same is uttered with malice then the author could still be held liable for libel.

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What has to be proved is actual malice.

Article 363 Incriminating innocent persons -

Committed by any person who by any act constituting perjury shall directly incriminate or impute to an innocent person the commission of a crime. (cut)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Article 363. Incriminating innocent person -

Any act which does not constitute perjury, that would incriminate or impute to an innocent person the commission of a crime.

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Article 364. Intriguing against honor -

Any intrigue which has for its principal purpose to blemish the honor or reputation of a person

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Relate this to oral defamation; in the latter, the identity of the author is clear, for example you will say ―you are a thief!‖ however for example you will say ―you know, they say that you are a thief‖, now that is intriguing against honor. (chismisngadaotan) ;Even if the same is true. May be a ground for moral damages.

Article 365. Criminal Negligence -

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Any person who by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave/less grave/light felony. Any person who, by simple imprudence or negligence, shall commit an act which would, otherwise constitute a grave felony/less grave/light felony. (refer to the codal provision for the corresponding penalty of each resulting felony whether it be grave/less grave/light)

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In a case, SC held that the penalty for reckless imprudence resulting in a light felony is public censure (now this would impliedly repeal the one given in 365 which is aresto mayor) Suppose the accused X fired his gun at Y with intent to kill, now the bullet went through Y, which hit another victim A, and the latter sustain slight physical injuries, what crime/s are committed by X? Complex Crime of murder with attempted murder; if there was treachery on the intended victim, then it will also pass to the unintended victim. Now in reckless imprudence, it presupposes that the accused is performing a LAWFUL ACT with negligence; otherwise if the act constitutes a felony, then art. 365 will not apply. Example

would be driving at a high speed and you caused injuries to another, driving is a lawful act but over speeding is negligent, hence 365 will apply. Now there are crimes that are committed thru negligence not penalized under this article, remember malversation? The same can be committed by both dolo and culpa, in such case, the penalty is the same as to both.

Elements of criminal negligence: 1. Offender does or fails to do an act 2. That such failure/doing of an act is voluntary 3. That it be without malice 4. Material damage results 5. There is inexcusable lack of precaution on part of the offender -

What is the test of negligence/imprudence? The question is: would a prudent man in a position of the person, to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the cause about to be pursued.

Q: A sickly child was brought to a quack doctor who said that the child was actually possessed by a spirit, and that for him to be healed, he must be submerged into a pail filled with water. The child was really submerged and later on died. The child who was 2 years old was autopsied and it was found that he died due to drowning. The quack doctor was charged with murder. Is he liable for murder? A: No. Accused-appellants had no criminal intent to kill the boy. Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder. Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place.The elements of reckless imprudence are apparent in the acts done by accusedappellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latters death. As already stated, accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing. (Pp v Carmen 355 SCRA 267)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 3rd par: When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos.  

This is applicable when the result is only damage to property. If there is another result like damage to property and physical injury, this will not apply. That would fall under par 1. Ex: you drove and bumped a BMW which damages costs 1M – that is reckless imprudence resulting to damage to property. The penalty is equal to the value of the damage which is 1M, up to three times such value which is 3M. If you don‘t have money, you can convert that with subsidiary imprisonment – 1 day for every highest minimum wage – TN imprisonment must not be more than 6 months. If in the above example, the driver suffered slight physical injuries, par 1 applies. So, had it been intentional, it would have been malicious mischief. This is a less grave felony where the penalty is arresto mayor in its minimum and medium periods. (Pp v Reodica GR No. 125066)

Case of Ivler vs Modesto - San Pedro - Jason Ivler was charged with 1. Reckless Imprudence Resulting in Slight Physical Injuries 2. Reckless Imprudence Resulting in Homicide and Damage to Property In this case, SC said that Art 48 will not apply. There will be no complex crime. The accused shall be punished with as many crimes as he committed resulting from his reckless imprudence. If there are 4 resulting crimes, he would suffer 4 penalties even if there is only 1 act. SC: ―We forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) an offense which is a necessary means for committing another. We hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges

under Article 365, and only one information shall be filed in the same first level court.‖ Q: Is contributory negligence on the part of a victim a defense in reckless imprudence resulting to homicide? - No, it is not a defense. It will only mitigate the offender‘s civil liability. Q: What if your dog bit another person? - That may result to Reckless Imprudence resulting to Physical Injuries. You must have tied your dog to prevent it from causing harm to others. END OF BOOK II RA 9262 ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 July 7, 2016 SPECIAL PENAL LAWS Anti-Violence Against Women and Their Children Act of 2004 - RA 9262  

This was enacted about 2 months after the ruling of People vs Genosa. Purpose: address committed against women and their children.

SECTION 3. Definition of Terms.- As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.  to be liable, the offender must have or had a sexual or dating relationship with the woman  the accused could be a step father of the child within or without the family abode  ―threats of such acts‖ – even if there is no actual infliction of violence, or is just a mere threat, that is a violation of this law already. It includes: A. "Physical Violence" refers to acts that include bodily or physical harm; B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:

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b)

c)

rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;  These are the sexual abuses. Remember if the sexual abuse with constitute rape, that would be prosecuted under the RPC.  Pp vs Jumawan – the husband could be held liable for rape  Hayden Kho and Haliliscandal – the taking of a video of the sexual encounter – this is not a violation of RA 9262 because what is required is that there be force and violence in making films of the indecent acts. But this falls under the Anti Photo and Video Voyeurism Act, which states that even if there was consent in filming, another consent is required for the posting or sharing the video. acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.  If A(husband) lets his child watch him physically abuse ―kulata‖ B(Wife), there are 2 victims: the wife and the child.  Letting the child see the abuse of the pet cat/dog is a violation D. ―Economic abuse‖ refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1.

withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid,

2. 3.

serious and moral grounds as defined in Article 73 of the Family Code;  TN: mere threat of not supporting your wife would constitute economic abuse which is a violation of this law  Forcing your wife to resign or leave her work for the purpose of making her dependent on you is also economic abuse. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; destroying household property; 4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.

(b) "Battery" refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress.  TN: Woman suffering from Battered Woman Syndrome is considered a JUSTIFYING CIRCUMSTANCE even if none of the circumstances for a valid self defense(even unlawful aggression) is present. (Read Pp vs Genoso) (c) "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. (d) "Stalking" refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof. (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship.  Dating relationship is present even if there is no sexual intercourse between the parties. Even in the socalled ―away-bati relationship‖ (Ang vs CA 4/20/10)  ―Uyab-uyab‖ is a dating relationship.  Case: Lex and Lexy just broke up from their relationship. Later,Lexy heard rumors about herself and confronted Lex. Lex admitted to spreading the rumors. Because of this, she slapped Lex.After which, Lex punched Lexy. Is Lex liable under this law? Yes. This law will apply even if the dating relationship of the parties has already ceased to exist. What is required is that they HAD a dating relationship. It is not necessary that the violence is a consequence of the relationship. If the physical injuries committed falls under this law, it has a

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D penalty which is 1 degree higher than that of the RPC. (Navalos vs Quiambao Jan 7, 2013) August 10, 2016 A person in a dating relationship is a lesbian, will RA 9262 apply? Yes, it will apply. The definition in violence against women and their children does not give a gender specific term. Garcia vs. Drillon June 25 2013 The use of the gender neutral word person who has or had a sexual or dating relationship with the woman, encompasses even a lesbian relationship SECTION 5. Acts of Violence Against Women and Their Children. (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; Mere threatening or attempt to cause physical harm on the woman or her child will be a violation under this act Other persons who conspire with the accused may be charged under this law. Therefore a stranger may be liable under VAWC. Go-tan vs. spouses Tan Sept. 30, 2008. The parents of the accused conspired with their son in causing violation of the law against the wife of the accused. They can be held liable citing par. h of Section 5 (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm; (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; If the child is a minor then it would also constitute child abuse o The husband will only be charged in either law (RA9262 or RA 7610)

(3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and -

Causing harm to the pets of the woman or her child would constitute a violation of this law o he may also be liable under RA 8485 (animal welfare act)

(5) Engaging in any form of harassment or violence; (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. SECTION 6. Penalties - The crimes are one degree higher than the RPC If the crime is Parricide/Murder/Homicide Charged with the RPC There will be no separate crime. It will be under the RPC. If the woman is Pregnant or committed in the presence of her child

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Aggravating Circumstance The penalty will be in its Maximum period

Penalties: Imprisonment Fine Undergo Mandatory Psychological Counselling SECTION 7. Venue The Family Court has exclusive and original jurisdiction In areas without family courts then it is the RTC SECTION 8. Protection Order Issuance of protection order to prevent further acts of violence against the woman or child and other necessary reliefs or remedies There are 3 kinds of protection orders under this law 1. Baranggay Protection Order (BPO) - easiest to get, all the victim has to do is to go to the baranggay hall and ask the captain to issue a protection order to prevent further acts of violence in the absence of the baranggay captain then any counsellor present may issue the order  Effective for 15 days  This provision of RA 9262, allowing the BPO by the barrangay captain was questioned in the SC because it is an undue delegation of judicial power. According to the SC there is no undue delegation of judicial power. Garcia vs. Drillon 2. Temporary Protection Order (TPO) 3. Permanent Protection Order (PPO) Reliefs and remedies under the Protection order: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; tell the accused to no longer contact the woman protected (c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; Even if the house is owned by the husband, the husband will be expelled from the residence either

temporarily or permanently where no property rights are violated. (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; The Stay Away Order It can be included that the accused cannot stay within how many meters from the workplace of the wife or the school of the child or from the house. (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; In the instance where there is a car used by the husband, the court will direct the husband to give the car to the wife, regardless of ownership (f) Granting a temporary or permanent custody of a child/children to the petitioner; Even the issue of custody over the children can be included in the protection order. The court can include in the protection order that the children will be under the custody of the wife. There is a possibility that the beating of the wife, will also result in the beating of the children The background of violent persons, when they were little, they were also victims of violence Violence is a cycle, when there is violence in the house; the child will also practice it in school such as violent behavior and profanity. (g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; The court could order the husband or commonlaw-husband support to the child The common law wife is not entitled to support. Only the child is entitled

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The court could issue and order directing the accused to give support if entitled to give support The court itself can issue that a percentage of the salary be directly remitted to the woman or victim. It is like a withholding tax. If it is given to the husband it is possible that it will not be given to the wife. There was a case where the wife filed a case for support against her husband who was a member of the AFP. The husband was retire-able and applied for retirement from military service. The wife filed a motion asking the court to direct the AFP finance center to remit directly to the wife 50% of the retirement benefits. The court granted the motion and ordered the AFP finance center to remit 50% directly to the wife. The finance center complained because there is a law directing the AFP to remit the retirement benefits only to the AFP member. PD 1638 (sec. 31) The SC held that AFP finance center may be ordered to deduct the percentage of its personnel to the latter's lawful wife as spousal support pursuant to RA 9262. Section 31 of PD 1638 and Section 39 of RA 8291 (GSIS Act) do not prevail under RA 9262 because the latter is a later legislation. Republic vs. Yahon G.R. 201043 June 16, 2014 Failure to remit and/or withhold the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer indirect contempt of court.

(h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; (i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage.

The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO. (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on the matter; -

Sometimes when couple fight, they use knives or guns Judges story: Before, I used to live in as boarding house. My neighbors were a couple. They used to fight during the wee hours of the night; the wife had a knife while the husband had an unlicensed firearm. I was scared since he might use the gun and it would go through my wall. When they fought, they would shout ―yawaka!‖ ―demonyoka!‖.

(k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief.

Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. EX: custody over the child – this is usually settled in a petition for declaration for nullity or legal separation but this issue may be tackled in RA 9262 in a criminal case. The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO. -

Even if the barangay has already issued a protection order, the victim could still apply for an issuance of a TPO or PPO. BPO – easiest protection order that can be obtained SECTION 9. Who may File Petition for Protection Orders. — A petition for protection order may be filed by any of the following: (a) The offended party; (b) Parents or guardians of the offended party; (c) Ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D or affinity; (d) Officers or social workers of the DSWD or social workers of local government units (LGUs); (e) Police officers, preferably those in charge of women and children's desks; -

case the subject matter or issues thereof partakes of a violence as described in this Act. -

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In every police station there is a Women and Children‘s desk The female police officers are trained to handle this kind of cases – child abuse, women victims of violence

A standard protection order application form, written in English with translation to the major local languages, shall be made available to facilitate applications for protection orders.

(f) Punong Barangay or Barangay Kagawad; (g) Lawyer, counselor, therapist or healthcare provider of the petitioner;

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SECTION 10. Where to Apply for a Protection Order. — Applications for BPOs shall follow the rules on venue under Section 409 of the Local Government Code of 1991 and its implementing rules and regulations.

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RegardingBPO, the rule on venue provided by the Local Government Code shall apply If parties are residing in the same barangay – with the barangay where they are living If parties are living in different barangays – in the barangay where the defendant or accused is living or residing An application for a TPO or PPO may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner: Provided, however, That if a family court exists in the place of residence of the petitioner, the application shall be filed with that court

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Regarding TPO or PPO, it can be filed with the Family Court but in the absence of the Family Court, it can be filed even with the RTC, MCTC or MTC that has jurisdiction over the residence of the petitioner. But if there is a Family Court, the petition shall be filed with the Family Court. SECTION 11. How to Apply for a Protection Order. — The application for a protection order must be in writing, signed and verified under oath by the applicant. It may be filed as an independent action or as an incidental relief in any civil or criminal

There is already a readymade form, fill in the blank type If the applicant is not the victim, the application must be accompanied by an affidavit of the applicant attesting to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filing of the application. When disclosure of the address of the victim will pose danger to her life, it shall be so stated in the application

(h) At least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed.

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If there is no case yet filed, it should be through a petition. If there is already a pending criminal case, the application for the issuance of a TPO or PPO would be done by mere motion. The petition shall be verified by the applicant. It may be filed as independent action or an incidental relief (meaning motion) I there is already a pending civil or criminal case involving violation of this Act

SECTION 12. Enforceability of Protection Orders. — All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand Pesos (P5, 000.00) to Fifty Thousand Pesos (P50, 000.00) and/or imprisonment of six (6) months. -

TPOs and PPOs are enforceable anywhere in the Philippines even if a first level court issues it. Penalty for the violation: Fine – P5, 000.00 – P50, 000.00 and/or imprisonment of 6 months SECTION 13. Legal Representation of Petitioners for a Protection Order.

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If the woman or her child cannot avail or do not have the capacity to hire their counsel of choice, they may avail the services of PAO. EX: When the mother and child is not given support by her husband. SECTION 14. Barangay Protection Orders (BPOs); Who May Issue and How. — Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5(a) and (b) of this Act. A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application.

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It shall be issued on the date of filing. Why is it on the date of filing? The moment the husband knows that she went to the barangay, there is a possibility that the husband might kill or abuse her. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect its personal service.

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In case of the absence of the Barangay Captain, any available Barangay Kagawad may issue a protection order. BPO shall be effective for 15 days and shall be served by the Barangay Chairman himself or by the Kagawad who issued the protection order. EX: If in the protection order, it states that the husband be evicted then the Chairman or Kagawad be the one to implement the protection order. IF the husband would not receive it, stick it to the wall of the house.

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A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. -

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TPO shall be issued on the very date that the application the petition was filed and the same shall be issued ex-parte (without the presence of the adverse party) This provision was questioned in the case of Garcia vsDrilon because according to the petitioner, this is a violation of the due process clause of the Constitution. In other words, the petitioner Garcia questioned the constitutionality of the law. But in this case, the SC said that it does not. RA 9262 deals with the problem of violence within the family and intimate relationships, which deserves special attention because it occurs in situations or places where women and children should feel most safe and secure, but are actually not. RA 9262 is valid and does not violate any provision of the Constitution particularly the due process clause and the equal protection of the Constitution. According to the SC in another case of TuavsMangrobang Jan 22, 2014, the grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. The victim of VAWC may already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing were required before such acts could be prevented. Procedural due process must yield to the necessities of protecting vital public interests, among

Duration of the TPO: 30 days TN that under section 16, it can be extended when it is about to expire for 30 days and up to the time that the court can decide or rule whether or not there is a need to issue a permanent protection order. IOW the court can continuously extend or renew or TPO for a period of 30 days for each particular time until final judgment is issued or until the court can determine whether or not a protection order shall be made permanent or not.

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The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO.

SECTION 15. Temporary Protection Orders. — Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. -

which is protection of women and children from violence and threats to their personal safety and security. TPO is issued ex parte but the SC said that the moment a court issued a TPO, the court shall likewise order that notice be immediately given to the respondent directing him to file an opposition within five (5) days from service. The accused after the issuance of a TPO shall likewise be directed to comment or object on such order within 5 days. Due process: law that requires that a person who is accused of a crime should be heard or given first an opportunity to be heard before he is condemned

SECTION 16. Permanent Protection Orders. — The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. -

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IOW even those instances wherein the accused inflicted violence, the same can be admitted in evidence in a case where he charged with Violation of RA 9262 in order to prove that he is the violent type or the accused has violent tendencies. Even if the victim is not wife herself. Under the Rules of Evidence, this is not allowed. It is considered irrelevant. This is what we call res inter aliosacta – other acts of the accused cannot, cannot be introduced. It is inadmissible in evidence. But for this law, it is allowed. Purpose: to prove the violent tendency of the accused

Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the order might arise did not exist.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

IOW even if the accused is acquitted, the court can still issue a permanent protection order. SECTION 18. Mandatory Period For Acting on Applications For Protection Orders. — Failure to act on an application for a protection order within the reglementary period specified in the previous sections without justifiable cause shall render the official or judge administratively liable.

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It is a must that they do it fast.

A judgment of violation of a BPO may be appealed according to the Rules of Court. During trial and upon judgment, the trial court may motuproprio issue a protection order as it deems necessary without need of an application. Violation of any provision of a TPO or PPO issued under this Act shall constitute contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. (Cont.) R.A. NO. 9262, ANTI VAWC

SECTION 19. Legal Separation Cases. — In cases of legal separation, where violence as specified in this Act is alleged, Article 58 of the Family Code shall not apply. The court shall proceed on the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in this Act. -

Infliction of physical injuries – a cause for legal separation If violence is the ground for filing the petition for legal separation, the calling-off period (the case will not be heard for 6 months) shall not apply. SECTION 20. Priority of Applications for a Protection Order. -

The case shall be heard immediately and the case involving violation of RA 9262 shall be given priority. The petition for the issuance of the protection order should be acted on the same day that it is filed. Otherwise, the judge will be held administratively liable.

SECTION 21. Violation of Protection Orders. — A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. -

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Penalty for the violation of a BPO: punishable for an imprisonment of 30 days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed Where do you file a case of or violation of BPO: it should be filed with the first level court that has territorial jurisdiction over the barangay The first level court that is handling the case for violation of a BPO may issue, upon motion or motuproprio temporary.

The provision for the application for protection order or a motion for the issuance of the temporary or permanent protection order can be filed in a criminal case involving a violation of this law. Section 23. The court may order the accused to put up a bond to keep the peace. In order to make sure that the accused would no longer inflict violence against the victims. -

This is similar with light or grave threats in the RPC. Garcia vs Drilon: The trial court required the accused to put up a bond of 1 million.

PRESCRIPTIVE PERIOD (Section 24): a. b.

Acts under Section 5(a- f) shall prescribe in 20 years while Acts falling under Section 5 (g- i) shall prescribe in 10 years. NOTE: any violation under this law is considered a public crime.

Section 26. Battered Woman Syndrome as a defense. This requires repeated infliction of violence. BWS is considered as a defect. It‘s likened to an illness. If it comes to a point that the woman- victim starts to blame herself whenever she‘s being battered as when instead of getting mad at the man who batters her, she gets mad at herself, that is a symptom that she is already suffering from battered woman syndrome. Read the case of Pp. vs Genosa. Three Stages of BWS: 1. Tension- building phase 2. Acute battering incident 3. Tranquil, loving

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Why does a woman suffering from BWS prefer to suffer in silence? a.

b.

Among others, the wife doesn‘t want to have a broken family that‘s why as much as possible she‘d just let her husband. The husband is the sole breadwinner of the family, and there‘s no other person from whom the family can rely on for living.

If a woman is found to be suffering from BWS, SHE DOESN’T INCUR ANY CRIMINAL AND CIVIL LIABILITY, notwithstanding the absence of any of the elements of the Justifying Circumstance of self defense. Even in the absence of the essential element of unlawful aggression, BWS can still be used as a defense.

PROHIBITED DEFENSE (Section 27) Being under the influence of alcohol, any illicit drug or any other mind- altering substance shall not be a defense under this Act. Intoxication- either mitigating or aggravating Influence of drugs- always aggravating Custody of Children is given to the woman victim -

Children below 7 years old or older but with mental or physical disabilities shall automatically be given to the mother with right to support, unless the court finds compelling reasons to order otherwise.

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In no case shall custody be given to the perpetrator of a woman who is suffering from BWS.

Pp vs Genosa -

The husband of Genosa here is the breadwinner of the family. Every payday, he would usually go on a drinking spree with his friends and would arrive home drunk. Genosa who used to ask money to pay for the expenses at home ended up getting beaten by her drunk husband. She came to a point where she could no longer take the battering and so she stabbed her husband the next time he attempted to batter her again. Genosa was convicted of PARRICIDE, because this law wasn‘t enacted yet at that time. The penalty for parricide was reclusion perpetua to death. But because of the aggravating circumstances, the TC convicted her of death hence the automatic review of the SC. At the SC she first raised the defense of BWS (through her new counsel, Atty. Catherine Legarda) Two ordinary mitigating was appreciated: Illness and Pasion and Obfuscation. And so the SC lowered the penalty and she was granted parole because she already served the minimum. Judge D: You think the SC was correct? The answer is NO. Because Reclusion Perpetua is indivisible and it cannot be offset by any ordinary mitigating. Probably they ruled it that way out of mercy and also to give justice to Genosa.

NOTE: BWS is an issue which requires the testimony of an expert witness: either a psychologist or a psychiatrist.

Section 30. The barangay officials and law enforcers should immediately respond to a call for help or request for assistance, or protection of the children by entering if necessary the house. WON the protection order has been issued. Arrest the suspected perpetrator even with or without warrant. Otherwise such law enforcer can be charged, criminally, civilly or administratively. Section 31. Healthcare providers should likewise respond immediately and submit reports. Section 33. AMICABLE SETTLEMENT IS PROHIBITED. Section 34 Persons intervening exempt from liability -

Any person, private individual or police authority or barangay official shall not be liable for any criminal, civil or administrative liability resulting therefrom provided that such person, police authority or official 1. 2.

Was acting in accordance with law Responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim.

Section 43 Entitlement of Woman Victims to Work Leave up to 10 DAYS. RA 7610 PROTECTION OF CHILDREN AGAINST ABUSE August 12, 2016

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Child – persons below 18 or those over 18 but are unable to fully take care/protect of themselvesfromb abuse due to physical/mental disability or condition.  



-definition of a child here is copied in RA 9262 -there must be proof that mental/physical disability affects the victim; there must be medical/psychological findings. -mere fact that the victim is suffering from a physical/mental defect is not enough, there must be a medical or psychological findings that such defect would render the victim unable to defend himself from abuse; People vsAbello March 25, 2009

Child Abuse – refers maltreatment whether habitual or not; even if it is only a single act Acts that constitute child abuse: 1. psychological and physical abuse 2. sexual abuse and emotional maltreatment 3. or an act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of the child as a human being. -

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Includes unreasonable deprivation of the child‘s basic needs for survival. Failure to give immediate medical treatment to a child resulting in serious impairment of his growth and development or his permanent incapacity or death. Discipline administered by the parent towards a child is not considered as cruelty, provided it is reasonable in manner and moderate only, and does not result to physical/psychological injury.

*Sec. 5 Child Prostitution and Other Sexual Abuse – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. *Persons liable: a. Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. b. Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and c. Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. Notes: -

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Remember that child prostitution may also constitute a violation of another related law which is trafficking in persons, RA 9208; if the victim of the trafficking is a child, then the same is qualified. What if the child is not a prostitute? Can the accused be charged under sec.5? Yes, it would constitute other sexual abuse, particularly seduction, which is having sexual intercourse of a minor through inducement, deceit or fraud. Hence, the accused can be charged under sec.5 or under the revised penal code. Same goes with rape of a child under 12, he can either be liable under sec.5 of this law, or under the revised penal code; he cannot be charged with both.

If the accused had sexual intercourse with a minor who is not a prostitute and he did not induce or deceive the minor nor exert any influence. No force, threats, intimidation. Is he liable for child abuse? o SC said in Pp vs Olayon: Having sexual intercourse with a minor is not a crime per se. What is punishable is sexual abuse with a child. Child abuse is having sexual intercourse with a child prostitute or by means of inducement, enticement, influence, threat, intimidation or force. If these circumstances are not present and if the minor in her own volition had sex with the accused, the court cannot be held liable for child abuse. Judge‘s opinion of the above ruling: There must be an oversight for having a minor in your company in a hotel or in a car which is heavily tinted is already a violation with this law.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D How much more if you have sexual intercourse with such minor?  TN: To be liable for RA 7610, it must be proven that the minor is a prostitute. If she is not a prostitute, it must be proven that sex was thru force, intimidation or threat or any circumstances which constitute rape; or due to enticement, inducement, deceit or influence. Without these circumstances, the accused cannot be held liable. Pp vs Abay Feb 24, 2009: If the victim is 12 years or older, the offender should be charged with either sexual abuse under RA 7610 Section 5(b) or Rape under the RPC. If the child is below 12, the offender shall be charged under the RPC. Section 6. Attempt To Commit Child Prostitution. – There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. 

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In special law, there are no attempted or frustrated stages, unless the same is specifically provided or penalized by law. In here, attempted is expressly penalized. What will be your defense if you are with a child? That he/she is your relative. Relationship is a defense.

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code. ARTICLE IV Child Trafficking  Trafficking can be found in RA 9208 (Anti-Trafficking in Pesons), as well as in this law, RA 7610 Section 7.Child Trafficking. – Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim is under twelve (12) years of age.  As you can observe here, the terms of penalty used here come from the RPC, and so the rule is that, the

provisions of the RPC shall also apply - such as mitigating and aggravating circumstances. Child trafficking under 9208 is life imprisonment. Here it is Reclusion Temporal to Perpetua

Section 8. Attempt to Commit Child Trafficking. – There is an attempt to commit child trafficking under Section 7 of this Act: (a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian; (b) When a pregnant mother executes an affidavit of consent for adoption for consideration; (c) When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or (d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or (e) When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, daycare centers, or other child-during institutions who can be offered for the purpose of child trafficking. A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 hereof shall be imposed upon the principals of the attempt to commit child trafficking under this Act. ARTICLE V Obscene Publications and Indecent Shows Section 9.Obscene Publications and Indecent Shows. – Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.  RA 9775 – Child Pornography. This is related to this section.  Even if the child is not the model or is not dancing, but if you let him or her sell – that is child abuse. If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play,

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.

Article 59. Crimes. - Criminal liability shall attach to any parent who:

ARTICLE VI Other Acts of Abuse Section 10.Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. –those acts not mentioned in Sec 5-9 fall here. (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.  

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by Article 59 of Presidential Decree No. 603, as amended, but not covered by the RPC, as amended.

Inflicting physical injuries to the child fall here. That is cruelty. Case: A child came home crying because she was punched by the neighbor who is a child as well. The father got mad and looked for the child who punched and slapped that child. He was convicted in the RTC of Child abuse. Is he liable for child abuse? No, SC convicted him of slight physical injuries only. Not every instance of laying hands on a child constitutes child abuse. Only when the laying of hands is intended to debase, degrade or demean the intrinsic worth and dignity of the child as a human being should it be punished as child abuse. Otherwise, it is only punishable under the RPC.(Pp vs Bongalon, March 20, 2013) Case: A grade 1 pupil‘s teacher was sleeping for noon break. The child and classmates were playing in the room and accidentally hit the knee of the teacher. The teacher ordered the child to ask for apology but the child did not and kept quiet. Now, the teacher pinched him and held him up his armpits and pushed him to the desk causing the child to lose his consciousness. The teacher continued and picked up the student by his ears and banged him on the floor. The teacher cited the case of Pp vs Bongalon. Does her act constitute Child Abuse? (Pp vs Rosaldez GR 173988) Case: Teacher banged the heads of the student to each other. One student died because of that. Is that child cruelty? YES! (De Ocampo vs DOJ)

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered

1.

Conceals or abandons the child with intent to make such child lose his civil status. 2. Abandons the child under such circumstances as to deprive him of the love, care and protection he needs. 3. Sells or abandons the child to another person for valuable consideration. 4. Neglects the child by not giving him the education which the family's station in life and financial conditions permit. 5. Fails or refuses, without justifiable grounds, to enroll the child as required by Article 72. 6. Causes, abates, or permits the truancy of the child from the school where he is enrolled. "Truancy" as here used means absence without cause for more than twenty schooldays, not necessarily consecutive. 7. It shall be the duty of the teacher in charge to report to the parents the absences of the child the moment these exceed five schooldays. 8. Improperly exploits the child by using him, directly or indirectly, such as for purposes of begging and other acts which are inimical to his interest and welfare. 9. Inflicts cruel and unusual punishment upon the child or deliberately subjects him to indignation and other excessive chastisement that embarrass or humiliate him. 10. Causes or encourages the child to lead an immoral or dissolute life. 11. Permits the child to possess, handle or carry a deadly weapon, regardless of its ownership. (b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places. Provided, That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty. (c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph. Provided, however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be in its maximum period and the loss of parental authority over the minor.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (d) Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor. (e) Any person who shall use, coerce, force or intimidate a street child or any other child to; 1. 2. 3.

Beg or use begging as a means of living; Act as conduit or middlemen in drug trafficking or pushing; or Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to reclusion perpetua.

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the RPC, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the RPC, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is under twelve (12) years age. So, being a minor is a qualifying circumstance. Section 11. Sanctions of Establishments or Enterprises which Promote, Facilitate, or Conduct Activities Constituting Child Prostitution and Other Sexual Abuse, Child Trafficking, Obscene Publications and Indecent Shows, and Other Acts of Abuse All establishments and enterprises which promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse shall be immediately closed and their authority or license to operate cancelled, without prejudice to the owner or manager thereof being prosecuted under this Act and/or the RPC, as amended, or special laws. A sign with the words "off limits" shall be conspicuously displayed outside the establishments or enterprises by the DSWD for such period which shall not be less than one (1) year, as the Department may determine. The unauthorized removal of such sign shall be punishable by prision correccional.

In other words, they can be summarily closed, even without court order by the DSWD. Section 12. Employment of Children Children below fifteen (15) years of age may be employed EXCEPT: (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed. Provided, however, That his employment neither endangers his life, safety and health and morals, nor impairs his normal development. Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or (2) When a child's employment or participation in public & entertainment or information through cinema, theater, radio or television is essential. Provided, The employment contract concluded by the child's parent or guardian, with the express agreement of the child concerned, if possible, and the approval of the DOLE. Provided, That the ff. requirements in all instances are strictly complied with: (a) The employer shall ensure the protection, health, safety and morals of the child; (b) the employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and; (c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child. In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the DOLE which shall ensure observance of the above requirement. Section 12-A. Hours of Work (1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: Provided,

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D That the work shall not be more than four (4) hours at any given day; (2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week; (3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day.

(2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or (3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or (4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or

Section 12-B. Salary of the Child The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than twenty percent (20%) of the child's income may be used for the collective needs of the family.

b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or c) Is performed underground, underwater or at dangerous heights; or d) Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or

Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income The parent or legal guardian of a working child below eighteen (18) years of age shall set up a trust fund for at least thirty percent (30%) of the earnings of the child whose wages and salaries from work and other income amount to at least two hundred thousand pesos (P200,000.00) annually, for which he/she shall render a semi-annual accounting of the fund to the DOLE, in compliance with the provisions of this Act. The child shall have full control over the trust fund upon reaching the age of majority. Sec. 12-D. Prohibition Against Worst Forms of Child Labor No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following: (1) All forms of slavery, as defined under the "AntiTrafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or

e) Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or f) Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or g) Is performed under particularly difficult conditions; or h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or i) Involves the manufacture or handling of explosives and other pyrotechnic products. RA 7610 -

More on the victim who is a minor

RA 9344 AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES More on the offender who is a minor Important words to TAKE NOTE:

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Best interest of the child (memorizes or at least familiarize) -

the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child‘s physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.

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limited to a person under the age of 18 a person who is over 18 is not considered a child under this law unlike in RA 7610 and RA 9262 and in RA 9208 so even if his mental age is like that of the child, he cannot be considered a child under this law -

Child at risk -

Diversion

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Child

refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: 1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; 2) being exploited including sexually or economically; 3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; 4) coming from a dysfunctional or broken family or without a parent or guardian; 5) being out of school; 6) being a streetchild; 7) being a member of a gang; 8) living in a community with a high level of criminality or drug abuse; and 9) living in situations of armed conflict.

refers to a child who is alleged as, accused of, or adjudged as, having committed an offense So if a child committed a crime or is already convicted, he is called a child in conflict of the law. If have not committed a crime yet but at risk of committing a crime, he is called a child at risk.

Refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. In determining the guilt or innocence of the person, we know that this is determined by the court. In diversion, this is a process of knowing the responsibility of the minor without undergoing court proceedings. This refers to the process of knowing whether or not a child who is alleged to have committed a crime is indeed guilty but without going to court. In our term, it is referred to as ―amicable settlement‖. What will you do in order for the child to realize that he committed a crime and for the victim to be given justice/satisfied?  Return of the stolen item or ask forgiveness/apology or let the child undergo skills training including the parents. This is what we call diversion program.

Diversion Program -

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Refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. You undergo court proceedings in order to determine whether or not you committed a crime. Now, the court will automatically render sentence. In diversion program, the child is given sentence but the parties agree how or what will be the program that the child will undergo. So, diversion is the process of knowing the guilt of the child. After knowing the responsibility of the child, there is now a program.

Child in Conflict with the Law

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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Diversion is for the minor who committed a crime with discernment. He is over 15 but under 18. He undergoes diversion.  If they cannot agree because the child will insists that he did not commit the crime or if he admits and he already sold the thing and the parents won‘t pay and would insist on putting the child in jail, the child will undergo court proceedings. In other words, diversion is similar with alternative mode of dispute resolution. This is voluntary on the part of the victim, the minor together with the parents.  If the victim won‘t agree and would want that the child be jailed, there will be no diversion program. Any admission made by the child will not be used as evidence against him.  Example: There is diversion, then the child admitted the crime. He promised to return the stolen item and the parents also promised to pay but they failed to do so, then there will be court proceedings. The admission then made by the child will not be used against him.

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Restorative Justice -

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Refers to a series of activities which are designed to address issues that caused the child to commit an offense. This is for the minors who are exempt from liability. Who are these minors?  Those 15 years and below  Those who are over 15 but under 18 and who acted without discernment What are these series of activities:  Counselling  Skill training  Education  And other activities that will enhance the child‘s psychological, emotional and psychosocial well-being. o Such as spiritual enrichment

Recognizance -

Refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required.

Refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain: (3 Rs) 1) reparation for the victim 2) reconciliation of the offender, the offended and the community; and 3) reassurance to the offender that he can be reintegrated into society. Example: Here in Cebu, we have ―Operation Second Chance‖. In Argao, they have the Regional Rehabilitation Center for Youth operated by the DSWD.

Status Offenses- refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. -

Intervention -

This is a promise undertaken by the parents to present the minor in court whenever required by the court or any responsible person.

Ana act which is punishable by a minor but is not a crime when committed by an adult

Bahay Pag-asa – it is a 24 hour child caring institution established funded and managed by the local government units and licensed and/or accredited non-governmental organization providing a short term residential care for children in conflict with the law who are awaiting the disposition of their cases or transfer to another agency or jurisdiction. -

Minors are placed here who are waiting for the disposition of their cases. Operation Second Chance

Youth Rehabilitation Center – similar to Bahay Pag-asa -

This is managed by DSWD

SECTION 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. Exactly 15 years old is exempt Deemed to be 15 years old on the day of his 15th birthday Intervention program refers to series of activities to insure that the child will not anymore commit a crime

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To determine the age of the Child: 1. 2. 3. 4.

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Birth Certificate Baptismal Certificate Any document that will show the age of the child such as school records Testimonial Evidence in the absence of the foregoing by the parents, classmates, friends, neighbours or even the child himself Physical Appearance of the Child

If a case has already been filed in court and there is a doubt as to the age of the child, the court has to determine first the age of the child if the adverse party would question the minority of the child or when the defense itself would file a motion to determine the age of the child.

How to prevent Juvenile Delinquency: 1.

2. 3. 4.

Family  One of the circumstances that cause child at risk is a broken/dysfunctional family.  Basic unit of society School Mass Media Local Government

August 14, 2016 Minimum age of criminal liability is 15 years and under Over 15 but under 18 could still be exempted if they acted without discernment Discernment - Capability to distinguish right from wrong - Determined by psychologists - When a minor who is over 15 but below 18, would

commit a crime, he shall be subjected to evaluation to determine if he acted with discernment with the DSWD. - If he acted with discernment then he shall be charged - The information must allege that he acted with discernment and proved in trial The presumption is minority - The face of the child Child in Conflict with the Law The burden of proof - On the person who questions the minority of the child SECTION 20. Children 15 years old and Below - If 15 years old or below, he is exempt - Initial contact (the one who arrested the child) - If known that the child is under 15 then he shall be released to his parents o He shall be subjected to intervention based program because he cannot be imprisoned or charged o It will be supervised by the local social development officer or to welfare - The LGUs are mandated to create "Bahay Pag-asa" similar with Operation Second Chance o 24 hour facility that would take care of the minor Local Social Welfare Development Officer - Determines the appropriate program for the child - If the parents or guardians cannot be located or refuse to take custody of the child, the child shall be released to: 1. Duly released to the nongovernmental (balay pasilonganan) or religious organization 2. Barangay Official or a member of the Barangay council 3. Local social welfare development officer 4. DSWD - If found to be dependent, abandoned, neglected and abused by the parents and the best interest of the child shall be placed in a Bahay Pag-asa, the parents will be forced to execute an affidavit to give up their parental authority Before, a child must be judicially declared to be abandoned. - The DSWD must file a petition to the court to be declared as an abandoned child - Once declared abandoned he shall be open for adoption Foundling: - Parents are unknown

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D - Birth date is unknown - Birthplace is unknown - Given a Certificate of Foundling Now, declaration of abandonment of a child is administrative - DSWD can now declare child as abandoned - If the child has no parents or guardian - Petition for involuntary commitment shall be file by the DSWD - Minimum age for children committed to Bahay Pag-asa is 12 years old Children who are exempt but have committed heinous crimes: - Over 12 up to 15 and who commits parricide, murder, infanticide, kidnapping and serious illegal detention where the victim is killed or raped, robbery with homicide or rape, destructive arson, rape or car napping where the driver or occupant is killed or raped or offenses under RA 9165 punishable for more than 12 years shall be deemed a neglected child under PD 603 as amended and shall be mandatorily placed in the Bahay Pag-asa in the Intensive Juvenile Intervention and Support Center (IJISC) - Proper petition for the IJISC shall be filed by the local social welfare development officer where the offense was committed or the DSWD social worker in the absence of the LSWDO - Commitment of the child shall not be less than 1 year until such time that he is ready for integration into society SECTION 20-B. Repetition of Offenses - A child who is above 12 years of age up to 15 years of age and who commits for the second time or oftener, provided that the child was previously subjected to community based intervention program shall be deemed a neglected child under PD 603 and shall undergo an intensive intervention program supervised by the local social welfare and development officer. If the best interest of the child requires, he shall be placed in a youth care facility or Bahay Pag-asa. The child‘s parents shall execute a written authorization for the commitment of the child. - If the child has no parents or if they refuse to execute the proper authorization, a proper petition for involuntary commitment shall be filed by the DSWD with the court. - Children who are exempt but are repeat offenders and the crimes committed are not heinous are placed in the Bahay Pag-asa - Recidivist children - They shall be declared abandoned Section 20-C. Exploitation of Children for Commission of Crimes - aggravating circumstance - using minor in the commission of the crime

- any person, who in the commission of a crime, makes use, takes advantage or profits from the use of children including any person who abuses his authority over the child or who with the abuse of confidence takes advantage of the vulnerability of the child and shall induce, threaten or instigate the commission of the crime, the maximum penalty of the crime shall be imposed. Section 20-D. Joint Parental Responsibility - Multi disciplinary team - The court may require the parents to undergo counselling or any other intervention that in the opinion of the court, would advance the welfare and best interest of the child - Parents shall mean: 1. Biological parents of the child 2. Adoptive parents of the child 3. Individuals who have custody of the child - The parents shall be liable for damages unless they prove, to the satisfaction of the court, that they were exercising reasonable - Due diligence of the parents or else they will be civilly liable SECTION 21. Procedure for Taking the Child into Custody. — From the moment a child is taken into custody, the law enforcement officer shall: (e) Avoid displaying or using any firearm, weapon, handcuffs or another instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child's parents/guardians and Public Attorneys' Office of the child's apprehension. The social welfare and development officer shall explain to the child and the child's parents/guardians the consequences of the child's act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same;

SECTION 22. Duties During Initial Investigation. (a) Proceed in accordance with Section 20 if the child is fifteen

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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(15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and Right after the apprehension of the child, especially if he is over 15 the social worker shall conduct an assessment to determine the appropriate interventions and whether the child aced with discernment using the discernment assessment tools developed by the DSWD If the child caught is over 15, there must be findings from the DSWD as to whether the child acted with discernment or not If the child is 15 years old or below, there must be intervention

(b) If the child is above fifteen (15) years old below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter. Diversion is the alternative process of determining the guilt of the accused without going to court or without going to trial Subject to diversion

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CHAPTER 2 Diversion

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SECTION 23. System of Diversion. — Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committed is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. -

conduct diversion proceedings. If they do not agree with the fiscal, then with the court. EX: Once a child is caught snatching, he is subjected to diversion (or amicable settlement). If he is caught in the act, he is asked to ask for forgiveness. If he got an item, for example a cellphone, then he would be asked where he gave or sold the cellphone. They would then undergo counseling with their parents.

Where does the diversion proceedings start? It starts with the law enforcement level – the police. Then in the barangay level. Then if it is filed in court, the fiscal will still

Diversion is only voluntary If the parties come to an agreement but the child would not follow or the parents would not follow, then a case will be filed in court If the diversion proceedings failed because:  The child does not agree on diversion; or  The offended party does not agree to diversion; or  The parents does not agree to diversion; or  They agree but later on the parents did not comply with the program then the case will be filed in court for court proceedings. Once the parties can agree then there shall be the so-called diversion program. For those cases, which are punishable by more than 6 years, the court shall only conduct the diversion proceedings. What consists of the diversion program? Under Section 31. SECTION 31. Kinds of Diversion Programs. — The diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a) At the level of the Punong Barangay: (1) Restitution of property; (2) Reparation of the damage caused; (3) Indemnification for consequential damages; (4) Written or oral apology; (5) Care, guidance and supervision orders; (6) Counseling for the child in conflict with the law and the child's family; (7) Attendance in trainings, seminars and lectures on: (i) Anger management skills; (ii) Problem solving and/or conflict resolution skills; (iii) Values formation; and

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (iv) Otherskills which will aid the child in dealing with situations which can lead to repetition of the offense; (8) Participation in available community-based programs, including community service; or

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(9) Participation in education, vocation and life skills programs -

Diversion is the process; diversion program is what they have come to agree upon. If the diversion fails, then the court shall hear the case. The minor who is found to have acted with discernment shall be subjected to court proceedings.

SECTION 36. Detention of the Child Pending Trial. -

Court Proceedings SECTION 34. Bail. — For purpose of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered.

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Detention of the minor should be the last recourse. As much as possible, the minor should not be detained. This is an example of the Positivist theory. The welfare of the offender is thought of. The bail of the minor should be lower because of his minority. SECTION 35. Release on Recognizance. — Where a child is detained, the court shall order: (a) The release of the minor or recognizance to his/her parents and other suitable persons; (b) The release of the child in conflict with the law on bail; or (c) The transfer of the minor to a youth detention home/youth rehabilitation center.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. -

The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. -

If possible, no bail shall be required in releasing the minor but instead he shall be released on recognizance. Recognizance: promise that the minor shall be presented in court whenever the court would require his presence This is not available in all cases. This is only available to minor cases. Who promises that the minor will be presented when needed? 1. Parents; or 2. Responsible members of the community such as the Barangay Captain; or

The detention of the child shall only be done as a last resort SECTION 38. Automatic Suspension of Sentence. — Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.

CHAPTER 4

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If he cannot put up bail or released on recognizance – he will placed at BahayPag-asa or youth rehabilitation center Why are they not placed in a jail for adults? The minors might be influenced.

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Reckoning period is at the time of the commission of the offense Suspended sentence: the minor will be sentenced if he is guilty and the service of his sentence shall be suspended Instead of requiring him to serve his sentence, the minor shall be brought to a rehabilitation center where he shall stay for a certain period of time but before reaching 21 If he will be pronounced guilty by the court, he will not be told to serve his sentence but instead he will be placed in a youth rehabilitation center What does the minor do in a youth rehabilitation center? He will be observed, rehabilitated. The rehabilitation center personnel submit a monthly progress report to the court and states whether the minor is rehabilitated or not. The court will cite a period for as long as it would not exceed 21. If the report of the rehabilitation center is favorable, the case of the minor shall be dismissed. As if he did not commit any crime. Suppose the minor is already at age, over 18 at the time of the promulgation can he still avail of the benefit of suspended sentence? Yes, provided that he is not yet 21 years old or over at the time of promulgation. SECTION 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. — A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. -

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If he was a minor at the time he committed the crime but at the time of the promulgation he is already over 21. What should be done with the offender? He shall be detained or required to serve his sentence in an agricultural camp, which is jointly managed, by the Bureau of Correction and DSWD. What about those minors who committed heinous crime, can they also enjoy suspended sentence? Yes, suspended sentence also applies to cases punishable by reclusion perpetua or life sentence. (PpvsSarcia, September 10, 2009)

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SECTION 42. Probation as an Alternative to Imprisonment. — The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child, on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976," is hereby amended accordingly. -

SECTION 39. Discharge of the Child in Conflict with the Law. — Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. -

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Suppose the report of the rehabilitation center where the child convicted of a crime is unfavorable, what should the court do? If the child is found to be incorrigible (he has not rehabilitated) then he shall be brought to the court and he shall now be required to serve his sentence. The benefit of suspended sentence is automatic. Unlike in probation, there is no need for the minor to apply. The court handling the case during promulgation and upon termination of the case, that the minor is still 21 years or below shall suspend the sentence. There is no need for application. The benefits under RA 9344 can only be enjoyed by a person who is a minor by the time of the commission of the crime. The use of the term minor is limited, it only refers to a person who is below 18. It does not cover a person above 18 at the time of the commission of the crime, although his mental age is equivalent to that of a minor. Unlike in RA 7610 and RA 9262, the term minor covers a person over 18 but unable to protect themselves. (Ppvs Rojas, June 4, 2014) It is not based on the mental age of the accused. SECTION 41. Credit in Service of Sentence. — The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act.

Those minors whose cases are still pending will be placed in the rehabilitation center for youth offenders. The time served will be credited to their sentence.

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Those minors who are serving sentence since they were not rehabilitated they can apply for probation. As a general rule, one applies for probation during the period for appeal. But the rule is different as regards a minor because the minor can apply for probation anytime. We all know that we can only apply for probation if the sentence imposed is 6 years but under RA 9165 the probation that can be applied for can be availed even if the sentence imposed is over 6years, except when the charge is for selling. Even if one is sentenced to 20 years imprisonment under RA 9165, for as long as it is not selling, one can apply for probation. Section 43 The records and proceedings of the case of the child in conflict with the law shall be CONFIDENTIAL. -

A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose.

Section 57 STATUS OFFENSES -

An act which is considered a crime when committed by a minor but when the same act is committed by an adult, it is not a crime.

Section 57- A Violations of Local Ordinances -

Ordinances enacted by local government concerning juvenile status offenses shall be for the protection of children. NO PENALTY SHALL BE IMPOSED ON CHILDREN FOR SAID VIOLATIONS and they shall instead be brought to their residence or to any barangay official at the barangay hall to be released to the custody of their parents.

This includes: 1.

Curfew violations

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 2.

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Light offenses and misdemeanors against public order or safety like a. Disorderly conduct b. Public Scandal c. Harassment d. Drunkenness e. Public Intoxication f. Criminal Nuisance g. Vandalism h. Gambling i. Mendicancy j. Littering k. Public Urination and l. Trespassing Anti- Smoking and anti drinking laws Parental disobedience and Truancy Appropriate intervention programs shall be provided for in such ordinances. The child shall also be recorded as a ―child at risk‖ and not as a ―child in conflict with the law‖. The ordinance shall also provide for intervention programs such as counselling, attendance in group activities for children and for the parents, attendance in parenting education seminars. Question: Under Section 57 could there be a penalty imposed on the parents? Judge D: Yes. Neglecting the children is a form of Child Abuse. See Sec 3a of RA 7610, Child Abuse. That is why there is now a pending bill in Congress to penalize parents for neglect of children.

R.A.NO 9208 ANTI- TRAFFICKING IN PERSONS ACT of 2003, as amended by RA No. 10364 -

This was amended sometime in 2012

Trafficking in Person -

This is like modern day slavery. This is one of the borderless crimes, like piracy.

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as ―trafficking in persons‖ even if it does not involve any of the means set forth in the preceding paragraph.

Elements: 1.

ACTS OF TRAFFICKING refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim‘s consent or knowledge, within or across national borders;

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MEANS OF COMMITTING by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;

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EXPLOITATIVE PURPOSE for the purpose of exploitation which includes at a minimum, the exploitation or the a. b. c. d. e.

prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

- there is still trafficking in person even if the victim is told that the work she‘s employed is for prostitution; there is trafficking in person with or without the consent of the victim -if there is deceit on part of the recruiter, in addition to trafficking in person, there can also be estafa if a person made it look that he has authority to recruit when in fact he is not. -if one recruiting does not have license to recruit, then that is also another violation of another special penal law of illegal recruitment either in a large scale or by a syndicate as the case may be. -the purpose must be for exploitation; suppose the purpose of the recruitment is legal and then later on due to actions or own volition of the recruited person she became a prostitute or engaged in prostitution, is the trafficker liable? No, because the purpose was legal. Forced labor – this refers to the extraction of work or services from any person by means of enticement, violence, intimidation, threat or use of force or coercion, including deprivation of freedom abuse of authority or moral

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D ascendancy; debt bondage or deception including any work or services instructed from any person under the menace of penalty.

-as a general rule, there is no attempted stage in special penal laws; however as an exception, if the law itself defines an attempted stage.

Debt bondage – when the debtor works as payment for a debt or security, but the length, nature, or value of services is not defined towards the liquidation of the debt.

Attempted trafficking of persons – where there are acts to initiate the commission of a trafficking offense but the offender failed to or did not execute all elements of the crime by accident or by reason of some cause other than voluntary desistance such overt acts shall be deemed as an attempt to commit an act of trafficking of persons

Sex Tourism – refers to a program organized by travel and tourism related establishments and individuals which consists of tourism packages or activities utilizing and offering escort and sexual services as enticement for tourists; this includes sexual services and practices offered during rest and recreation periods for members of the military. Acts of trafficking of persons: a. to recruit/obtain/hire/provide/offer/transfer/maintain/ harbor/receive a person by any means including those done under the pretext of domestic of domestic or overseas employment or training or apprenticeship for purposes of pornography, prostitution or sexual exploitation. b. to introduce or match for money/profit/material/economic or other consideration to any person (mail order bride) c. offer/contract marriage either real or simulated, for purpose of acquiring, buying, selling, or trading them for prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage d. to recruit/hire/transfer/transport/obtain/harbor/offer/ provide/receive or abduct a person by means of threat or use of force/fraud/deceit/violence/coercion or intimidation for purpose of removal or sale of organs of a person, including blood. e. to recruit/transport etc., receive or adopt a child to engage in armed activities in the Philippines or abroad. f. to recruit/transfer/transport etc., a person by means defined in section 3 of this act, for purposes of forced labor, debt bondage or in a scheme to make a person believe that if he did not perform such labor/services he/she or another person shall suffer physical harm or restrain. g. to recruit/transfer/harbor etc., a child for purposes of exploitation or treating them including but not limited to the act of bearing or selling the child for any consideration/barter for purposes of exploitation; h. use or procuring/offering of a child for the production and trafficking of drugs i. use or procuring of a child for illegal activities or work by nature of which is likely to harm their safety/morals or health j. organize or direct other persons to commit offenses defined as acts of trafficking

In cases where the victim is a child, any of the following acts are deemed as attempted trafficking of persons: a. facilitating the travel of a child who travels alone to a foreign country without valid reasons; b. executing for consideration an affidavit of consent for adoption, the purpose of which is for exploitation of said child; the parents can be held liable for attempted trafficking; c. recruiting a woman to bear a child for the purpose of selling the same; d. simulating the birth for purpose of selling the child; doctor/nurse/midwife assisting in such simulation is liable for attempted trafficking; e. soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics nurseries, daycare centers for purpose of selling a child; -whoever knowingly aids, abets or cooperates in the execution of the offense by previous or simultaneous acts such as furnishing shelter to the trafficked person shall be considered as an accomplice. -whoever has knowledge to the commission of the crime and without having participated therein as principal/accomplice take part in its commission in any of the ff. manners: a. profiting themselves; b. by concealing/destroying the body of the crime; c.harboring/concealing the escape of the principal (refer to article 19) Section 5.Acts that Promote Trafficking in Persons. – The following acts which promote or facilitate trafficking in persons, shall be unlawful: (a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (b) To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers, overseas employment certificates or other certificates of any government agency which issues these certificates, decals and such other markers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons;

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (d) To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; (e) To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; (f) To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and (g) To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery. (h) To tamper with, destroy, or cause the destruction of evidence, or to influence or attempt to influence witnesses, in an investigation or prosecution of a case under this Act; (i) To destroy, conceal, remove, confiscate or possess, or attempt to destroy, conceal, remove, confiscate or possess, any actual or purported passport or other travel, immigration or working permit or document, or any other actual or purported government identification, of any person in order to prevent or restrict, or attempt to prevent or restrict, without lawful authority, the person‘s liberty to move or travel in order to maintain the labor or services of that person; or (j) To utilize his or her office to impede the investigation, prosecution or execution of lawful orders in a case under this Act. Section 6.Qualified Trafficking in Persons. – The following are considered as qualified trafficking:  Take note of these because this will probably be asked in the bar to be enumerated. At least 5. (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the ―Inter-Country Adoption Act of 1995‖ and said adoption is for the purpose of prostitution,

pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group;  Syndicate refers to the number of offenders  Large scale refers to the number of victims (d) When the offender is a spouse, an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;  A pimp who offers a trafficked person to a general is liable for qualified trafficking (f) When the offender is a member of the military or law enforcement agencies;  So a general may be liable for qualified trafficking if he avails of the services of the ―pimp‖ above  Law enforcement agencies – NBI, PDEA (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS);  If a person is afflicted with Syphilis or Gonorrhea, that is NOT considered qualified. What qualifies is HIV or AIDS. (h) When the offender commits one or more violations of Section 4 over a period of sixty (60) or more days, whether those days are continuous or not; and (i) When the offender directs or through another manages the trafficking victim in carrying out the exploitative purpose of trafficking. SEC. 7.Confidentiality. – At any stage of the investigation, rescue, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel, social workers and medical practitioners, as well as parties to the case, shall protect the right to privacy of the trafficked person. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or any other information

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D tending to establish the identity of the trafficked person and his or her family shall not be disclosed to the public. It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or electronic information technology to cause publicity of the name, personal circumstances, or any information tending to establish the identity of the trafficked person except when the trafficked person in a written statement duly notarized knowingly, voluntarily and willingly waives said confidentiality. Law enforcement officers, prosecutors, judges, court personnel, social workers and medical practitioners shall be trained on the importance of maintaining confidentiality as a means to protect the right to privacy of victims and to encourage victims to file complaints.  The name of the accused may be divulged. (in the old law, the accused was confidential)  The offended party or her family‘s name shall be confidential.  Confidentiality can be waived by the offended party only thru a written statement duly notarized. It cannot be done orally. SEC. 8.Initiation and Prosecution of Cases. –  This is important! (a) Initiation of Investigation. – Law enforcement agencies are mandated to immediately initiate investigation and countertrafficking-intelligence gathering upon receipt of statements or affidavit from victims of trafficking, migrant workers, or their families who are in possession of knowledge or information about trafficking in persons cases. (b) Prosecution of Cases. – Any person who has personal knowledge of the commission of any offense under this Act, such as the trafficked person, the parents, spouse, siblings, children or legal guardian may file a complaint for trafficking.  So trafficking is a public crime (c) Affidavit of Desistance. – Cases involving trafficking in persons should not be dismissed based on the affidavit of desistance executed by the victims or their parents or legal guardians. Public and private prosecutors are directed to oppose and manifest objections to motions for dismissal.  This cannot be compromised. Any act involving the means provided in this Act or any attempt thereof for the purpose of securing an Affidavit of Desistance from the complainant shall be punishable under this Act.  Look at the penalties. You don‘t have to memorize, just so you know how serious the offense is. It is imprisonment of 20 years.

Section 9.Venue. – A criminal action arising from violation of this Act shall be filed where the offense was committed, or where any of its elements occurred, or where the trafficked person actually resides at the time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. SEC. 11.Use of Trafficked Persons. – Any person who buys or engages the services of a trafficked person for prostitution shall be penalized with the following: Provided, That the Probation Law (Presidential Decree No. 968) shall not apply: (a) PrisionCorreccional in its maximum period to prision mayor or six (6) years to twelve (12) years imprisonment and a fine of not less than Fifty thousand pesos (P50,000.00) but not more than One hundred thousand pesos (P100,000.00): Provided, however, That the following acts shall be exempted thereto: (1) If an offense under paragraph (a) involves sexual intercourse or lascivious conduct with a child, the penalty shall be reclusion temporal in its medium period to reclusion perpetua or seventeen (17) years to forty (40) years imprisonment and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); (2) If an offense under paragraph (a) involves carnal knowledge of, or sexual intercourse with, a male or female trafficking victim and also involves the use of force or intimidation, to a victim deprived of reason or to an unconscious victim, or a victim under twelve (12) years of age, instead of the penalty prescribed in the subparagraph above the penalty shall be a fine of not less than One million pesos (P1,000,000.00) but not more than Five million pesos (P5,000,000.00) and imprisonment of reclusion perpetua or forty (40) years imprisonment with no possibility of parole; except that if a person violating paragraph (a) of this section knows the person that provided prostitution services is in fact a victim of trafficking, the offender shall not be likewise penalized under this section but under Section 10 as a person violating Section 4; and if in committing such an offense, the offender also knows a qualifying circumstance for trafficking, the offender shall be penalized under Section 10 for qualified trafficking. If in violating this section the offender also violates Section 4, the offender shall be penalized under Section 10 and, if applicable, for qualified trafficking instead of under this section;  This is another aggravating circumstance. (those underscored and made Bold)  ―and if in committing such an offense, the offender also knows a qualifying circumstance for trafficking, the offender shall be penalized under Section 10 for qualified trafficking.‖ – if you knew that the prostitute is a trafficked victim, then you are also liable for qualified trafficking

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (b) Deportation. – If a foreigner commits any offense described by paragraph (1) or (2) of this section or violates any pertinent provision of this Act as an accomplice or accessory to, or by attempting any such offense, he or she shall be immediately deported after serving his or her sentence and be barred permanently from entering the country; and (c) Public Official. – If the offender is a public official, he or she shall be dismissed from service and shall suffer perpetual absolute disqualification to hold public, office, in addition to any imprisonment or fine received pursuant to any other provision of this Act.‖ SEC. 12.Prescriptive Period.  It is 10 years  If by a syndicate or in large scale, or if against a child – 20 yrs  Prescriptive period starts to run: from the day on which the trafficked person is delivered or released from the conditions of bondage, or in the case of a child victim, from the day the child reaches the age of majority, and shall be interrupted by the filing of the complaint or information and shall commence to run again when the proceedings terminate without the accused being convicted or acquitted or are unjustifiably stopped for any reason not imputable to the accused. SEC. 16.Programs that Address Trafficking in Persons. – just read them. SEC. 16-A. Anti-Trafficking in Persons Database. – An antitrafficking in persons central database shall be established by the Inter-Agency Council Against Trafficking (IACAT)  Group that is tasked to monitory trafficking SEC. 17.Legal Protection to Trafficked Persons.  Trafficked persons shall be recognized as victims; they shall not be charged for prostitution SEC. 17-B. Irrelevance of Past Sexual Behavior, Opinion Thereof or Reputation of Victims and of Consent of Victims in Cases of Deception, Coercion and Other Prohibited Means. – The past sexual behavior or the sexual predisposition of a trafficked person shall be considered inadmissible in evidence for the purpose of proving consent of the victim to engage in sexual behavior, or to prove the predisposition, sexual or otherwise, of a trafficked person.Furthermore, the consent of a victim of trafficking to the intended exploitation shall be irrelevant where any of the means set forth in Section 3(a) of this Act has been used  This is for evidentiary purpose SEC. 17-C. Immunity from Suit, Prohibited Acts and Injunctive Remedies. – No action or suit shall be brought, instituted or maintained in any court or tribunal or before any other

authority against any: (a) law enforcement officer; (b) social worker; or (c) person acting in compliance with a lawful order from any of the above, for lawful acts done or statements made during an authorized rescue operation, recovery or rehabilitation/intervention, or an investigation or prosecution of an anti-trafficking case: Provided, That such acts shall have been made in good faith. Xxx It shall be prohibited for the DFA, the DOLE, and the POEA officials, law enforcement officers, prosecutors and judges to urge complainants to abandon their criminal, civil and administrative complaints for trafficking.  So there shall be no compromise agreements allowed The remedies of injunction and attachment of properties of the traffickers, illegal recruiters and persons involved in trafficking may be issued motuproprio by judges. SEC. 26-A. Extra-Territorial Jurisdiction. – The State shall exercise jurisdiction over any act defined and penalized under this Act, even if committed outside the Philippines and whether or not such act or acts constitute an offense at the place of commission, the crime being a continuing offense, having been commenced in the Philippines and other elements having been committed in another country, if the suspect or accused: (a) Is a Filipino citizen; or (b) Is a permanent resident of the Philippines; or (c) Has committed the act against a citizen of the Philippines. No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the Philippines, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Secretary of Justice. The government may surrender or extradite persons accused of trafficking in the Philippines to the appropriate international court if any, or to another State pursuant to the applicable extradition laws and treaties.  Phils has extraterritorial jurisdiction. Provided we have jurisdiction over the person.  Ex: A Japanese houses a trafficked woman in Japan. Our courts have no jurisdiction of the Japanese. We only have jurisdiction over the Filipino who recruited the offended.  In New Zealand prostitution is legal. If the victim from the Phils is brought to New Zealand, the accused may be prosecuted by our courts (provided he is any of the following above. Trafficking in Persons case: -

PP vs Casio, GR. No. 211645, 12/3/2014 Cebu case PP vs Lalli, et al., GR No. 195419, 10/12/2011

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D The victim here was recruited as an entertainer in a restaurant in Malaysia but she ended up in a prostitution den. RA 9165 COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Purpose: Minimize, if not eliminate, drug trade as well as drug addiction.



Den, Dive or Resort A place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form.

Drug Dependence -

SC: Drug addiction is one of the most pernicious evils that has ever crept into our society. Definitions 

Chemical Diversion The sale, distribution, supply or transport of legitimately imported, intransit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.



Drug Syndicate -

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Clandestine Laboratory

Screening Test A rapid test performed to establish potential or presumptive positive result.



The caretaker, helper, watchman, lookout, and other persons working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, distributed, sold or used, with or without compensation, in connection with the operation thereof.

Financier

Confirmatory Test An analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test. If the result of the confirmatory test is still positive, then that is now conclusive to establish drug use.

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Controlled Precursors and Essential Chemicals

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Dangerous Drugs

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How about nobane? It is now classified as dangerous drugs. Deliver

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The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essential chemical.

Methylenedioxymethamphetamine (MDMA) or commonly known as "Ecstasy", or by its any other name -

Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration.

Any person who pays for, raises or supplies money for, or underwrites any of the illegal activities. This refers to the drug lords

Illegal Trafficking

Can rugby be considered a dangerous drug under this law? No. That is penalized by PD 1619; it is not considered a dangerous drug as defined under this law.



Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense.

Employee of Den, Dive or Resort

Any facility used for the illegal manufacture of any dangerous drug and/or controlled precursor and essential chemical. 

It is a cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substanceand the difficulties in controlling substance-taking behavior in terms of its onset, termination, or levels of use.

Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Methamphetamine Hydrochloride or commonly known as "Shabu", "Ice", "Meth", or by its any other name -

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Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form. This is the common prohibited drug.

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Refers to the coagulated juice of the opium poppy and embraces every kind, class and character of opium, whether crude or prepared; the ashes or refuse of the same; narcotic preparations thereof or therefrom; morphine or any alkaloid of opium; preparations in which opium, morphine or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy straw; and leaves or wrappings of opium leaves, whether prepared for use or not.

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-

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the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act. This is what we call Incriminating against innocent person. In RPC, incriminating against innocent person has a lesser penalty. But here in RA 9165, the penalty is life sentence.

Protector/Coddler -

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Pusher

Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his influence, power or position in shielding, harboring, screening or facilitating the escape of any person he knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator. In RPC, his acts are accessory. But here, he is called coddler or protector.

Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration. This includes barter.

Use -

Planting of Evidence -

Any person who sells, trades, administers, dispenses, delivers or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transactions, in violation of this Act. They are referred to as sellers of dangerous drugs.

Sell

Opium -

-

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Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, and of the dangerous drugs. This refers to the acts or ways of consuming or using the dangerous drugs

Unlawful Acts: 1.

Section 4 - Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals Importation  Penalty: Life sentence regardless of the quantity or purity. Ex: even if 1 gram from Japan to the Philippines  The bringing of dangerous drugs from a foreign country into our country.  It is necessary that the prosecution should establish or prove that the dangerous drugs came from a foreign country. If not proven, the accused cannot be convicted by importation.  However, he cannot be acquitted. He can be prosecuted for transporting dangerous drugs. This refers to the conveying of illegal drugs from one place to another.  The importer could also be prosecuted for possession because when you import, necessarily you are in possession of drugs.  So if not prosecuted in importation, can be liable for transportation or possession.  If convicted for importation or transportation, you cannot be convicted for possession because

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D



2.

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-

-

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possession is absorbed in importation or transportation. People vs Chichan Liu, et al, GR 189272, January 21, 2015

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals Section id commonly violated. Penalty: Life sentence regardless of the quantity and purity Ex: The Chinese national who was apprehended was not charged with importation because it is harder to prove. She was instead charged with transportation because it is easier to prove. She can also be charged with possession. So possession depends on the weight of the shabu. If it exceeds 50g, penalty is life sentence. Possession is easier to prove than transportation. Selling  Elements: People v Del Mundo 510 SCRA 554 a) Identity of the buyer and seller b) Object and consideration c) Delivery of the thing sold d) Payment for the subject Buy-bust is a common form of entrapment for drug pushers. Transport  This refers to the movement of dangerous drugs or to carry the dangerous drugs from one place to another.  People v San Juan, GR 177191, May 30, 2001: The accused was caught inside his car parked in a parking area. He was charged with transportation but not convicted by transporting but of possession. Why? Because prosecution failed to show that any distance was travelled because the car was parked in the parking area. It did not prove in what place the car came from.  People vsLaba, January 28, 2013: Accused was apprehended while boarding his flight. He has not yet boarded the airplane. He was convicted of transporting because even if he was yet to board the aircraft, it cannot be denied that his presence in the airport that time was for the purpose of transporting or moving dangerous drugs from one place to another.

*****SECTION 5. Sale, Trading, Administration, Dispensation,

Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. PENALTY FOR DANGEROUS DRUGS -

Life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)

―REGARDLESS INVOLVED‖ -

OF

THE

QUANTITY

AND

PURITY

Whatever is the amount EX: if you are caught selling one small sachet weighing .001g or if you are caught selling 5kg of shabu. The penalty is the same. – Life imprisonment ELEMENTS OF SALE: 1. 2. 3.

Identity of the buyer, the seller, the object and the consideration; Delivery of the thing sold; and Payment therefore

CONSUMMATION OF SALE -

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The receipt of the seller of the money or consideration is not indispensable because sale is consummated even if the buyer does not pay the price because the sale could be on credit Sale of drugs is consummated the moment the seller would hand over the dangerous drugs to the poseur buyer The receipt of the buy bust money or consideration by the seller is not indispensable – meaning it is not material. For as long as the prosecution can prove that there was delivery of the dangerous drug to the buyer. PRESENTATION OF BUY BUST MONEY INDISPENSABLE

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The presentation of the buy bust money is not indispensable also for the conviction of the accused If the prosecution failed to present in court the buy bust money that was allegedly used during the transaction or buy bust operation, that would not affect the case of the prosecution

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.

What is required is merely the delivery of the thing sold because payment could be done later on The presentation of the marked money is immaterial in the crime of illegal sale because this crime can be committee even without consideration or payment or the payment could be done later. (Ppvs Reyes, GR 194606, February 18, 2015)

PENALTY FOR CONTROLLED ESSENTIAL CHEMICALS -

BUY BUST IS THE COMMON FORM OF ENTRAPMENT -

DRUG PUSHERS SELL THEIR PROHIBITED ARTICLES TO ANY PROSPECIVE CUSTOMER -

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Buy bust operation is the common form of entrapment for drug pusher Distinguish entrapment vs instigation

Drug pushers have become increasingly daring, dangerous and, worse, openly defiant of the law. In many cases that drug pushers sell their prohibited articles to any prospective customer, be he a stranger or not, in private as well as in public places, even during daytime. (TioncovsPp, GR 192284, March 11, 2015)

1.

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EX: You have an addict best friend. On his birthday, as a gift you gave him shabu. What is your liability? Section 5. 3.

OBJECTIVE TEST -

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The "objective test" in determining the credibility of prosecution witnesses regarding the conduct of buy-bust operation provides that it is the duty of the prosecution to present a complete picture detailing the buy-bust operation — from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration, until the consummation of the sale by the delivery of the illegal subject of sale. The manner by which the initial contact was made, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. (Ppvs Clara y Buhain, GR 195528, July 24, 2013, 715 PHIL 259-284) Poseur buyer – one who acted as if he was a buyer but in truth he is a detective

Imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) Lower penalty Allowed to be sold by authorized sellers by the government

If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case. Others sell inside the school or enroll just to be able to sell to the students For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals trade, the maximum penalty shall be imposed in every case. If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed.

The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in this Section. -

These are the drug lords The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give

AND

AGGRAVATING CIRCUMSTANCES

2.

―GIVE AWAY TO ANOTHER‖

PRECURSORS

Protector or coddlers – are the ones who use their influence and help the drug pushers or drug lords to escape or evade prosecution SECTION 6. Maintenance of a Den, Dive or Resort. — The penalty of life imprisonment to death and a fine ranging from Five hundred

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person or group of persons who shall maintain a den, dive or resort where any dangerous drug is used or sold in any form.

house was at that time being raided. Are you liable? Answer: NO. Because you were not aware that the place was a drug den and you did not knowingly visit the same.

DEN -

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Drug den is a place where drugs are habitually used by people who frequented it In order to be held liable for maintaining drug den, it must be proved that the place is habitually used by the people who frequented it and habitually use drugs Prosecution must be able to show evidence or present witness that such witness frequented the place at least twice or thrice, he narrates what he sees and that he knows the people who go to such place to use drugs If evidence of the prosecution or witness would say that he was only able to enter such place only once then the accused would not be convicted of maintain a drug den There must be habituality of using drugs in that place otherwise the accused cannot be convicted

Section 8. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. -

Same penalty with importing and selling.

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The penalty of life imprisonment to death and a fine ranging 500K to 10M

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The penalty of imprisonment ranging from 12 years and 1 day to twenty 20 years and a fine ranging from 100K to 500K shall be imposed upon any person, who, unless authorized by law, shall manufacture any controlled precursor and essential chemical.

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The laboratory nowadays are in high end subdivisions.

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The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory is a prima facie proof of manufacture of any dangerous drug. It shall be considered an AGGRAVATING CIRCUMSTANCE if the clandestine laboratory is undertaken or established under the following circumstances:

Section 6. Maintenance of a den, dive or resort Read the case of Pp. vs Ladjaalam, September 19, 2000 Section 7. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon: (a) Any employee of a den, dive or resort, who is aware of the nature of the place as such; and -

This includes the caretaker, watchman, cashier, or the guards. But their boss, is liable not under Section 7 but under Section 6.

(b) Any person who, not being included in the provisions of the next preceding, paragraph, is aware of the nature of the place as such and shall knowingly visit the same -

The crime is ―visiting the drug den‖

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TN of the word ―aware of the nature of the place‖

-

Example: Your classmate invites you to catch pokemon in their house. Coincidentally, their

(a) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s: (b) Any phase or manufacturing process was established or undertaken within one hundred (100) meters of a residential, business, church or school premises; (c) Any clandestine laboratory was secured or protected with booby traps; (d) Any clandestine laboratory was concealed with legitimate business operations; or (e) Any employment of a practitioner, chemical engineer, public official or foreigner.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Section 10. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. a. b. c. d.

any person who shall deliver, possess with intent to deliver, or manufacture with intent to deliver equipment, instrument, apparatus and other paraphernalia for dangerous drugs, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal any dangerous drug and/or controlled precursor and essential chemical in violation of this Act.

woman to open her bag and so the sachet of shabu was recovered from her. She was charged for possession of dangerous drugs. Is she liable? ANSWER: NO. Because of the absence of the animus possidendi. -

ANSWER: This crime of possession of dd is mala prohibita hence lack of criminal intent is not a defense. HOWEVER the prosecution must prove that the accused had the intent to possess. Possession includes not only actual possession but also constructive possession.

Section 11. Possession of Dangerous Drugs. 

THE PENALTY HERE DEPENDS UPON THE WEIGHT OF THE DANGEROUS DRUGS.

CONSTRUCTIVE POSSESSION exists when the drug is under the dominion and control of the accused, or when he has the right to exercise control and dominion over the place where it is found. EXCLUSIVE POSSESSION OR CONTROL IS NOT NECESSARY. The accused cannot avoid conviction if his right to exercise dominion over the place where the contraband is located is shared with another. Pp vs Terra 430 SCRA 134

TN that this is bailable because the penalty is not life sentence, but note that even if this is bailable, the bail is high. That is, P10k per year of imposable penalty.



If the weight is over 5 grams but not over 10 grams, that is 20 years and 1 day to life imprisonment.



IF the weight is over 10 grams but less than 50, life imprisonment.

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Example: The accused was caught selling dangerous drugs. Naturally he was also in possession of it. Could he be also charged with violation of Section 11 for possession of dangerous drugs aside from sale? ANS. As a rule, NO. Because POSSESSION IS ABSORBED IN SELLING.

ELEMENTS OF POSSESSION: 1. 2. 3.

ACTUAL POSSESSION is when the drug is in the immediate physical possession and control of the accused. On the other hand,

If the weight is less than 5 grams, the penalty is 12 years, 1 day to 20 years. -

Case: A house was searched by virtue of a search warrant. There were packs of shabu recovered. During the trial the accused argued that he is not the only person residing in that house. Is that define meritorious?

The offender is in possession of dangerous drug Such possession is not authorized by law The accused freely and consciously possessed the dangerous drug- animus possidendi or intent to possess. BAR QUESTION: A woman was walking with her boyfriend. When they were about to pass by a checkpoint, the boy handed over to his girlfriend a small sachet of shabu and told her to hide it in her bag. The policeman saw the boy handing over something to the woman. The woman didn‘t know that it was shabu. When they passed by the checkpoint, the policeman asked the

HOWEVER, if the seller is caught to be in possession of another amount of shabu intended for some future transactions, he could also be held liable for possession. IOW, for him to be not liable for possession, the shabu in his possession must be equal to the amount of shabu transacted. Pp. vs. Dela Pena GR NO. 207635, February 18, 2015 Sec. 12. Possession of equipment, apparatus or other paraphernalia -in order for seller not to be liable also for possession, the shabu sold must be equal to that be possessed; if there are

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D excess, probably for future transactions, then the seller is also liable under this section. -for any purposes intended under the preceding sections -possession of such is a presumption that the offender also violated section 15 - before, for example you got caught in a checkpoint in possession of such drugs, 2 violations are presumed to be committed, that is section 12 and 15; now, you can only be held liable for section 12. -in case, an accused was made subject to a buy-bust operation, later, he was also searched, drugs were found, how many violations? There are 3, sec. 5 for selling, and sec. 11 for possessing some or more drugs intended for future transactions, plus there are drug paraphernalia, so section 12 Is also liable. Question, is the accused liable for all the 3 violations? Yes. PP vsCasakop G.R. no. 210454 Sec. 13.Possession of Dangerous drugs during parties/social gatherings or meetings -this is an aggravating circumstance for section 11. Sec. 14. Possession of those mentioned in sec. 12 in parties/social gatherings or meetings -also an aggravating circumstance for sec. 12 Sec. 15. Use of Dangerous drugs -A person apprehended or arrested who is found to be positive of any use of dangerous drugs after confirmatory test; take note there are 2 tests, the screening test and the confirmatory test, the latter being more thorough than the other;

commission of a crime which is not in violation of this act, and you are subjected to drug test, then the same is illegal for violation of the accused against self-incrimination.PP vs Jaime Dela Cruz Gr. No. 200748 July 23, 2014 -another instance wherein there could be drug test is in cases where mandatory or random drug testing is required under section 36 of this act; for example if you are a government or a private worker of a private company, you can be subject for drug test, if found positive, aside from administrative charges, you can be held liable for section 15; Another is road side drug test for drivers. Sec. 16. Cultivation or culture of plants classified as Dangerous Drugs -penalty is life imprisonment + fine. Sec. 17. Maintenance and keeping of original records of transactions on dangerous drugs or controlled precursors and essential chemicals Sec. 18. Unnecessary prescription of dangerous drugs Sec. 19. Unlawful prescription of dangerous drugs -

Take not that there are drugs that are allowed if there is a proper prescription from a licensed medical practitioner; otherwise, said person who prescribed such dangerous drug would be liable under this section

Sec. 20. Forfeiture of the proceeds from trafficking of dangerous drugs Sec. 21. Custody and disposition confiscated/seized/surrendered dangerous drugs

of

-penalty is 6months rehabilitation;

-amended by RA 10640

-what about for the 2nd time? Now penalty is 6yrs and 1 day to 12yrs; provided that this section should not be applicable if such person is found in possession of other drugs intended for other purposes.

Inventory – apprehending law enforcers must make a list of the items confiscated and take pictures of the same in the presence of the accused.

-take note: violation of section 11 + section 15 = only section 11 is violated; -before if you are arrested for any crime with a penalty for more than 6yrs, you will be subjected for drug test; now said provision is declared unconstitutional, an accused can only be subjected for a drug test in violation of any provisions of this law, not of other crimes; hence if you are arrested for

August 19, 2016 SECTION 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals. — Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act. -

Similar to the provision of Article 45, RPC – the proceeds, as well as the instruments used in the commission of the crime shall be confiscated and forfeited in favor of the government The money which are the proceeds of the unlawful acts penalized under this law, such as proceeds of selling dangerous drugs, importing dangerous drugs, including properties obtained or derived from the unlawful act Those houses that are built using the proceeds of the illegal trade of dangerous drugs shall be forfeited in favor of the government and those dangerous drugs confiscated shall be destroyed.

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*****SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1)

The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and

invalid such seizures and custody over said items; REQUIREMENTS OF RA 9165 1.

2.

3.

Right after the confiscation of the dangerous drugs or equipment‘s or paraphernalia there should be inventory. Inventory is the apprehending law enforcers must make a list of the items confiscated. Aside from making an inventory, there should be a picture taken on the items confiscated in the presence of the accused of his representative, elected public official (such as barangay councilor or barangay captain), representative from the National Prosecution Service (from the Fiscals Office, or from the DOJ), or the representative media. These people who are required to be present during the conduct of the inventory as well as the photographing are require to sign the copies of the inventory or of the list and be given a copy thereof. Aside from inventory there should also be markings or distinguishing marks on the items confiscated for identification purposes in order to avoid switching, planting or contamination of evidence– not found in the law but in jurisprudence. The person making the marking will sign the same. The marking should be made in the presence of the accused and immediately after confiscation.

WHERE INVENTORY MADE -

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Where should the inventory be made, as well as the inventory and taking of pictures? It should be made at the place where the dangerous drugs or the equipment‘s were taken or recovered. If by virtue of a search warrant: at the place where the items were taken If by virtue of a warrantless arrest, such as a checkpoint: at the nearest police station or office of the apprehending officer or team

CONFISCATION -

If these requirements are not complied with the weight of the items will be questionable In the confiscation of drugs, the prosecution must be able to prove the chain of custody Chain of custody: refers to the duly recorded authorized movements of the custody of the confiscated items from the accused to the court The requirements constitute the first link because the first link constitutes the measure of the marking Chain of custody: From the accused to the apprehending officer then turned over to the investigator then to the crime laboratory who examines then brought to the court as evidence

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

The prosecution has to prove that the items presented in court are the very same items which were confiscated from the possession of the accused. To prove it, all persons who have come in possession of those items brought to court from the time they were confiscated from the accused up to the time that the items were brought to court should be required to testify so that the chain of custody can be established. If there is no inventory, photographing, and marking – the first link – then there could be doubt whether it is the same items confiscated from the accused. It could still be admitted but the court may not believe that these are items from the possession of the accused.

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EXCEPTION AS TO COMPLIANCE OF SECTION 21 1. 2.

There are justifiable grounds If the integrity and the evidentiary value of the seized items are properly preserved

JUSTIFIABLE GROUNDS -

One conducts a search warrant and was able to confiscate dangerous drugs. Right after the search, the neighbors started throwing rocks at the apprehending officers. Are they still going to conduct the inventory at the crime scene? The apprehending officers can leave to save their lives. As to the marking of exhibits, even if it states that if it is virtue of a search warrant the inventory, as well as the marking should be made at the place where the search was made, it is not anymore at the place of incident but it could be at the police station. Justifiable grounds + there should be efforts to preserve the integrity and evidentiary value of the seized items The non-compliance of Section 21 will not affect the admissibility of the items but only the weight Conduct of inventory, photographing and marking is important in order to prove the chain of custody

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preservation of the integrity and the evidentiary value of the seized items as they will be used to determine the guilt or innocence of the accused. (Pp vs Osman, GR 201100, February 4, 2015) The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. The law requires "substantial" and not necessarily "perfect adherence" as long as it can be proven that the integrity and the evidentiary value of the seized items were preserved.(Pp vs Piad, GR 213607, January 25, 2016) Theissue of non-compliance with the said section is not of admissibility, but of weight to be given on the evidence. The non-compliance of Section 21 does not make the arrest illegal or items confiscated from the accused inadmissible. (Pp vs Dahil, GR 212196, January 12, 2015)

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Q: Is prior surveillance a prerequisite to the validity of a buy bust or an entrapment operation? A: NO. Prior surveillance is not a prerequisite to the validity of a buy bust or an entrapment operation. Pp. vs Lucio GR NO. 191391, June 19, 2013

THE LINKS 1. 2. 3. 4.

Seizure and marking Turnover of the items from the apprehending officer to the investigating officer Turnover of the drugs by the investigating officer to the forensic chemist of the crime laboratory Submission of the drugs by the chemist to the court

SOME CASES -

While the chain of custody should ideally be perfect, in reality it is not, "as it is almost always impossible to obtain an unbroken chain." The most important factor is the

MARKING -

Marking is important to avoid planting, switching and contamination of evidence. Pp vs Lopez, January 29, 2014

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The marking should be done by the apprehending officer. In one case it was done by the accused himself.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D SC: It must be done by the officer himself and not by the accused. Pp. vs Resurrection, 603 SCRA 510 (2) Within twenty-four (24) hours upon confiscation, the items shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. -

Section 22. Grant of Compensation, Reward and Award. -

to any person providing information and to law enforcers participating in the operation, which results in the successful confiscation, seizure or surrender of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals.

Section 26. ATTEMPT OR CONSPIRACY. GR: For violations of SPLs, there is no attempted or frustrated stage. EXC: If a particular special law provides that an attempted stage of a violation of a provision of that law is punishable then there is attempted stage of a violation of that law.

Section 23. Plea-Bargaining Provision. -

This is absolutely prohibited for violations under RA 9165.

Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. -

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The benefits of probation law are available to those convicted for violations of RA 9165, EXCEPT for selling. For example, section 12 Possession of drug paraphernalias is probationable because its penalty is less than 6 years, that is 6 months and 1 day to 4 years. NOTE: Section 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment.

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A minor can apply for probation even if his penalty exceeds 6 years. EXCEPT for selling.

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Remember also that when the violator is a minor, the penalty that should be imposed on him is not life sentence but reclusion perpetua. Section 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. -

Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance

Example: If it is proven that before killing the victim, the accused is positive of drugs, the crime committed would be MURDER. Because the positive finding for the use of dangerous drugs will be considered as QUALIFYING AGGRAVATING CIRCUMSTANCE.

RA 9165 provides that any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same. Mere conspiracy to commit any of the following acts is punishable: (a) Importation of any dangerous drug and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive or resort where any dangerous drug is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e) Cultivation or culture of plants which are sources of dangerous drugs. -

Example: The policeman conducted a buybust operation against a pusher. When the pusher was about to give the shabu to the poseur buyer, he realized that the person he was transacting with was a law enforcer. So instead of giving the shabu to the law enforcer, he ranaway. What is the crime committed? ANS. He committed an attempted sale of dangerous drugs. Attempted only because there was no delivery. There was only an attempt to deliver. So long as the accused had the intent to sell and has shown overt acts- such as showing the dangerous drugs to the

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D buyer, he is already liable for attempted sale. Pp vs Adam ♥ October 13, 2003 -

Penalty: the same with selling.

Section 29. Criminal Liability for Planting of Evidence.

Section 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs -

This is the purpose of the requisites of inventory and picture taking, to prevent Section 27.

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This shall be imposed upon any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs.

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office, if those found guilty of such unlawful acts are government officials and employees.

Penalty: Life imprisonment to death and a fine ranging from 500K to 10M in addition to absolute perpetual disqualification from any public office.

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This is the penalty for planting evidence.

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Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.

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Penalty: Life imprisonment.

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Judge D: It is easy to raise this as a defense but this is hard to prove because of the presumption of regularity. As between the word of the police officer and the word of the accused, the judge is most likely to believe the police officer. But of course the court has to be vigilant.

Section 37. Workplace Drugfree Any ELECTIVE LOCAL OR NATIONAL OFFICIAL found a.

b.

TO HAVE BENEFITED FROM THE PROCEEDS of the trafficking of dangerous drugs as prescribed in this Act, or HAVE RECEIVED ANY FINANCIAL OR MATERIAL CONTRIBUTIONS or donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in this Act

SHALL BE REMOVED FROM OFFICE and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or –controlled corporations. ―Narco politics‖ – Where those people who are engaged in illegal drug trade are giving financial contributions to politicians, specially during elections, and in return they expect protection. Section 28. Criminal Liability of Government Officials and Employees. The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public

Section 51. LGU Should also help in the fight Section 52. Abatement of Drug Related Public Nuisances Any place or premises which have been used on two or more occasions as the site of the unlawful sale or delivery of dangerous drugs may be declared to be a public nuisance, and such nuisance may be abated Changi There may be a board created to conduct hearing on complaints regarding nuisances. After hearing in which the Board may consider any evidence, including evidence of the general reputation of the place or premises, and at which the owner of the premises shall have an opportunity to present evidence in his/her defense, the Board may declare the place or premises to be a public nuisance. Once declared as a public nuisance, it can be summarily abated Section 54. Voluntary Drug Rehabilitation An addict is not the same as an ordinary sick person Before a drug dependent can be admitted to a center there must be a court order There must be a petition filed in court, and only when the court is convinced that the petitioner is a drug dependent that it will issue an order admitting the petitioner in a rehabilitation center Not really voluntary

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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Once there is attempt to kill his parents there will be an case, sometimes the case will be dismissed but with the condition to subject to rehabilitation The person by himself or through his parents/spouse, may apply to the board for the rehabilitation of the drug dependent. Thereafter the board shall file the appropriate petition in court. During the hearing the petition should present a DOH accredited physical to testify that the petitioner is a drug dependent If found to be a dependent, he shall undergo at least 6 months of rehabilitation, but not more than 1 year in a DOH accredited center designated by the board. May not be confined but there has to be a program, if under 18 and a 1st time offender Once the court will approve the petition it means that there is a violation of section 15. o If rehabilitated, will not be punished o If not, he will be punished under Section 15 o After second commitment - prosecution under section 15

Section 58. Filing of Charges Against a Drug Dependent Who is Not Rehabilitated Under the Voluntary Submission Program. – shall be charged for violation of Section 15 of this Act and prosecuted like any other offender. If convicted, he/she shall be credited for the period of confinement and rehabilitation in the Center in the service of his/her sentence. Section 60 The Records are a drug related case is confidential Section 61. Compulsory Confinement in a Drug Rehabilitation Center There should be at least 2 doctors accredited by the board declaring the person to be a drug dependent o If one states he is not a drug dependent, the court will have to decide whether or not to approve the petition -

If no court order then the confinement will be illegal detention

Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. Offense charged is 6 years or less and found to be drug dependent The proceedings shall be suspended and the accused to be treated in a drug rehabilitation center Period in the center shall be deducted from the crime charged Same as preventive suspension Section 66. Suspended Sentence

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The minor instead of serving sentence shall instead be placed in a rehabilitation center If the minor is rehabilitated, the case shall be dismissed Suspension is automatic, no application needed The last paragraph has been repealed RA 9344 The last paragraph talks about minors who are under 15. RA 9344 over section 66

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Section 67. . Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender. -

Suspension of sentence only availed only once Not more than 18 but relate it to RA 9344 o It is available to 21 years below

Section 69. Promulgation of Sentence for First-Time Minor Offender. -

If not corrected, the offender shall be required to serve his sentence

Section 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. -

If there is no suspended sentence, can avail of probation o Even if the penalty is higher than 6 years Violation must not be for selling o People vs. Padua July 13, 2008 Section 24 prevails over section 70

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Section 73. Liability of the parents or spouse who refuses to cooperate with the board in treatment and rehabilitation of a person who is a minor Section 77. The Dangerous Drugs Board Creation of Dangerous Drugs Board and PDEA DDB - policy making body under the office of the president PDEA - the implementing arm Section 82. PDEA PDEA is the implementing arm of the board Headed by director general who shall have the rank of an under secretary Section 86. Transfer, Absorption, and Integration of All Operating Units on Illegal Drugs into the PDEA and Transitory Provisions. -

Last paragraph PDEA shall be the lead agency NBI, PNP should transfer to the PDEA Law enforcement agencies should coordinate

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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with PDEA in their operations in drug related activities But failure to cooperate with PDEA will not invalidate the operation o People vs. Sta. Maria Feb. 23, 2007 o People vs. Balacute 206366 August 13 2014  Coordination with the PDEA is not an indispensable element of a proper buy-bust operation

Section 91. Responsibility and Liability of Law Enforcement Agencies and other Government Officials and Employees in Testifying as Prosecution Witnesses in Dangerous Drugs Cases. It is a criminal act if a member of the law enforcement agency or any other government official or employee after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, without any valid reason Penalty is 12 years and 1 day to 20 years and a fine not less than 500,000 The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. o Command responsibility The member of the law enforcement agency or any other government employee may be transferred or re-assigned for compelling reasons such as a form of disciplinary action or promotion. o Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign, within twenty-four (24) hours from its approval; Provided, further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty

thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or re-assign.

Section 92. Delay and Bungling in the Prosecution of Drug Cases. Any government officer or employee tasked with the prosecution of drug-related cases under this act, who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code. Sec. 93. Reclassification, Addition or Removal of Any Drug from the List of Dangerous Drugs Sec. 98.Limited Applicability of the Revised Penal Code -

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General rule: Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act. Exception: In the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.

Important rulings from jurisprudence: -there is no requirement that the police must apply fluorescent powder to the buy-bust money to prove the commission of the offense or taking of the fingerprints from the money or shabu; PP vsSy 503 SCRA 772 -Is the forensic chemist required to examine the entire mass of the confiscated dangerous drugs? No. It is enough that the sample of the said substance besubjectto qualitative examination. -in prosecution for violation of RA 9165, the prosecution need not prove the negative allegation (now take note that as a requisite, the accused is not authorized by law to possess the same), this is what we call the negative element of the crime. According to SC, the prosecution is not required to prove a certification from BFAD that the accused is really not authorized; simply put, prosecution need not prove the negative element of the crime. It is incumbent however by

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D the accused that he is authorized to possess said drugs; PP vs Yang 423 SCRA 82 - Take note, in relation to PD 1866, in prosecution for violation under said law, there must a document to prove that the accused is not authorized by law to carry such firearm. In RA 9165, however, it is the reverse.

Elements: 1. The accused carried or moved the dangerous drug from 1 place to another; and 2. He intended to transport it. o

-Presentation of the confidential agent in a buy-bust operation is not always required, example in cases when his testimony is merely corroborative; One reason is to protect the identity of the agents for purposes of future buy-bust operations.

o

-Presentation of the buy-bust money is not an indispensable requirement in the prosecution of the case under RA 9165.

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-Elements of possession, that the accused was in possession of dangerous drugs, he must be fully and consciously aware of being in possession of dangerous drugs, this is what we call animus posedendi; That the accused had no legal authority to possess the dangerous drugs; PP vsAbuan 505 SCRA 799 -possession as a rule is absorbed in selling of dangerous drugs. Remember also that possession of more drugs intended for future transactions, aside from the sale, then the accused can also be charged with possession aside from selling the same.

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2. DELIVERY o

August 21, 2016 More cases and notes under RA 9165

If the accused is not convicted of transporting, he can be convicted of possession. Transportation of illegal drugs does not involve transportation of possession. There is no recipient here. The place of origin in transporting is not important, unlike in importation. Pp vs Alfonso June 18, 1990 In transporting, it is not necessary that the place of destination is reached. (Pp vs Lo Ho Wing, Jan 1991) In a case, the accused was accused of attempt to transport illegal drugs. He was apprehended at a bus station on board a bus which was about to depart, in possession of 2.2 kilos of marijuana. He was convicted of attempt to transport illegal drugs. The Penalty is same with consummated transportation.

Delivery is absorbed in sale because sale can‘t be consummated without delivery of the dangerous drugs to the poseur-buyer. Delivery is any act of knowingly passing dangerous drug to another personally or otherwise and by any means with or without consideration. (In sale there is consideration). So if there is no consideration, one can still be convicted of delivery.

3. SALE

Pp vs Kimora 428 SCRA 51  Considering the confiscated drug is the corpus delicti of the crime, the dangerous drug itself must be presented in court. The non-presentation of the dangerous drugs is fatal. It causes dismissal of the case. Pp vs Yang, February 16, 2004  The consummation of the crime of illegal sale of drugs may be sufficiently established even in the absence of the exchange of money. The payment could precede or follow the delivery of the drug sold. In a buy bust operation, what‘s important is that the pusher buyer received the shabu from the offender and the same was presented as evidence in court.  It's very hard to prove whether one is a drug lord. So, to prove his guilt in court, you have to present the drug itself. Under Section 5, it is not only selling that is prohibited. It also includes: 1. TRANSPORTATION - the moving or carrying the drug from 1 place to another

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Sale is consummated by mere delivery of the drug. The fact that no money was actually delivered by the poseur-buyer to the pusher, the same would not prevent the offense from being consummated. Payment may precede the sale or may be given after the sale. What‘s important is the delivery of the drug to the poseur-buyer.

PD 1866 as amended by 10591 Comprehensive Firearms and Ammunition Regulation Act This is related to the justifying circumstance of self defense or relatives or stranger because the 2nd element is the means used must be necessary and reasonable and in putting up a defense to prevent aggression, the person attacked could use a firearm. Suppose the firearm used is unlicensed. What‘s the liability? Let's familiarize ourselves first with the terms used. SEC. 3.Definition of Terms. – As used in this Act:  Take note that we only placed the terms mentioned by Judge. Pls read the law for the complete list of definition of terms.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (a) Accessories refer to parts of a firearm which may enhance or increase the operational efficiency or accuracy of a firearm but will not constitute any of the major or minor internal parts thereof such as, hut not limited to, laser scope, telescopic sight and sound suppressor or silencer. (b) Ammunition refers to a complete unfixed unit consisting of a bullet, gunpowder, cartridge case and primer or loaded shell for use in any firearm. Definition of terms (k) Duty detail order refers to a document issued by the juridical entity or employer wherein the details of the disposition of firearm is spelled-out, thus indicating the name of the employee, the firearm information, the specific duration and location of posting or assignment and the authorized bonded firearm custodian for the juridical entity to whom such firearm is turned over after the lapse of the order.  Our security guards don't have firearms license but they only have duty detail order. What would be stated here? Name of employee, information related to the firearm to be carried, specific duration and location of posting or assignment (l) Firearm refers to any handheld or portable weapon, whether a small arm or light weapon, that expels or is designed to expel a bullet, shot, slug, missile or any projectile, which is discharged by means of expansive force of gases from burning gunpowder or other form of combustion or any similar instrument or implement. For purposes of this Act, the barrel, frame or receiver is considered a firearm.

machine guns not exceeding caliber 7.62MM which have fully automatic mode; and Class-B Light weapons which refer to weapons designed for use by two (2) or more persons serving as a crew, or rifles and machine guns exceeding caliber 7.62MM such as heavy machine guns, handheld underbarrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems, portable launchers of anti-aircraft missile systems, and mortars of a caliber of less than 100MM. (u) Long certificate of registration refers to licenses issued to government agencies or offices or government-owned or controlled corporations for firearms to be used by their officials and employees who are qualified to possess firearms as provider in this Act, excluding security guards.  given to the LGUs, GOCCs. Their personnel have this so called short certificate of registration. Police and military are given mission order and memorandum receipt. If you receive property from the government, you are given a memorandum receipt to show you have in your possession such property. (v) Loose firearm refers to an unregistered firearm, an obliterated or altered firearm, firearm which has been lost or stolen, illegally manufactured firearms, registered firearms in the possession of an individual other than the licensee and those with revoked licenses in accordance with the rules and regulations.

2 Kinds: 1. Small arm - not small firearm. It's ARM. In small arm, you have to pull the trigger if you want to fire. 2. Light weapon - further classified to Class A and Class B. These are for the military only and can‘t be owned by civilians. These are full automatic weapons which have the capability of automatic firing with the continuous pulling of the trigger. If you do not release the trigger, these firearms will continue to expel bullets till the bullets are consumed. Ex: armalite

(w) Major part or components of a firearm refers to the barrel, slide, frame, receiver, cylinder or the bolt assembly. The term also includes any part or kit designed and intended for use in converting a semi-automatic burst to a full automatic firearm.

Take note: the Barrel, frame or handle, and receiver is considered a firearm. So you can be convicted if what you will bring is not a complete gun. Penalty: same as provided by this act. Explosives are not firearms. This can be found in Sec 3 in PD 1866. (Under the old law: the 2 kinds are high powered or low powered)

(y) Permit to carry firearm outside of residence refers to a written authority issued to a licensed citizen by the Chief of the PNP which entitles such person to carry his/her registered or lawfully issued firearm outside of the residence for the duration and purpose specified in the authority.

(q) Imitation firearm refers to a replica of a firearm, or other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to believe that such imitation firearm is a real firearm. (t) Light weapons are: Class-A Light weapons which refer to self-loading pistols, rifles and carbines, submachine guns, assault rifles and light

(x) Minor parts of a firearm refers to the parts of the firearm other than the major parts which are necessary to effect and complete the action of expelling a projectile by way of combustion, except those classified as accessories.

(z) Permit to transport firearm refers to a written authority issued to a licensed citizen or entity by the Chief of the PNP or by a PNP Regional Director which entitles such person or entity to transport a particular firearm from and to a specific location within the duration and purpose in the authority. If you want to carry a firearm, you need two permits: 1. License to own and possess firearm (LTOP)o if you are granted, you cannot carry it outside your residence unless you have a

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

2.

permit to carry even if you just put it in your car. It should remain in the residence. o if you still bring without a permit to carry, you violate this law although the penalty is lesser o expires in 2 years while the registration of the firearm expires in 4 years Permit to carry

(aa) Residence refers to the place or places of abode of the licensed citizen as indicated in his/her license.  is where one keeps his firearm. Anybody in the family can use it even if without license if you are attacked (cc) Short certificate of registration refers to a certificate issued by the FEO of the PNP for a government official or employee who was issued by his/her employer department, agency or government-owned or -controlled corporation a firearm covered by the long certificate of registration. (dd) Small arms refer to firearms intended to be or primarily designed for individual use or that which is generally considered to mean a weapon intended to be fired from the hand or shoulder, which are not capable of fully automatic bursts of discharge, such as: (1) Handgun which is a firearm intended to be fired from the hand, which includes: (i) A pistol which is a hand-operated firearm having a chamber integral with or permanently aligned with the bore which may be self-loading; and (ii) Revolver which is a hand-operated firearm with a revolving cylinder containing chambers for individual cartridges. (2) Rifle which is a shoulder firearm or designed to be fired from the shoulder that can discharge a bullet through a rifled barrel by different actions of loading, which may be classified as lever, bolt, or self-loading; and (3) Shotgun which is a weapon designed, made and intended to fire a number of ball shots or a single projectile through a smooth bore by the action or energy from burning gunpowder. 

so a civilian cannot own an armalite, only those firearms which are not capable of fully automatic bursts Ex: handgun (pistols, revolvers, calibre .45), rifle, shot gun

(gg) Thermal weapon sight refers to a battery operated, uncooled thermal imaging device which amplifies available thermal signatures so that the viewed scene becomes clear to the operator which is used to locate and engage targets during daylight and from low light to total darkness and operates in

adverse conditions such as light rain, light snow, and dry smoke or in conjunction with other optical and red dot sights. ARTICLE II OWNERSHIP AND POSSESSION OF FIREARMS SEC. 4.Standards and Requisites for Issuance of and Obtaining a License to Own and Possess Firearms. 1. applicant must be a Filipino citizen, 2. at least twenty-one (21) years old and 3. has gainful work, occupation or business or has filed an Income Tax Return (ITR) for the preceding year as proof of income, profession, business or occupation. In addition, the applicant shall submit the following certification issued by appropriate authorities attesting the following: a. The applicant has not been convicted of any crime involving moral turpitude: b. The applicant has passed the psychiatric test administered by a PNP-accredited psychologist or psychiatrist; c. The applicant has passed the drug test conducted by an accredited and authorized drug testing laboratory or clinic; d. The applicant has passed a gun safety seminar which is administered by the PNP or a registered and authorized gun club; e. The applicant has filed in writing the application to possess a registered firearm which shall state the personal circumstances of the applicant; f. The applicant must present a police clearance from the city or municipality police office; and g. The applicant has not been convicted or is currently an accused in a pending criminal case before any court of law for a crime that is punishable with a penalty of more than two (2) years. For purposes of this Act, an acquittal or permanent dismissal of a criminal case before the courts of law shall qualify the accused thereof to qualify and acquire a license. The applicant shall pay the reasonable licensing fees as may be provided in the implementing rules and regulations of this Act. An applicant who intends to possess a firearm owned by a juridical entity shall submit his/her duty detail order to the FEO of the PNP. SEC. 5.Ownership of Firearms and Ammunition by a Juridical Entity. – A juridical person maintaining its own security force

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D may be issued a regular license to own and possess firearms and ammunition under the following conditions: (a) It must be Filipino-owned and duly registered with the Securities and Exchange Commission (SEC); (b) It is current, operational and a continuing concern; (c) It has completed and submitted all its reportorial requirements to the SEC; and (d) It has paid all its income taxes for the year, as duly certified by the Bureau of Internal Revenue. The application shall be made in the name of the juridical person represented by its President or any of its officers mentioned below as duly authorized in a board resolution to that effect: Provided, That the officer applying for the juridical entity, shall possess all the qualifications required of a citizen applying for a license to possess firearms.

(b) Certified Public Accountants; (c) Accredited Media Practitioners; (d) Cashiers, Bank Tellers; (e) Priests, Ministers, Rabbi, Imams; (f) Physicians and Nurses; (g) Engineers; and (h) Businessmen, who by the nature of their business or undertaking, are exposed to high risk of being targets of criminal elements SEC. 8.Authority to Issue License. – The Chief of the PNP, through the FEO of the PNP, shall issue licenses to qualified individuals and to cause the registration of firearms. SEC. 9. Licenses Issued to Individuals. – Subject to the requirements set forth in this Act and payment of required fees to be determined by the Chief of the PNP, a qualified individual may be issued the appropriate license under the following categories; o

Other corporate officers eligible to represent the juridical person are: the vice president, treasurer, and board secretary.

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Security agencies and LGUs shall be included in this category of licensed holders but shall be subject to additional requirements as may be required by the Chief of the PNP.

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SEC. 6.Ownership of Firearms by the National Government. – All firearms owned by the National Government shall be registered with the FEO of the PNP in the name of the Republic of the Philippines. Such registration shall be exempt from all duties and taxes that may otherwise be levied on other authorized owners of firearms. For reason of national security, firearms of the Armed Forces of the Philippines (AFP), Coast Guard and other law enforcement agencies shall only be reported to the FEO of the PNP.

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SEC. 7.Carrying of Firearms Outside of Residence or Place of Business. – A permit to carry firearms outside of residence shall be issued by the Chief of the PNP or his/her duly authorized representative to any qualified person whose life is under actual threat or his/her life is in imminent danger due to the nature of his/her profession, occupation or business.  If you want to have a firearm, secure license to own and possess firearm, and a permit to carry firearm outside residence (PTCFOR) It shall be the burden of the applicant to prove that his/her life is under actual threat by submitting a threat assessment certificate from the PNP. For purposes of this Act, the following professionals are considered to be in imminent danger due to the nature of their profession, occupation or business: TAKE NOTE! (a) Members of the Philippine Bar;

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Type 1 license – allows a citizen to own and possess a maximum of two (2) registered firearms; Type 2 license – allows a citizen to own and possess a maximum of five (5) registered firearms; Type 3 license – allows a citizen to own and possess a maximum of ten (10) registered firearms; Type 4 license – allows a citizen to own and possess a maximum of fifteen (15) registered firearms; and Type 5 license – allows a citizen, who is a certified gun collector, to own and possess more than fifteen (15) registered firearms.

For Types 1 to 5 licenses, a vault or a container secured by lock and key or other security measures for the safekeeping of firearms shall be required. For Types 3 to 5 licenses, the citizen must comply with the inspection and bond requirements. Firearms That May Be Registered (Section 10)

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Only small arms may be registered by licensed citizens or licensed juridical entities for ownership, possession and concealed carry. A light weapon shall be lawfully acquired or possessed exclusively by the AFP, the PNP and other law enforcement agencies authorized by the President in the performance of their duties. Provided, That private individuals who already have licenses to possess Class-A light weapons upon the effectivity of this Act shall not be deprived of the privilege to continue possessing the same and renewing the licenses therefor, for the sole reason that these firearms are Class "A" light weapons, and shall be required to comply with other applicable provisions of this Act.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D –

License to Possess Ammunition Necessarily Included (Section 12)

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Because before, civilians can own light weapons. But now, only small arms may be registered

So, if you have been issued a license to own and possess firearms, necessarily, you can also possess ammunitions Maximum of fifty (50) rounds for each registered firearm Provided, that the FEO of the PNP may allow more ammunition to be possessed by licensed sports shooters.

IMPORTANT PROVISIONS! Unlawful Acquisition, or Possession of Firearms and Ammunition (Section 28) The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows: 1)

Issuance of License to Manufacture or Deal In Firearms and Ammunition (Section 13)

The penalty of prision mayor in its medium period shall be imposed upon –

2)

Just read. Registration of Locally Manufactured and Imported Firearms (Section 15) Just read.

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3)

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The failure to renew a license or registration within the periods stated above on two (2) occasions shall cause the holder of the firearm to be perpetually disqualified from applying for any firearm license. The application for the renewal of the license or registration may be submitted to the FEO of the PNP, within six (6) months before the date of the expiration of such license or registration.

Death or Disability of Licensee (Section 26)

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4)

The registration of the firearm shall be renewed every four (4) years.

Upon the death or legal disability of the holder of a firearm license, it shall be the duty of his/her next of kin, nearest relative, legal representative, or other person who shall knowingly come into possession of such firearm or ammunition, to deliver the same to the FEO of the PNP or Police Regional Office Such firearm or ammunition shall be retained by the police custodian pending the issuance of a license and its registration in accordance, with this Act.

any person who shall unlawfully acquire or possess a Class-A light weapon The penalty of reclusion perpetua shall be imposed upon

– 5)

if three (3) or more small arms or Class-A light weapons are unlawfully acquired or possessed by any person The penalty of prision mayor in its maximum period shall be imposed upon

– All types of licenses to possess a firearm shall be renewed every two (2) years.

any person who shall unlawfully acquire or possess a small arm The penalty of reclusion temporal to reclusion perpetua shall be imposed

Renewal of Licenses and Registration (Section 19)

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The failure to deliver the firearm or ammunition within six (6) months after the death or legal disability of the licensee shall render the possessor liable for illegal possession of the firearm.

any person who shall, unlawfully acquire or possess a Class-B light weapon The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be imposed upon any person who shall unlawfully possess any firearm under any or combination of the following conditions: ―AGGRAVATING‖

(a) Loaded with ammunition or inserted with a loaded magazine –

If you have ammunition, together with your unlicensed firearm, the possession of ammunition is absorbed in the crime of possession of unlicensed firearm

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If what you possess is only ammunition, you can be charged with possession of ammunition

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If the ammunition is loaded to your firearm, that is considered aggravating

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (b) Fitted or mounted with laser or any gadget used to guide the shooter to hit the target such as thermal weapon sight (TWS) and the like (c) Fitted or mounted with sniper scopes, firearm muffler or firearm silencer (d) Accompanied with an extra barrel; and (e) Converted to be capable of firing full automatic bursts (f)

The penalty of prision mayor in its minimum period shall be imposed upon –

any person who shall unlawfully acquire or possess a major part of a small arm

(g) The penalty of prision mayor in its minimum period shall be imposed upon –

any person who shall unlawfully acquire or possess ammunition for a small arm or Class-A light weapon

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If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a small arm, the former violation shall be absorbed by the latter

 TAKE NOTE: if it is inserted it is Aggravating. (h) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-A light weapon.  Take note of Letter G and I.  In letter G it states, ammunition for a small arm or Class-A. Actually that Class-A is in letter I. So, the penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for Class-A light weapon.  If the same person is charged with violation of possession of Class A light weapon, a possession of ammunition is absorbed. (j) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-B light weapon; and (k) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a Class-B light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-B light weapon, the former violation shall be absorbed by the latter.

MOST IMPORTANT PROVISION!!! SEC. 29.Use of Loose Firearm in the Commission of a Crime. – The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance:  When at the time of the arrest, the firearm is used in the commission of the crime such as homicide, murder; the possession of the unlicensed firearm is considered aggravating and not a separate offense.  Example: Homicide, the use of unlicensed firearm is aggravating.  Suppose the crime committed using the unlicensed firearm has a lower penalty, example, grave threats. What is the penalty? The penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged.  ―Provided, that if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged.‖  TAKE NOTE with this because this may affect jurisdiction. o Alarms and scandal per se, which is punishable by arestomenor and a fine of 200, the jurisdiction belongs to the first level courts. With this new law, it could be that the crime committed with the use of unlicensed firearm is now cognizable of the RTC because the jurisdiction of the courts in criminal cases depends on the penalty imposable. o 6 years and below, as a rule, first level courts. Over 6 years, RTC. -

What about if the penalty for the crime committed and the penalty for the possession of the unlicensed firearm are equal?  You have to suffer 2 penalties.  ―Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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punishable under the Revised Penal Code or other special laws of which he/she is found guilty‖ So, it is as if you are convicted with 2 crimes.

―If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’ etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’ etat.‖  So, absorbed.  Remember that in rebellion, common crimes are absorbed: murder, homicide, robbery, as long as they are committed in furtherance of rebellion, not for personal end. This is what we call the POLITICAL DOCTRINE.  If a person is killed, and it is in furtherance of rebellion, the killing is not murder or homicide but rebellion. But according to SC, if the accused is charged by the prosecution with murder, that is within the powers of the prosecution to charge the accused with such crime.  The fiscal, they have the right, the duty to impose the appropriate crime. Once the case is filed in court, the accused can raise that so called political doctrine. He can question the charge in court by raising the defense of political doctrine. Once the accused will raise that defense, the court should conduct a hearing to determine whether the killing is indeed committed in furtherance of rebellion. In other words, the court will not immediately dismiss the case, the court will determine first whether the killing is really connected with rebellion. (SaturOcampo Case). Sedition is not included. Take note, it is attempted coup ‗detat.

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TAKE NOTE: when aggravating, when absorbed and when the possession of unlicensed firearm is considered a separate crime.

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―If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense.‖  Example: The accused is found in possession of drugs. He was subjected with a search warrant and when his house was searched drugs were confiscated. In plain view, the police found

unlicensed firearms. What crime or crimes are committed by the accused? o Violation of Sec. 11 as regards possession of dangerous drugs and violation of the possession of unlicensed firearm. SEC. 30.Liability of Juridical Person. – The penalty of prision mayor in its minimum to prision mayor in its medium period shall be imposed upon the owner, president, manager, director or other responsible officer of/any public or private firm, company, corporation or entity who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding section, or willfully or knowingly allow any of them to use unregistered firearm or firearms without any legal authority to be carried outside of their residence in the course of their employment. SEC. 31.Absence of Permit to Carry Outside of Residence. – The penalty of prisioncorreccional and a fine of Ten thousand pesos (P10,000.00) shall be imposed upon any person who is licensed to own a firearm but who shall carry the registered firearm outside his/her residence without any legal authority therefor. -

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If you want to carry your unlicensed firearm outside your residence, you have to have a Permit to Carry Firearm Outside Residence. The penalty if you carry your firearm without permit to carry is prisioncorreccional and a fine of Ten thousand pesos (P10,000.00), MTC jurisdiction. If you commit a crime using that firearm, the same penalty. That would be considered aggravating. Even if you have licence, that is still considered unlicensed because you do not have the permit to carry.

SEC. 32. Unlawful Manufacture, Importation, Sale or Disposition of Firearms or Ammunition or Parts Thereof, Machinery, Tool or Instrument Used or Intended to be Used in the Manufacture of Firearms, Ammunition or Parts Thereof. – The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall unlawfully engage in the manufacture, importation, sale or disposition of a firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool or instrument used or intended to be used by the same person in the manufacture of a firearm, ammunition, or a major part thereof. -

Sale – gun runner Reclusion temporal to reclusion perpetua

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D The possession of any machinery, tool or instrument used directly in the manufacture of firearms, ammunition, or major parts thereof by any person whose business, employment or activity does not lawfully deal with the possession of such article, shall be prima facie evidence that such article is intended to be used in the unlawful or illegal manufacture of firearms, ammunition or parts thereof. PD 1866 as Amended by 10591 SEC. 33. Arms Smuggling. – The penalty of reclusion perpetua shall be imposed upon any person who shall engage or participate in arms smuggling as defined in this Act. - Bringing through a Balik Bayan Box SEC. 34. Tampering, Obliteration or Alteration of Firearms Identification. - imposed upon any person who shall tamper, obliterate or alter without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including the name of the maker, model, or serial number of any firearm, or who shall replace without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or peculiar identifying characteristics essential in forensic examination of a firearm or light weapon. SEC. 35. Use of an Imitation Firearm. – An imitation firearm used in the commission of a crime shall be considered a real firearm as defined in this Act and the person who committed the crime shall be punished in accordance with this Act: Provided, That injuries caused on the occasion of the conduct of competitions, sports, games, or any recreation activities involving imitation firearms shall not be punishable under this Act. - Suppose the imitation firearm is used in the commission of a crime, considered as a real fire arm - Mere possession may not be considered as a crime, but if used in the commission then it will be considered as a real firearm SEC. 36. In Custodia Legis. – During the pendency of any case filed in violation of this Act, seized firearm, ammunition, or parts thereof, machinery, tools or instruments shall remain in the custody of the court. If the court decides that it has no adequate means to safely keep the same, the court shall issue an order to turn over to the PNP Crime Laboratory such firearm, ammunition, or parts thereof, machinery, tools or instruments in its custody during the pendency of the case and to produce the same to the court when so ordered. No bond shall be admitted for the release of the firearm, ammunition or parts thereof, machinery, tool or instrument. - Under the custody of the court during the pendency of the case

- No bond is necessary for the release - If the case involved PD 1866, the firearm should be deposited to the court SEC. 37. Confiscation and Forfeiture. – The imposition of penalty for any violation of this Act shall carry with it the accessory penalty of confiscation and forfeiture of the firearm, ammunition, or parts thereof, machinery, tool or instrument in favor of the government which shall be disposed of in accordance with law. - The firearm shall be confiscated in favor of the government and disposed of in accordance with law - Turn over to the FEO SEC. 38. Liability for Planting Evidence. –imposed upon any person who shall willfully and maliciously insert; place, and/or attach, directly or indirectly, through any overt or covert act, any firearm, or ammunition, or parts thereof in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating or incriminating the person, or imputing the commission of any violation of the provisions of this Act to said individual. If the person found guilty under this paragraph is a public officer or employee, such person shall suffer the penalty of reclusion perpetua. - Penalty of "laglag bala" PM - If he is a public officer then RP (aggravating) - Without prejudice to any other criminal liability including robbery o There is threat or intimidation, through threat of filing a case. It is not bribery - If drugs then under RA 9165 - life sentence SEC. 39. Grounds for Revocation, Cancellation or Suspension of License or Permit. – The Chief of the PNP or his/her authorized representative may revoke, cancel or suspend a license or permit on the following grounds: a) Commission of a crime or offense involving the firearm, ammunition, of major parts thereof; b) Conviction of a crime involving moral turpitude or any offense where the penalty carries an imprisonment of more than six (6) years; c) Loss of the firearm, ammunition, or any parts thereof through negligence; d) Carrying of the firearm, ammunition, or major parts thereof outside of residence or workplace without, the proper permit to carry the same; - Aside from possible criminal liability, the license may also be removed e) Carrying of the firearm, ammunition, or major parts thereof in prohibited places; f) Dismissal for cause from the service in case of government official and employee; g) Commission of any of the acts penalized under Republic Act No. 9165, otherwise known as the ―Comprehensive Dangerous Drugs Act of 2002″; - if you have many difference licensed guns but you are a drug lord, that is ground for revocation. h) Submission of falsified documents or

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D misrepresentation in the application to obtain a license or permit; i) Noncompliance of reportorial requirements; and j) By virtue of a court order.

2. -

SEC. 40. Failure to Notify Lost or Stolen Firearm or Light Weapon. - Fine P10,000 for failure to report for loss of firearm within 30 days from date of discovery - Fine 5000 for not notifying change in residence within 30 days from transfer SEC. 41. Illegal Transfer/Registration of Firearms. – It shall be unlawful to transfer possession of any firearm to any person who has not yet obtained or secured the necessary license or permit thereof. Any public officer or employee or any person who shall facilitate the registration of a firearm through fraud, deceit, misrepresentation or submission of falsified documents shall suffer the penalty of prision correccional. - A license firearm can be sold, even in the newspaper. But to sell it the buyer must be a license holder to own and posses a firearm - If you sell to a person without a license then the buyer may be charged under this law. The license is not transferrable. - The penalty of prision correccional shall be imposed upon any person who shall violate the provision of the preceding paragraph. In addition, he/she shall be disqualified to apply for a license to possess other firearms and all his/her existing firearms licenses whether for purposes of commerce or possession, shall be revoked. If government-issued firearms, ammunition or major parts of firearms or light weapons are unlawfully disposed, sold or transferred by any law enforcement agent or public officer to private individuals, the penalty of reclusion temporal shall be imposed. - If the firearm sold is government issued, then the penalty to private individuals will be RT but without prejudice to other criminal liabilities If you are a civilian asset of the military and then you are issued with a mission order, is it valid? - It is not valid, it will not replace the regular firearms license - People vs. Sayco March 3, 2008 o The mission order was ordered to him could not replace the regular license o Look at the answer of good faith People vs. Evangelista G.R. No. 163267 May 5, 2010 Elements of Possession of Unlicensed Firearm 1. Existence of the Subject firearm - The firearm must be presented and proved in court by presenting it in court

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The fact that the accused possessing the firearm does not have the corresponding license In RA 9165 - negative element of the crime not required to be proved In PD 1866 - the other way around, the prosecution must be able to present a certification from the FEO that the accused is indeed not licensed to own or possess a firearm Failure on the part of the prosecution to present the certification is fatal The prosecution however is not required to present the signatory, the certification is a public document and is in itself self-authenticating It is enough to present and mark the certificate as evidence

3.

The accused is fully and consciously aware of being in possession of an unlicensed firearm - Animus possidendi - If you are cleaning your house and then when you are sweeping the garbage, there is a gun or ammunition, knowing that it is prohibited; you bring it to the police station. On your way there is a check point. o You are not liable because of the lack of the 3rd element. No animus possidendi To convict an accused, the prosecution must clearly establish the existence of the firearm. To establish the existence: 1. Presenting the firearm in court - Just like presenting dangerous drugs, because it is the corpus delicti of the crime - There was a case where the presentation was not made; the prosecution only presented testimonial evidence. SC accepted the testimony: o Testimony of a witness who saw the accused in possession of the firearm is sufficient Pp. vs. Del Rosario G.R. No. 142296 May. 21, 2001 o People vs. Narvasa G.R. No. 128618 Nov. 16, 1998 o Pp. vs Baleroso G.R. No. 164815 Feb. 22, 2008 People vs. Lion G.R. No. 115988 March 29, 1996 No animus possidendi if the possession or control is merely: 1. Temporary 2. Incidental 3. Casual Altellero vs. Casimero April 25, 2012 - The police received a report that there are persons armed in a place. When reaching the place the police saw the baranggay captain who was walking wobbly and used an armalite as a cane. The baranggay captain was apprehended and required documents for the firearm, the baranggay captain was only able to present license to own and possess, no PTC. He was charged, - Under section 389 - b of the local government code, A baranggay captain is authorized to possess and carry firearm within his territorial jurisdiction. While

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D within the territory of his baranggay, he need not secure a permit to carry outside his residence. As long as he is within his jurisdiction (baranggay) PD 1866 likewise penalize possession, manufacturing, etc explosives. It was not completely repealed by RA 10591 because it pertains only to possession of firearms. Section 3. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of an Explosive or Incendiary Device - The penalty of reclusion perpetua shall be imposed upon any person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any explosive. -

If you possess hand grenade (in your home), you will be penalized with reclusion perpetua.

―or incendiary device, with knowledge of its existence and its explosive or incendiary character‖ -

Is firecracker included as explosive? NO if it is not capable of producing destructive effect on contiguous objects or causing injury or death to any person.

"Provided, That mere possession of any explosive or incendiary device shall be prima facie evidence that the person had knowledge of the existence and the explosive or incendiary character of the device.‖ -

Animus possidendi is presumed.

"Provided, however, That a temporary, incidental, casual, harmless, or transient possession or control of any explosive or incendiary device, without the knowledge of its existence or its explosive or incendiary character, shall not be a violation of this Section.‖ -

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SEC 3-A. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of a Part, Ingredient, Machinery, Tool or Instrument Used or Intended to be Used for the Manufacture, Construction, Assembly, Delivery or Detonation. - The penalty of reclusion perpetua shall be imposed upon any person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, used or intended to be used by that person for its manufacture, construction, assembly, delivery or detonation, where the explosive or incendiary device is capable or is intended to be made capable of producing destructive effect on contiguous objects or causing injury or death to any person.

Meaning, there is animus possidendi

―where the explosive or incendiary device is capable of producing destructive effect on contiguous objects or causing injury or death to any person, including but not limited to, hand grenade(s), rifle grenade(s), 'pillbox bomb', 'molotov cocktail bomb', 'fire bomb', and other similar explosive and incendiary devices.‖ -

"Provided, Further, That the temporary, incidental, casual, harmless, or transient possession or control of any explosive or incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section.‖

If there is no animus possidendi, or if the possession is merely temporary, incidental or casual, it is harmless. If you found a bomb and carried it in the police station and you were caught, you are not liable.

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This if it for unlawful manufacture or sale. If you only possess, it is under Section 3. Penalty is reclusion perpetua.

"Provided, That the mere possession of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, by any person whose business activity, or employment does not lawfully deal with the possession of such article shall be prima facie evidence that such article is intended to be used by that person in the unlawful/illegal manufacture, construction, assembly, delivery or detonation of an explosive or incendiary device.‖ "Provided, however, That a temporary incidental, casual, harmless or transient possession or control of any part, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, without the knowledge of its existence or character as part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, shall not be a violation of this Section.‖ "Provided, Further, That the temporary, incidental, casual, harmless, or transient possession or control of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section.‖

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D "Provided, finally, That in addition to the instances provided in the two (2) immediately preceeding paragraphs, the court may determine the absence of the intent to possess, otherwise referred to as 'animus possidendi', in accordance with the facts and circumstances of each case and the application of other pertinent laws, among other things, Articles 11 and 12 of the Revised Penal Code, as amended." SEC. 3-B. Penalty for the Owner, President, Manager, Director or Other Responsible Officer of Any Public or Private Firm, Company, Corporation or Entity. - The penalty of reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. -

This is the penalty for the owners and officers of the corporation. Who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs.

SEC. 3-C. Relationship of Other Crimes with a Violation of this Decree and the Penalty Therefor. - When a violation of Section 3, 3-A or 3-B of this Decree is a necessary means for committing any of the crimes defined in the Revised Penal Code or special laws, or is in furtherance of, incident to, in connection with, by reason of, or on occassion of any of the crimes defined in the Revised Penal Code or special laws, the penalty of reclusion perpetua and a fine ranging from One hundred Thousand pesos (P100,000.00) to One million pesos (P1,000,000.00) shall be imposed. -

-

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Example, you have a grenade and you used it to threaten someone, you can be held liable for grave threats. Penalty is reclusion perpetua and if the same is used in the commission of a crime, reclusion perpetua for possession explosive as well as the penalty of the crime committed. What about if the explosice was used to kill a person? Crime committed is murder.

SEC. 3-D. Former Conviction or Acquittal; Double Jeopardy. - Subject to the provisions of the Rules of Court on double

jeopardy, if the application thereof is more favorable to the accused, the conviction or acquittal of the accused or the dismissal of the case for violation of this Decree shall be a bar to another prosecution of the same accused for any offense where the violation of this Decree was a necessary means for committing the offense or in furtherance of which, incident to which, in connection with which, by reason of which, or on occasion of which, the violation of this Decree was committed, and vice versa. SEC. 4.Responsibility and liability of Law Enforcement Agencies and Other Government Officials and Employees in Testifying as Prosecution Witnesses. -

This is about command responsibility. This is similar to the provision of RA 9165 pertaining to the witnesses who refuse to appear in court or wilfully failed to appear in court.

―Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses, intentionally or negligently, to appear as a witness for the prosecution of the defense in any proceeding, involving violations of this Decree, without any valid reason, shall be punished with reclusion temporal and a fine of Five hundred Thousand pesos (P500,000.00) in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.‖ ―The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with prisioncorreccional and a fine of not less than Ten Thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public officeif despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court.‖ ―The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or reassigned to any other government office located in another territorial jurisdiction during the pendency of the case in court.― Except of course if there is a compelling reason. SEC 4-A. Criminal Liability for Planting of Evidence. - Any person who is found guilty of 'planting' any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, shall suffer the penalty of reclusion perpetua.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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If it is committed by law enforcers, it is hard to prove because they are presumed to have performed their duties. The court will weigh the testimony of the enforcing officers or testimony of the accused.

the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such person's.  The case of Hayden Kho, taking the video and uploaded it in the internet. Hayden Kho would have been convicted under this provision of law if this was enacted during the time of their scandal. He was charged under RA 9262 alleging that the video coverage was taken without the consent of Halili. But it was dismissed. But if this law was enacted before, he would have been liable because if a picture is shared or made public, it does not require written consent.

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(The rest of the sections/provisions are for reading purposes.)

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R.A No. 9995 Anti-Photo and Video Voyeurism Act of 2009 This law has something to do with our right to privacy and dignity which is one of our human rights.

Broadcast -

means to make public, by any means, a visual image with the intent that it be viewed by a person or persons.

Capture -

with respect to an image, means to videotape, photograph, film, record by any means, or broadcast.

"Private area of a person"



Female breast -

means any portion of the female breast.

Photo or video voyeurism -

means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or  so it can be that it is with consent  reasonable expectation of privacy o meaning, you can remove your clothes without being worried that a picture is taken on you. o believe that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place.

means the naked or undergarment clad genitals, public area, buttocks or female breast of an individual

"Under circumstances in which a person has a reasonable expectation of privacy"



means believe that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured, or



circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place

Q: How about in KTV bars where women dance naked and someone took pictures or videos the same, is the one taking the photo or the video liable? A: No, because they are not under the circumstances where a person has reasonable expectation of privacy.

Prohibited Acts (Section 4) It is hereby prohibited and declared unlawful for any person: (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D the person involved and under circumstances in which the person has a reasonable expectation of privacy (b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; (c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.



The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein.

Penalties (Section 5)



The penalty of imprisonment of not less that three (3) years but not more than seven (7) years and a fine of not less than One hundred thousand pesos (P100,000.00) but not more than Five hundred thousand pesos (P500,000.00), or both, at the discretion of the court



If the violator is a juridical person, its license or franchise shall be automatically be deemed revoked and the persons liable shall be the officers thereof including the editor and reporter in the case of print media, and the station manager, editor and broadcaster in the case of a broadcast media.

Exemption (Section 6)



Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the court, to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism.

Inadmissibility of Evidence (Section 7)





Q: What if the offender did not take any picture or video but instead used his fertile memory, what was the crime committed? A: Unjust vexation or ―Rape ex parte‖ (JOKE! haha) RA 4200 ANTI-WIRE TAPPING ACT Acts Penalized (Very important!)



It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described –



―Any person‖, including the participant of s conversation

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence i.

ii. iii. iv.



to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person

Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. –

The recording may be used as evidence against the violator

Q: Is the telephone extension covered by the prohibition under this law? A: Gaanan vs IAC, GR. L-69809, Oct. 16, 1986

Any record, photo or video, or copy thereof, obtained or secured by any person without court order shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation But it may be admissible in evidence against the person who took such photo or video

No, because a telephone extension line is not the device or arrangement contemplated by the law and the use of an extension line cannot be considered as wire-tapping. (No. XX, MCQ, 2013 BAR) Penalties (Sec. 2)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D



Imprisonment for not less than six (6) months or more than six (6) years and with the accessory penalty of perpetual absolute disqualification

Section 3



Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of: i. ii. iii. iv. v. vi. vii. viii. ix. –



treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the RPC, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security

IOW, the appropriate law enforcement agencies can wiretap any private communication of persons who committed the above-mentioned crimes, provided that there must be prior court order issued (by the RTC) Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof: (a) that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (b) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (c) that there are no other means readily available for obtaining such evidence

Section 4



Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

August 24, 2016 Review PD 1866 -

Mentioned the crime of rebellion – common crimes are absorbed in rebellion include violation of PD 1866 To be absorbed, the common crimes must have been committed in furtherance of rebellion EX: When a person who is a rebel kills another person in furtherance of rebellion, then the crime committed is not murder or homicide but rebellion. POLITICAL OFFENSE DOCTRINE Under the political offense doctrine, "common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty."

THE POLITICAL OFFENSE DOCTRINE IS NOT A GROUND TO DISMISS THE CHARGE AGAINST PETITIONERS PRIOR TO A DETERMINATION BY THE TRIAL COURT THAT THE MURDERS WERE COMMITTED IN FURTHERANCE OF REBELLION Any ordinary act assumes a different nature by being absorbed in the crime of rebellion. Thus, when a killing is committed in furtherance of rebellion, the killing is not homicide or murder. Rather, the killing assumes the political complexion of rebellion as its mere ingredient and must be prosecuted and punished as rebellion alone. However, this is not to say that public prosecutors are obliged to consistently charge respondents with simple rebellion instead of common crimes. No one disputes the well-

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Training, or Citizen's Army Training. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purpose of this Act.

entrenched principle in criminal procedure that the institution of criminal charges, including whom and what to charge, is addressed to the sound discretion of the public prosecutor. But when the political offense doctrine is asserted as a defense in the trial court, it becomes crucial for the court to determine whether the act of killing was done in furtherance of a political end, and for the political motive of the act to be conclusively demonstrated. IOW an accused charged with murder would raise the defense of political offense doctrine the court should not automatically dismiss the case. It should conduct trial to determination whether the killings were actually committed in furtherance of rebellion.

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If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19, Rule 119, provided the accused shall not be placed in double jeopardy. (Ocampo v. Abando, GR 176830, 185587, 185636, 190005, February 11, 2014, 726 PHIL 441-497) IOW the court will not immediately dismiss the case if the accused would raise the political offense doctrine but further the court should conduct trial or the prosecution to present evidence to determine whether the killings were committed in furtherance of rebellion. If the court finds that indeed the killings were committed in furtherance of rebellion, it will order the dismissal of the case upon only when the proper information charging the appropriate offense is filed.

SECTION 2. No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites. -

REPUBLIC ACT NO. 8049 AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN FRATERNITIES, SORORITIES, AND ORGANIZATIONS AND PROVIDING PENALTIES THEREFOR (Anti-Hazing Law, REPUBLIC ACT NO. 8049, [June 7, 1995]) SECTION 1. Hazing as used in this Act is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. The term organization shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military

Villareal v. People, GR 151258, December 1, 2014: case which triggered the enactment of the law Hazing is not illegal per se. This law does not prohibit hazing, what is prohibited is hazing which is done by inflicting physical violence or injury but hazing which is done without causing any injury or any physical injury to the recruit neophyte or applicant is not prohibited. EX: If military personnel would create on his own anything which involves physical, mental or psychological testing to a recruit then that is considered hazing.

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This law does not completely prohibit hazing. This law merely regulates hazing. As a form of regulation, one way to regulate hazing is that the group or the fraternity who is going to conduct an initiation of rites is required to notify the school or the head of the organization 7 days before the conduct of such initiation and the school authorities must see to it that no physical violence should be employed. Does not provide for a penalty for the non-compliance.

SECTION 3. The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. -

The head of the organization or school or representatives is told to promise that no physical violence would occur. Other than his promise, must assign at least 2 representatives present be during the initiation rite to see to it that no physical harm shall be inflicted on the recruit or applicant.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Section 4. PENALTIES

4. RECLUSION TEMPORAL IN ITS MINIMUM PERIOD

If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the  

(12 years and one day to 14 years and 8 months)

officers and members of the fraternity, sorority or organization



if in consequence of the hazing the victim shall become:

who ACTUALLY PARTICIPATED in the infliction of physical harm shall be liable as PRINCIPALS. The person or persons who participated in the hazing shall suffer:

   

deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than ninety (90) days.

1. RECLUSION PERPETUA (LIFE IMPRISONMENT) if a. b. c. d.

death, rape, sodomy or mutilation results there from.

5. PRISON MAYOR IN ITS MAXIMUM PERIOD (10 years and one day to 12 years)

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They will not be charged anymore under the RPC, but here.

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Those responsible for Villa were just convicted of Reckless Imprudence resulting in Homicide because this law wasn‘t enacted that time yet.

2. RECLUSION TEMPORAL IN ITS MAXIMUM PERIOD (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become a. b. c. d.

insane, imbecile, impotent or blind. -

Under the RPC, this is characterized as serious physical injuries and the penalty is Prision Mayor, but here it is reclusion temporal in its maximum period. So the penalty here is higher.

(14 years, 8 months and one day to 17 years and 4 months) -

if in consequence of the hazing the victim shall have

  

lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged.

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if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than thirty (30) days.

6. PRISON MAYOR IN ITS MEDIUM PERIOD (8 years and one day to 10 years) 

if the injury is less serious.

7. PENALTY OF PRISON MAYOR IN ITS MINIMUM PERIOD (6 years and one day to 8 years)

3. RECLUSION TEMPORAL IN ITS MEDIUM PERIOD





Under the RPC this is also Serious Physical Injuries, but the penalty here is also higher.



if the injury would require medical attendance of one (1) to nine (9) days.



This is 2 degrees higher than that in the RPC.

NOTE: The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. 

They can thus be subjected to expulsion.

AGGRAVATING CIRCUMSTANCES: (a) when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; (b) when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting;

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (c) when the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation;



(d) when the hazing is committed outside of the school or institution; or (e) when the victim is below twelve (12) years of age at the time of the hazing. NOTE: 

The owner of the place where hazing is conducted shall be liable as an ACCOMPLICE, provided that 1. 2.





If you are the owner of the beach house which was rented by the fraternity for example, you have to immediately take action upon learning that hazing is about to or is being conducted in the said beach house.

If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as PRINCIPALS 1. 2.



he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

The school authorities including faculty members 1. 2. 3.

who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring

-

shall be punished as ACCOMPLICES for the acts of hazing committed by the perpetrators.



The officers, former officers, or alumni organization, group, fraternity or sorority

of

the

-

who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as PRINCIPALS.

-

If you joined in the planning but you weren‘t present in the actual hazing because it‘s midterms, you are still liable as a principal.

A fraternity or sorority's adviser -

who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as PRINCIPAL.

The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein. -

Note that under the RPC, mere presence in the crime scene will not make you liable unless you perform any act in furtherance of the commission of the crime.

-

But here in hazing, mere presence is a prima facie evidence of participation.

Any person charged under this provision shall NOT BE ENTITLED TO THE MITIGATING CIRCUMSTANCE THAT THERE WAS NO INTENTION TO COMMIT SO GRAVE A WRONG. Note: This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein. To summarize (Pp. vs Dungo GR No. 209464, July 1, 2015): The following shall be liable as PRINCIPALS:

-

1.

The actual participants in the hazing

Take Note: the mere fact that you have knowledge of the commission of the crime does not make you liable, much less as a principal, except only for misprision of treason.

-

the presence of any person during the hazing is prima facie evidence of actual participation, unless he prevented the commission of the acts punishable herein

The fact that you failed to prevent the commission of a crime doesn‘t make you liable for any crime under the RPC but it is different here, because mere knowledge and failure to prevent hazing can make you liable either as a principal or an accomplice.

2.

The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing

-

Although these planners were not present during the hazing.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 3.

The officers or members of an organization group, fraternity or sorority who induced the victim to be present thereat

4.

The fraternity or sorority's adviser who was present when the acts constituting hazing were committed, and failed to take action to prevent them from occurring.

CARNAPPING" is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things.

5.

The parents of the officers or members of the fraternity, group, or organization, who owns the house where the hazing was conducted and failed to take action to prevent the hazing.

"MOTOR VEHICLE" is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating.

The following shall be liable as ACCOMPLICE: 1.

The school authorities, including faculty members, who consented to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same;

2.

The owner of the place where the hazing was conducted can also be an accomplice to the crime, when he has actual knowledge of the hazing conducted therein and he failed to take any steps to stop the same.

RA. 6539 AN ACT PREVENTING AND PENALIZING CARNAPPING -

The anti- carnapping act was enacted in order to remedy the discrepancy created by the RPC. Because carnapping is actually theft or robbery of motor vehicle. Discrepancy in the RPC:

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This is the purpose of the anti- carnapping act- in order to remedy the discrepancy in the penalties under the RPC.

Bill dozers are equipments, not motor vehicles. Qualified theft and Robbery still applies. What can be covered by Carnapping are those not falling within the exceptions.

Sec.7 - Refers to the duty of the collector of customs to report the arrival of imported motor vehicle Sec.8 -Refers to the duty of importers/sellers/distributors of motor vehicles to keep record of stocks Sec.10 - any person who shall undertake to assemble or rebuild or cause the assembling or rebuilding a motor vehicle shall first secure certificate of clearance from PNP Sec. 11 – clearance for shipment of motor vehicles

First scenario: Let‘s say you stole a parked car. The car is worth 1Million, the crime there is qualified theft because it‘s a motor vehicle and so the penalty is Reclusion Perpetua. Second scenario: Suppose there‘s a driver inside playing pokemon. You knocked and told him ―get out from the car this is carnap!‖ What is the crime there? Ans. Simple Robbery and the penalty is Prision mayor. -

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Note that in the 1st scenario, the penalty is higher than the robbery mentioned in the 2nd scenario, notwithstanding the fact that in the 2nd scenario, the victim was present.

Sec. 14 (To supply the discrepancy in the RPC as to provisions under theft/robbery) Simple Carnapping - Any person who is found guilty of carnapping, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than 14yrs and 8mo. and not more than 17yrs and 4mo., when the carnapping is committed without violence or intimidation of persons, or force upon things; Carnapping with violence - and by imprisonment for not less than 17yrs and 4mo. and not more than 30yrs, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping. Qualified carnapping/ carnapping in its aggravated form When in the course of carnapping or in the occasion thereof,

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D the owner/driver/occupant of the carnapped vehicle is killed or raped;

a.refers to an act by which severe pain or suffering, whether physical/mental, is intentionally inflicted on a person;

-as long as the main purpose is to carnap; if the main purpose is to kill and thereafter the motor vehicle is taken away, 2 crimes are committed, either murder/homicide and carnapping.

b.for purposes of obtaining from him/her or 3rd persons information or confession, or punishing him/her for an act he/she has committed or is suspected of having committed; or intimidating or coercing him/her or discrimination of any kind.

-supposed what was killed is not the driver/occupant, wherein after taking the vehicle, the carnapper drove the car at a high speed due to pursuit from policemen, and in the course of the pursuit, the carnapper ran over a pedestrian, what crime/crimes are committed? Carnapping and reckless imprudence resulting in homicide, Why not qualified carnapping? To be held liable for such, it is necessary that the person being killed in the commission of carnapping should be the owner/driver/occupant of the motor vehicle. (People vsParamil GR. No. 128056 March 31 2000; People vsSirad GR. no.130594) -People vsNucom et.al Gr. No. 1791041 April 1 2013; accused here took away a taxi together with the driver, but later on the driver was just found dead and one of the carnappers turned into a state witness and his co-accused was charged and convicted of the crime of carnapping with homicide. Now take note, it was mentioned by the SC that there‘s no such crime of carnapping with homicide, but in this 2013 case, SC affirmed such ruling of the trial court. -In boundary system, which is the practice of operators of public utilities, the crime committed of the driver if he fails to return the vehicle he is driving is qualified theft, because although the driver is required to pay a fixed amount for the use of the car, but according to the SC there is no transfer of juridical possession but merely physical possession; juridical transfer is prohibited by law. Such possession of the driver is an extension of the possession of the owner. It doesn‘t mean that it is not estafa, because it would be different if the vehicle is private, then in that case there is estafa, say for example those in rent a car; what we are talking about here is the failure to return of a public utility vehicle. (People vsBustenera GR. No. 148233 June 8 2004) -carnapping is committed even if the one driving the motor vehicle is not the owner but an authorized driver. It is enough that the motor vehicle belongs to another. -it is necessary under this law that the original intent is carnapping, otherwise there would be 2 crimes committed. -what if the owner/driver/occupant is not killed? Then the crime is carnapping with violence, not carnapping with frustrated homicide. R.A. 9745 ANTI-TORTURE ACT Torture – elements

c. when such pain/suffering is inflicted by or at the instigation of or with the consent of acquiescence of a person in authority or agent of a person in authority. -this law could only be violated if the torture is done by a PA/APA or upon his inducement -purpose of this law is to value the dignity of a human person and guarantee full respect for human rights other cruel/inhuman degrading treatment or punishment now there refers to a deliberate or aggravating treatment or punishment which are not covered under sec. 4 of this act; inflicted by PA/APA order of battle – refers to any document or determination made by military/police/any law enforcement agency of the govt. listing the names of persons/orgs that perceives to be enemies of the state, and considered as targets as combatants that it could deal with thru the use of means allowed by intl. law. August 26, 2016 Continuation on Anti-Torture Act The people who sponsored this law were victims of torture, and experienced these acts. Usually these happened during Martial Law. d) "Order of Battle" refers to any document or determination made by the military, police or any law enforcement agency of the government, listing the names of persons and organizations that it perceives to be enemies of the State and that it considers as legitimate targets as combatants that it could deal with, through the use of means allowed by domestic and international law.  the list of enemies of the government - leaders of NPA Section 4.Acts of Torture. - For purposes of this Act, torture shall include, but not be limited to, the following: (a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; (2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; (3) Electric shock; - to extract information, and to punish (4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); (5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position; (7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails; (11) Harmful exposure to the elements such as sunlight and extreme cold; (12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (13) The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as: (i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (14) Other analogous acts of physical torture; and  these could be combinations, not necessarily separate acts. (b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as: (1) Blindfolding;  this could be combined with physical torture. Like covered eyes and then punching you so that you do not know who's punching you (2) Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts; (3) Confinement in solitary cells or secret detention places; (4) Prolonged interrogation;  you will be investigated for a long time by different people (5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;  like what is going on somewhere in Batangas - they make the criminals go on a parade where people can see them. That can be mental torture

(6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed; (7) Maltreating a member/s of a person's family; (8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party; (9) Denial of sleep/rest; (10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will;  same as the one in Batangas (11) Deliberately prohibiting the victim to communicate with any member of his/her family; and (12) Other analogous acts of mental/psychological torture. Section 5.Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment –

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Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment. So, no infliction of torture – either mental of physical

Prohibited Detention –

Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity are hereby prohibited.

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In which case, (PNP), (AFP) and other law enforcement. agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the corresponding data on the prisoners or detainees incarcerated or detained therein such as, among others, names, date of arrest and incarceration, and the crime or offense committed.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D –

This list shall be made available to the public at all times, with a copy of the complete list available at the respective national headquarters of the PNP and AFP.

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Exclusionary Rule; Exception –

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Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, EXCEPT if the same is used as evidence against a person or persons accused of committing torture. It is covered by the so-called exclusionary rule.

(a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or (c) By harboring, concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment:

Who are Criminally Liable? Principal (a) Any person who actually participated Or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal (b) Any superior military, police or law enforcement officer or senior government official who issued an order to any lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals. (c) The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.

Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner:

Provided, That the accessory acts are done with the abuse of the official's public functions. Penalties (A) The penalty of RECLUSION PERPETUA shall be imposed upon the perpetrators of the following acts: 1. 2. 3. 4.

5.

Torture resulting in the death of any person; Torture resulting in mutilation; Torture with rape; Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and Torture committed against children.

(B) The penalty of RECLUSION TEMPORAL shall be imposed on those who commit any act of mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame. (C) The penalty of PRISION CORRECCIONAL shall be imposed on those who commit any act of torture resulting in psychological, mental and emotional harm other than those described 1n paragraph (b) of this section. ' (D) The penalty of PRISION MAYOR IN ITS MEDIUM AND MAXIMUM PERIODS shall be imposed if, in consequence of torture, the victim shall have lost the power of speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have lost the use of any such member; Or shall have become permanently incapacitated for labor.

Accessory

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (E) The penalty of PRISION MAYOR IN ITS MINIMUM AND MEDIUM PERIODS shall be imposed if, in consequence of torture, the victim shall have become deformed or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or incapacitated for labor for a period of more than ninety (90) days. (F) The penalty of PRISION CORRECCIONAL IN ITS MAXIMUM PERIOD TO PRISION MAYOR IN ITS MINIMUM PERIOD shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for mare than thirty (30) days but not more than ninety (90) days. (G) The penalty of PRISION CORRECCIONAL IN ITS MINIMUM AND MEDIUM PERIOD shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) days or less. (H) The penalty of ARRESTO MAYOR shall be imposed for acts constituting cruel, inhuman or degrading treatment or punishment as defined in Section 5 of this Act. (I) The penalty of PRISION CORRECCIONAL shall be imposed upon those who establish, operate and maintain secret detention places and/or effect or cause to effect solitary confinement, incommunicado or other similar forms of prohibited detention as provided in Section 7 of this Act where torture may be carried out with impunity. (J) The penalty of ARRESTO MAYOR shall be imposed upon the responsible officers or personnel of the AFP, the PNP and other law enforcement agencies for failure to perform his/her duty to maintain, submit or make available to the public an updated list of detention centers and facilities with the corresponding data on the prisoners or detainees incarcerated or detained therein, pursuant to Section 7 of this Act.

Torture as a crime SHALL NOT ABSORB OR SHALL NOT BE ABSORBED by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a SEPARATE AND INDEPENDENT CRIMINAL ACT whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws.

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Exclusion from the Coverage of Special Amnesty Law In order not to depreciate the crime of torture, persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions.

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Applicability of the RPC The provisions of the RPC insofar as they are applicable shall be SUPPLETORY to this Act. Moreover, if the commission of any crime punishable under Title Eight (Crimes Against Persons) and Title Nine (Crimes Against Personal Liberty and Security) of the RPC is attended by any of the acts constituting torture and other cruel, inhuman and degrading treatment or punishment as defined herein, the penalty to be imposed shall be in its MAXIMUM PERIOD.. Ordinary Mitigating Circumstances cannot offset. Only Privileged Mitigating Circumstances

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Republic Act No. 9775 - Anti-Child Pornography Act of 2009 Child -

What is the basis of this law? (d) To fully adhere to the principles and standards on the absolute condemnation and prohibition of torture as provided for in the 1987 Philippine Constitution; various international instruments to which the Philippines is a State party such as, but not limited to, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDA W) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and all other relevant international human rights instruments to which the Philippines is a signatory. Torture as a Separate and Independent Crime

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refers to a person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. Same definition in Child Abuse Act and RA 9262 In RA 9344 – The definition of the child is limited to below 18 years old For the purpose of this Act, a child shall also refer to:(expanded definition) 1. a person regardless of age who is presented, depicted or portrayed as a child as defined herein; and This is what we call portray child. 2. computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child as defined herein. This is what we call virtual child. Ex: ―Sweetie‖ the computer-generated child.

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 

Child pornography -

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-

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refers to any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities. This is a form of child abuse. The offender may be charged under this law or under RA 7610. It may also constitute Anti-Trafficking of Persons Act. Example, if the one you used in pornography is a victim of trafficking, the offender may be charged under RA 9208, Qualified Trafficking if the victim if a child. There is a new law called Cybercrime Law. The penalty in child pornography, as long as it is done through the internet, is higher. For instance, you pot a naked child in facebook, that is a violation of Cybercrime Law, RA 10175. However, the Anti-Cyber Crime Act provides for a higher penalty, higher than RA 9775. Disini et al v DOJ, GR no. 203335, Feb 18, 2014 (TAKE NOTE!)  According to the SC, when the accused is charged with child pornography after RA 10175 (Anti-Cybercrime Law), he could no longer be charged under RA 9775 (AntiChild Pornography). Only one crime. SC said that Anti-Cybercrime Law merely expands the coverage of the Anti-Child Pornography Act of 2009 or RA 9775 so as to include identical activities in cyberspace. Charging the offender under both law would constitute a violation of the right of the accused against double jeopardy.  In this case, SC said that the same rule will apply in the crime of libel.  Example, if libel is committed through the internet, the penalty is higher, prision mayor. But if the offender is charged for cyber libel or libel under the Anti-Cybercrime Act, the offender could no longer be charged under the RPC because of the right of the accused against double jeopardy. Because according to SC, the cybercrime law merely establishes the computer system as another means of publication.  So if someone posts about you in facebook which is defamatory, you want a higher penalty, charge him under RA 10174, if done in the internet.

Remember: The penalty for cyberlibel is not probationable.

Explicit Sexual Activity -

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includes actual or simulated – 1. As to form:  sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; 2. bestiality;  sexual contact between animal and human being 3. masturbation; 4. sadistic or masochistic abuse; 5. lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or 6. use of any object or instrument for lascivious acts  example: sexual gadgets Take note: The victim must be a child, either boy or girl. This law does not apply to adult pornography. Adult pornography is punishable under the RPC. But take not also that if one of the participants is a victim of trafficking, RA 9208 will apply.

Grooming -

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the act of preparing (or motivating) a child or someone who the offender believes to be a child for sexual activity or sexual relationship bycommunicating any form of child pornography. It includes online enticement or enticement through any other means. You motivate the child that it is fine to do some acts so that you can convince such child to perform such pornographic acts.

Luring -

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the act of communicating, by means of a computer system, with a child or someone who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or production of any form of child pornography. Example: 50 year old adult, he pretended to be 15 year old boy and he entered into a relationship with a 15 year old girl. He deceived the child that he is 15

QUANTUM LEAP (USJR School of Law Batch 2017) COQRSaSiT “Together we leap, together we will succeed.”

CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D years old and induced her to perform pornographic acts in front of the webcam or camera. Pandering -

the act of offering, advertising, promoting, representing or distributing through any means any material or purported material that is intended to cause another to believe that the material or purported material contains any form of child pornography, regardless of the actual content of the material or purported material.

Sec. 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person: (a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; (b) To produce, direct, manufacture or create any form of child pornography; (c) To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography; o Selling of CDs and DVDs relating to child pornography even if you were not the one taping it o Sharing through cellphone of child pornography is included (d) To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast; o If it is for personal consumption, you are still liable under letter (l) (e) To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; (f) For film distributors, theatres and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography; (g) For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography; o Similar in the case in Cordova (h) To engage in the luring or grooming of a child; (i) To engage in pandering of any form of child pornography; (j) To wilfully access any form of child pornography; (k) To conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form of child pornography shall be committed

when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it; and o Mere conspiracy is punishable. It is a crime under this law (l) To possess any form of child pornography. Sec. 5. Syndicated Child Pornography - The crime of child pornography is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another and shall be punished under Sec. 15(a) of this Act. - Refers to the number of offenders Sec. 6. Who May File a Complaint. - Complaints on cases of any form of child pornography and other offenses punishable under this Act may be filed by the following: (a) Offended party; o If too young then the parents will file the case then; (b) Parents or guardians; (c) Ascendant or collateral relative within the third degree of consanguinity; (d) Officer, social worker or representative of a licensed child-caring institution; (f) Officer or social worker of the Department of Social Welfare and Development (DSWD); (g) Local social welfare development officer; (h) Barangay chairman; (i) Any law enforcement officer; (j) At least three (3) concerned responsible citizens residing in the place where the violation occurred; (k) Any person who has personal knowledge of the circumstances of the commission of any offense under this Act. - If no other person will act Sec. 8. Jurisdiction. Family Court has Pornography cases

jurisdiction

over

Child

Section 9. Duties of an Internet Service Provider (ISP). - All internet service providers (ISPs) shall notify the Philippine National Police (PNP) or the National Bureau of Investigation (NBI) within seven (7) days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility. Nothing in this section may be construed to require an ISP to engage in the monitoring of any user, subscriber or customer, or the content of any communication of any such person. Sec. 10. Responsibility of Mall Owners/Operators and Owners or Lessors of Other Business Establishments. - All mall owners/operators and owners or lessors of other business establishments shall notify the PNP or the NBI within seven (7) days from obtaining facts and circumstances that child pornography is being committed in their premises. Provided, That public display of any form of child

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D pornography within their premises is a conclusive presumption of the knowledge of the mall owners/operators and owners or lessors of other business establishments of the violation of this Act: Provided, further, That a disputable presumption of knowledge by mall owners/operators and owners or lessors of other business establishments should know or reasonably know that a violation of this Act is being committed in their premises. Photo developers, information technology professionals, credit card companies and banks and any person who has direct knowledge of any form of child pornography activities shall have the duty to report any suspected child pornography materials or transactions to the proper authorities within seven (7) days from discovery thereof. Any wilful and intentional violation of this provision shall be subject to the penalty provided under Sec. 15(l) of this Act. Mere knowledge/acquiescence/ approval of the commission of Child Pornography will make you liable if they fail to report the same to the PNP or NBI If the Pornographic materials are publicly displayed then the evidence of knowledge are conclusive. If there is no public display of the pornographic materials then it is later on found out that it is sold, there will be a disputable presumption of knowledge Failure to report will make you liable Section 15 (l) If you are repairing a laptop and find that there are pornographic materials in the files, you have the duty to report the same to the authorities. Failure to report will make you liable under this law.

employee. Sec. 20. Inter - Agency Council against Child Pornography. The number one agency responsible to campaign against child pornography is the DSWD Sec. 22. Child Pornography as a Transnational Crime. Pursuant to the Convention on transnational Organized Crime, the DOJ may execute the request of a foreign state for assistance in the investigation or prosecution of any form of child pornography by: (1) conducting a preliminary investigation against the offender and, if appropriate, to file the necessary charges in court; (2) giving information needed by the foreign state; and (3) to apply for an order of forfeiture of any proceeds or monetary instrument or properly located in the Philippines used in connection with child -

In the case of Cordova, it was discovered through the help of InterPol/FBI

Sec. 13. Confidentiality. - The right to privacy of the child shall be ensured at any stage of the investigation, prosecution and trial of an offense under this Act. Towards this end, the following rules shall be observed: The trial will not be open to the public. Closed door trial. Penalties are NOT included in the exam but is for knowledge purposes. If interested refer to Section 15 of this law. Sec. 16. Common Penal Provisions. (a) If the offender is a parent, ascendant, guardian, stepparent or collateral relative within the third degree of consanguinity or affinity or any person having control or moral ascendancy over the child, the penalty provided herein shall be in its maximum duration; Provided, That this provision shall not apply to Sec. 4(g) of this Act; (b) If the offender is a juridical person, the penalty shall be imposed upon the owner, manager, partner, member of the board of directors and/or any responsible officer who participated in the commission of the crime or shall have knowingly permitted or failed to prevent its commissions; (c) If the offender is a foreigner, he/she shall be immediately deported after the complete service of his/her sentence and shall forever be barred from entering the country; and (d) The penalty provided for in this Act shall be imposed in its maximum duration if the offender is a public officer or

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

September 7, 2016 THE ANTI-MONEY LAUNDERING LAW Covered persons -

natural or juridical, refer to: 1. banks, non-banks, quasi-banks, trust entities, foreign

exchange dealers, pawnshops, money changers, remittance and transfer companies and other similar entities and all other persons and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP); 2. insurance companies, pre-need companies and all other persons supervised or regulated by the Insurance Commission (IC); 3. (i) securities dealers, brokers, salesmen, investment houses and other similar persons managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close-end investment companies, common trust funds, and other similar persons, and (iii) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by the Securities and Exchange Commission (SEC); 4. jewelry dealers in precious metals, who, as a business, trade in precious metals, for transactions in excess of One million pesos (P1,000,000.00); 5. jewelry dealers in precious stones, who, as a business, trade in precious stones, for transactions in excess of One million pesos (P1,000,000.00); 6. company service providers which, as a business, provide any of the following services to third parties: (i) acting as a formation agent of juridical persons; (ii) acting as (or arranging for another person to act as) a director or corporate secretary of a company, a partner of a partnership, or a similar position in relation to other juridical persons; (iii) providing a registered office, business address or accommodation, correspondence or administrative address for a company, a partnership or any other legal person or arrangement; and (iv) acting as (or arranging for another person to act as) a nominee shareholder for another person; and 7. persons who provide any of the following services: (i) managing of client money, securities or other assets; (ii) management of bank, savings or securities accounts; (iii) organization of contributions for the creation, operation or management of companies; and (iv) creation, operation or management of juridical persons or arrangements, and buying and selling business entities. Notwithstanding the foregoing, the term 'covered persons'

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D shall excludelawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional responsibility or any of its amendments."

4.

5.

6.

Essence of money laundering -

money or its representatives which are proceeds from illegal activities are transacted in order that they would appear to have come from a legitimate source EX: You have money from drugs. You deposit it in the bank so that later on when you withdraw it, it did not anymore come from drugs but from the bank. EX: You have money coming from illegal sources, you either buy jewelry or stocks or buy properties. Later on you deposit it in the bank or when you sell the bought property, the people cannot anymore say that such money came from an illegitimate source.

7.

Monetary instrument -

Purpose of money laundering -

to prevent any attempt to conceal or disguise the identity of illegally obtained proceeds or money or its equivalent

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persons either natural or juridical, who are required to submit report to the AMLC (Anti-Money Laundering Council) on transactions which are considered as covered transactions and suspicious transactions within 5 days from occurrence thereof required to make a report with the AMLC any covered transaction or suspicious transaction Covered transaction

-

is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (P500,000.00) within one (1) banking day Suspicious transaction

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refers to: 1. coins or currency of legal tender of the Philippines, or of any other country; 2. drafts, checks and notes; 3. securities or negotiable instruments, bonds, commercial papers, deposit certificates, trust certificates, custodial receipts or deposit substitute instruments, trading orders, transaction tickets and confirmations of sale or investments and money market instruments; and 4. other similar instruments where title thereto passes to another by endorsement, assignment or delivery. Transaction

Covered persons -

business or financial capacity of the client; taking into account all known circumstances, it may be perceived that the client's transaction is structured in order to avoid being the subject of reporting requirements under the Act; any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client's past transactions with the covered institution; the transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or any transaction that is similar or analogous to any of the foregoing."

are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: 1. there is no underlying legal or trade obligation, purpose or economic justification; 2. the client is not properly identified; 3. the amount involved is not commensurate with the

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refers to any act establishing any right or obligation or giving rise to any contractual or legal relationship between the parties thereto. It also includes any movement of funds by any means with a covered institution. Unlawful activity

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refers to any act or omission or series or combination thereof involving or having direct relation to the following: 1. Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended; 2. Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002; 3. Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act; 4. Plunder under Republic Act No. 7080, as amended; 5. Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended; 6. Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602; 7. Piracy on the high seas under the Revised Penal

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D 8. 9. 10. 11. 12. 13. 14.

15.

16. 17. 18. 19. 20.

21. 22. 23. 24. 25. 26.

Code, as amended and Presidential Decree No. 532; Qualified theft under Article 310 of the Revised Penal Code, as amended; Swindling under Article 315 and Other Forms of Swindling under Article 316 of the Revised Penal Code, as amended; Smuggling under Republic Act Nos. 455 and 1937; Violations of Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000; Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended; Terrorism and conspiracy to commit terrorism as defined and penalized under Sections 3 and 4 of Republic Act No. 9372; Financing of terrorism under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012; Bribery under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and Corruption of Public Officers under Article 212 of the Revised Penal Code, as amended; Frauds and Illegal Exactions and Transactions under Articles 213, 214, 215 and 216 of the Revised Penal Code, as amended; Malversation of Public Funds and Property under Articles 217 and 222 of the Revised Penal Code, as amended; Forgeries and Counterfeiting under Articles 163, 166, l67, 168, 169 and 176 of the Revised Penal Code, as amended; Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the Anti-Trafficking in Persons Act of 2003; Violations of Sections 78 to 79 of Chapter IV, of Presidential Decree No. 705, otherwise known as the Revised Forestry Code of the Philippines, as amended; Violations of Sections 86 to 106 of Chapter VI, of Republic Act No. 8550, otherwise known as the Philippine Fisheries Code of 1998; Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the Philippine Mining Act of 1995; Violations of Section 27(c), (e), (f), (g) and (i), of Republic Act No. 9147, otherwise known as the Wildlife Resources Conservation and Protection Act; Violation of Section 7(b) of Republic Act No. 9072, otherwise known as the National Caves and Cave Resources Management Protection Act; Violation of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act of 2002, as amended; Violations of Sections 1, 3 and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or

Disposition of Firearms, Ammunition or Explosives; 27. Violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law; 28. Violation of Section 6 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022; 29. Violation of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines; 30. Violation of Section 4 of Republic Act No. 9995, otherwise known as the Anti-Photo and Video Voyeurism Act of 2009; 31. Violation of Section 4 of Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009; 32. Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination; 33. Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000; and 34. Felonies or offenses of a similar nature that are punishable under the penal laws of other countries. Qualified theft -

PP vs Cahili (July 30, 2014, GR 199208): When the amount stolen is more than 12,000.00 the penalty is reclusion perpetua. It is not bailable anymore. Bail is not anymore a matter of right. Money laundering

-

-

is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity: A. transacts said monetary instrument or property; B. converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property; C. conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property; D. attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c); E. aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and F. performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above. is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Jurisdiction of Money Laundering Cases -

instrumentalities used in or intended for use in any unlawful activity as defined in Section 3(i) hereof;

The regional trial courts shall have jurisdiction to try all cases on money laundering. Those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan.

(12) to require the Land Registration Authority and all its Registries of Deeds to submit to the AMLC, reports on all real estate transactions involving an amount in excess of Five hundred thousand pesos (P500,000.00) within fifteen (15) days from the date of registration of the transaction, in a form to be prescribed by the AMLC. The AMLC may also require the Land Registration Authority and all its Registries of Deeds to submit copies of relevant documents of all real estate transactions.‖

Prosecution of Money Laundering

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-

A. Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined. cannot be complexed, cannot be absorbed (same with torture) any person who violates this law can also be punished for the unlawful activity from which the money comes from EX: One committed the crime of Anti-Graft. The money is deposited in the bank. The person is liable for 2 crimes: violation of the Anti-Graft Act and at the same time Money Laundering. Why money laundering? The money was deposited in the bank so that it would appear that it comes from a lawful source or legitimate source. B. The prosecution of any offense or violation under this Act shall proceed independently of any proceeding relating to the unlawful activity if one is acquitted for Anti Money laundering, it does not follow that one would also be acquitted of the unlawful activity from which the money comes from

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WHAT ARE THE WAYS OF PREVENTING MONEY LAUNDERING? Section 9. Prevention of Money Laundering; Identification Requirements and Record Keeping. –

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The functions of AMLC were emphasized during the impeachment of the late CJ Corona. This has been amended.

- Anonymous accounts are strictly prohibited or accounts under fictitious name. One is no longer allowed to open ―Jose Velarde account‖. (b) Record Keeping (c) Reporting of Covered Transactions. -

The Anti-Money Laundering Council is hereby created and shall be composed of the Governor of the Bangko Sentral ng Pilipinas as chairman, the Commissioner of the Insurance Commission and the Chairman of the Securities and Exchange Commission as members. The AMLC shall act unanimously.

A: Covered persons shall report to the AMLC all covered transactions and suspicious transactions within FIVE (5) WORKING DAYS from occurrence thereof, unless the AMLC prescribes a different period not exceeding fifteen (15) working days.

Among others are:

(6) to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged to be laundered, proceeds from, or

The act of requiring the covered person to submit a report before the AMLC over the covered transactions is one way of preventing Money Laundering Q: How many days are given to the covered person to make the report?

WHAT ARE THE FUNCTIONS OF THE AMLC?

(4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses;

Customer

(a) Customer Identification

Section 7. Creation of Anti-Money Laundering Council (AMLC). -

This is one of the amendments. This is so because it is possible that some druglords (for example) conceal their money by buying condominiums and other real properties.

SEC. 10. Freezing of Monetary Instrument or Property. -

This provides for an extra ordinary provisional remedy. NOTE that the provisional remedies provided for in the ROC are not exclusive, Sec 10 of AMLA is one of them.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Upon a verified ex parte petition by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity, the Court of Appeals may issue a freeze order which shall be effective immediately, and which shall not exceed six (6) months depending upon the circumstances of the case.

Provided, further, That this new rule shall not apply to pending cases in the courts. In any case, the court should act on the petition to freeze within twenty-four (24) hours from filing of the petition. If the application is filed a day before a nonworking day, the computation of the twenty-four (24)-hour period shall exclude the nonworking days.

Provided, That if there is no case filed against a person whose account has been frozen within the period determined by the court, the freeze order shall be deemed ipso facto lifted.

Q: Why is it that the court should act upon the petition immediately (24hrs)?

Judge D: Before the election (or I think it was in the middle of the election period), sometime in March, the CA issued a freeze order on the accounts of Binay. I’m not sure if it was already lifted specially now that he’s no longer immune from suit. That’s one example of Sec 10. Q: Who files the petition for freeze order?

A: So as not to defeat its purpose. Example: During the time of the late CJ, what was said at the beginning of the proceedings was that he had millions in his account. When it was checked later on, only P10k was found (was left). ―A person whose account has been frozen may file a motion to lift the freeze order and the court must resolve this motion before the expiration of the freeze order.

A: It is the AMLC. Q: Where does it file the petition? A: With the CA

―No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court.‖ -

Q: What is the name of the petition? A: Petition for the issuance of a freeze order. -

Note that this freeze order is similar to a preliminary attachment. It is similar in a sense that it can be issued by the CA ex parte. Ratio: The possibility that the money or the property would be disposed of by the offender.

Section 11. Authority to inquire into Bank Deposits. Notwithstanding the provisions of Republic Act No. 1405, as amended (The Bank Secrecy Law); Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, (because as a general rule ↓) -

Q: What is the period of effectivity?

Within that period the AMLC must be able to file a case in court.

Q: What is a freeze order? A: Freeze order means that the owner of the account is prevented from using the account. The owner is not allowed to withdraw the money in such account. -

The AMLC will not look into the account but will merely freeze it.

GR: Under the Bank Secrecy Law, bank accounts cannot be looked into. EXC: When there is a violation of the AMLA. So if your money is from a lawful act or lawful activity, that can be looked into, but there must be a court order.

A: 6 months. -

There is a similar order that can be issued by the Court, and that is the Bank Inquiry Order (Sec 11).

the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense. -

Note that under Sec 11, the order may be issued by the RTC, not anymore by the CA because it says any competent court.

(Last paragraph of Sec 10)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

According to the SC, the filing of a case for a violation of AMLA is not a condition precedent for the issuance of a bank inquiry order, so long as there is probable cause.

belongs to him and for segregation or exclusion of the monetary instrument or property corresponding thereto. Q: Where should the verified petition be filed?

FREEZE ORDER vs. BANK INQUIRY ORDER (Republic vs Eugenio GR No. 174629, February 14 ♥, 2008 ) FREEZE ORDER The AMLC will not examine the bank account. Does not require notice and hearing. Can only be issued by the CA.

A: The verified petition shall be filed with the court which rendered the judgment of conviction and order of forfeiture.

BANK INQUIRY ORDER The AMLC will look into the transactions in the account. Requires notice and hearing. Can also be issued by the RTC.

Q: When should it be filed? A: within fifteen (15) days from the date of the finality of the order or forfeiture. -

GR: The AMLC cannot examine a bank account without an order from the court. EXC: (instances when the AMLC can examine even without a court order.) When the money comes from any of the following:    

Section 12. Forfeiture Provisions. – (a) Civil Forfeiture. – When there is a covered transaction report made, and the court has, in a petition filed for the purpose ordered seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to said report, the Revised Rules of Court on civil forfeiture shall apply. (b) Claim on Forfeited Assets. -

(c) Payment in Lieu of Forfeiture. -

kidnapping, violations of RA 9165 destructive arson murder

EXC to the EXC: DOLLAR ACCOUNTS are strictly confidential. (Otherwise there will be a violation of RA 6426 Foreign Currency Deposit Act of the Philippines). GSIS vs. CA et al., June 8, 2011

In default of which the said order shall become final and executory. This provision shall apply in both civil and criminal forfeiture.

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Where the court has issued an order of forfeiture of the monetary instrument or property subject of a money laundering offense defined under Section 4, and said order cannot be enforced because any particular monetary instrument or property cannot, with due diligence, be located, or it has been substantially altered, destroyed, diminished in value or otherwise rendered worthless by any act or omission, the court may, instead of enforcing the order of forfeiture of the monetary instrument or property or part thereof or interest therein, accordingly order the convicted offender to pay an amount equal to the value of said monetary instrument or property. This provision shall apply in both civil and criminal forfeiture.

NOTE: The 34 unlawful activities enumerated here is what we call the PREDICATE CRIMES. September 9, 2016

Where the court has issued an order of forfeiture of the monetary instrument or property in a criminal prosecution for any money laundering offense defined under Section 4 of this Act, the offender or any other person claiming an interest therein may apply, by verified petition, for a declaration that the same legitimately

PD. 1602 Illegal Gambling as amended by RA 9287 -violation of this is one of the predicate acts of AMLA -the amended 9287 is only with regard to numbers game; (jueteng, masiao, last 2)

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -repealed the provisions of RPC on illegal gambling

Par. (e)

Sec.1 par.(a)

-The penalty of temporary absolute disqualifications shall be imposed upon any barangay official who, with knowledge of the existence of a gambling house or place in his jurisdiction fails to abate the same or take action in connection therewith.

Bub par.(1) - any person who shall directly or indirectly take part in any illegal or unauthorized activities or games (for a list of prohibited games/activities please refer to the provision of the law)

Par. (f)

1. Offenderdirectly or indirectly takes part in any illegal or unauthorized game of chance or skill

The penalty of prisioncorreccional in its maximum period or a fine ranging from five hundred pesos to two thousand pesos shall be imposed upon any security officer, security guard, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have the reputation of a gambling place or where gambling activities are being held.

2. Wagers consisting of money or articles of value are at stake

Note:

-gambling is not illegal per se (for example in casinos); only considered as a crime if not authorized by law

-Violation of this law is a crime against moral turpitude

Elements:

Sub par. (2) -Any person who shall knowingly permit any form of gambling referred to in the preceding subparagraph to be carried on in inhabited or uninhabited place or in any building, vessel or other means of transportation owned or controlled by him. If the place where gambling is carried on has a reputation of a gambling place or that prohibited gambling is frequently carried on therein, or the place is a public or government building or barangay hall Par. (b) -Maintainer/Conductor - persons who sits up or furnishes/manages the means in which to carry the gambling game or scheme Par. (c) -The penalty of prision mayor in its medium period with temporary absolute disqualification or a fine of six thousand pesos shall be imposed if the maintainer, conductor or banker of said gambling schemes is a government official,or where such government official is the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and machination. Par. (d) -The penalty of prisioncorreccional in its medium period or a fine ranging from four hundred to two thousand pesos shall be imposed upon any person who shall, knowingly and without lawful purpose in any hour of any day, possess any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place.

Section 2.Informer's reward. Any person who shall disclose information that will lead to the arrest and final conviction of the malfactor shall be rewarded twenty percent of the cash money or articles of value confiscated or forfeited in favor of the government. Republic Act No. 9287 April 2, 2004 AN ACT INCREASING THE PENALTIES FOR ILLEGAL NUMBERS GAMES, AMENDING CERTAIN PROVISIONS OF PRESIDENTIAL DECREE NO. 1602, AND FOR OTHER PURPOSES - the amendment to PD 1602 Sec. 2.Definition of Terms. - As used in this Act, the following terms shall mean: a) Illegal Numbers Game. - Any form illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots. b) Jueteng. - An illegal numbers game that involves the combination of thirty-seven (37) numbers against thirtyseven (37) numbers from number one (1) to thirty seven (37) or the combination of thirty-eight (38) numbers in some areas, serving as a form of local lottery where bets are placed and accepted per combination, and its variants. c) Masiao. - An illegal numbers game where the winning combination is derived from the results of the last game of Jai Alai or the Special Llave portion or any result thereof based on any fictitious Jai Alai game consisting of ten (10) players pitted against one another, and its variants. d) Last Two. - An illegal numbers game where the winning combination is derived from the last two (2) numbers of the first prize of the winning Sweepstakes ticket which comes out during the weekly draw of the Philippine Charity Sweepstakes Office (PCSO), and its variants. e) Bettor ("Mananaya", "Tayador" or variants thereof). - Any person who places bets for himself/herself or in behalf of

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D another person, or any person, other than the personnel or staff of any illegal numbers game operation. f) Personnel or Staff of Illegal Numbers Game Operation. Any person, who acts in the interest of the maintainer, manager or operator, such as, but not limited to, an accountant, cashier, checker, guard, runner, table manager, usher, watcher, or any other personnel performing such similar functions in a building structure, vessel, vehicle, or any other place where an illegal numbers game is operated or conducted. g) Collector or Agent ("Cabo", "Cobrador", "Coriador" or variants thereof). - Any person who collects, solicits or produces bets in behalf of his/her principal for any illegal numbers game who is usually in possession of gambling paraphernalia. h) Coordinator, Controller or Supervisor ("Encargado" or variants thereof). - Any person who exercises control and supervision over the collector or agent. i) Maintainer, Manager or Operator. - Any person who maintains, manages or operates any illegal number game in a specific area from whom the coordinator, controller or supervisor, and collector or agent take orders. j) Financiers or Capitalist. - Any person who finances the operations of any illegal numbers game. k) Protector or Coddler. - Any person who lends or provides protection, or receives benefits in any manner in the operation of any illegal numbers game. Sec. 3.Punishable Acts. - Any person who participates in any illegal numbers game shall suffer the following penalties: This is the most important part! a) The penalty of imprisonment from thirty (30) days to ninety (90) days, if such person acts as a bettor; b) The penalty of imprisonment from six (6) years and one (1) day to eight (8) years, if such person acts as a personnel or staff of an illegal numbers game operation; The same penalty shall likewise be imposed to any person who allows his vehicle, house, building or land to be used in the operation of the illegal numbers games. c) The penalty of imprisonment from eight (8) years and one (1) day to ten (10) years, if such person acts as a collector or agent; d) The penalty of imprisonment from ten (10) years and one (1) day to twelve (12) years, if such person acts as a coordinator, controller or supervisor; e) The penalty of imprisonment from twelve (12) years and one (1) day to ten (10) fourteen (14) years, if such person acts as a maintainer, manager or operator; and f) The penalty of imprisonment from fourteen (14) years and one (1) day to sixteen (16) years, if such person acts as a financier or capitalist;  Financier or capitalist receives the money and gives out the money g) The penalty of imprisonment from sixteen (16) years and one (1) day to twenty (20) years, if such person acts as protector or coddler.

Sec. 4.Possession of Gambling Paraphernalia or Materials. The possession of any gambling paraphernalia and other materials used in the illegal numbers game operation shall be deemed prima facie evidence of any offense covered by this Act.  In PD 1602, possession of gambling paraphernalia is a crime. But in jueteng and numbers game, possession of gambling paraphernalia is only a PRIMA FACIE EVIDENCE of any offense covered by this act depending upon the circumstances.

 

Ex: you bought masiao and you are caught in possession of a ―tip sheet‖ of masiao, that is a gambling paraphernalia. You will be charged as a BETTOR, and the tip sheet is prima facie evidence of betting. You will not be liable for possession of gambling paraphernalia. Ex: If you are an usher and caught with tally sheets, the tally sheet shall be used as prima facie evidence of your being an usher. You will not be charged with possession of gambling paraphernalia. Ex: If you are a coordinator and you are holding many tally sheets, that is prima facie evidence of being a coordinator. So, in the examples above, that is not a crime but PRIMA FACIE EVIDENCE OF THE OFFENSE. Thus possession of gambling paraphernalia could either be a crime or prima facie evidence. If numbers game, that is prima facie evidence. If not, thats a crime by itself under Sec 1, par(d) of RA 1602.

Sec. 5.Liability of Government Employees and/or Public Officials.– a) If the collector, agent, coordinator, controller, supervisor, maintainer, manager, operator, financier or capitalist of any illegal numbers game is a government employee and/or public official, whether elected or appointed shall suffer the penalty of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three million pesos (P3,000,000.00) to Five million pesos (P5,000,000.00) and perpetual absolute disqualification from public office. In addition to the penalty provided in the immediately preceding section, the accessory penalty of perpetual disqualification from public office shall be imposed upon any local government official who, having knowledge of the existence of the operation of any illegal numbers game in his/her jurisdiction, fails to abate or to take action, or tolerates the same in connection therewith. b) In the case of failure to apprehend perpetrators of any illegal numbers game, any law enforcer shall suffer an administrative penalty of suspension or dismissal, as the case may be, to be imposed by the appropriate authority. Sec. 6.Liability of Parents/Guardians. - The penalty of imprisonment from six (6) months and one (1) day to one (1) year or fine ranging from One hundred thousand pesos

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (P100,000.00) to Four hundred thousand pesos (P400,000.00) shall be imposed upon any parent, guardian or person exercising moral authority or ascendancy over a minor, ward or incapacitated person, and not otherwise falling under any of the foregoing subsections, who induces or causes such minor, ward or incapacitated person to commit any of the offenses punishable in this Act. Upon conviction, the parent, guardian or person exercising moral authority or ascendancy over the minor, ward or incapacitated person shall be deprived of his/her authority over such person in addition to the penalty imposed. Sec. 7.Recidivism. - The penalty next higher in degree as provided for under Section 3 hereof shall be imposed upon a recidivist who commits any of the offenses punishable in this Act. Sec. 8.Immunity from Prosecution. - Any person who serves as a witness for the government or provides evidence in a criminal case involving any violation of this Act, or who voluntarily or by virtue of a subpoena testificandum or ducestecum, produces, identifies, or gives testimony shall be immune from any criminal prosecution, subject to the compliance with the provisions of Presidential Decree No. 1732, otherwise known as Decree Providing Immunity from Criminal Prosecution to Government Witnesses and the pertinent provisions of the Rules of Court.  So here, one is a "State witness" Sec. 9.Prosecution, Judgment and Forfeiture of Property. - Any person may be charged with or convicted of the offenses covered by this Act without prejudice to the prosecution of any act or acts penalized under the Revised Penal Code or existing laws.  So this law is a predicate crime of AMLA. If you are a financier or capitalist of illegal gambling, and deposited in bank to appear as if it was from a lawful source, you can be charged with AMLA During the pendency of the case, no property or income used or derived therefrom which may be confiscated and forfeited shall be disposed, alienated or transferred and the same shall be in custodialegis and no bond shall be admitted for the release of the same. The trial prosecutors shall avail of provisional remedies provided for under the Revised Rules on Criminal Procedure. Upon conviction, all proceeds, gambling paraphernalia and other instruments of the crime including any real or personal property used in any illegal numbers game operation shall be confiscated and forfeited in favor of the State. All assets and properties of the accused either owned or held by him/her in his/her name or in the name of another person found to be manifestly out of proportion to his/her lawful income shall be prima facie presumed to be proceeds of the offense and shall likewise be confiscated and forfeited in favor of the State.

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The proceeds shall be confiscated in favor of the government.

Sec. 10. Witness Protection. - Any person who provides material information, whether testimonial or documentary, necessary for the investigation or prosecution of individuals committing any of the offenses under Sections 3, 4, 5 and 6 herein shall be placed under the Witness Protection Program pursuant to Republic Act. No. 6981. Sec. 11.Informer's Reward. - Any person who, having knowledge or information of any offense committed under this Act and who shall disclose the same which may lead to the arrest and final conviction of the offender, may be rewarded a certain percentage of the cash money or articles of value confiscated or forfeited in favor of the government, which shall be determined through a policy guideline promulgated by the Department of Justice (DOJ) in coordination with the Department of Interior and Local Government (DILG) and the National Police Commission (NAPOLCOM). Republic Act No. 9372 March 6, 2007 AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM aka THE HUMAN SECURITY ACT OF 2007  this law was enacted as a result of UN SECURITY COUNCIL RESOLUTION NUMBER 1373. This resolution enjoins members of the UN to enact an Anti- Terrorism Act as an aftermath of the 9/11 bombing of the Twin Towers SEC. 3. Terrorism.- Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); b. Article 134 (Rebellion or Insurrection); c. Article 134-a (Coup d' Etat), including acts committed by private persons; d. Article 248 (Murder); e. Article 267 (Kidnapping and Serious Illegal Detention); f. Article 324 (Crimes Involving Destruction), or under - this has been repealed by Arson law. 1. Presidential Decree No. 1613 (The Law on Arson); 2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); 3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); 4. Republic Act No. 6235 (Anti-Hijacking Law); 5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and, 6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives) as amended by 10591 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 and shall suffer the

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the RPC, takes part subsequent to its commission in any of the following manner:

Elements of terrorism 1. Offender commits any of the following crimes above! 2. Thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace 3. In order to coerce the government to give in to an unlawful demand. (This is the purpose of the law)

(a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime

A. First element: ―Committed by any person who committed any of the predicate crimes‖

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Shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

B.

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The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a).

C.

Second element: ―Widespread and extraordinary fear and panic among the populace‖ –

This requires an interpretation by the SC

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The SC sustained the constitutionality of this law (Southern Hemisphere Engagement Network Inc. vs AntiTerrorism Council, et al., GR 178552, October 5, 2010)

Third element: ―In order to coerce the government to give in to an unlawful demand‖ –

Example: A man staged a hostage taking in a school bus and demanded from the government to give the children free education. Not unlawful demand. Not a violation of this law.

Surveillance of Suspects and Interception and Recording of Communications –

A police or law enforcement official and the members of his team may listen to, intercept and record any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, notwithstanding the provisions of the Anti-Wire Tapping Law to the contrary.

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Two consents necessary:

Conspiracy to Commit Terrorism –

Persons who conspire to commit the crime of terrorism

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Shall suffer the penalty of forty (40) years of imprisonment.

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There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined under this law and decide to commit the same.

Accomplice –

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2. –

Any person who, not being a principal under Article 17 of the RPC or a conspirator, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts Shall suffer the penalty of from seventeen (17) years, four months one day to twenty (20) years of imprisonment.

Accessory –

1.

Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to

Authorized in writing by the Anti-Terrorism Council to file such ex parte application. Upon a written order of the Court of Appeals (CA)

Upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence Classification and Contents of the Order of the Court –

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The written order granted by the authorizing division of the CA as well as its order and the written authorizations of the Anti-Terrorism Council shall be deemed and are hereby declared as classified information

Court of Appeals, within forty-eight (48) hours after the expiration of period fixed in the order. –

Contents of Joint Affidavit –

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The joint affidavit shall also certify under oath that no duplicates or copies of the whole or any part of any of such tapes, discs, and recordings, and that no duplicates or copies of the whole or any part of any of such excerpts, summaries, written notes, and memoranda, have been made

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If made, that all such duplicates and copies shall be deposited also with the authorizing division of the CA.

Effective Period of Judicial Authorization –

Shall not exceed thirty (30) days from the expiration of the original period

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Can be extended for another non-extendible thirty (30) days. The request for extension must be in writing, filed by the same official who filed the original request; next in rank if the former has died

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In other words, the entire period, including the extension, should not exceed sixty (60) days

Disposition of Deposited Material –

If no case is filed within the 30-day period –

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If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance, interception and recording of the termination of the said surveillance, interception and recording. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify the person subject of the surveillance, monitoring, interception and recording as specified above.

Custody of Intercepted and Recorded Communications –

All tapes, discs, and recordings made pursuant to the authorization of the authorizing division of the Court of Appeals shall be submitted to the issuing court, the

The joint affidavit of the police or of the law enforcement official and the individual members of his team shall state: (a) the number of tapes, discs, and recordings that have been made; (b) the dates and times covered by each of such tapes, discs, and recordings; (c) the number of tapes, discs, and recordings, as well as the number of excerpts and summaries thereof and the number of written notes and memoranda made in connection therewith; and (d) the date of the original written authorization granted by the Anti-Terrorism Council to the applicant to file the ex parte

The written order of the authorizing division of the CA shall specify the following: (a) the identity of the charged or suspected person whose communication is being tapped; (b) the identity of the law enforce/s who is going to wiretap (c) the offense or offenses committed, or being committed, or sought to be prevented; andn (d) the length of time within which the authorization shall be used or carried out

Together submitted is the join affidavit of the law enforcers who conducted the wire tapping.

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The sealed envelope or sealed package and the contents thereof, which are deposited with the authorizing division of the CA, shall be deemed and are hereby declared classified information Meaning, they cannot be accessed by anybody unless authorized by written order of the authorizing division of the CA, upon a Motion to be filed by the DOJ with prior permission from the Anti-Terrorism Council.

Application to Open Deposited Sealed Envelope or Sealed Package –

The application shall state the purpose of the opening of the sealed envelope or package

Evidentiary Value of Deposited Materials –

If there is wiretapping without court order, such wiretapped conversation shall be inadmissible in evidence.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D Penalty for Unauthorized or Malicious Interceptions and/or Recordings –

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Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest.

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Provided ,That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.

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The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify and judge.

Shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

***Judicial Declaration for a Group to be a Terrorist Group –

The DOJ may file before the RTC for a Petition for the judicial declaration of a certain group as a terrorist group.

***Period of Detention Without Judicial Warrant of Arrest –

The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel.

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Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.

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The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter's residence or office nearest the place where the arrest took place at any time of the day or night.

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It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. The judge shall forthwith submit his/her report within three calendar days from the time the suspect was brought to his/her residence or office.

SEC. 19.Period of Detention in the Event of an Actual or Imminent Terrorist Attack. -

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In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest.  The 3 day detention can beextended provided there is a written approvalof a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned: Provided, however, That within three days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately. Section 19 provides for the extension of the reglementary period.

SEC. 20.Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

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The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days. He shall not be punished under the RPC but under this law.

SEC. 21.Rights of a Person under Custodial Detention. -

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The penalty of ten (10) years and one day to twelve (12) years of imprisonment. Unless the police or law enforcement personnel who violated the rights of a detainee or detainees as stated above is duly identified, the same penalty shall be imposed on the police officer or hear or leader of the law enforcement unit having custody of the detainee at the time the violation was done.

SEC. 25.Penalty for Threat, Intimidation, Coercion, or Torture in the Investigation and Interrogation of a Detained Person.

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The penalty of twelve (12) years and one day to twenty (20) years of imprisonment. When death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral, or psychological pressure, the penalty shall be twelve (12) years and one day to twenty (20) years of imprisonment.

SEC. 26.Restriction on Travel. -

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SEC. 27. Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records.

Sec 23 and 24 – Read Only

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Miranda Doctrine

SEC. 22.Penalty for Violation of the Rights of a Detainee. -

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is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited . So he can be granted bail but with limitation on the right to travel which can be limited to the city or municipality where he resides. He/she may also be placed under house arrest by order of the court at his or her usual place of residence. While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court. The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused.

Penalty in terrorism – 40 years, equivalent to life sentence, not entitled to bail. In cases where evidence of guilt is not strong (meaning the person is allowed to put up bail)and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and

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The procedure here is similar to surveillance. There must be a petition filed with the Court of Appeals with prior permission from Anti-terrorism Council. The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that:  (1) a person charged with or suspected of the crime of terrorism or, conspiracy to commit terrorism,  (2) of a judicially declared and outlawed terrorist organization, association, or group of persons; and  (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to:

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and o (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned, shall not refuse to allow such examination or to provide the desired information, when so, ordered by and served with the written order of the Court of Appeals. Here, there should be a petition filed with the Court of Appeals and there must be a prior authorization from the Anti-Terrorism Council. Recall AMLA. The Anti-Money Laundering Council can file the petition under the AMLA. NOTE, regarding the bank accounts of the terrorists, the police enforcers can examine but with prior authority from the Anti-Terrorism Council not from the Anti-Money Laundering Council, filed with the Court of Appeals. Another way of examining the bank accounts of terrorist groups is for the AMLC to file petition pursuant to provisions of AMLA. o

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SEC. 28.Application to Examine Bank Deposits, Accounts, and Records. -

The written order of the Court of Appeals authorizing the examination of bank deposits, placements, trust accounts, assets, and records:  (1) of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;  (2) of any judicially declared and outlawed terrorist organization, association, or group of persons, or  (3) of any member of such organization, association, or group of persons in a bank or financial institution, and the gathering of any relevant information about the same from said bank or financial institution, shall only be granted by the authorizing division of the Court of Appeals upon an ex parte application to that effect of a police or of a law enforcement official who has been duly authorized in writing to file such ex parte application by the Anti-Terrorism Council

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created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and, the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records: o (1) of the person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; o (2) of a judicially declared and outlawed terrorist organization, association or group of persons; or o (3) of any member of such organization, association, or group of persons. The authority to file the petition must be in writing given by the Anti-Terrorism Council NOT AMLC.

SEC. 29.Classification and Contents of the Court Order Authorizing the Examination of Bank Deposits, Accounts, and Records. -

The order shall be classified as confidential. The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original ex parte application of the applicant, including his ex parte application to extend or renew, if any, and the written authorizations of the Anti-Terrorism Council, shall be deemed and are hereby declared as classified information: Provided, That the person whose bank deposits, placements, trust accounts, assets, and records have been examined, frozen, sequestered and seized by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference. The written order of the authorizing division of the Court of Appeals designated to handle cases involving terrorism shall specify:  the identify of the said: o (1) person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; o (2) judicially declared and outlawed terrorist organization, association, or group of persons; and o (3) member of such judicially declared and outlawed

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

o

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organization, association, or group of persons, as the case may be. whose deposits, placements, trust accounts, assets, and records are to be examined or the information to be gathered; (b) the identity of the bank or financial Institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the identity of the persons who will conduct the said examination and the gathering of the desired information; and, (d) the length of time the authorization shall be carried out.

Sec 32 – Read SEC. 33.Disposition of Bank Materials. -

SEC. 31. Custody of Bank Data and Information Obtained after Examination of Deposits, Placements, Trust Accounts, Assets and Records. -

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All data gathered from examination shall be submitted with the Court of Appeals with 48hrs after expiration of the period. The same with the surveillance, it shall be accompanied with joint affidavit with the person making the examination. The one who will examine must have a background in examining bank account. All information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and other documents obtained from the examination of the bank deposits, placements, trust accounts, assets and records of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism; (2) a judicially declared and outlawed terrorist organization, association, or group of persons; or (3) a member of any such organization, association, or group of persons shall, within fortyeight (48) hours after the expiration of the period fixed in the written order of the authorizing division of the Court of Appeals or within forty-eight (48) hours after the expiration of the extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing division of the Court of Appeals in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law enforcement official and the persons who actually conducted the examination of said bank deposits, placements, trust accounts, assets and records.

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The sealed envelope or sealed package and the contents thereof, which are deposited with the authorizing division of the Court of Appeals, shall be deemed and are hereby declared classified information and the sealed envelope or sealed package shall not be opened and its contents shall not be divulged, revealed, read, or used as evidence unless authorized in a written order of the authorizing division of the Court of Appeals, which written order shall be granted only upon a written application of the Department of Justice filed before the authorizing division of the Court of Appeals and only upon a showing that the Department of Justice has been duly authorized in writing by the AntiTerrorism Council to file the application, with notice in writing to the party concerned not later than three days before the scheduled opening, to open, reveal, divulge, and use the contents of the sealed envelope or sealed package as evidence. Any person, law enforcement official or judicial authority who violates his duty to notify in writing as defined above shall suffer the penalty of six years and one day to eight years of imprisonment.

SEC. 34. Application to Open Deposited Bank Materials. -

The written application, with notice in writing to the party concerned not later than three days of the scheduled opening, to open the sealed envelope or sealed package shall clearly state the purpose and reason: (a) for opening the sealed envelope or sealed package; (b) for revealing and disclosing its classified contents; and, (c) for using the classified information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and documents as evidence.

SEC. 35.Evidentiary Value of Deposited Bank Materials. -

Any information, data, excerpts, summaries, notes, memoranda, work sheets, reports, or documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records of: (1) a person charged or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism; (2) a judicially declared and outlawed terrorist organization, association, or group of persons; or (3) a member of such organization, association, or group of

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D persons, which have been secured in violation of the provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing. SEC. 36.Penalty for Unauthorized or Malicious Examination of a Bank or a Financial Institution. -

The penalty is ten (10) years and one day to twelve (12) years of imprisonment.

SEC. 37.Penalty of Bank Officials and Employees Defying a Court Authorization. -

An employee, official, or a member of the board of directors of a bank or financial institution, who refuses to allow the examination of the deposits, placements, trust accounts, assets, and records of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism; (2) a judicially declared and outlawed organization, association, or group of persons; or (3) a member of such judicially declared and outlawed organization, association, or group of persons in said bank or financial institution, when duly served with the written order of the authorizing division of the Court of Appeals, shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

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SEC. 40. Nature of Seized. Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Records. -

SEC. 38.Penalty for False or Untruthful Statement or Misrepresentation of Material Fact in Joint Affidavits. -

Any false or untruthful statement or misrepresentation of material fact in the joint affidavits required shall constitute a criminal offense and the affiants shall suffer individually the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SEC. 39.Seizure and Sequestration. -

The deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature belonging:  (1) to any person suspected of or charged before a competent Regional Trial Court for

the crime of terrorism or the crime of conspiracy to commit terrorism;  (2) to a judicially declared and outlawed organization, association, or group of persons; or  (3) to a member of such organization, association, or group of persons shall be seized, sequestered, and frozen in order to prevent their use, transfer, or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State. The accused or a person suspected of may withdraw such sums as may be reasonably needed by the monthly needs of his family including the services of his or her counsel and his or her family's medical needs upon approval of the court. He or she may also use any of his property that is under seizure or sequestration or frozen because of his/her indictment as a terrorist upon permission of the court for any legitimate reason. Example, the bank accounts frozen, the person suspected to be a terrorist, can file a motion in court with withdraw certain amount for the needs of his family including payment of the services of his counsel.

The seized, sequestered and frozen bank deposits, placements, trust accounts, assets and records belonging to a person suspected of or charged with the crime of terrorism or conspiracy to commit terrorism shall be deemed as property held in trust by the bank or financial institution for such person and the government during the pendency of the investigation of the person suspected of or during the pendency of the trial of the person charged with any of the said crimes, as the case may be and their use or disposition while the case is pending shall be subject to the approval of the court before which the case or cases are pending.

SEC. 41.Disposition of the Seized, Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Record. (important provision) -

If the person suspected of or charged with the crime of terrorism or conspiracy to commit terrorism is found, after his investigation, to be innocent by the

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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investigating body, or is acquitted, after his arraignment or his case is dismissed before his arraignment by a competent court, the seizure, sequestration and freezing of his bank deposits, placements, trust accounts, assets and records shall forthwith be deemed lifted by the investigating body or by the competent court, as the case may be, and his bank deposits, placements, trust accounts, assets and records shall be deemed released from such seizure, sequestration and freezing, and shall be restored to him without any delay by the bank or financial institution concerned without any further action on his part. The filing of any appeal on motion for reconsideration shall not stay the release of said funds from seizure, sequestration and freezing. If the person charged with the crime of terrorism or conspiracy to commit terrorism is convicted by a final judgment of a competent trial court, his seized, sequestered and frozen bank deposits, placements, trust accounts, assets and records shall be automatically forfeited in favor of the government. Upon his or her acquittal or the dismissal of the charges against him or her, the amount of Five hundred thousand pesos (P500.000.00) a day for the period in which his properties, assets or funds were seized shall be paid to him on the concept of liquidated damages. The amount shall be taken from the appropriations of the police or law enforcement agency that caused the filing of the enumerated charges against him/her.

witnesses testifying under this Act shall be governed by Sections 17 and 18 of Rule 119 of the Rules of Court: Provided, however, That said witnesses shall be entitled to benefits granted to witnesses under said Republic Act No.6981. SEC. 46.Penalty for Unauthorized Revelation of Classified Materials. -

SEC. 48.Continuous Trial. -

Any public officer who has direct custody of a detained person or under the provisions of this Act and who by his deliberate act, misconduct, or inexcusable negligence causes or allows the escape of such detained person shall be guilty of an offense and shall suffer the penalty of: (a) twelve (12) years and one day to twenty (20) years of imprisonment, if the detained person has already been convicted and sentenced in a final judgment of a competent court; and (b) six years and one day to twelve (12) years of imprisonment, if the detained person has not been convicted and sentenced in a final judgment of a competent court.

SEC. 45.Immunity and Protection of Government Witnesses. -

The provisions of Republic Act No. 6981 (Witness Protection, Security and Benefits Act) to the contrary notwithstanding, the immunity of government

in cases of terrorism or conspiracy to commit terrorism, the judge shall set the continuous trial on a daily basis from Monday to Friday or other shortterm trial calendar so as to ensure speedy trial.

SEC. 49. Prosecution Under This Act Shall be a Bar to Another Prosecution under the Revised Penal Code or any Special Penal Laws. (Important Provision) -

SEC. 44.Infidelity in the Custody of Detained Persons. -

The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under this Act.

When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under this Act.

SEC. 50.Damages for Unproven Charge of Terrorism. (Important Provision) -

Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of Five hundred thousand pesos (P500,000.00) for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation.The amount of damages shall be automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused. It shall also be released within fifteen (15) days from the date of the acquittal of the accused. The

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D

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award of damages mentioned above shall be without prejudice to the right of the acquitted accused to file criminal or administrative charges against those responsible for charging him with the case of terrorism. Any officer, employee, personnel, or person who delays the release or refuses to release the amounts awarded to the individual acquitted of the crime of terrorism as directed in the paragraph immediately precedingshall suffer the penalty of six months of imprisonment. If the deductions are less than the amounts due to the detained persons, the amount needed to complete the compensation shall be taken from the current appropriations for intelligence, emergency, social or other funds of the Office of the President. In the event that the amount cannot be covered by the current budget of the police or law enforcement agency concerned, the amount shall be automatically included in the appropriations of the said agency for the coming year.

Sec. 51. Duty to Record and Report the Name and Address of the Informant. - The police or law enforcement officers to whom the name or a suspect in the crime of terrorism was first revealed shall record the real name and the specific address of the informant. The police or law enforcement officials concerned shall report the informant's name and address to their superior officer who shall transmit the information to the Congressional Oversight Committee or to the proper court within five days after the suspect was placed under arrest or his properties were sequestered, seized or frozen. The name and address of the informant shall be considered confidential and shall not be unnecessarily revealed until after the proceedings against the suspect shall have been terminated. Sec. 52. Applicability of the Revised Penal Code. - The provisions of Book I of the Revised Penal Code shall be applicable to this Act. mitigating and aggravating circumstances apply Sec. 53. Anti-Terrorism Council The members of the Council are: (1) the Executive Secretary, who shall be its Chairperson; (2) the Secretary of Justice, who shall be its Vice Chairperson; and (3) the Secretary of Foreign Affairs; (4) the Secretary of National Defense; (5) the Secretary of the Interior and Local Government; (6) the Secretary of Finance; and (7) the National Security Advisor, as its other members. Sec. 54. Functions of the Council. – 1. Formulate and adopt plans, programs and counter-measures

against terrorists and acts of terrorism in the country; 2. Coordinate all national efforts to suppress and eradicate acts of terrorism in the country and mobilize the entire nation against terrorism prescribed in this Act; 3. Direct the speedy investigation and prosecution of all persons accused or detained for the crime of terrorism or conspiracy to commit terrorism and other offenses punishable under this Act, and monitor the progress of their cases; 4. Establish and maintain comprehensive data-base information system on terrorism, terrorist activities, and counter-terrorism operations; 5. Freeze the funds property, bank deposits, placements, trust accounts, assets and records belonging to a person suspected of or charged with the crime of terrorism or conspiracy to commit terrorism, pursuant to Republic Act No. 9160, otherwise known as the Anti-Money Laundering Act of 2001, as amended; 6. Grant monetary rewards and other incentives to informers who give vital information leading to the apprehension, arrest, detention, prosecution, and conviction of person or persons who are liable for the crime of terrorism or conspiracy to commit terrorism; 7. Establish and maintain coordination with and the cooperation and assistance of other nations in the struggle against international terrorism; and 8. Request the Supreme Court to designate specific divisions of the Court of Appeals and Regional Trial Courts in Manila, Cebu City and Cagayan de Oro City, as the case may be, to handle all cases involving the crime of terrorism or conspiracy to commit terrorism and all matters incident to said crimes. The Secretary of Justice shall assign a team of prosecutors from: (a) Luzon to handle terrorism cases filed in the Regional Trial Court in Manila; (b) from the Visayas to handle cases filed in Cebu City; and (c) from Mindanao to handle cases filed in Cagayan de Oro City. Sec. 55. Role of the Commission on Human Rights. - The Commission on Human Rights shall give the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act; and for this purpose, the Commission shall have the concurrent jurisdiction to prosecute public officials, law enforcers, and other persons who may have violated the civil and political rights of persons suspected of, or detained for the crime of terrorism or conspiracy to commit terrorism. Sec. 57. Ban on Extraordinary Rendition. - No person suspected or convicted of the crime of terrorism shall be subjected to extraordinary rendition to any country unless his or her testimony is needed for terrorist related police investigations or judicial trials in the said country and unless his or her human rights, including the right against torture, and right to counsel, are officially assured by the requesting country and transmitted accordingly and approved by the Department of Justice. Sec. 58. Extra-Territorial Application of this Act. - Subject to

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D the provision of an existing treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application, the provisions of this Act shall apply: (1) to individual persons who commit any of the crimes defined and punished in this Act within the terrestrial domain, interior waters, maritime zone, and airspace of the Philippines; (2) to individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot to commit any of the crimes defined and punished in this Act inside the territorial limits of the Philippines; (3) to individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said crimes on board Philippine ship or Philippine airship; (4) to individual persons who commit any of said crimes within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity; (5) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes against Philippine citizens or persons of Philippines descent, where their citizenship or ethnicity was a factor in the commission of the crime; and The Filipino victims are outside the country but are killed or committed with terrorism by reason of being a Filipino Persons of Philippine descent - persons who are no longer Filipino but who have the blood of a Filipino and is attacked because of their dissent. If one was a Filipino and then is already an American citizen but in America he is attacked because of his Filipino descent, the law still applies.

circulation and the announcements over local radio and television networks shall be done in the dominant language of the community. After the publication required above shall have been done, the Act shall take effect two months after the elections are held in May 2007. Thereafter, the provisions of this Act shall be automatically suspended one month before and two months as after the holding of any election. suspended before election no jurisprudence yet Usually they are charged with murder or homicide. It is hard to prove terrorism. In Zambuanga, they were terrorists but not charged with terrorism, they were charged with multiple murder o Not charged with rebellion as well, mere participants are charged with a lower penalty. PRESIDENTIAL DECREE NO. 533 THE ANTI-CATTLE RUSTLING LAW OF 1974 SECTION 2. Definition of Terms. — The following terms shall mean and be understood to be as herein defined: a.

Large cattle as herein used shall include the cow, carabao, horse, mule, ass, or other domesticated member of the bovine family. Cat does not belong to the bovine family. CRIME COMMITTED: theft

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b.

Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner/raiser, of any of the above-mentioned animals whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser.

(6) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes directly against the Philippine government. we have learned that our penal laws are only effective within our territory but if the acts are committed outside our territory, this law has extra-territorial application. Sec. 62. Special Effectivity Clause. - After the bill shall have been signed into law by the President, the Act shall be published in three newspapers of national circulation; three newspapers of local circulation, one each in llocos Norte, Baguio City and Pampanga; three newspapers of local circulation, one each in Cebu, lloilo and Tacloban; and three newspapers of local circulation, one each in Cagayan de Oro, Davao and General Santos city. The title of the Act and its provisions defining the acts of terrorism that are punished shall be aired everyday at primetime for seven days, morning, noon and night over three national television and radio networks; three radio and television networks, one each in Cebu, Tacloban and lloilo; and in five radio and television networks, one each in Lanao del Sur, Cagayan de Oro, Davao City, Cotabato City and Zamboanga City. The publication in the newspapers of local

―above-mentioned animals‖ -

Members of the bovine family

―whether or not for profit or gain‖ -

The law is violated even if the offender took away or killed the animal without any intent to gain EX1:If the offender would kill your dog because of revenge – MALICIOUS MISCHIEF EX2: If the offender would take away dog because he has intent to gain, he likes your dog – THEFT

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D EX3: If the offender would kill your cow because of hatred or revenge – VIOLATION OF ANTI-CATTLE RUSLTING

SECTION 7. Presumption of Cattle Rustling. — Every person having in his possession, control or custody of large cattle shall, upon demand by competent authorities, exhibit the documents prescribed in the preceding sections. Failure to exhibit the required documents shall be prima facie evidence that the large cattle in his possession, control or custody are the fruits of the crime of cattle rustling. -

Under this law, the owners are required to register the cow or carabao with the municipal hall

SECTION 8. Penal Provisions. — Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be imposed. When the offender is a government official or employee, he shall, in addition to the foregoing penalty, be disqualified from voting or being voted upon in any election/referendum and from holding any public office or employment. When the offender is an alien, he shall be deported immediately upon the completion of the service of his sentence without further proceedings. -

In theft, the penalty depends upon the value of the property taken Here the value is disregarded for the imposition of penalty REPUBLIC ACT NO. 10586 "Anti-Drunk and Drugged Driving Act of 2013"

SECTION 3. Definition of Terms. — For purposes of this Act: (b) Breath analyzer refers to the equipment which can determine the blood alcohol concentration level of a person through testing of his breath. -

To determine whether one is intoxicated or not

(d) Dangerous drugs and other similar substances refer to drugs listed in the schedules annexed to the 1961 Single Convention on Narcotics Drugs, as amended by the 1972 Protocol, and in the schedules annexed to the 1971 Single Convention of Psychotropic Substances as enumerated in its attachment which is an integral part of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002" and those that the Board may reclassify, add to or remove from the list of dangerous drugs.

(e) Driving under the influence of alcohol refers to the act of operating a motor vehicle while the driver's blood alcohol concentration level has, after being subjected to a breath analyzer test, reached the level of intoxication, as established jointly by the Department of Health (DOH), the National Police Commission (NAPOLCOM) and the Department of Transportation and Communications (DOTC). -

One might be drunk but no intoxicated Determined through the breath analyzer

(f) Driving under the influence of dangerous drugs and other similar substances refers to the act of operating a motor vehicle while the driver, after being subjected to a confirmatory test as mandated under Republic Act No. 9165, is found to be positive for use of any dangerous drug. -

Use of the confirmatory and screening test

(g) Field sobriety tests refer to standardized tests to initially assess and determine intoxication, such as the horizontal gaze nystagmus, the walk-and-turn, the one-leg stand, and other similar tests as determined jointly by the DOH, the NAPOLCOM and the DOTC. -

Screening test If one fails this test then he would be subjected to breath analyzer

SECTION 4. Driver's Education. — Every applicant for a motor vehicle driver's license shall complete a course of instruction that provides information on safe driving including, but not limited to, the effects of the consumption of alcoholic beverages on the ability of a person to operate a motor vehicle, the hazards of driving under the influence of alcohol, dangerous drugs and/or other similar substances, and the penalties attached for violation thereof. For professional drivers, every applicant for a driver's license or those applying for renewal thereof shall undergo the driver's education herein stated. The driver's license written examination shall include questions

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D concerning the effects of alcohol and drug intoxication on the ability of a person to operate a motor vehicle and the legal and pecuniary consequences resulting from violation of the provisions of this Act. ***SECTION 5. Punishable Act. — It shall be unlawful for any person to drive a motor vehicle while under the influence of alcohol, dangerous drugs and/or other similar substances. SECTION 6. Conduct of Field Sobriety, Chemical and Confirmatory Tests. — A law enforcement officer who has probable cause to believe that a person is driving under the influence of alcohol, dangerous drugs and/or other similar substances by apparent indications and manifestations, including overspeeding, weaving, lane straddling, sudden stops, swerving, poor coordination or the evident smell of alcohol in a person's breath or signs of use of dangerous drugs and other similar substances, shall conduct field sobriety tests. If the driver fails in the sobriety tests, it shall be the duty of the law enforcement officer to implement the mandatory determination of the driver's blood alcohol concentration level through the use of a breath analyzer or similar measuring instrument. If the law enforcement officer has probable cause to believe that a person is driving under the influence of dangerous drugs and/or other similar substances, it shall be the duty of the law enforcement officer to bring the driver to the nearest police station to be subjected to a drug screening test and, if necessary, a drug confirmatory test as mandated under Republic Act No. 9165. Law enforcement officers and deputized local traffic enforcement officers shall be responsible in implementing this section. SECTION 7. Mandatory Alcohol and Chemical Testing of Drivers Involved in Motor Vehicular Accidents. — A driver of a motor vehicle involved in a vehicular accident resulting in the loss of human life or physical injuries shall be subjected to chemical tests, including a drug screening test and, if necessary, a drug confirmatory test as mandated under Republic Act No. 9165, to determine the presence and/or concentration of alcohol, dangerous drugs and/or similar substances in the bloodstream or body. Q: What about if the driver refuses to undergo the tests? A: The driver of a motor vehicle who refuses to undergo the mandatory the sobriety test shall be penalized by the confiscation and automatic revocation of his driver‘s license, in addition to the other penalties provided by law. SEC. 10. Deputation. The LTO may deputize traffic enforcement officers of 

the PNP,

 

the Metropolitan Manila Development Authority (MMDA) and cities and municipalities, in order to enforce the provisions of this Act.

SEC. 12. Penalties. A driver found to have been driving a motor vehicle while under the influence of alcohol, dangerous drugs and/or other similar substances shall be penalized as follows: (a) If the violation of Section 5 did not result in physical injuries or homicide, the penalty of 3 months imprisonment, and a fine ranging from 20,000.00 to 80,000.00 shall be imposed; - meaning the mere fact that you are drunk or drugged while driving is punishable. (b) If the violation of Section 5 resulted in physical injuries, the penalty provided in Article 263 of the Revised Penal Code or the penalty provided in the next preceding subparagraph, whichever is higher, and a fine ranging from Php100,000.00 to Php200,000.00 shall be imposed; - this is without prejudice to the filing of a charge for a criminal case for a relative crime committed. (c) If the violation of Section 5 resulted in homicide, the penalty provided in Article 249 of the Revised Penal Code and a fine ranging from Three hundred thousand pesos (Php300,000.00) to Five hundred thousand pesos (Php500,000.00) shall be imposed; and (d) The NONPROFESSIONAL DRIVER’S LICENSE of any person found to have violated Section 5 of this Act shall also be confiscated and suspended for a period of twelve (12) months for the first conviction and perpetually revoked for the second conviction. The PROFESSIONAL DRIVER’S LICENSE of any person found to have violated Section 5 of this Act shall also be confiscated and perpetually revoked for the first conviction. The perpetual revocation of a driver‘s license shall disqualify the person from being granted any kind of driver‘s license thereafter. The prosecution for any violation of this Act shall be without prejudice to criminal prosecution for violation of the Revised Penal Code, Republic Act No. 9165 and other special laws and existing local ordinances, whenever applicable. SEC. 13. Direct Liability of Operator and/or Owner of the Offending Vehicle.

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D -

He is presumed to be liable.

GR: The owner and/or operator of the vehicle driven by the offender shall be DIRECTLY AND PRINCIPALLY held liable together with the offender for the fine and the award against the offender for civil damages.

of transmitting, receiving, or both of encrypted data and/ or signals through wireless electronic or any other similar means. DISTRACTED DRIVING -

EXC: he or she is able to convincingly prove that he or she has exercised extraordinary diligence in the selection and supervision of his or her drivers in general and the offending driver in particular. This section shall principally apply to the owners and/or operators of public utility vehicles and commercial vehicles such as -

delivery vans, cargo trucks, container trucks, school and company buses, hotel transports, cars or vans for rent, taxi cabs, and the like.

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SEC. 15. Nationwide Random Terminal Inspection and Quick Random Drug Tests. -

The LTO shall conduct random terminal inspections and quick random drug tests of public utility drivers. The cost of such tests shall be defrayed by the LTO.

RA 10913 AN ACT DEFINING AND PENALIZING DISTRACTED DRIVING Passed on July 21, 2016 -

This law (the bill) was left unsigned by President Pinoy.

b)

c)

Diplomatic motor vehicle- any motor vehicle leased or owned by a foreign mission and its staff for their official use; Electronic entertainment and computing device- any handheld electronic device capable of digital information processing, recording, capturing or displaying and computing operations such as, but not limited to laptop, computers, tablets, video game consoles and calculators. Mobile communications deviceselectronic communications equipment such as but not limited to cellular phones, wireless telephones, two- way radio transceivers pagers and other similar devices capable

a.

Using a mobile communications device to write, send or read a text- based communication or to make or receive calls, and other similar acts; and

b.

Using an electronic entertainment or computing device to play games, watch movies, surf the internet, compose messages, read e- books, perform calculations, and other similar acts.

This includes playing pokemon.

EXTENT OF COVERAGE -

Not considered distracted driving if done using the aid of a hands- free function or similar device such as, but not limited to a speaker phone, earphones and microphones or other similar devices which alow a person to make and receive calls without having to hold the mobile phone.

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Provided that the placement of the phone does not interfere with the line of sight of the driver.

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This shall also apply to agricultural machineries such as tractors and construction equipment such as graders, rollers, backhoes etc.

Definition of terms: a)

Refers to the performance by a motorist of any of the following acts in a motor vehicle in motion or temporarily stopped at a red light, whether diplomatic, public or private, which are hereby declared unlawful:

Note: GR: The provisions of this act shall not apply to motorists of motor vehicles which are not in motion. EXC: Those which are stopped momentarily at a red light, or are pulled over to the side of the road in compliance with a traffic regulation. EXEMPTIONS TO THE PROVISIONS OF THIS ACT: 1.

Using mobile phone for emergency purposes including but not limited to an emergency call to a law enforcement agency, health care provider, fire

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CRIMINAL LAW REVIEW (Book 1) As discussed by Judge D department, or other emergency services, agency or entity; and 2.

A motorist using a mobile phone while operating an emergency vehicle such as an ambulance, firetruck and other vehicles.

NOTE: The penalties imposed in this law shall be imposed without prejudice to other liabilities under the RPC or any special law, arising out or on occasion of the herein prohibited acts.

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