CRIMINAL LAW REVIEWER
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2012
CRIMINAL
Criminal Law 1
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Criminal Law 1
Criminal Law 1
Criminal Law 2
I.
II.
III.
IV.
V.
VI.
CRIMINAL LAW
Fundamental Principles of Criminal
Law
Felonies
Circumstances
which
affect
criminal liability
Persons criminally liable/Degree of
participation
Penalties
Modification and extinction of
criminal
REVISED PENAL CODE/SPECIAL
LAWS, PRESIDENTIAL DECREES,
AND EXECUTIVE ORDERS
A. Book 1 (Articles 1-99, RPC,
excluding provisions on civil
liability), including related Special
Laws
of crime
ment is taken
into account
for the
punishment.
As to mitigating
and aggravating
circumstances
They are
taken into
account in
imposing
penalty
When there is
more than
one offender,
the degree of
participation
of each in the
commission is
taken into
account.
As to degree of
participation
As to stage of
accomplishment
CHAPTER I. FUNDAMENTAL
PRINCIPLES OF CRIMINAL LAW
A. DEFINITION OF CRIMINAL LAW
B. SCOPE OF APPLICATION AND
CHARACTERISTICS
C. CONSTITUTIONAL LIMITATIONS
As to what laws
are violated
A. Definition of Criminal Law
Criminal law is that branch of public substantive law
which defines crimes, treats of their nature, and
provides for their punishment.
1. Difference between Mala in Se and
Mala Prohibita (ASKED TWICE IN BAR
EXAMS)
As to nature
As to use of
good faith as
defense
As to WON
criminal intent
is an element
As to degree of
accomplishment
Mala in Se
Wrong from
its very
nature.
GF a valid
defense,
unless the
crime is the
result of
culpa
Criminal
intent is an
element.
Degree of
accomplish
Mala Prohibita
Wrong because
it is prohibited
by law
GF is not a
defense.
Criminal intent
is immaterial,
BUT still
requires
intelligence &
voluntariness
0. The
Penalty is
computed on
the basis of
whether he is
a principal
offender or
merely an
accomplice or
accessory
Generally,
the RPC.
act
gives
rise
to a
crime
only
when
consu
mmat
ed.
They are not
taken into
account.
Degree of
participation is
generally not
taken into
account. All
who
participated in
the act are
punished to the
same extent.
Penalty on
offenders is
same whether
they acted as
mere
accomplices or
accessories
Generally,
special laws.
Note:

Dolo is not required in crimes mala prohibita.

In those crimes which are mala prohibita, the
act alone irrespective of its motives, constitutes
the offense.

Good faith and absence of criminal intent are
not valid defenses in crimes mala prohibita.
Estrada v. Sandiganbayan (2001): Estrada is
challenging the plunder law. One of the issues he
raised is whether plunder is a malum prohibitum
or malum in se.
Held: Plunder is a malum in se which requires
proof of criminal intent.
Precisely because the crimes constituting plunder
are mala in se the element of mens rea must be
proven in a prosecution for plunder.
i. While intentional felonies are always mala in se,
it does not follow that prohibited acts done in
violation of special laws are always mala
prohibita.
ii. Even if the crime is punished under a special
law, if the act punished is one which is inherently
wrong, the same is malum in se, and, therefore,
CRIMINAL LAW REVIEWER
good faith and the lack of criminal intent are valid
defenses; unless it is the product of criminal
negligence or culpa.
Likewise when the special laws require that the
punished act be committed knowingly and
willfully, criminal intent is required to be proved
before criminal liability may arise.
(1) Utilitarian Theory
Primary purpose: Protection of society from actual or
potential wrongdoers.
(2) Classical Theory
Primary purpose: Retribution.
Note: Where malice is a factor, good faith is a
defense.
Basis of criminal liability: Human free will.
Endeavored to establish a mechanical and direct
proportion between crime and penalty; there is
scant regard to human element.
CRIMINAL LAW VS. CRIMINAL PROCEDURE
Criminal Law
Criminal Procedure
It is substantive.
It is remedial.
(3) Positivist Theory
Primary purpose: Reformation; prevention/ correction.
Prospective
application.
Basis of criminal liability: The sum of the social,
natural and economic phenomena to which the actor
is exposed.
Exception:
favorable
accused.
in
If it is
to
the
Retroactive in
application.
Crimes that are economic and social by nature
should be dealt with in a positivist manner; thus,
the law is more compassionate.
Exception
To
The
Exception:
1. When the accused is a
habitual delinquent.
(Art. 22)
2. Where the new law
expressly
made
inapplicable
to
pending actions or
existing causes of
actions. (Tavera v.
Valdez)
Statutory; it is passed by
the Legislature.
Heinous crimes should be dealt with in a classical
manner; thus, capital punishment.
May be promulgated by
the
Legislature
(e.g.
jurisdiction of courts) or
the Judiciary (e.g. Rules
of Court)
STATE AUTHORITY TO PUNISH CRIME (ASKED ONCE
IN BAR EXAMS)
Art. II, Sec. 5 (1987 Constitution) Declaration of
Principles and State Policies. The maintenance of
peace and order, the protection of life, liberty and
property, and promotion of the general welfare are
essential for the enjoyment by all the people of the
blessings of democracy.
SOURCES OF CRIMINAL LAW
a.
b.
The Revised Penal Code (Act No. 3815) Created pursuant to Administrative Order
No. 94; enacted January 1, 1932; based on
the Spanish Penal Code, US Penal Code, and
Phil. Supreme Court decisions.
Special penal laws and penal Presidential
Decrees issued during Martial Law.
PENAL LEGISLATION
a.
(4) Eclectic/Mixed
Combines both positivist and classical thinking.
Schools of Thought (ASKED ONCE IN BAR
EXAMS) (PUCE)
Note: The Revised Penal Code today follows the
mixed or eclectic philosophy. For example:

Intoxication of the offender is considered to
mitigate his criminal liability, unless it is
intentional or habitual;

Age of the offender is considered;

A woman who killed her child to conceal her
dishonor has in her favor a mitigating
circumstance.
RELATION OF RPC TO SPECIAL LAWS: SUPPLETORY
APPLICATION OF RPC
Art. 10, RPC. Offenses not subject to the provisions
of this Code. – Offenses which are or in the future
may be punishable under special laws are not
subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the
latter should specially provide the contrary.
General Rule: RPC provisions
provisions of special laws.
supplement
the
Exceptions:
(1) Where the special law provides otherwise
(Art.10)
(2) When the provisions of the Code are impossible
of application, either by express provision or by
necessary implication, as in those instances
where the provisions in question are peculiar to
the Code. (Regalado, Criminal Law Prospectus)
Ladonga v People (2005):
Spouses Ladonga were convicted by the RTC for
15
CRIMINAL LAW REVIEWER
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violation of B.P. Blg. 22 (3 counts). The husband
applied for probation while the wife appealed
arguing that the RTC erred in finding her
criminally liable for conspiring with her husband
as the principle of conspiracy is inapplicable to
B.P. Blg. 22 which is a special law.
Held:
1. B.P. Blg. 22 does not expressly prescribe the
suppletory application of the provisions of
the RPC.
2. Thus, in the absence of contrary provision in
B.P. Blg. 22, the general provisions of the
RPC which, by their nature, are necessarily
applicable, may be applied suppletorily.
3. The court cited the case of Yu vs. People,
where
the
provisions
on
subsidiary
imprisonment under Art. 39 of the RPC to
B.P. Blg. 22 was applied suppletorily.
People vs. Rodriguez (1960):
It was held that a violation of a special law can
never absorb a crime punishable under the
Revised Penal Code, because violations of the
Revised Penal Code are more serious than a
violation of a special law.
1. Generality
General Rule:
Art. 14, NCC. The penal law of the country is
binding on all persons who live or sojourn in
Philippine territory, subject to the principles of
public international law and to treaty stipulations.
Limitations:
Art. 2, RPC. ―Except as provided in the treaties or
laws of preferential application xxx‖
a. Treaty Stipulations
Examples:

Bases Agreement entered into by the
Philippines and the US on Mar. 14, 1947 and
expired on Sept. 16, 1991.

Visiting Forces Agreement (VFA)2 signed on
Feb. 10, 1998.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction
over United States personnel with respect to
offenses committed within the Philippines and
punishable under the law of the Philippines.
But a crime in the Revised Penal Code can absorb
a crime punishable by a special law if it is a
necessary ingredient of the felony defined in the
Code.
(b) United States military authorities shall have the
right to exercise within the Philippines all criminal
and disciplinary jurisdiction conferred on them by
the military law of the United States over United
States personnel in the Philippines.
People vs. Martinada:
The crime of cattle-rustling is not malum
prohibitum but a modification of the crime of
theft of large cattle.
2. (a) Philippine authorities exercise exclusive
jurisdiction over United States personnel with
respect to offenses, including offenses relating to
the security of the Philippines, punishable under
the laws of the Philippines, but not under the laws
of the United States.
So Presidential Decree No. 533, punishing cattlerustling, is not a special law, but a law amending
provisions of the RPC (Arts. 309 and 310).
It can absorb the crime of murder. If in the
course of cattle rustling, murder was committed,
the offender cannot be prosecuted for murder.
(b) United States authorities exercise exclusive
jurisdiction over United States personnel with
respect to offenses, including offenses relating to
the security of the United States, punishable under
the laws of the United States, but not under the
laws of the Philippines.
Note: Murder would be a qualifying circumstance in
the crime of qualified cattle rustling.1
B. Scope of Application and
Characteristics of the
Philippine Criminal Law
(c) For the purposes of this paragraph and
paragraph 3 of this article, an offense relating to
security means:
1. GENERALITY (WHO?)
2. TERRITORIALITY (WHERE?)
3. PROSPECTIVITY (WHEN?)
(1) treason;
(2) sabotage, espionage or violation of any law
relating to national defense.
Criminal law has three (3) characteristics: General,
Territorial, and Prospective.
3. In cases where the right to exercise jurisdiction
is concurrent, the following rules shall apply:
2
1
Sec. 8, P.D. No. 533
Take note of Art. V, which defines criminal jurisdiction over
United States military and civilian personnel temporarily in
the Philippines in connection with activities approved by the
Philippine Government.
CRIMINAL LAW REVIEWER
(a) Philippine authorities shall have the primary
right to exercise jurisdiction over all offenses
committed by United States personnel, except in
cases provided for in paragraphs l (b), 2 (b), and 3
(b) of this Article.
(b) United States military authorities shall have the
primary right to exercise jurisdiction over United
States personnel subject to the military law of the
United States in relation to:
(1) offenses solely against the property or security
of the United States or offenses solely against the
property or person of United States personnel; and
(2) offenses arising out of any act or omission done
in performance of official duty.
(c) The authorities of either government may
request the authorities of the other government to
waive their primary right to exercise jurisdiction in
a particular case.
(d) Recognizing the responsibility of the United
States military authorities to maintain good order
and discipline among their forces, Philippine
authorities will, upon request by the United States,
waive their primary right to exercise jurisdiction
except in cases of particular importance to the
Philippines. If the Government of the Philippines
determines that the case is of particular
importance,
it
shall
communicate
such
determination to the United States authorities
within twenty (20) days after the Philippine
authorities receive the United States request.
(e) When the United States military commander
determines that an offense charged by authorities
of the Philippines against United States personnel
arises out of an act or omission done in the
performance of official duty, the commander will
issue a certificate setting forth such determination.
This certificate will be transmitted to the
appropriate authorities of the Philippines and will
constitute sufficient proof of performance of
official duty for the purposes of paragraph 3(b)(2)
of this article. In those cases where the
Government of the Philippines believes the
circumstances of the case require a review of the
duty certificate, United States military authorities
and
Philippine
authorities
shall
consult
immediately. Philippine authorities at the highest
levels may also present any information bearing on
its validity. United States military authorities shall
take full account of the Philippine position. Where
appropriate, United States military authorities will
take disciplinary or other action against offenders
in official duty cases, and notify the Government of
the Philippines of the actions taken.
(f) If the government having the primary right does
not exercise jurisdiction, it shall notify the
authorities of the other government as soon as
possible.
(g) The authorities of the Philippines and the
United States shall notify each other of the
disposition of all cases in which both the
authorities of the Philippines and the United States
have the right to exercise jurisdiction.
b. Laws of Preferential Application
Examples:

Members of Congress are not liable for libel or
slander for any speech in Congress or in any
committee thereof. (Sec. 11, Art. VI, 1987
Constitution)

Any ambassador or public minister of any
foreign State, authorized and received as such
by the President, or any domestic or domestic
servant of any such ambassador or minister are
exempt from arrest and imprisonment and
whose properties are exempt from distraint,
seizure and attachment.3 (R.A. No. 75)

Warship Rule – A warship of another country,
even though docked in the Philippines, is
considered an extension of the territory of its
respective country. This also applies to
embassies.
c. Principles of Public International Law
Art. 14, NCC. ―xxx subject to the principles of
public international law and to treaty stipulations.‖
The following persons are exempt from the
provisions of the RPC:
(1) Sovereigns and other heads of state
(2) Ambassadors,
ministers,
plenipotentiary,
minister resident and charges d‘ affaires.
(Article 31, Vienna Convention on Diplomatic
Relations)
Note: Consuls and consular officers are NOT
exempt from local prosecution. (See Article 41,
Vienna Convention on Consular Relations)
Public vessels of a friendly foreign power are not
subject to local jurisdiction.
Note: Generality has NO reference to territoriality.
2. Territoriality
GENERAL RULE: Penal laws of the country have
force and effect only within its territory.


3
It cannot penalize crimes committed outside its
territory.
The territory of the country is not limited to the
land where its sovereignty resides but includes
also its maritime and interior waters as well as
its atmosphere. (Art. 2, RPC)
R.A. No. 75 penalizes acts which would impair the proper
observance by the Republic and inhabitants of the
Philippines of the immunities, rights, and privileges of duly
accredited foreign diplomatic representatives in the
Philippines
17
CRIMINAL LAW REVIEWER
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(1) Terrestrial jurisdiction is the jurisdiction
exercised over land.
(2) Fluvial jurisdiction is the jurisdiction exercised
over maritime and interior waters.
(3) Aerial jurisdiction is the jurisdiction exercised
over the atmosphere.
i. Free Zone Theory
The atmosphere over the country is
free and not subject to the jurisdiction
of the subjacent state, except for the
protection of its national security and
public order.
ii. Relative Theory
The
subjacent
state
exercises
jurisdiction over the atmosphere only
to the extent that it can effectively
exercise control thereof.
EXCEPTIONS
(1) Extraterritorial crimes, which are punishable
even if committed outside the Philippine
territory (Art. 2, RPC) (ASKED 4 TIMES IN BAR
EXAMS)
iii. Absolute Theory
The subjacent state has complete
jurisdiction over the atmosphere above
it subject only to the innocent passage
by aircraft of a foreign country.
Art. 2 embraces two scopes of applications:
General rule - Intraterritorial refers to the
application of the RPC within the Philippine territory
(land, air and water).
Under this theory, if the crime is
committed in an aircraft, no matter
how high, as long as it can be
established that it is within the
Philippine
atmosphere,
Philippine
criminal law6 will govern.
Exception - Extraterritorial4 refers to the application
of the Revised Penal Code outside the Philippine
territory.
(a) Par. 1: Crimes committed aboard
Philippine ship or airship:
The RPC is applied to Philippine vessels5 if the
crime is committed while the ship is treading:
i. Philippine waters (intraterritorial), or
ii. The high seas i.e. waters NOT under the
jurisdiction of any State (extraterritorial)
Note: The Philippines adopts this theory.
(b) Par. 2: Forging/Counterfeiting and Coins
or Currency Notes in the Philippines
i. Forgery is committed abroad, and
ii. It refers only to Philippine
currency
note,
obligations
securities.
Two rules as to jurisdiction over crimes
committed aboard merchant vessels while in the
territorial waters of another country (i.e. a
foreign vessel treading Philippine waters OR
Philippine vessels treading foreign waters):
i.
ii.
(c) Par. 3: Should introduce into the country
the above-mentioned obligations and
securities.
FRENCH RULE: It is the flag or
nationality of the vessel which
determines jurisdiction UNLESS the
crime violates the peace and order of
the host country.
ENGLISH RULE: the location or situs of
the crime determines jurisdiction
UNLESS the crime merely relates to
internal management of the vessel.
i.
When the crime is committed in a war vessel of
a foreign country, the nationality of the vessel
will always determine jurisdiction because war
vessels are part of the sovereignty of the
country to whose naval force they belong.
The reason for this provision is that the
introduction of forged or counterfeited
obligations and securities into the
Philippines is as dangerous as the forging
or counterfeiting of the same, to the
economical interest of the country.
(d) Par. 4: When public officers or employees
commit an offense in the exercise of their
functions.
The Philippines adheres to the ENGLISH RULE.
However, these rules are NOT applicable if the
vessel is on the high seas when the crime was
committed. In these cases, the laws of the
nationality of the ship will always apply.
coin,
and
Crime committed pertains to the exercise of the
public official’s functions:
The crimes
i.
ii.
iii.
iv.
v.
International Theories on Aerial Jurisdiction
vi.
vii.
R.A. 9327 (The Human Security Act) contains provisions
for extraterritorial application.
5
The country of registry determines the nationality of the
vessel, NOT ITS OWNERSHIP. A Filipino-owned vessel
registered in China must fly the Chinese flag.
viii.
4
6
which may be committed are:
Direct bribery (A.210)
Qualified Bribery (A. 211-A)
Indirect bribery (A.211)
Corruption (A.212)
Frauds against the public treasury
(A.213)
Possession of prohibited interest (A.216)
Malversation of public funds or property
(A. 217)
Failure to render accounts (A.218)
See Anti-Hijacking Law, (Other part of the reviewer)
CRIMINAL LAW REVIEWER
ix.
x.
xi.
xii.
Illegal use of public funds or property
(A.220)
Failure to make delivery of public funds
or property (A.221)
Falsification by a public officer or
employee committed with abuse of his
official position (A.171)
Those having to do with the discharge of
their duties in a foreign country.
The functions contemplated are those, which are,
under the law:
i.
to be performed by the public officer;
ii.
in the foreign service of the Phil.
government;
iii.
in a foreign country.
(e) Par. 5: Commit any of the crimes against
national security and the law of nations,
(Title One, Book 2, RPC)
Crimes against national security:
i.
Treason (A.114)
ii.
Conspiracy and proposal to commit
treason (A.115)
iii.
Misprision of treason (A.116)
iv.
Espionage (A.117)
Crimes against the law of nations:
i.
Inciting to war or giving motives for
reprisals (A.118)
ii.
Violation of neutrality (A.119)
iii.
Correspondence with hostile country
(A.120)
iv.
Flight to enemy‘s country (A.121)
v. Piracy in general and mutiny on the high
seas or in Philippine waters (A.122)
Note:
Crimes against public order (e.g., rebellion, coup
d‘etat, sedition) committed abroad is under the
jurisdiction of the host country.
Terrorism is now classified as a crime against
national security and the law of nations. (See R.A.
9372, otherwise known as Human Security Act of
2007).
3. Prospectivity
GENERAL RULE: Acts or omissions will only be
subject to a penal law if they are committed AFTER
a penal law has taken effect.
Conversely, acts or omissions which have been
committed before the effectivity of a penal law
could not be penalized by such penal law.
EXCEPTION:
Art. 22 RPC. Penal laws shall have a retroactive
effect, insofar as they favor the person guilty of a
felony who is not a habitual criminal, as this term is
defined in Rule 5 of Article 62 of this Code, although
at the time of the publication of such laws a final
sentence has been pronounced and the convict is
serving the same.
Art. 62(5) RPC. xxx For the purpose of this article, a
person shall be deemed to be a habitual delinquent,
if within a period of 10 years from the date of his
release or last conviction of the crimes of serious or
less serious physical injuries, robo(robbery),
hurto(theft), estafa, or falsification, he is found
guilty of any crimes a third time or oftener.
EXCEPTION TO THE EXCEPTION:
(1) The new law is expressly made inapplicable to
pending actions or existing cause of actions; or
(2) The offender is a habitual criminal.
Effects of repeal of penal law
(1) If the repeal makes the penalty lighter in the
new law,
(a) The new law shall be applied,
(b) EXCEPT when the offender is a habitual
delinquent or when the new law is made
not applicable to pending action or existing
causes of action.
(2) If the new law imposes a heavier penalty
(a) Law in force at the time of the commission
of the offense shall be applied.
(3) If the new law totally repeals the existing law so
that the act which was penalized under the old
law is no longer punishable,
(a) The crime is obliterated.
(b) Pending cases are dismissed.
(c) Unserved penalties imposed are remitted.
(4) Rule of prospectivity also applies to judicial
decisions,7 administrative rulings and circulars.
Co vs. CA, (1993): In this case, Circular No. 4 of
the Ministry of Justice, dated December, 15,
1981, provided that ―where the check is issued as
part of an arrangement to guarantee or secure
the payment of an obligation, whether preexisting or not, the drawer is not criminally liable
for either estafa or violation of B.P. 22.‖
Subsequently, the administrative interpretation was
reversed in Circular No. 12, issued on August 8,
1984, such that the claim that the check was issued
as a guarantee or part of an arrangement to secure
an obligation or to facilitate collection, is no longer
a valid defense for the prosecution under B.P. 22.
Hence, it was ruled that under the new circular, a
check issued merely to guarantee the performance
of an obligation is covered by B.P. 22 [Que vs.
People].
However, consistent with the principle of
prospectivity, the new doctrine should not apply to
parties who had relied on the old Circular and acted
on the faith thereof. No retrospective effect.
7
Art. 8, Civil Code
19
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20
Rationale
for
the
prospectivity
rule:
the
punishability of an act must be reasonably known for
the guidance of society [citing Peo v. Jabinal].
[NOTE: The SC outline does not include the next
two characteristics.]
4. Legality
(nullum
poena sine lege)
crimen
nulla
Art. 21. No felony shall be punishable by any penalty
not prescribed by law prior to its commission.
There is no crime when there is no law punishing the
same.
Limitation:
Not every law punishing an act or omission may be
valid as a criminal law. If the law punishing an act is
ambiguous, it is null and void.
5. Strict Construction of Penal Laws
Against State: The ―Doctrine of
Pro Reo‖
Pro reo doctrine: Whenever a penal law is to be
construed or applied and the law admits of two
interpretations - one lenient to the offender and one
strict to the offender, that interpretation which is
lenient or favorable to the offender will be adopted.
Basis: The fundamental rule that all doubts shall be
construed in favor of the accused and presumption
of innocence of the accused.
Art. III, Sec. 14(2), 1987 Const. In all criminal
prosecutions, the accused shall be presumed
innocent until the contrary is proved.
Note: This is peculiar only to criminal law.
EQUIPOISE RULE:
When the evidence of the prosecution and the
defense are equally balanced, the scale should be
tilted in favor of the accused in obedience to the
constitutional presumption of innocence.8
C. Constitutional limitations on
the power of Congress to enact
penal laws in the Bill of Rights
(i) Equal protection
(ii) Due process
(iii)Non-imposition of cruel and unusual
punishment or excessive fines
(iv) Bill of attainder
(v) Ex post facto law
8
Ursua v. CA (1996); Corpuz v. People (1991)
1. Equal protection
Article III, Section 1, 1987 Const. No person shall
be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the
equal protection of the laws.
2. Due process
Art. III, Sec. 14 (1), 1987 Const. No person shall be
held to answer for a criminal offense without due
process of law.

Must be general in application.
3. Non-imposition
of cruel and
unusual punishment or excessive
fines
Art III, Sec. 19, 1987 Const. Excessive fines shall
not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving
heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be
reduced to reclusion perpetua.
a. Act Prohibiting the Imposition of
Death Penalty in the Philippines (R.A.
9346)
Republic Act 9346
An Act Prohibiting the Imposition of the Death
Penalty.
Repealed the law imposing lethal injection (R.A.
8177) and the law imposing the death penalty (R.A.
7659) (Sec. 1).
This Act also imposes the punishment of reclusion
perpetua for offenses under any act using the
nomenclature of the RPC (Sec. 2 (a)) and the
punishment of life imprisonment for offenses under
any act which does not use the nomenclature of the
RPC (Sec. 2(b))
4. Bill of attainder
Art III, Sec. 22, 1987 Const. No ex post facto law or
bill of attainder shall be enacted.
Bill of attainder - a legislative act that inflicts
punishment without trial, its essence being the
substitution of legislative fiat for a judicial
determination of guilt.
5. Ex post facto law
Art III, Sec. 22, 1987 Const. No ex post facto law or
bill of attainder shall be enacted.
Ex post facto law is one which:
(1) Makes criminal an act done before the passage
of the law and which was innocent when done,
and punishes such an act.
(2) Aggravates a crime, or makes it greater than it
was, when committed;
CRIMINAL LAW REVIEWER
(3) Changes the punishment and inflicts a greater
punishment than the law annexed to the crime
when committed;
(4) Alters the legal rules of evidence, and
authorizes conviction upon less or different
testimony than the law required at the time of
the commission of the offense;
(5) Assumes to regulate civil rights and remedies
only, in effect imposes penalty or deprivation
of a right for something which when done was
lawful; and
(6) Deprives a person accused of a crime some
lawful protection to which he has become
entitled, such as the protection of a former
conviction or acquittal, or a proclamation of
amnesty. (Reyes, The Revised Penal Code
citing In re: Kay Villegas Kami, Inc.)
Other constitutional limitations
 Must not provide imprisonment for non-payment
of debts or poll tax. [1987 Const. Art. III, Sec. 19
(1)]
 Must not restrict other constitutional freedoms,
e.g. due process, religion, free speech, and
assembly.
Basic Maxims in Criminal Law
a. Actus Non Facit Reum, Nisi Mens Sit Rea
―The act cannot be criminal where the mind is not
criminal.‖
U.S. vs. Catolico (18 Phil. 504, 508)
Facts: Accused was a justice of the peace who
rendered decisions for damages based on breach
of contract. The defendants failed to pay the
bonds required on time, so upon petition of the
plaintiffs, the accursed dismissed the appeals and
ordered the sums attached and delivered to
plaintiffs in satisfaction of the judgment. Accused
was prosecuted for malversation.
Held: The general rule is that, if it is proved that
the accused committed the criminal act charged,
it will be presumed that the act was done with
criminal intention. However, it must be borne in
mind that the act from which such presumption
springs must be a criminal act. In this case, the
act of the accused was not unlawful. Everything
he did was done in good faith under the belief
that he was acting judiciously and correctly. The
act of a person does not make him a criminal,
unless his mind be criminal.
b. Actus Me Invito Factus Non Est Meus Actus
―An act done by me against my will is not my act.‖
c.
El Que Es Causa De La Causa Es Causa Del Mal
Causado
―He who is the cause of the cause is the cause of the
evil caused.‖

This is the rationale in par. 1 of Art. 4 which
enunciates the doctrine of proximate cause.
He who commits an intentional felony is responsible
for all the consequences which may naturally and
logically result therefrom, whether foreseen or
intended or not.
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CRIMINAL LAW REVIEWER
CHAPTER II. FELONIES
22
A. PRELIMINARY MATTERS
B. CLASSIFICATION OF FELONIES
C. ELEMENTS OF CRIMINAL LIABILITY
D. IMPOSSIBLE CRIME
E. STAGES OF EXECUTION
F. CONSPIRACY AND PROPOSAL
G MULTIPLE OFFENDERS
H. COMPLEX CRIME AND SPECIAL COMPLEX
CRIMES
A. Preliminary matters
Intentional Felony v. Culpable Felony
Intentional
Act is malicious.
Culpable
Not malicious.
With deliberate intent.
Injury
caused
is
unintentional, being just
an incident of another act
performed
without
malice.
Wrongful act results from
imprudence, negligence,
lack of foresight, or lack
of skill.
Has intention to cause
an injury.
1. Differentiating Felonies, Offense,
Misdemeanor and Crime
Felony: refers only to violations of the Revised Penal
Code.

A crime punishable under a special law is not
referred to as a felony. ―Crime‖ or ―offense‖
are the proper terms. (ASKED 3 TIMES IN BAR
EXAMS)
Importance: There are certain provisions in the
Revised Penal Code where the term ―felony‖ is used,
which means that the provision is not extended to
crimes under special laws.
Example:
Art. 160. Quasi-Recidivism: ―A person who shall
commit a felony after having been convicted by final
judgment, before beginning to serve sentence or
while serving the same, shall be punished under the
maximum period of the penalty.‖
Note that the word ―felony‖ is used.
Offense: A crime punished under a special law is
called a statutory offense.
Misdemeanor: A minor infraction of the law, such as
a violation of an ordinance.
Crime: Whether the wrongdoing is punished under
the Revised Penal Code or under a special law, the
generic word ―crime‖ can be used.
1. Felonies: How Committed
Art. 3. Definitions (RPC) — Acts and omissions
punishable by law are felonies (delitos).
Felonies are committed not only by 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.
2. How is Criminal Liability Incurred?
Art. 3 describes the manner of incurring criminal
liability under the Revised Penal Code.

Intentional felony v. Culpable Felony. – It means
performing or failing to do an act, when either
is punished by law, by means of deceit (with
dolo) or fault (with culpa)

It is important to note that if the criminal
liability arises from an omission, such as
misprision of treason or abandonment of
helpless persons, there must be a law requiring
the performance of such act.

In Par. 1 of Art. 4, the law uses the word
―felony,‖ that whoever commits a felony incurs
criminal liability.

Par. 2 of Art. 4 makes a person liable even if the
accomplishment of his crime is inherently
impossible.

Art. 6 also provides for liability for the
incomplete elements of a crime.

There are certain felonies committed by
conspiring in or proposing the commission of
certain acts, the principle behind this can be
found in Art. 8.

Plural crimes on the other hand are discussed
under Art. 48.
Requisites of Dolo or Malice
(1) He must have FREEDOM while doing an act or
omitting to do an act.
(2) He
must
have
INTELLIGENCE
while
doing/omitting an act.
(3) He must have INTENT while doing/omitting the
act.
(a) Intent which is a mental process
presupposes the exercise of freedom and
the use of intelligence.
(b) If an act is proven to be unlawful, then
intent will be presumed prima facie. (U.S.
v. Apostol)
(c) An honest mistake of fact destroys the
presumption of criminal intent which arises
from the commission of a felonious act.
(People v. Oanis)
General v. Specific Intent
In some particular felonies, proof of specific intent is
required. In certain crimes against property, there
CRIMINAL LAW REVIEWER
must be intent to gain (Art. 293 – robbery, Art 308 –
theft). Intent to kill is essential in attempted and
frustrated homicide (Art 6 in relation to Art 249), as
well as in murder. In forcible abduction (Art. 342),
specific intent of lewd designs must be proved.
Requisites of Culpa
(1) He must have FREEDOM while doing/omitting to
do an act
(2) He must have INTELLIGENCE while doing the
act/omitting to do an act
(3) He is IMPRUDENT, NEGLIGENT, or LACKS
FORESIGHT or SKILL while doing the
act/omitting to do an act.
3. Discussion of Article 5
Art. 5 RPC. 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.
1) Whenever a court has knowledge of any act
which it may deem proper to repress and which
is not punishable by law,
2) it shall render the proper decision, and shall
report to the Chief Executive, through the
Department of Justice, the reasons which induce
the court to believe that said act should be
made the subject of legislation.
3) 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,
4) 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.
Art. 5 covers two situations:
a. Where the court cannot convict the accused
because the act he committed is not punishable
under the law, but the court deems it proper to
repress such act.

The proper judgment is acquittal.

The judge must report to the Chief
Executive that said act be made subject of
penal legislation and the reasons therefore.
b.
Where the court after trial finds the accused
guilty, and the penalty prescribed for the crime
appears too harsh considering the conditions
surrounding the commission of the crime,

The judge should impose the law (not
suspend the execution of the sentence).

The most that he could do is recommend to
the Chief Executive to grant executive
clemency.
4. Wrongful Act Different from that
Intended
When a person commits a felony with malice, he
intends the consequences of his felonious act.
Art. 4. RPC. Criminal liability shall be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different from
that which he intended. xxx xxx xxx
Rationale: el que es causa de la causa es causa del
mal causado (he who is the cause of the cause is the
cause of the evil caused).
Requisites:
(1) An intentional felony has been committed.
(a) The felony committed should be one
committed by means of dolo (with malice)
because Art. 4, Par. 1 speaks of wrongful
act done different from that which he
intended.
(b) The act should not be punished by a special
law because the offender violating a special
law may not have the intent to do an injury
to another.
(c) No felony is committed when:
i. the act or omission is not punishable by
the RPC,
ii. the act is covered by any of the justifying
circumstances enumerated in Art. 11.
(2) The wrong done to the aggrieved party be the
direct, natural and logical consequence of the
felony committed by the offender.
(a) Proximate Cause - That cause, which, in a
natural and continuous sequence, unbroken
by any efficient intervening cause, produces
the injury without which the result would
not have occurred.
Criminal liability exists from the concurrence of the
mens rea and the actus reus.
Illustration:
Dave and JR are supposed to meet in Audrey‘s home
but when JR arrived Dave was not home. JR received
an SMS from Dave telling the former to get the house
key from under the doormat. Dave lets himself in
and saw an iPod on the table. JR took the iPod.
What is JR’s criminal liability? He is liable only for
theft and not robbery because the intent to gain
concurred only with the act of taking BUT NOT with
the act of using the owner‘s keys to enter the house.
Note: Criminal liability for some felonies arises only
upon a specific resulting harm:
(1) HOMICIDE AND ITS QUALIFIED FORMS requires
DEATH of the victim to be consummated.
(2) ESTAFA: requires that the victim incur damage
for criminal liability for the consummated felony
to arise
Vda. De Bataclan v. Medina (1957):
SC laid down the definition of proximate cause:
―that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred. And more
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CRIMINAL LAW REVIEWER
24
comprehensively, 'the proximate legal cause is that
acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of
events, each having a close causal connection with
its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural
and probable result of the cause which first acted,
under such circumstances that the person
responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable
ground to expect at the moment of his act or default
that an injury to some person might probably result
therefrom.‖
GENERAL RULE: The offender is CRIMINALLY LIABLE
for ALL the natural and logical consequences of his
felonious act, although not intended, if the felonious
act is the proximate cause of the resulting harm.
Thus, the person is still criminally liable although
the wrongful act done be different from that which
he intended in the following cases:
(1) Error in personae - mistake in the identity of
the victim; injuring one person mistaken for
another (Art. 49 – penalty for lesser crime in its
maximum period)
(a) At least two subjects
(b) A has intent to kill B, but kills C
(c) Under Art. 3, if A hits C, he should have no
criminal liability. But because of Art. 4, his
act is a felony.
(2) Aberratio ictus - mistake in the blow; when
offender intending to do an injury to one person
actually inflicts it on another (Art. 48 on
complex crimes – penalty for graver offense in
its maximum period)
(a) There is only one subject.
(b) The intended subject is a different subject,
but the felony is still the same.
(3) Praeter intentionem - injurious result is greater
than that intended (Art. 13 – mitigating
circumstance)
(a) If A‘s act constitutes sufficient means to
carry out the graver felony, he cannot claim
praeter intentionem.
Proximate Cause v. Immediate Cause v. Remote
Cause
C, then C hit the car of B, then, finally, B hit the car
of A.
In this case, the immediate cause of the damage to
the car of A is the car of B, but that is not the
proximate cause.
The proximate cause is the negligence of E (using
his cellphone while driving) because it sets into
motion the collision of all the cars.
US v. Valdez (1921):
The deceased is a member of the crew of a vessel.
Accused is in charge of the crew members engaged
in the loading of cargo in the vessel.
Because the offended party was slow in his work, the
accused shouted at him. The offended party replied
that they would be better if he would not insult
them.
The accused resented this, and rising in rage, he
moved towards the victim, with a big knife in hand
threatening to kill him.
The victim believing himself to be in immediate peril
threw himself into the water. The victim died of
drowning. The accused was prosecuted for homicide.
His contention that his liability should be only for
grave threats since he did not even stab the victim,
that the victim died of drowning, and this can be
considered as a supervening cause.
Held:
The deceased, in throwing himself into the river,
acted solely in obedience to the instinct of selfpreservation, and was in no sense legally responsible
for his own death. As to him, it was but the exercise
of a choice between two evils, and any reasonable
person under the same circumstance might have
done the same.
This case illustrates that proximate cause does not
require that the offender needs to actually touch the
body of the offended party.
It is enough that the offender generated in the mind
of the offended party an immediate sense of danger
that made him place his life at risk. In this case, the
accused must, therefore, be considered the author
of the death of the victim.
Illustrations:
A, B, C, D, and E were driving their vehicles along
Ortigas Ave. A‘s car was ahead, followed by those of
B, C, D, and E.
Urbano v. IAC (1988):
A and B had a quarrel and A started to hack B with a
bolo. B was wounded at the back.
When A‘s car reached the intersection of EDSA and
Ortigas Avenue, the traffic light turned red so A
immediately stepped on his brakes, followed by B,
C, and D.
Upon intervention, the two settled their differences.
A agreed to shoulder all the expenses for the
treatment of the wound of B, and to pay him also
whatever loss of income B may have suffered.
However, E was using his cellphone and therefore
was not aware that the traffic light had turned to
red, so he bumped the car of D, then D hit the car of
B, on the other hand, signed a statement of his
forgiveness towards A and on that condition, he
withdrew the complaint that he filed against A.
CRIMINAL LAW REVIEWER
After so many weeks of treatment in a clinic, the
doctor pronounced that the wound was already
healed. Thereafter, B went back to his farm.
A month later, B came home and was chilling. Before
midnight, he died out of tetanus poisoning.
The heirs of B filed a case of homicide against A.
Held:
The Supreme Court held that A is not liable. A, if at
all, is only liable for the physical injuries inflicted
upon B.
The Court took into account the incubation period of
tetanus toxic. Medical evidence was presented, that
tetanus toxic is good only for two weeks. If, indeed,
the victim had incurred tetanus poisoning out of the
wound inflicted by A, he would not have lasted for
around a month (22 days).
What brought about the tetanus to infect his body
was his work in the farm using his bare hands.
The rule is that the death of the victim must be
the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. However,
the act of B working in his farm where the soil is
filthy, using his own hands, is an efficient
supervening cause which relieves A of any liability
for the death of B.
There is a likelihood that the wound was but
the remote cause and its subsequent infection, for
failure to take necessary precautions, with tetanus
may have been the proximate cause of Javier's death
with which the petitioner had nothing to do.
The felony committed is not the proximate cause
of the resulting injury when:
(1) There is an active force that intervened
between the felony committed and the
resulting injury, and the active force is a
distinct act or fact absolutely foreign from the
felonious act of the accused; or
(2) The resulting injury is due to the intentional act
of the victim.
The following are not efficient intervening cause:
(1) The weak or diseased physical condition of the
victim, as when one is suffering from
tuberculosis or heart disease. (People v.
Illustre).
(2) The nervousness or temperament of the victim,
as when a person dies in consequence of an
internal hemorrhage brought on by moving
about against the doctor‘s orders, because of
his nervous condition due to the wound
inflicted on the accused. (People v. Almonte).
(3) Causes which are inherent in the victim, such
(a) the victim not knowing to swim and (b) the
victim being addicted to tuba drinking. (People
v. Buhay and People v. Valdez).
(4) Neglect of the victim or third person, such as
the refusal by the injured party of medical
attendance or surgical operation, or the failure
of the doctor to give anti-tetanus injection to
the injured person. (U.S. v. Marasigan).
(5) Erroneous or unskillful medical or surgical
treatment, as when the assault took place in
anu outlaying barrio where proper modern
surgical service was not available. (People v.
Moldes).
5. Omission
It is inaction, the failure to perform a positive duty
which a person is bound to do.
There must be a law requiring the doing or
performing of an act.
Punishable omissions in the RPC:
(1) Art. 116: Misprision of treason.
(2) Art. 137: Disloyalty of public officers or
employees.
(3) Art. 208: Negligence and tolerance in
prosecution of offenses.
(4) Art. 223: Conniving with or consenting to
evasion.
(5) Art. 275: Abandonment of person in danger and
abandonment of one‘s own victim.
(6) Art. 276: Abandoning a minor.
B. Classifications of Felonies
FELONIES ARE CLASSIFIED AS FOLLOWS:
1. According to the manner of their commission
2. According to the stages of their execution
(ASKED 9 TIMES IN BAR EXAMS)
3. According to their gravity
OTHER CLASSIFICATIONS:
4. As to count
5. As to nature
This question was asked in the bar examination: How
do you classify felonies and how are felonies
defined?

TIP: What the examiner had in mind was Articles
3, 6 and 9. Do not write the classification of
felonies under Book 2 of the Revised Penal
Code.

The question does not require the candidate to
classify but also to define.

The purpose of classifying penalties is to bring
about a proportionate penalty and equitable
punishment.

The penalties are graduated according to their
degree of severity.
◦
The stages (Art. 6) may not apply to all
kinds of felonies.
◦
There are felonies which do not admit of
division.
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26
1. According to the Manner of Their
Commission
Under Art. 3, they are classified as:
a. Intentional felonies or those committed with
deliberate intent; and
b. Culpable felonies or those resulting from
negligence, reckless imprudence, lack of
foresight or lack of skill.
2. According to the Stages of Their
Execution
Under Art. 6, they are classified as:
a. Attempted
b. Frustrated
c. Consummated
Note: The classification of stages of a felony in
Article 6 are true only to crimes under the Revised
Penal Code. It does NOT apply to crimes punished
under special laws.
However, even certain crimes which are punished
under the Revised Penal Code do not admit of these
stages.
Related to this, classification of felonies as to:
a. Formal Crimes: Crimes which are consummated
in one instance.
Example: ILLEGAL EXACTION under Art. 213

Mere demanding of an amount different
from what the law authorizes him to collect
will already consummate a crime, whether
the taxpayer pays the amount being
demanded or not.
b. Material Felonies: crimes that have various
stages of execution
c. Felonies by omission: Crimes which have no
attempted stage.
d. Crimes which have NO FRUSTRATED STAGE:
the essence of the crime is the act itself.
Example: in rape, the slightest penetration
already consummates the crime; the same is
true for arson where the slightest burning
already renders the crime complete.
Valenzuela vs. People (2007):
No crime of frustrated theft.
Facts: A grocery boy was caught trying to abscond a
box of Tide Ultrabar laundry soap from the Super
Sale Club. The guards apprehended him at the store
parking lot while trying to board a taxi. He claimed
the theft was merely frustrated for he was not able
to dispose of the goods.
Held: The Revised Penal Code provisions on theft
have not been designed in such fashion as to
accommodate the Adiao, Dino and Empelis rulings.
Again, there is no language in Article 308 that
expressly or impliedly allows that the ―free
disposition of the items stolen‖ is in any way
determinative of whether the crime of theft has
been produced. We thus conclude that under the
Revised Penal Code, there is no crime of frustrated
theft.
3. According to Their Gravity
Under Art. 9, felonies are classified as:
a. Grave felonies or those to which the law
attaches
(1) the capital punishment or
(2) penalties which in any of their periods are
afflictive;
(a) Reclusion perpetua
(b) Reclusion temporal
(c) Perpetual or Absolute DQ
(d) Perpetual or Temporary Special DQ
(e) Prision mayor
(f) Fine more than P6,000
b. Less grave felonies or those to which the law
punishes
(1) with penalties which in their maximum
period is correctional;
(a) Prision correccional
(b) Arresto mayor
(c) Suspension
(d) Destierro
(e) Fines equal to or more than P200
c. Light felonies or those infractions of law for the
commission of which
(1) the penalty is arresto menor, or a fine not
exceeding P200, or both. (ASKED 4 TIMES IN
BAR EXAMS)
Why is it necessary to determine whether the crime
is grave, less grave or light?
(1) To determine

whether these felonies can be
complexed or not;

the prescription of the crime and

the prescription of the penalty.
(2) In other words, these are felonies classified
according to their gravity, stages and the
penalty attached to them.
Take note that when the Revised Penal Code speaks
of grave and less grave felonies, the definition
makes a reference specifically to Art. 25 of the
Revised Penal Code.
Do not omit the phrase ―In accordance with Art. 25‖
because there is also a classification of penalties
under Art. 26 that was not applied.
This classification of felony according to gravity is
important with respect to the question of
prescription of crimes.
(3)
Ex. If the penalty is a fine and exactly
P200.00, it is only considered a light felony
under Art. 9. If the fine is imposed as an
alternative penalty or as a single penalty, the
fine of P200.00 is considered a correctional
penalty under Art. 26, hence a less grave
penalty.
CRIMINAL LAW REVIEWER
If the penalty is exactly P200.00, apply Art. 26
(with respect to prescription of penalties). It is
considered as a correctional penalty and it
prescribes in 10 years. If the offender is
apprehended at any time within ten years, he
can be made to suffer the fine.
For an act to be punishable, there must be a
CONCURRENCE BETWEEN THE ACT and the INTENT.
b. That the act or omission must be
punishable by the RPC;
c. That the act is performed or the
omission incurred by means of dolo or
culpa.
4. As to Count
Plurality of crimes may be in the form of:
a. Compound Crime,
b. Complex crime; and
c. Composite crime.
5. As to Nature
(ASKED 4 TIMES IN BAR EXAMS)
a.
b.
Dolo is DELIBERATE INTENT otherwise referred to as
criminal intent, and must be coupled with freedom
of action and intelligence on the part of the
offender as to the act done by him.
Liability even in the absence of criminal intent
There are two exceptions to the requirement of
criminal intent:
(a) Felonies committed by CULPA. (infra)
(b) Offenses MALA PROHIBITA. (infra)
Mala in se
Mala prohibita
Art. 10. Offenses not subject to the provisions of
this Code. - Offenses which are or in the future may
be punishable under special laws are not subject to
the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should
specially provide the contrary.
NOTE: Please refer to p. [1] for the table comparing
mala in se and mala prohibita
C. Elements of Criminal Liability
1. Elements of Felonies
a. There must be an act or omission
ACTUS REUS/PHYSICAL ACT to be considered as a
felony, there must be an act or omission;

Act: Any kind of body movement which tends to
produce some effect in the external world;
includes possession.

Omission: The failure to perform a positive duty
which one is bound to do under the law.
It is important that there is a law requiring the
performance of an act; if there is no positive duty,
there is no liability.
9
Intentional Felonies
The act or omission is performed or incurred with
deliberate intent (with malice) to cause an injury to
another.
Requisites
i. Freedom
Voluntariness on the part of the person who commits
the act or omission.
If there is lack of freedom, the offender is exempt
from liability (i.e., presence of irresistible force or
uncontrollable fear)
ii.
Intelligence
Capacity to know and understand the consequences
of one‘s act.
This power is necessary to determine the morality of
human acts, the lack of which leads to non-existence
of a crime.
If there is lack of intelligence, the offender is
exempt from liability. (i.e., offender is an imbecile,
insane or under 15 years of age)
iii.
Criminal intent
Examples: Failure to render assistance, failure to
issue receipt or non-disclosure of knowledge of
conspiracy against the government.10
The purpose to use a particular means to effect a
result.
Mens rea: "A guilty mind, a guilty or wrongful
purpose or criminal intent."11
The intent to commit an act with malice, being
purely a mental state, is presumed (but only if the
act committed is unlawful). Such presumption arises
from the proof of commission of an unlawful act.
Sometimes referred to in common parlance as the
gravamen of the offense (bullseye of the crime), or
criminal or deliberate intent.
9
Art. 275. Abandonment of person in danger and
abandonment of one's own victim.
10
Art. 116. Misprision of treason.
11
Black's Law Dictionary, 5th ed., p. 889
However, in some crimes, intent cannot be
presumed being an integral element thereof; so it
has to be proven.
Example: In frustrated homicide, specific intent to
kill is not presumed but must be proven, otherwise it
is merely physical injuries.
27
CRIMINAL LAW REVIEWER
(due to lack of discernment) or there was a mistake
of fact (infra).
28
Recuerdo v. People (2006):

General criminal intent is an element of all
crimes but malice is properly applied only to
deliberate acts done on purpose and with
design.

Evil intent must unite with an unlawful act for
there to be a felony. A deliberate and unlawful
act gives rise to a presumption of malice by
intent.

On the other hand, specific intent is a definite
and actual purpose to accomplish some
particular thing.
The general criminal intent is presumed from the
criminal act and in the absence of any general intent
is relied upon as a defense, such absence must be
proved by the accused.
Generally, a specific intent is not presumed. Its
existence, as a matter of fact, must be proved by
the State just as any other essential element.
This may be shown, however, by the nature of the
act, the circumstances under which it was
committed, the means employed and the motive of
the accused
If he is successful, then the presumption that he
intended to do something wrong is overcome along
with the need to determine specific intent.
However, the result of Ernie‘s act will now
determine his liability. Was his act justified that he
incurs no liability? Is he entitled to any exemption?
Or is his liability only mitigated?
DISTINCTION Between Intent, Discernment and
Motive (ASKED 4 TIMES IN BAR EXAMS)
INTENT
Determination
to
do
a
certain thing,
an aim or
purpose
of
the mind.
Establish the
nature
and
extent
of
culpability in
intentional
felonies.
DISCERNMENT
The
mental
capacity to tell
right
from
wrong.
MOTIVE
It is the moving
power
which
impels one to
do an act (ex.
vengeance).
Integral to the
element
of
intelligence,
NOT intent.
Generally, it is
not an essential
element of a
crime, hence, it
need not be
proved
for
purposes
of
conviction
(except
in
certain
cases
enumerated
below)
Note: If any of the elements is absent, there is no
dolo. If there is no dolo, there could be no
intentional felony.12
Categories of Intent
General Criminal Intent
The intention to do
something wrong.
Specific Criminal Intent
The intention to commit
a definite act.
Presumed from the
mere doing of a wrong
act.
The burden is upon the
wrong doer to prove
that he acted without
such criminal intent.
Existence
presumed.
is
When Motive Becomes Material in Determining
Criminal Liability (ASKED ONCE IN BAR EXAMS)
i.
not
Since the specific intent
is an element of the
crime, the burden is
upon the prosecution to
establish its existence.
ii.
iii.
iv.
v.
Illustration:
Ernie, without any provocation, stabbed Bert.
vi.
The very act of stabbing is the quantum of proof
needed to establish the fact that Ernie intended to
do something wrong. This is the GENERAL CRIMINAL
INTENT.
However, Ernie can be liable for more than one
crime; thus, prosecution must establish Ernie‘s
SPECIFIC INTENT in order to determine whether he
planned to kill Bert or merely to inflict a whole lot
of pain.
Ernie can overturn the presumption of general
criminal intent by proving that he was justified
(infra), entitled to any exempting circumstances
Illustration:
Ernie came home and found his wife in a pleasant
conversation with Bert, former suitor. Thereupon, he
went to the kitchen, opened a drawer and pulled out
a knife. He then stabbed Bert.
The moving force is jealousy.
13
12
Visbal vs. Buban (2003)
When the act brings about variant crimes (e.g.
kidnapping v. robbery13)
When there is doubt as to the identity of the
assailant.
When there is the need to ascertain the truth
between two antagonistic versions of the crime.
When the identification of the accused proceeds
from an unreliable source and the testimony is
inconclusive and not free from doubt.
When there are no eyewitnesses to the crime,
and when suspicion is likely to fall upon a
number of persons.
When the evidence on the commission of the
crime is purely circumstantial.

Lack of motive can aid in achieving
acquittal of the accused, especially where
there is doubt as to the identity of the
accused.14
14
People v. Puno (1993)
People vs Hassan, 1988
CRIMINAL LAW REVIEWER
The intent is presumed from the resort to the knife,
so that means he desires to kill Bert, the former
suitor.
Ernie‘s deliberate choice of something as lethal as
the knife shows the presence of intelligence because
it is his very awareness of the danger which
prompted his choice. This only means that he knew
what is right from wrong and deliberately chose to
do what is wrong.
Note: Discernment does not indicate the presence of
intent, merely intelligence.15 Thus, discernment is
necessary whether the crime is dolo or culpa.
People v. Delos Santos (2003):
Delos Santos stabs Flores with a kitchen knife hitting
him on the different parts of his body, inflicting
upon him mortal wounds which directly caused his
death.
Requisites:
(a) That the act done would have been lawful had
the facts been as the accused believed them to
be;
(b) That the intention of the accused in performing
the act should be lawful;
(c) That the mistake must be without fault or
carelessness on the part of the accused. When
the accused is negligent, mistake of fact is not a
defense.16
US v. Ah Chong (1910):
A cook who stabs his roommate in the dark, honestly
mistaking the latter to be a robber responsible for a
series of break-ins in the area, and after crying out
sufficient warnings and believing himself to be under
attack, cannot be held criminally liable for
homicide.
1)
He then argues that since the prosecution witnesses
testified that there was no altercation between him
and Flores, it follows that no motive to kill can be
attributed to him.
Held:
The court held that the argument of Delos Santos is
inconsequential.
Proof of motive is not indispensable for a conviction,
particularly where the accused is positively
identified by an eyewitness and his participation is
adequately established.
In People vs. Galano, the court ruled that in the
crime of murder, motive is not an element of the
offense, it becomes material only when the evidence
is circumstantial or inconclusive and there is some
doubt on whether the accused had committed it.
In this case, the court finds that no such doubt
exists, as witnesses De Leon and Tablate positively
identified Delos Santos.
(1) Mistake of Fact (ignorantia facti excusat)
(ASKED ONCE IN BAR EXAMS)
It is a reasonable misapprehension of fact on the
part of the person causing injury to another. Such
person is NOT criminally liable as he acted without
criminal intent.
Under this principle, what is involved is the lack of
intent on the part of the accused. Therefore, the
defense of mistake of fact is an untenable defense
in culpable felonies, where there is no intent to
consider.
An honest mistake of fact destroys the presumption
of criminal intent which arises upon the commission
of a felonious act.
15
People v. Cordova 1993
2)
3)
Would the stabbing be lawful if the facts were
really what the houseboy believed? Yes. If it was
really the robber and not the roommate then
the houseboy was justified.
Was the houseboy‘s intention lawful? Yes. He
was acting out of self-preservation.
Was the houseboy without fault or negligence?
Yes. His deliberate intent to defend himself
with the knife can be determined by the fact
that he cried out sufficient warnings prior to the
act.
Stabbing the victim whom the accused believed to
be an intruder showed a mistake of fact on his part
which led him to take the facts as they appear to
him and was pressed to take immediate action.
However, mistake of fact is NOT availing in People
v. Oanis (74 Phil. 257), because the police officers
were at fault when they shot the escaped convict
who was sleeping, without first ascertaining his
identity. (It is only when the fugitive is determined
to fight the officers of law trying to catch him that
killing the former would be justified)
(2) Culpa (CONSTRUCTIVE INTENT)
Although there is no intentional felony, there could
be culpable felony.
The act or omission is not malicious; the injury
caused being simply the incident of another act
performed without malice.
The element of criminal intent is replaced by
negligence, imprudence, lack of foresight or lack of
skill.
Is culpa merely a mode of committing a crime or a
crime in itself?
(a) AS A MODE
16
People v. Oanis, 1988
29
CRIMINAL LAW REVIEWER
Under Art. 3, it is clear that culpa is just a modality
by which a felony may be committed.
30
Act of Dolo
Act of Culpa
OR
Accused claimed that he was placed in twice in
jeopardy.
FELONY
People vs. Faller (1939):
It was stated indirectly that criminal negligence or
culpa is just a mode of incurring criminal liability.
In this case, the accused was charged with malicious
mischief.
Malicious mischief is an intentional negligence under
Article 327. Thus, there is no malicious mischief
through simple negligence or reckless imprudence
because it requires deliberateness.
The Supreme Court pointed out that although the
allegation in the information charged the accused
with an intentional felony, yet the words feloniously
and unlawfully, which are standard languages in an
information, covers not only dolo but also culpa
because culpa is just a mode of committing a felony.
(b) AS A CRIME
In Art. 365, criminal negligence is an omission which
the article specifically penalizes.
The concept of criminal negligence is the
inexcusable lack of precaution on the part of the
person performing or failing to perform an act.
Art. 365 creates a distinction between imprudence
and negligence; simple or reckless, one might think
that criminal negligence is the one being punished.
Act of Dolo
INTENTIONAL
OR
physical injuries through reckless imprudence for
which he was tried and acquitted.
Prior to his acquittal, a case for serious physical
injuries and damage to property through reckless
imprudence was filed.
Act of Culpa
Negligence - Indicates deficiency of perception,
failure to pay proper attention, and to use diligence
in foreseeing the injury or damage impending to be
caused. Usually involves lack of foresight.
Imprudence - Indicates deficiency of action, failure
to take the necessary precaution to avoid injury to
person or damage to property. Usually involves lack
of skill.
Reason for punishing acts of negligence or
imprudence: A man must use his common sense and
exercise due reflection in all his acts; it is his duty to
be cautious, careful and prudent.
DOCTRINES CONCERNING CULPABLE CRIMES
(a) Emergency Rule

A person who is confronted with a sudden
emergency may be left no time for thought so
he must make a speedy decision based largely
upon impulse or instinct.
Importance: cannot be held to the same conduct as
one who has had an opportunity to reflect, even
though it later appears that he made the wrong
decision.
CRIMINAL
NEGLIGENCE
(ART 365)
Requisites:
FELONIES
(a) Freedom
(b) Intelligence
(c) Negligence, reckless imprudence,
foresight or lack of skill;
Held:
The second case must be dismissed.

Once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be
prosecuted again for the same act.

For the essence of the quasi-offense under Art.
365 of the RPC lies in the execution of an
imprudent act which would be punishable as a
felony.

The law penalizes the negligent act and not the
result.

The gravity of the consequences is only taken
into account to determine the penalty. It does
not qualify the substance of the offense.

As the careless act is single, whether the
injurious result should affect one person or
several persons, the offense remains one and
the same, and cannot be split into different
crimes and prosecutions.
(b) Doctrine Of ―Last Clear Chance‖
lack
of
People v. Buan (1968):
The accused was driving a passenger bus. Allegedly
because of his recklessness, the bus collided with a
jeep injuring the passengers of the latter.
A case was filed against the accused for slight
The contributory negligence of the party injured will
NOT defeat the action if it be shown that the
accused might, by the exercise of reasonable care
and prudence, have avoided the consequences of the
negligence of the injured party.
But: The doctrine is not applicable in criminal cases:
Anuran v. Buno (1966):

The principle about the "last clear chance"
CRIMINAL LAW REVIEWER
would call for application in a suit between the
owners and drivers of the two colliding vehicles.
It does not arise where a passenger demands
responsibility from the carrier to enforce its
contractual obligation. For it would be
inequitable to exempt the negligent driver of
the jeepney and its owners on the ground that
the other driver was likewise guilty of
negligence.
Last Clear Chance is a defense by the defendant
in a damage suit against liability by transferring
it to the plaintiff.
These dynamics cannot be replicated in a
criminal case because:
i. the liability is penal in nature and thus
cannot be transferred within the same case



It is not a case between two parties involved in an
incident but rather between an individual and the
State.
(c) Rule Of Negative Ingredient
This is related to the doctrine of proximate cause
and applicable when certain causes leading to the
result are not identifiable.
This rule states that:
i. The prosecution must first identify what
the accused failed to do.
ii. Once this is done, the burden of evidence
shifts to the accused.
iii. The accused must show that the failure did
not set in motion the chain of events
leading to the injury.17
D. Impossible Crimes
Purpose of punishing impossible crimes: To suppress
criminal propensity or criminal tendencies.
Objectively, the offender has not committed a
felony, but subjectively, he is a criminal.
Requisites:
(1) That the act performed would be an offense
against persons or property.
(2) That the act was done with evil intent.



The offender intends to commit a
felony against persons or against
property, and the act performed would
have been an offense against persons or
property.
It must be shown that the actor
performed the act with the intent to do
an injury to another.
However, it should not be actually
performed, for otherwise, he would be
liable for that felony.
(3) That
its
accomplishment
is
inherently
impossible, or that the means employed is
either inadequate or ineffectual.
17
Carillo vs People, 1994
Inherent impossibility: The act intended by the
offender is by its nature one of impossible
accomplishment.
There must be either (1) legal impossibility or (2)
physical impossibility of accomplishing the intended
act.
Legal impossibility: The intended acts, even if
completed, would not amount to a crime. Legal
impossibility would apply to those circumstances
where:
a. the motive, desire and expectation is to
perform an act in violation of the law;
b. there is intention to perform the physical
act;
c. there is a performance of the intended
physical act; and
d. the consequence resulting from the
intended act does not amount to a crime.
(Intod v. CA)
Physical or factual impossibility: Extraneous
circumstances unknown to the actor or beyond his
control prevent the consummation of the intended
crime.
Note: In the Philippines, impossibility of
accomplishing the criminal intent is not merely
a defense but an act penalized by itself.
(4) That the act performed should not constitute a
violation of another provision of the RPC.
Illustration:
The victim was tortured to death. He was later shot
in the back to make it appear that he was killed
while trying to escape. The accused is not a
principal to an impossible crime but an accessory to
the killing committed by the principal (People v.
Saladino).
Note: Since the offender in an impossible crime has
already performed the acts for the execution of the
same, there could be no attempted impossible
crime. There is no frustrated impossible crime
either, because the acts performed by the offender
are considered as constituting a consummated
offense.
Felonies against persons:
(a) Parricide (Art. 246)
(b) Murder (Art. 248)
(c) Homicide (Art. 249)
(d) Infanticide (Art. 255)
(e) Abortion (Arts. 256, 257, 258 and 259)
(f) Duel (Arts. 260 and 261)
(g) Physical injuries (Arts. 262, 263, 264, 265 and
266)
(h) Rape (Art. 266- A)
Felonies against property:
(a) Robbery (Arts. 294, 297, 298, 299, 300, 302 and
303)
(b) Brigandage (Arts. 306 and 307)
31
CRIMINAL LAW REVIEWER
32
(c)
(d)
(e)
(f)
Theft (Arts. 308, 310 and 311)
Usurpation (Arts. 312 and 313)
Culpable Insolvency (Art. 314)
Swindling and other deceits (Art. 315, 316, 317
and 318)
(g) Chattel Mortgage (Art. 319)
(h) Arson and other crimes involving destruction
(Arts. 320, 321, 322, 323, 324, 325 and 326)
(i) Malicious mischief (Arts. 327, 328, 329, 330 and
331)

As a result, petitioner-accused was sentenced to
imprisonment of only six months of arresto
mayor for the felonious act he committed with
intent to kill: this despite the destruction done
to the intended victim‘s house.
E. Stages of Execution
Classification Under Art. 6
a. Consummated Felony
When all the elements necessary for its execution
and accomplishment are present; the felony is
produced.
Modified concept of impossible crime
Intod v. CA (1992):

In this case, four culprits, all armed with
firearms and with intent to kill, went to the
intended victim‘s house and after having
pinpointed the latter‘s bedroom, all four fired
at and riddled the said room with bullets,
thinking that the intended victim was already
there as it was about 10:00 in the evening.

It so happened that the intended victim did not
come home that evening and so was not in her
bedroom at that time.

Eventually the culprits were prosecuted and
convicted by the trial court for attempted
murder.

CA affirmed the judgment but the SC modified
the same and held the petitioner liable only for
the so-called impossible crime.
b. Frustrated Felony
When the offender performs all the acts of execution
which would produce the felony as a consequence
but which, nevertheless, do not produce it by reason
of causes independent of the will of the perpetrator.
c. Attempted Felony
When the offender commences the commission of a
felony directly by overt acts, and does not perform
all the acts of execution which should produce the
felony by reason of some cause or accident other
than his own spontaneous desistance.
Development of a Crime
ELEMENTS OF CRIMINAL
LIABILITY
Actus Reus
Mens Rea
Concurrence
Result
Causation
IMPOSSIBLE CRIME
Lacking due to:
i. inherent
impossibility
ii. employment
of
inadequate means




a. Overt act
A commission of the felony is deemed commenced
when the following are present:
(1) There are external acts.
(2) Such external acts have a direct connection with
the crime intended to be committed.
Overt act: Some physical activity or deed (but not
necessarily physical, depending on the nature of the
felony) indicating the intention to commit a
particular crime, more than a mere planning or
preparation, which if carried to its complete
termination following its natural course, without
being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense.
Rait v. People (2008):
The Court found that the petitioner‘s acts of
successfully removing victim‘s clothing and inserting
ATTEMPTED
Intervention
other
than own desistance;
some but not all acts
of execution




FRUSTRATED
CONSUMMATED










his finger to the victim‘s vagina were overt or
external acts in the crime of rape.
The acts were clearly the first or some subsequent
step in a direct movement towards the commission
of the offense after the preparations are made. Had
it not been for the victim‘s strong physical
resistance, petitioner‘s next step would, logically,
be having carnal knowledge of the victim.
b.
Development of a crime
(1) Internal acts
Intent, ideas and plans; generally not punishable.
The intention and act must concur.
Illustration: Ernie plans to kill Bert
(2) External acts
CRIMINAL LAW REVIEWER
(a) Preparatory Acts

Acts tending toward the crime.

Ordinarily not punished except when considered
by law as independent crimes (i.e. Art. 304 –
possession of picklocks)

Proposal and conspiracy to commit a felony are
not punishable except when the law provides for
their punishment in certain felonies.

These acts do not yet constitute even the first
stage of the acts of execution.

Intent not yet disclosed.
Illustration: Ernie goes to the kitchen to get a knife.
(b) Acts of Execution
Usually overt acts with a logical relation to a
particular concrete offense.
Punishable under the RPC.
Attempted Felony


Illustration: Ernie stabs Bert
Indeterminate offense
It is one where the purpose of the offender in
performing an act is not certain. Its nature in
relation to its objective is ambiguous. The intention
of the accused must be viewed from the nature of
the acts executed by him, and not from his
admission.
Attempted and Frustrated Felonies
The difference between the attempted stage and
the frustrated stage lies in: whether the offender
has performed all the acts of execution for the
accomplishment of a felony.
Frustrated Felony
Acts Performed
Overt acts of execution are started
BUT
Not all acts of execution are present
All acts of execution are finished
BUT
Crime sought to be committed is not
achieved
Why
Due to reasons other than the
spontaneous desistance of the
perpetrator
Due to intervening causes independent of
the will of the perpetrator
Position in the Timeline
Offender still in subjective phase
because he still has control of his
acts, including their natural cause.
Offender is already in the objective
phase because all acts of execution are
already present and the cause of its nonaccomplishment is other than the
offender‘s will
a.
Attempted Stage
Elements:
(1) The offender commences the commission of the
felony directly by overt acts;
(2) He does not perform all the acts of execution
which should produce the felony;
(3) The non-performance of all acts of execution
was due to cause or accident other than his own
spontaneous desistance.
Marks the commencement of the subjective phase:
Subjective phase - That portion of the acts
constituting a crime, starting from the point where
the offender begins the commission of the crime to
that point where he still has control over his acts
including their (act‘s) natural course
If between those two points, the offender is stopped
by reason of any cause outside of his own voluntary
desistance, the subjective phase has not been
passed and it is merely an attempt.
Illustration: The subjective phase for Ernie was from
the moment he swung his arm to stab Bert up until
he finished his stroke. This is the interim where he
still has control of his actions.
Desistance – is an absolutory cause which negates
criminal liability because the law encourages a
person to desist from committing a crime.
But, it does not negate all criminal liability, if the
desistance was made when acts done by him already
resulted in a felony,
The offender will still be criminally liable for the
felony brought about by his act.
What is negated is only the attempted stage, but
there may be other felonies arising from his act.
Note: Desistance is true only in the attempted stage
of the felony.
If the felony is already in its frustrated stage,
desistance will NOT negate criminal liability.
Illustration: Supposing Ernie (because he thought
killing Bert was too easy a revenge) desisted midstroke. However, Bert felt the movement and
turned. He was so shocked that he suddenly backed
away and tripped over his own feet. As Bert went
down, his left eye caught the sharp corner of a table
causing a puncture on his eyeball rendering him
completely blind on the left side.

Ernie would not be liable for attempted
murder because of his desistance (regardless
of his reason for doing so)

His liability would now be for serious physical
injuries because his act of raising the knife was
the proximate cause for Bert losing an eye.
33
CRIMINAL LAW REVIEWER
34
In the attempted stage, the definition uses the word
“directly.‖

There was only a shelling of the castle but no
bombardment of the drawbridge yet.
The word ―directly‖ emphasizes the requirement
that the attempted felony is that which is directly
linked to the overt act performed by the offender,
not the felony he has in his mind.
b.
Frustrated Stage
People v. Lamahang (1935):
The accused was arrested while he was detaching
some of the wood panels of a store. He was already
able to detach two panels.
Held: In criminal law, since the act of removing the
panel indicates only at most the intention to enter,
he can only be prosecuted for trespass. There is
nothing in the record to justify a concrete finding
that his final objective, once he succeeded in
entering the store, was to rob, to cause physical
injury to the inmates, or to commit any other
offense. The removal of the paneling is just an
attempt to trespass, not an attempt to rob. Although
Lamahang was charged with attempted robbery, the
Supreme Court held that he is only liable for
attempted trespass because that is the crime that
can be directly linked to his act of removing the
wood panel.
There are some acts which are ingredients of a
certain crime, but which are, by themselves, already
criminal offenses.
People v. Campuhan (2000):
The mother of the 4-year-old victim caught the
houseboy Campuhan in the act of almost raping her
daughter.
The hymen of the victim was still intact. However,
since it was decided in People v. Orita that entry
into labia is considered rape even without rupture
and full penetration of the hymen, a question arises
whether what transpired was attempted or
consummated rape.
Held:

There was only attempted rape.

Mere touching of external genitalia by the penis
is already rape.

Touching should be understood as inherently
part of entry of penis penetration and not mere
touching, in the ordinary sense, of the
pudendum.

Requires entry into the labia, even if there be
no rupture of the hymen or laceration of the
vagina,
to
warrant
a
conviction
for
consummated rape.

Where entry into the labia has not been
established, the crime amounts to an attempted
rape.

The prosecution did not prove that Campuhan‘s
penis was able to penetrate victim‘s vagina
because the kneeling position of the accused
obstructed the mother‘s view of the alleged
sexual contact. The testimony of the victim
herself claimed that penis grazed but did not
penetrate her organ.
Elements
(1) The offender performs all the acts of execution;
(2) All the acts performed would produce the felony
as a consequence;
(3) But the felony is not produced;
(4) By reason of causes independent of the will of
the perpetrator.
The end of the subjective phase and the beginning of
the objective phase.
Objective phase – the result of the acts of
execution, that is, the accomplishment of the crime.
If the subjective and objective phases have been
passed there is a consummated felony.
People v. Listerio (2000):
Brothers Jeonito and Marlon were walking when they
met a group composed of men who blocked their
path and attacked them with lead pipes and bladed
weapons. One stabbed Jeonito from behind.
Jeonito‘s brother, Marlon, was hit on the head.
Held:
1) The SC held that the crime is a frustrated felony
not an attempted offense considering that after
being stabbed and clubbed twice in the head as
a result of which he lost consciousness and fell.
Marlon's attackers apparently thought he was
already dead and fled.
2) A crime cannot be held to be attempted unless
the offender, after beginning the commission of
the crime by overt acts, is prevented, against
his will, by some outside cause from performing
all of the acts which should produce the crime.
3) In other words, to be an attempted crime, the
purpose of the offender must be thwarted by a
foreign force or agency which intervenes and
compels him to stop prior to the moment when
he has performed all of the acts which should
produce the crime as a consequence, which acts
it is his intention to perform.
4) If he has performed all the acts which should
result in the consummation of the crime and
voluntarily desists from proceeding further, it
cannot be an attempt.
Crimes which do not admit of frustrated stage
(a) Rape

The essence of the crime is carnal
knowledge.

No matter what the offender may do to
accomplish a penetration, if there was no
penetration yet, it cannot be said that the
offender has performed all the acts of
execution.
CRIMINAL LAW REVIEWER

We can only say that the offender in rape
has performed all the acts of execution
when he has effected a penetration.
Once there is penetration, no matter how
slight it is, the offense is consummated.
People v. Orita (1990):
For this reason, rape admits only of the attempted
and consummated stages, no frustrated stage. (see
the previously cited case of People v. Campuhan for
the most recent doctrine on penetration).
(b) Arson

One cannot say that the offender, in the
crime of arson, has already performed all
the acts of execution which could produce
the destruction of the premises through the
use of fire, unless a part of the premises
has begun to burn.

The
crime
of
arson
is
therefore
consummated even if only a portion of the
wall or any part of the house is burned. The
consummation of the crime of arson does
not depend upon the extent of the damage
caused. (People v. Hernandez)
(c) Bribery and Corruption of Public Officers

The manner of committing the crime
requires the meeting of the minds between
the giver and the receiver.

If there is a meeting of the minds, there is
consummated bribery or consummated
corruption.

If there is none, it is only attempted.
(d) Adultery

This requires the sexual contact between
two participants.

If that link is present, the crime is
consummated;
(e) Physical Injuries

Under the Revised Penal Code, the crime of
physical injuries is penalized on the basis of
the gravity of the injuries.

There is no simple crime of physical
injuries. There is the need to categorize
because there are specific articles that
apply whether the physical injuries are
serious, less serious or slight.

Thus, one could not punish the attempted
or frustrated stage because one does not
know what degree of physical injury was
committed unless it is consummated.
Illustration:
When Bert lost his left eye, Ernie‘s liability was
automatically for serious physical injuries. He would
have no liability if the eye was intact.
If the eye suffered damage due to the impact, the
crime would not be frustrated nor attempted
physical injuries because the RPC still considers this
as a consummated physical injury, its gravity
depending on the duration that it took for the
damage to heal.
(f) Theft

Once there is unlawful taking, theft is
consummated.

Either the thing was taken or not.

Disposition of the stolen goods is not an
element of theft under the RPC.
Rule of thumb: Felonies that do not require any
result do not have a frustrated stage.
Factors in Determining the Stage of Execution of a
Felony
a. The manner of committing the crime;
b. The elements of the crime; and
c. The nature of the crime itself.
These three factors are helpful in trying to pinpoint
whether the crime is still in its attempted,
frustrated or consummated stage.
a.
The Manner of Committing the Crime
(1) Formal Crimes - consummated in one
instant, no attempt.
(a) Ex. Slander and false testimony
(b) There can be no attempt, because
between the thought and the deed,
there is no chain of acts that can be
severed.
(2) Crimes consummated by mere attempt or
proposal by overt act.
(a) Ex. Flight to enemy‘s country (Art. 121)
and corruption of minors (Art. 340)
(3) Felony by omission
(a) There can be no attempted stage when
the felony is by omission, because the
offender does not execute acts, he
omits to perform an act which the law
requires him to do.
(4) Crimes requiring the intervention of two
persons to commit them are consummated
by mere agreement.
(a) In bribery, the manner of committing
the crime requires the meeting of the
minds between the giver and the
receiver.
(b) When the giver delivers the money to
the supposed receiver, but there is no
meeting of the minds, the only act
done by the giver is an attempt.
(5) Material Crimes – have three stages of
execution
Thus, in determining the stage of some
crimes, the manner of execution becomes
pivotal in determining the end of the
subjective phase, i.e. once the offender
performs the act in the manner provided for
in the law, HE IS ALREADY DEEMED TO HAVE
PERFORMED EVERY ACT FOR ITS EXECUTION.
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36
b.
The Elements of the Crime
(1) Along with the manner of execution, there are
crimes wherein the existence of certain
elements becomes the factor in determining its
consummation.
(2) In the crime of estafa, the element of damage
is essential before the crime could be
consummated. If there is no damage, even if the
offender succeeded in carting away the personal
property involved, estafa cannot be considered
as consummated.
(3) On the other hand, if it were a crime of theft,
damage or intent to cause damage is not an
element of theft.
(4) What is necessary only is intent to gain, not
even gain is important.
(5) In the crime of abduction, the crucial element
is the taking away of the woman with lewd
designs.
c.
The Nature of the Crime Itself
In defining of the frustrated stage of crimes involving
the taking of human life (parricide, homicide, and
murder), it is indispensable that the victim be
mortally wounded.
Hence, the general rule is that there must be a fatal
injury inflicted, because it is only then that death
will follow.
F. Conspiracy and Proposal
Conspiracy – exists when two or more persons come
to an agreement concerning the commission of a
felony and decide to commit it. (Article 8, RPC).
Requisites of conspiracy:
(1) Two or more persons come to an agreement.

Agreement presupposes meeting of the
minds of two or more persons
(2) The agreement pertains to a commission of a
felony.

Agreement to effect what has been
conceived and determined.
(3) The execution of the felony was decided upon.
Note: There must be participation in the criminal
resolution because simple knowledge thereof by a
person may only make him liable as an accomplice.
GENERAL RULE: Conspiracy and proposal to commit
a felony are not punishable.
EXCEPTION: They are punishable only in the cases in
which the law specially provides a penalty therefore.
Conspiracy to commit (1) Treason (Art. 115)
(2) Rebellion (Art. 136)
(3) Insurrection (Art. 136)
(4) Coup d’état, (Art. 136)
(5) Sedition (Art. 141)
(6) Monopolies and combinations in restraint of
trade, espionage (Art. 186)
(7) Illegal association (Art. 147)
(8) Highway Robbery (P.D. 532)
(9) Espionage (Sec. 3, C.A. 616)
(10) Selected acts under the Dangerous Drugs Acts
(11) Arson
(12) Terrorism (R.A. 9372)
Proposal to commit –
(1) Treason (Art. 115)
(2) Coup d’ etat (Art. 136)
(3) Rebellion (Art. 136)
(4) Inducement not to answer summons, appear or
be sworn in Congress, etc. (Art. 150)
Rationale: Conspiracy and proposal to commit a
crime are only preparatory acts and the law regards
them as innocent or at least permissible except in
rare and exceptional cases.
Conspiracy as a felony, distinguished from
conspiracy as a manner of incurring criminal
liability:

As a felony, conspirators do not need to actually
commit treason, rebellion, insurrection, etc., it
being sufficient that two or more persons agree
and decide to commit it.

As a manner of incurring criminal liability, if
they commit treason, rebellion, etc., they will
be held liable for it, and the conspiracy which
they had before committing the crime is only a
manner of incurring criminal liability, not a
separate offense.
In conspiracy, the act of one is the act of all.
GENERAL RULE: When the conspiracy is established,
all who participated therein, irrespective of the
quantity or quality of his participation is liable
equally, whether conspiracy is pre-planned or
instantaneous.
EXCEPTION: Unless one or some of the conspirators
committed some other crime which is not part of the
conspiracy.
EXCEPTION TO THE EXCEPTION: When the act
constitutes a ―single indivisible offense.‖
Proposal to commit a felony - when the person who
has decided to commit a felony proposes its
execution to some other person or persons. (Art. 8,
RPC)
Examples: Proposal to commit treason (Art. 115)
and proposal to commit coup d‘état, rebellion or
insurrection (Art. 136).
Requisites:
(1) That a person has decided to commit a felony;
and
(2) That he proposes its execution to some other
person or persons.
CRIMINAL LAW REVIEWER
There is no criminal proposal when:
(1) The person who proposes is not determined to
commit the felony;
(2) There is no decided, concrete and formal
proposal;
(3) It is not the execution of a felony that is
proposed.
Note: It is not necessary that the person to whom
the proposal is made agrees to commit treason or
rebellion.
People v. Laurio (1991): It must be established by
positive and conclusive evidence, not by
conjectures or speculations.
People v. Bello (2004): Conspiracy is predominantly
a state of mind as it involves the meeting of the
minds and intent of the malefactors. Consequently,
direct proof is not essential to establish it.
People v. Comadre (2004):

To establish conspiracy, evidence of actual
cooperation rather than mere cognizance or
approval of an illegal act is required.

Conspiracy is never presumed; it must be shown
to exist as clearly and convincingly as the
commission of the crime itself.

Mere presence of a person at the scene of the
crime does not make him a conspirator for
conspiracy transcends companionship.
People v. Cenahonon (2007):
While it is mandatory to prove conspiracy by
competent evidence, direct proof is not essential to
show it – it may be deduced from the mode, method,
and manner by which the offense was perpetrated,
or inferred from the acts of the accused themselves
when such acts point to a joint purpose and design,
concerted action and community of interest.
The accused herein were shown to have clearly
acted towards a common goal.
People v. Talaogan (2008):
Direct proof is not required, as conspiracy may be
proved by circumstantial evidence. It may be
established through the collective acts of the
accused before, during and after the commission
of a felony that all the accused aimed at the same
object, one performing one part and the other
performing another for the attainment of the same
objective; and that their acts, though apparently
independent, were in fact concerted and
cooperative, indicating closeness of personal
association, concerted action and concurrence of
sentiments.
People v. Pangilinan (2003):
Doctrine of Implied Conspiracy (ASKED 1 TIME IN
BAR EXAMS) – Conspiracy need not be direct but may
be inferred from the conduct of the parties, their
joint purpose, community of interest and in the
mode and manner of commission of the offense.
Legal effects of implied conspiracy are:

Not all those present at the crime scene will be
considered conspirators;

Only those who participated in the criminal acts
during the commission of the crime will be
considered co-conspirators;

Mere acquiescence to or approval of the
commission of the crime, without any act of
criminal participation, shall not render one
criminally liable as co-conspirator.

In the absence of any previous plan or
agreement to commit a crime, the criminal
responsibility arising from different acts
directed against one and the same person is
individual and not collective, and that each of
the participants is liable only for his own acts.
(People v. Bagano)
A conspiracy is possible even when participants are
not known to each other. When several persons who
do not know each other simultaneously attack the
victim, the act of one is the act of all, regardless of
the degree of injury inflicted by any one of them.
Everyone will be liable for the consequences.
One who desisted is not criminally liable. As pointed
out earlier, desistance is true only in the attempted
stage. Before this stage, there is only a preparatory
stage. Conspiracy is only in the preparatory stage.
Illustration: A thought of having her husband killed
because the latter was maltreating her. She hired
some persons to kill him. The goons got hold of her
husband and started mauling him. The wife took pity
and shouted for them to stop but the goons
continued. The wife ran away. The wife was
prosecuted for parricide. But the Supreme Court said
that there was desistance, so she is not criminally
liable.
Do not search for an agreement among participants.
If they acted simultaneously to bring about their
common intention, conspiracy exists. And when
conspiracy exists, do not consider the degree of
participation of each conspiracy because the act of
one is the act of all. As a general rule, they have
equal responsibility.
Illustration:
A, B and C have been courting the same lady for
several years. On several occasions, they even
visited the lady on intervening hours. Because of
this, A, B and C became hostile with one another.
One day, D invited the young lady to go out with him
and she accepted the invitation. Eventually, the
young lady agreed to marry D.
When A, B and C learned about this, they all stood
up to leave the house of the young lady feeling
disappointed. When A looked back at the young lady
with D, he saw D laughing menacingly. At that
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instance, A stabbed D. C and B followed. In this
case, it was held that conspiracy was present.
38
In some exceptional situations, having community of
design with the principal does not prevent a
malefactor from being regarded as an accomplice if
his role in the perpetration of the homicide or
murder was, relatively speaking, of a minor
character. (People v. Nierra)
Illustration:
There was a planned robbery, and the taxi driver
was present during the planning.
The taxi driver agreed for the use of his cab but
said, ―I will bring you there, and after committing
the robbery I will return later.‖ The taxi driver
brought the conspirators where the robbery would
be committed. After the robbery was finished, he
took the conspirators back to his taxi and brought
them away.
It was held that the taxi driver was liable only as an
accomplice. His cooperation was not really
indispensable. The robbers could have engaged
another taxi. The taxi driver did not really stay
during the commission of the robbery. At most, what
he only extended was his cooperation.
Siton v. CA, (1991):
The idea of a conspiracy is incompatible with the
idea of a free-for-all. It is not enough that the attack
be joint and simultaneous; it is necessary that the
assailants be animated by one and the same
purpose. A conspiracy must be shown to exist as
clearly and convincingly as the crime itself.
There is no definite opponent or definite intent as
when a basketball crowd beats a referee to death.
Distinctions between the liability of a conspirator
and that of a member of a band where the crime
committed is robbery which is attended by other
crimes.
(1) A conspirator is liable only for such other crimes
which could be foreseen and which are the
natural and logical consequences of the
conspiracy. Thus, if the conspiracy is only to rob
the victim, rape is not a foreseeable
consequence. (People v. Castillo)
(2) A member of a band in a robbery cuadrilla, on
the other hand, is liable for all assaults,
inclusive of rape and homicide, where he was
present when these crimes were being
committed but he did not attempt to prevent
the same. (Art. 296 (2), RPC).
(3)
If both conspiracy to rob and cuadrilla are
present, both rules may apply, in this manner:
(a) If a homicide was committed, the lookout is
liable therefore under the conspiracy theory; (b)
if a rape was committed and the lookout was
present but did not try to prevent it, he will be
liable under the cuadrilla rule; and (c) if the
lookout was not present when the homicide was
committed, he will not be liable for the rape
but he will still be liable for the homicide under
the conspiracy theory.
CRIMINAL LAW REVIEWER
2 Concepts of
Conspiracy
AS A FELONY
IN ITSELF
AS A
BASIS
FOR
LIABILITY
Stage
Preparatory
acts
Executory
acts
How
incurred
Legal requirements
Illustration
Mere
agreement
 The RPC must specifically punish the
act of conspiring (and proposing)
 The
act
MUST
NOT
BE
ACCOMPLISHED, else the conspiracy
is obliterated and the ACT ITSELF IS
PUNISHED.
 QUANTUM OF PROOF: Conspiracy
as a crime must be established
beyond reasonable doubt
A, B, C and D came to an
agreement
to
commit
rebellion. Their agreement
was to ring about the
rebellion on a certain
date.
Even if none of them has
performed the act of
rebellion, there is already
criminal liability arising
from the conspiracy to
commit the rebellion.
But if anyone of them has
committed the overt act of
rebellion, the crime of all
is no longer conspiracy but
rebellion itself.
This subsists even though
the other co-conspirators
do not know that one of
them had already done the
act of rebellion.
Commission
of
overt act
 Participants acted in concert or
simultaneously or IN ANY WAY which
is indicative of a meeting of the
minds towards a common criminal
goal or criminal objective.
 The act of meeting together is not
necessary as long as a common
objective can be discerned from the
overt acts.
 THE ACT MUST BE ACCOMPLISHED, if
there is only conspiracy or proposal,
THERE IS NO CRIME TO BE PUNISHED.
 QUANTUM OF PROOF: Reasonably
inferred from the acts of the
offenders when such acts disclose or
show a common pursuit of the
criminal objective. (People v. Pinto)
Three persons plan to rob
a bank. For as long as the
conspirators
merely
entered the bank there is
no crime yet. But when
one of them draws a gun
and disarms the security
guard, all of them shall be
held liable, unless a coconspirator was absent
from the scene of the
crime or he showed up,
but he tried to prevent the
commission of the crime.
G. Multiple Offenders
Recidivism/Reincindencia; Habituality/Reiteracion/
Art. 14 (9)
Repetition; Art. 14 (10)
Crimes
committed
Period
of
time
the
crimes are
committed
Number of
crimes
committed
Sufficient
that
the
offender
have
been
previously convicted by
final judgment for another
crime embraced in the
same title of the Code on
the date of his trial
Necessary
that
the
offender shall have served
out his sentence for the
first offense
No period of time
The second conviction for The
previous
and
an offense embraced in subsequent offenses must
the same title of RPC
NOT be embraced in the
Quasi-Recidivism;
Art. 160
Before serving or
while
serving
sentence,
the
offender commits
a felony (NOT a
crime)
Before serving or
while
serving
sentence
Offender commits
a felony
Habitual
Delinquency;
Art. 62 (5)
Specified:
1. less serious or
serious physical
injuries
2. robbery
3. theft
4. estafa
5. falsification
Within 10 years
from
his
last
release
or
conviction
Guilty the third
time or oftener
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CRIMINAL LAW REVIEWER
same title of the RPC
40
Their
effects
If not offset by any
mitigating circumstance, Not always an aggravating
increase the penalty only circumstance
to the maximum
1. Recidivism
Basis: the greater perversity of the offender, as shown
by his inclination to commit crimes
A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final
judgment of another crime embraced in the same title
of the Revised Penal Code. (People v. Lagarto, 1991)
Requisites
(1) Offender is on trial for an offense
(2) He was previously convicted by final judgment of
another crime
(3) Both the first and second offenses are embraced
in the same title of the RPC
(4) Offender is convicted of the new offense
Note: What is controlling is the time of trial, not the
time of commission of the crime. (Reyes, Revised
Penal Code)
2. Habituality (Reiteracion)
Basis: same as recidivism
Requisites
(1)
Accused is on trial for an offense
(2)
He previously served sentence
a. for another offense to which the law
attaches an equal or greater penalty, OR
b. for two or more crimes to which it attaches
lighter penalty than that for the new offense
(3)
He is convicted of the new offense
3. Quasi-Recidivism
Art. 160. Commission of another crime during
service of penalty imposed for another offense;
Penalty. — Besides the provisions of Rule 5 of
Article 62, any person who shall commit a felony
after having been convicted by final judgment,
before beginning to serve such sentence, or while
serving the same, shall be punished by the maximum
period of the penalty prescribed by law for the new
felony.
4. Habitual Delinquency
Art. 62, last par. For the purpose of this article, a
person shall be deemed to be habitual delinquent, if
within a period of ten years from the date of his
release or last conviction of the crimes of serious or
less serious physical injuries, robo, hurto estafa or
falsification, he is found guilty of any of said crimes
a third time or oftener.
Imposes
the
maximum of the
penalty for the
new offense, and
cannot be offset
by any mitigating
circumstance
An
additional
penalty shall be
imposed
Requisites
(1) Offender had been convicted of any of the crimes
of serious or less serious physical injuries, robbery,
theft, estafa, or falsification
(2) After that conviction or after serving his sentence,
he again committed, and, within 10 years from his
release or first conviction, he was again convicted
of any of the said crimes for the second time
(3) After his conviction of, or after serving sentence
for, the second offense, he again committed, and,
within 10 years from his last release or last
conviction, he was again convicted of any of said
offenses, the third time or oftener
Purpose of the law in imposing additional penalty
To render more effective social defense and the
reformation of habitual delinquents (REYES, quoting
People v. Abuyen)
See also: Aggravating circumstances
H. Complex Crimes and Special
Complex Crimes
Plurality of Crimes (Concursu de delitos)
(1) Consists of the successive execution
(2) by the same individual
(3) of different criminal acts
(4) for any of which no conviction has yet been
declared.
Philosophy behind plural crimes
Through the concept of plural crimes, several crimes
are treated as one. The purpose of this is to allow
leniency towards the offender, who, instead of being
made to suffer distinct penalties for every resulting
crime is made to suffer one penalty only, although it
is the penalty for the most serious one and is
imposed in its maximum period.
Note: If by complexing the crime, the penalty
would turn out to be higher, do not complex
anymore.
PLURALITY OF
CRIMES
There is no conviction
for any of the crimes
committed.
RECIDIVISM
There must be conviction
by final judgment of the
first or prior offense.
A Complex crime is not just a matter of penalty, but
of substance under the Revised Penal Code.
Kinds of Plurality of Crimes
a. Real or Material Plurality
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(1) There are different crimes in law as well as
in the conscience of the offender.
(2) In such cases, the offender shall be
punished for each and every offense that he
committed.
Illustration:
A stabbed B. Then, A also stabbed C. There are two
crimes committed.
b.
Formal or Ideal Plurality
(1) There is but one criminal liability in this
kind of plurality.
(2) Divided into 3 groups:
(a) Complex Crimes - When the offender
commits either of the complex crimes
defined in Art. 48 of the Code.
(b) Special Complex Crimes - When the
law specifically fixes a single penalty
for 2 or more offenses committed.
(c) Continuing and Continued Crimes - A
single crime consisting of a series of
acts but all arising from one criminal
resolution.
1. Complex Crimes
a. Compound Crime (Delito Compuesto)
A single act results in two or more grave or less
grave felonies.
Requisites:
(1) That only a single act is performed by the
offender
Single Act
Throwing a hand
grenade
A single bullet
killing two person
Several Acts
Submachine gun – because of
the number of bullets released
Firing of the revolver twice in
succession
(2) That the single acts produces:
i. 2 or more grave felonies, or
ii. 1 or more grave and 1 or more less grave
felonies, or
iii. 2 or more less grave felonies
Light felonies produced by the same act should be
treated and punished as separate offenses or may be
absorbed by the grave felony.
Illustration:
When the crime is committed by force or violence,
slight physical injuries are absorbed.
(ASKED 5 TIMES IN BAR EXAMS)
Art. 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.
So that when an offender performed more than one
act, although similar, if they result in separate
crimes,
i. there is no complex crime at all,
ii. instead, the offender shall be prosecuted for
as many crimes as are committed under
separate information.
Art. 48 requires the commission of at least 2 crimes.
But the two or more GRAVE or LESS GRAVE felonies
must be
(1) the result of a single act, or
(2) an offense must be a necessary means for
committing the other.
Compound crimes under Art. 48 is also applicable to
crimes through negligence. Thus, a municipal mayor
who accidentally discharged his revolver, killing a
girl and injuring a boy was found guilty of complex
crime of homicide with less serious physical injuries
through reckless imprudence. (People v. Castro)
Nature of complex crimes
Although two or more crimes are actually
committed, they constitute only one crime, in the
eyes of the law; and in the conscience of the
offender.
Example of a compound crime:
The victim was killed while discharging his duty as
barangay captain to protect life and property and
enforce law and order in his barrio.
Even in the case where an offense is a necessary
means for committing the other, the evil intent of
the offender is only one. Hence, there is only one
penalty imposed for the commission of a complex
crime.
Monteverde vs. People (2002): No complex crime
when:
1. Two or more crimes are committed, but not by a
single act;
2. Committing one crime is not a necessary means
for committing the other (or others)
Two kinds of complex crimes
(ASKED 4 TIMES IN BAR EXAMS)
The crime is a complex crime of homicide with
assault upon a person in authority.
When in obedience to an order several accused
simultaneously shot many persons, without evidence
how many each killed, there is only a single offense,
there being a single criminal impulse.
b. Complex Crime Proper (Delito Complejo)
An offense is a necessary means for committing the
other.
In complex crime, when the offender executes
various acts, he must have a single purpose.
But: When there are several acts performed, the
assumption is that each act is impelled by a distinct
41
CRIMINAL LAW REVIEWER
criminal impulse, hence each will have a separate
penalty.
42
Requisites:
(1) That at least two offenses are committed
(2) That one or some of the offenses must be
necessary to commit the other
(3) That both or all the offenses must be
punished under the same statute.
Note: The phrase ―necessary means‖ does not mean
―indispensable means‖
People vs. Comadre (2004):
The single act by appellant of detonating a hand
grenade may quantitatively constitute a cluster of
several separate and distinct offenses, yet these
component criminal offenses should be considered
only as a single crime in law on which a single
penalty is imposed because the offender was
impelled by a ―single criminal impulse‖ which shows
his lesser degree of perversity.
No complex crime proper:
(a) Subsequent acts of intercourse, after forcible
abduction with rape, are separate acts of rape.
(b) Not complex crime when trespass to dwelling is
a direct means to commit a grave offense.
(c) No complex crime, when one offense is
committed to conceal the other.
(d) When the offender already had in his possession
the funds which he misappropriated, the
subsequent falsification of a public or official
document involving said offense is a separate
offense.
(e) No complex crime where one of the offenses is
penalized by a special law.
(f) There is no complex crime of rebellion with
murder, arson, robbery, or other common
crimes (People v. Hernandez; Enrile v. Salazar).
(g) In case of continuous crimes.
(h) When the other crime is an indispensable
element of the other offense.
General rules in complexing crimes:
(a) When two crimes produced by a single act are
respectively within the exclusive jurisdiction of
two courts of different jurisdiction, the court of
higher jurisdiction shall try the complex
crime.
(b) The penalty for complex crime is the penalty
for the most serious crime, the same to be
applied in its maximum period.
(c) When two felonies constituting a complex crime
are punishable by imprisonment and fine,
respectively, only the penalty of imprisonment
should be imposed.
(d) Art. 48 applies only to cases where the Code
does not provide a definite specific penalty for a
complex crime.
(e) One information should be filed when a complex
crime is committed.
(f) When a complex crime is charged and one
offense is not proven, the accused can be
convicted of the other.
(g) Art. 48 also applies in cases when out of a single
act of negligence or imprudence, two or more
grave or less grave felonies resulted, but only
the first part is applicable, i.e. compound
crime. The second part of Art. 48 does not
apply, referring to the complex crime proper
because this applies or refers only to a
deliberate commission of one offense to commit
another offense.
2. Special Complex/Composite crimes
The substance is made up of more than one crime
but which in the eyes of the law is only
(1) a single indivisible offense.
(2) all those acts done in pursuance of the crime
agreed upon are acts which constitute a
single crime.
Special Complex Crimes
(1) Robbery with Homicide (Art. 294 (1))
(2) Robbery with Rape (Art. 294 (2))
(3) Robbery with Arson
(4) Kidnapping with serious physical injuries (Art.
267 (3))
(5) Kidnapping with rape
(6) Rape with Homicide (Art. 335)
(7) Arson with homicide
When crimes involved cannot be legally
complexed, viz:
(1) Malicious obtention or abusive service of
search warrant (Art. 129) with perjury;
(2) Bribery (Art. 210) with infidelity in the
custody of prisoners;
(3) Maltreatment of prisoners (Art. 235) with
serious physical injuries;
(4) Usurpation of real rights (Art. 312) with
serious physical injuries; and
(5) Abandonment of persons in danger (Art. 275)
and crimes against minors (Art. 276 to 278)
with any other felony.
3. Continued and Continuing Crimes
(Delito Continuado)
Continued crime (continuous or continuing) - A
single crime, consisting of a series of acts but all
arising from one criminal resolution.
Cuello Calon explains the delito continuado in this
way: When the actor , there being unity of purpose
and of right violated, commits diverse acts, each one
of which, although of a delictual character, merely
constitutes a partial execution of a single particular
delict, such delictual acts is called delito
continuado. Example: One who on several occasions
steals wheat deposited in a granary. Each
abstraction constitutes theft, but instead of
imposing on the culprit different penalties for each
theft committed, he is punished for only one ―hurto
continuado‖ for the total sum or value abstracted.
Continuing offense - A continuous, unlawful act or
series of acts set on foot by a single impulse and
operated by an unintermittent force, however long a
time it may occupy.
CRIMINAL LAW REVIEWER
Although there is a series of acts, there is only one
crime committed. Hence, only one penalty shall be
imposed.
Real
or
material
Continued Crime
plurality
There is a series of acts performed by the offender.
The
different
acts
Each act performed
constitute
only
one
constitutes a separate
crime because all of the
crime because each act
acts performed arise
is generated by a
from
one
criminal
criminal impulse
resolution.
People v. De Leon (1926): a thief who took from a
yard of a house two game roosters belonging to two
different persons was ruled to have committed only
one crime of theft, because there is a unity of
thought in the criminal purpose of the offender. The
accused was animated by a single criminal impulse.
A continued crime is not a complex crime.

The offender here does not perform a single act,
but a series of acts, and one offense is not a
necessary means for continuing the other.

Hence, the penalty is not to be imposed in its
maximum period.
A continued crime is different from a transitory
crime (moving crime.) in criminal procedure for
purposes of determining venue.
When a transitory crime is committed, the criminal
action may be instituted and tried in the court of the
municipality, city or province wherein any of the
essential ingredients thereof took place.
(ASKED TWICE IN BAR EXAMS)
While Article 48 speaks of a complex crime where a
single act constitutes two or more grave or less
grave offenses, those cases involving a series of acts
resulting to two or more grave and less grave
felonies, were considered by the Supreme Court as a
complex crime when it is shown that the act is the
product of one single criminal impulse.
TIP: If confronted with a problem, the Supreme
Court has extended this class of complex crime to
those cases when the offender performed not a
single act but a series of acts as long as it is the
product of a single criminal impulse
People v. Garcia (1980):

The accused were convicts who were members
of a certain gang and they conspired to kill the
other gang.

Some of the accused killed their victims in one
place within the same penitentiary, some killed
the others in another place within the same
penitentiary.

The Supreme Court ruled that all accused should
be punished under one information because they
acted in conspiracy.

The act of one is the act of all.

Because there were several victims killed and
some were mortally wounded, the accused
should be held for the complex crime of
multiple homicide with multiple frustrated
homicide.

There is a complex crime not only when there is
a single act but a series of acts.

It is correct that when the offender acted in
conspiracy, this crime is considered as one and
prosecuted under one information.
Although in this case, the offenders did not only kill
one person but killed different persons, the Supreme
Court considered this as complex.
Whenever the Supreme Court concludes that the
criminals should be punished only once, because
they acted in conspiracy or under the same criminal
impulse:

it is necessary to embody these crimes under
one single information.

It is necessary to consider them as complex
crimes even if the essence of the crime does not
fit the definition of Art 48, because there is no
other provision in the RPC.
Applying the concept of the ―continued crime‖,
the following cases have been treated as
constituting one crime only:
i. People v. Tumlos, (1939): The theft of 13 cows
belonging to two different persons committed
by the accused at the same place and period of
time;
ii. People v. Jaranilla, (1974): The theft of six
roosters belonging to two different owners from
the same coop and at the same period of time;
iii. People v. Sabbun, (1964): The illegal charging of
fees for service rendered by a lawyer every time
he collected veteran‘s benefits on behalf of a
client who agreed that attorney‘s fees shall be
paid out of such benefits. The collections of
legal fees were impelled by the same motive,
that of collecting fees for services rendered,
and all acts of collection were made under the
same criminal impulse.
The Supreme Court declined to apply the concept
in the following cases:
i. People v. Dichupa, (1961): Two estafa cases,
one which was committed during the period
from January 19 to December, 1955 and the
other from January 1956 to July 1956. Said acts
were committed on two different occasions;
ii. People v. CIV: Several malversations committed
in May, June and July 1936 and falsifications to
conceal said offenses committed in August and
October, 1936.
The malversations and
falsifications were not the result of one
resolution to embezzle and falsity;
In the THEFT cases:
The trend is to follow the single larceny doctrine:
i. taking of several things,
ii. whether belonging to the same or different
owners,
43
CRIMINAL LAW REVIEWER
iii. at the same time and place, constitutes one
larceny only.
44
Abandoned is the doctrine that the government has
the discretion to prosecute the accused for one
offense or for as many distinct offenses as there are
victims.
Note: The concept of delito continuado has been
applied to crimes under special laws since in Art. 10,
the RPC shall be supplementary to special laws,
unless the latter provides the contrary.
CHAPTER III. CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY
A. JUSTIFYING CIRCUMSTANCES
B. EXEMPTING CIRCUMSTANCES
C. MITIGATING CIRCUMSTANCES
D. AGGRAVATING CIRCUMSTANCES
E. ALTERNATIVE CIRCUMSTANCES
F. ABSOLUTORY CAUSE
JUSTIFYING
EXEMPTING
MITIGATING
AGGRAVATING
ALTERNATIVE
NO WRONG
THERE IS A WRONG
THERE IS A FELONY
THERE IS A FELONY
THERE IS A FELONY
No
criminal
liability
With civil liability
Except:
accident;
insuperable cause
Decreased criminal
liability
Increased
liability
Increased or decreased
liability
With civil liability
With civil liability
No
liability

criminal
No civil liability
Except:
state of necessity
Imputability – is the quality by which an act may be
ascribed to a person as it author or owner. It implies
that the act committed has been freely and
consciously done and may, therefore, be put down
to th doer as his very own
Responsibility – is the obligation of suffering the
consequences of crime. It is the obligation of taking
the penal and civil consequences of the crime.
Imputability distinguished from responsibility –
while imputability implies that a deed may be
imputed to a person, responsibility implies that the
person must take the consequences of such a deed.
Guilt – is an element of responsibility, for a man
cannot be made to answer for the consequences of a
crime unless he is guilty. (Reyes, Revised Penal
Code)
FIVE TYPES of justifying circumstances:
1. Self defense
2. Defense of relatives
3. Defense of strangers
4. Avoidance of a greater evil
5. Fulfillment of duty
6. Obedience to an order issued for some
lawful purpose
Justifying Circumstances – those where the act of a
person is said to be in accordance with law, so that
such person is deemed not to have transgressed the
law and is free from both criminal and civil liability.
There is no civil liability except in par. 4, Art. 11,
where the civil liability is borne by the persons
benefited by the act.
With civil liability
An affirmative defense, hence, the burden of
evidence rests on the accused who must prove the
circumstance by clear and convincing evidence.
There is NO crime committed, the act being
justified. Thus, such persons cannot be considered
criminals.
Basis: Lack of criminal intent
1. Self Defense
Includes not only the defense of the person or body
of the one assaulted but also that of his rights, the
enjoyment of which is protected by law. It includes:
a.
The right to honor. Hence, a slap on the face is
considered as unlawful aggression since the face
represents a person and his dignity. (Rugas vs,
People)
b.
The defense of property rights can be invoked if
there is an attack upon the property although it
is not coupled with an attack upon the person of
the owner of the premises. All the elements for
justification must however be present. (People
v. Narvaez)
A. Justifying Circumstances
(ASKED 30 TIMES IN BAR EXAMS)
criminal
Elements:
a.
Unlawful aggression
(1) Equivalent to an actual physical assault; OR
threatened assault of an immediate and
imminent kind which is offensive and
positively strong, showing the wrongful
intent to cause harm.
(2) The aggression must constitute a violation
of the law. When the aggression ceased to
exist, there is no longer a necessity to
defend one‘s self. EXCEPT: when the
CRIMINAL LAW REVIEWER
aggressor retreats to obtain a more
advantageous position to ensure the success
of the initial attack, unlawful aggression is
deemed to continue.
(3) Must come from the person attacked by the
accused.
(4) Unlawful aggression must also be a
continuing circumstance or must have been
existing at the time the defense is made.
Once the unlawful aggression is found to
have ceased, the one making the defense of
a stranger would likewise cease to have any
justification for killing, or even just
wounding, the former aggressor. [People vs.
Dijan (2002)]
Note: No unlawful aggression when there was an
agreement to fight and the challenge to fight
was accepted. BUT aggression which is ahead of
an agreed time or place is unlawful aggression.
b.
Reasonable necessity of means employed to
prevent or repel it.
Test of reasonableness
The means employed depends upon:
(1) nature and quality of the weapon used by
the aggressor
(2) aggressor‘s physical condition, character,
size, and other circumstances
(3) and those of the person defending himself
(4) the place and occasion of the assault.
c.
Lack of sufficient provocation on part of
defender
(1) In case there was a provocation on the part
of the person attacked, the attack should
not immediately precede the provocation
for defense to be valid.
(2) Never confuse unlawful aggression with
provocation.
(3) Mere provocation is not enough. It must be
real and imminent. Unlawful aggression is
an indispensable requisite.
(4) If there is unlawful aggression but one of
the other requisites is lacking, it is
considered an incomplete self-defense
which mitigates liability.
(5) Self-defense includes the defense of one‘s
rights, that is, those rights the enjoyment
of which is protected by law.
(6) Retaliation is different from an act of selfdefense.
Marzonia v. People (2006): Held: As the Court
previously held, mortally wounding an assailant with
a penknife is not a reasonably necessary means to
repel fist blows.
a.
Defense of Honor:
People v. Dela Cruz (1935): Accused was found
guilty of homicide for stabbing and killing Rivera.
Prosecution claimed that Dela Cruz and Rivera had a
relationship and that the accused was madly in love
with the deceased and was extremely jealous of
another woman with whom Rivera also had a
relationship. Dela Cruz claimed, on the other hand,
that on her way home one evening, Rivera followed
her, embraced and kissed her and touched her
private parts. She didn‘t know that it was Rivera and
that she was unable to resist the strength of Rivera
so she got a knife from her pocket and stabbed him
in defense of her honor.
Held: She is justified in using the pocketknife in
repelling what she believed to be an attack upon her
honor. It was a dark night and she could not have
identified Rivera. There being no other means of
self-defense.
People v. Juarigue (1946): Amado (deceased) has
been courting the accused Avelina in vain. On the
day of the crime, Avelina and Amado were in
Church. Amado sat beside Avelina and placed his
hand on her thigh. Thereafter, Avelina took out her
knife and stabbed Amado in the neck, causing the
death of Amado.
Held: Although the defense of one‘s honor exempts
one from criminal liability, it must be proved that
there is actual danger of being raped. In this case, 1)
the church was well-lit, 2) there were several people
in the church, including the father of the accused
and other town officials. In light of these
circumstances, accused could not have possibly been
raped. The means employed in defense of her honor
was evidently excessive.
b.
Defense of Property:
People vs. Apolinar: This can only be invoked as
justifying circumstance if
(1) Life and limb of the person making the defense
is also the subject of unlawful aggression
(2) Life cannot be equal to property.
People v. Narvaez (1983): Narvaez was taking his
rest inside his house when he heard that the wall of
his house was being chiseled. He saw that Fleischer
and Rubia, were fencing the land of the father of the
deceased Fleischer. He asked the group to stop but
they refused. The accused got mad so he got his
shotgun and shot Fleischer. Rubia ran towards the
jeep and knowing there is a gun on the jeep, the
accused fired at Rubia as well. Narvaez claimed he
acted in defense of his person and rights.
Held: There was aggression by the deceased not on
the person of the accused but on his property rights
when Fleischer angrily ordered the continuance of
the fencing. The third element of self-defense is also
present because there was no sufficient provocation
on the part of Narvaez since he was sleeping when
the deceased where fencing.
However, the second element was lacking. Shooting
the victims from the window of his house is
disproportionate to the physical aggression by the
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CRIMINAL LAW REVIEWER
victims. Thus, there is incomplete self-defense.
46
(3) The person defending be not induced by
revenge, resentment or other evil motive.
Note: If the person being defended is a second
cousin, it will be defense of stranger.
2. Defense of Relatives
Elements:
(1) Unlawful aggression
Unlawful aggression may not exist as a matter of
fact, it can be made to depend upon the honest
belief of the one making the defense. Reason: The
law acknowledges the possibility that a relative, by
virtue of blood, will instinctively come to the aid of
their relatives.
(2) Reasonable necessity of means employed to
prevent or repel it
(3) In case person attacked provoked attacker
defender must have no part therein
Reason: Although the provocation prejudices the
person who gave it, its effects do not reach the
defender who took no part therein, because the
latter was prompted by some noble or generous
sentiment in protecting and saving a relative
Relatives entitled to defense:
i. Spouse
ii. Ascendants
iii. Descendants
iv. legitimate, natural or adopted Brothers/Sisters
v. Relatives by affinity in the same degree
vi. Relatives by consanguinity w/in the 4th civil
degree
Illustration:
The sons of A honestly believe that their father was
the victim of an unlawful aggression when in fact it
was their father who attacked B. If they killed B
under such circumstances, they are justified.
Balunueco v. CA (2003):
Held: Of the three (3) requisites of defense of
relatives, unlawful aggression is a condition sine qua
non, for without it any defense is not possible or
justified. In order to consider that an unlawful
aggression was actually committed, it is necessary
that an attack or material aggression, an offensive
act positively determining the intent of the
aggressor to cause an injury shall have been made;a
mere threatening or intimidating attitude is not
sufficient to justify the commission of an act which
is punishable per se, and allow a claim of exemption
from liability on the ground that it was committed in
self-defense or defense of a relative.
3. Defense of Strangers
Elements:
(1) Unlawful aggression;
(2) Reasonable necessity of the means employed
to prevent or repel it;
Basis: What one may do in his defense, another may
do for him. The ordinary man would not stand idly
by and see his companion killed without attempting
to save his life
4. Avoidance of a Greater Evil
Requisites:
(1) Evil sought to be avoided actually exists
(2) Injury feared be greater than that done to
avoid it
(3) There is no other practical & less harmful
means of preventing it
The evil or injury sought to be avoided must not
have been produced by the one invoking the
justifying circumstances.
GENERAL RULE: No civil liability in justifying
circumstances because there is no crime.
EXCEPTION: There is CIVIL LIABILITY under this
paragraph. Persons benefited shall be liable in
proportion to the benefit which they have received.
Illustration:
A drove his car beyond the speed limit so much so
that when he reached the curve, his vehicle skidded
towards a ravine. He swerved his car towards a
house, destroying it and killing the occupant therein.
A cannot be justified because the state of necessity
was brought about by his own felonious act.
Ty v. People (2004): Ty's mother and sister were
confined at the Manila Doctors' Hospital. Ty signed
the "Acknowledgment of Responsibility for Payment"
in the Contract of Admission. The total hospital bills
of the two patients amounted to P1,075,592.95. Ty
executed a promissory note wherein she assumed
payment of the obligation in installments. To assure
payment of the obligation, she drew 7 postdated
checks against Metrobank payable to the hospital
which were all dishonored by the drawee bank due
to insufficiency of funds. As defense, Ty claimed
that she issued the checks because of ―an
uncontrollable fear of a greater injury.‖ She
averred that she was forced to issue the checks to
obtain release for her mother who was being
inhumanely treated by the hospital. She alleged
that her mother has contemplated suicide if she
would not be discharged from the hospital. Ty was
found guilty by the lower courts of 7 counts of
violation of BP22.
Held: The court sustained the findings of the lower
courts. The evil sought to be avoided is merely
expected or anticipated. So the defense of an
uncontrollable fear of a greater injury‖ is not
applicable. Ty could have taken advantage of an
available option to avoid committing a crime. By her
own admission, she had the choice to give jewelry or
CRIMINAL LAW REVIEWER
other forms of security instead of postdated checks
to secure her obligation.
Moreover, for the defense of state of necessity to
be availing, the greater injury feared should not
have been brought about by the negligence or
imprudence, more so, the willful inaction of the
actor. In this case, the issuance of the bounced
checks was brought about by Ty's own failure to pay
her mother's hospital bills.
5. Fulfillment of Duty or Lawful
Exercise of Right or office
Requisites:
(1) Offender acted in performance of duty or
lawful exercise of a rig ht/office
(2) The resulting felony is the unavoidable
consequence of the due fulfillment of the duty
or the lawful exercise of the right or office.
Note: If the first condition is present, but the second
is not because the offender acted with culpa, the
offender will be entitled to a privileged mitigating
circumstance. The penalty would be reduced by one
or two degrees.
People v. Ulep (2000): Accused-appellant and the
other police officers involved originally set out to
restore peace and order at Mundog Subdivision
where the victim was then running amuck. The
victim threatened the safety of the police officers
despite accused-appellant's previous warning shot
and verbal admonition to the victim to lay down his
weapon.
Held: As a police officer, it is to be expected that
accused-appellant would stand his ground. Up to
that point, his decision to respond with a barrage of
gunfire to halt the victim's further advance was
justified under the circumstances. A police officer is
not required to afford the victim the opportunity to
fight back. Neither is he expected – when hard
pressed and in the heat of such an encounter at
close quarters – to pause for a long moment and
reflect coolly at his peril, or to wait after each blow
to determine the effects thereof. But he cannot be
exonerated from overdoing his duty when he fatally
shot the victim in the head, even after the latter
slumped to the ground due to multiple gunshot
wounds sustained while charging at the police
officers. Sound discretion and restraint dictated
that a veteran policeman should have ceased firing
at the victim the moment he saw the latter fall to
the ground. The victim at that point no longer posed
a threat. Shooting him in the head was obviously
unnecessary.
The law does not clothe police officers with
authority to arbitrarily judge the necessity to kill- it
must be stressed that their judgment and discretion
as police officers in the performance of their duties
must be exercised neither capriciously nor
oppressively, but within reasonable limits.
Mamagun vs. People (2007): A policeman in pursuit
of a snatcher accidentally shot one of the
bystanders who was actually helping him chase the
snatcher.
Held: To be sure, acts in the fulfillment of a duty,
without more, do not completely justify the
petitioner’s firing the fetal gunshot at the victim.
True, petitioner, as one of the policemen
responding to a reported robbery then in progress,
was performing his duty as a police officer as well
as when he was trying to effect the arrest of the
suspected robber and in the process, fatally shoot
said suspect, albeit the wrong man. However, in
the absence of the equally necessary justifying
circumstance that the injury of offense committed
be the necessary consequence if the due
performance of such duty, there can only be
incomplete justification, a privilege mitigating
circumstance under Art. 13 and 69 of the RPC. There
can be no quibbling that there was no rational
necessity for the killing of Contreras. Petitioner
could have first fired a warning shot before pulling
the trigger against Contreras who was one of the
residents chasing the suspected robber.
People v. Delima (1922): Napilon escaped from the
jail where he was serving sentence. Some days
afterwards the policeman, Delima, who was looking
for him found him in the house of Alegria, armed
with a pointed piece of bamboo in the shape of a
lance. Delima demanded the surrender of the
weapon but Napilon refused. Delima fired his
revolver to impose his authority but the bullet did
not hit him. The criminal ran away and Delima went
after him and fired again his revolver this time
hitting and killing him.
Held: The killing was done in the performance of a
duty. The deceased was under the obligation to
surrender and had no right, after evading service of
his sentence, to commit assault and disobedience
with a weapon in his hand, which compelled the
policeman to resort to such extreme means, which,
although it proved to be fatal, was justified by the
circumstance.
6. Obedience to an order issued for
some lawful purpose
Requisites:
(1) Order must have been issued by a superior
(2) The order is for some lawful purpose
(3) The means used to carry it out must be lawful
Note: A subordinate is not liable for carrying out an
illegal order of his superior if he is not aware of the
illegality of the order and he is not negligent.
People v. Oanis (1943): Although an officer in
making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain
the offender, overcome his resistance, prevent his
47
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48
escape, recapture him if he escapes, and protect
himself from bodily harm, yet he is never justified
in using unnecessary force or in treating him with
wanton violence or in resorting to dangerous means
when the arrest could be effected otherwise.
People v. Beronilla (1955):
Held: Where the accused acted upon orders of
superior officers that the, as military subordinates,
could not question, and obeyed in good faith,
without being aware of their illegality, without any
fault or negligence on their part, the act is not
accompanied by criminal intent. A crime is not
committed if the mind of the person performing the
act be innocent.
Justifying vs. Exempting Circumstance
JUSTIFYING
EXEMPTING
CIRCUMSTANCE
CIRCUMSTANCE
It affects the act, not It affects the actor, not
the actor.
the act.
The act is considered to
have been done within
The act complained of is
the bounds of law;
actually wrongful, but
hence, legitimate and
the actor is not liable.
lawful in the eyes of the
law.
Since
the
act
complained
of
is
Since
the
act
is actually wrong, there is
considered lawful, there a crime but since the
is no liability.
actor acted without
voluntariness, there is
no dolo or culpa.
There is a crime,
although there is no
criminal, so there is
There is no criminal or
civil liability (Except:
civil liability.
Art. 12, par. 4 and 7
where there is no civil
liability.
Anti-Violence against Women and Their
Children Act of 2004 (R.A. 9262)
 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.
Battered Woman Syndrome as a Defense.
– Victim-survivors who are found by the
courts to be suffering from battered woman
syndrome do not incur any criminal and civil
liability notwithstanding the absence of any
of the elements for justifying circumstances
of self-defense under the Revised Penal
Code.
In the determination of the state of mind of
the woman who was suffering from battered
woman syndrome at the time of the
commission of the crime, the courts shall be
assisted
by
expert
psychiatrists/
psychologists [SECTION 26, RA 9262]
In People Vs. Genosa, the Court ruled that the
battered woman syndrome is characterized by a
―CYCLE OF VIOLENCE‖, which is made up of three
phases.
i.
First Phase: Tension Building Phase
(1) Where minor battering occurs, it could be a
verbal or slight physical abuse or another form
of hostile behavior.
(2) The woman tries to pacify the batterer through
a show of kind, nurturing behavior, or by simply
staying out of the way.
(3) But this proves to be unsuccessful as it only
gives the batterer the notion that he has the
right to abuse her.
ii.
Second Phase: Acute Battering Incident
(1) Characterized by brutality, destructiveness, and
sometimes death.
(2) The battered woman has no control; only the
batterer can stop the violence.
(3) The battered woman realizes that she cannot
reason with him and resistance would only
worsen her condition.
iii. Third Phase: Tranquil Period
(1) Characterized by guilt on the part of the
batterer and forgiveness on the part of the
woman.
(2) The batterer may show a tender and nurturing
behavior towards his partner and the woman
also tries to convince herself that the battery
will never happen again and that her partner
will change for the better.
Four Characteristics of the Syndrome:
(1) The woman believes that the violence was her
fault;
(2) She has an inability to place the responsibility
for the violence elsewhere;
(3) She fears for her life and/or her children‘s life
(4) She has an irrational belief that the abuser is
omnipresent and omniscient.
B. Exempting Circumstances
(ASKED 14 TIMES IN BAR EXAMS)
SIX
1.
2.
3.
4.
5.
6.
TYPES of exempting circumstances:
Imbecility/Insanity
Minority
Accident
Compulsion of irresistible force
Impulse of uncontrollable fear
Insuperable or lawful cause
IMPORTANT POINTS:
The reason for the exemption lies in the
involuntariness or lack of knowledge of the act:
(1) one or some of the ingredients of criminal
liability such as criminal intent, intelligence, or
freedom of action on the part of the offender is
missing
(2) In case it is a culpable felony, there is absence
of freedom of action or intelligence, or absence
CRIMINAL LAW REVIEWER
of negligence, imprudence, lack of foresight or
lack of skill.
1. Insanity and Imbecility
Imbecile - One who, while advanced in age, has a
mental development comparable to that of a child
between 2 and 7 years of age. Exempt in all cases
from criminal liability
Insane - There is a complete deprivation of
intelligence in committing the act but capable of
having lucid intervals. During a lucid interval, the
insane acts with intelligence and thus, is not exempt
from criminal liability
Insanity is a defense in the nature of confession and
avoidance and must be proved beyond reasonable
doubt
Note: There is another school of thought that
believes that insanity, as with other such defenses,
need only be proved to a degree sufficient to raise a
reasonable doubt of guilt.
Evidence of insanity must refer to:
a. the time preceding the act under prosecution or
b. at the very moment of its execution.
Insanity subsequent to commission of crime is not
exempting
Feeblemindedness is not imbecility. It is necessary
that there is a complete deprivation of intelligence
in committing the act, that is, the accused be
deprived of reason, that there is no responsibility for
his own acts; that he acts without the least
discernment; that there be complete absence of the
power to discern, or that there be a complete
deprivation of the freedom of the will. (People vs.
Formigones).
Cases covered under this article:
(1) Dementia praecox
Note: Cited in OLD cases, but is a term no
longer used by mental health practitioners
(2) Kleptomania: if found by a competent
psychiatrist as irresistible
(3) Epilepsy
(4) Somnambulism: sleep-walking (People vs.
Taneo)
(5) Malignant malaria: which affects the nervous
system
People vs. Dungo: The insanity that is exempting is
limited only to mental aberration or disease of the
mind and must completely impair the intelligence of
the accused.
Two tests of insanity:
(1) The test of cognition, or whether the accused
acted with complete deprivation of intelligence
in committing the said crime;
(2) The test of volition, or whether the accused
acted in total deprivation of freedom of will.
(People vs. Rafanan)
Juridical Effects of Insanity
(1) If present at the time of the commission of the
crime – EXEMPT from liability.
(2) If present during trial – proceedings will be
SUSPENDED and accused is committed to a
hospital.
(3) After judgment or while serving sentence –
Execution of judgment is SUSPENDED, the
accused is committed to a hospital. The period
of confinement in the hospital is counted for
the purpose of the prescription of the penalty.
2. Minority
Juvenile Justice and Welfare Act of 2006
(R.A. 9344); also refer to Child and Youth
Welfare Code (P.D. 603, as amended)
a. Definition of child in conflict with the law
Section 4 (e). "Child in conflict with the law" – a
child who is alleged as, accused of, or adjudged as,
having committed an offense under Philippine laws.
b. Minimum age of criminal responsibility
RA 9344, SEC. 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 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.
What is the Juvenile Justice and Welfare System?
"Juvenile Justice and Welfare System" refers to a
system dealing with children at risk and children in
conflict with the law, which provides childappropriate proceedings, including programs and
services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal
growth and development. (See Title V: Juvenile
Justice and Welfare System of RA 9344).
c. Determination of age (Sec. 7, RA 9344)
PRESUMPTION: Minority of child in conflict with the
law. S/he shall enjoy all the rights of a child in
49
CRIMINAL LAW REVIEWER
conflict with the law until s/he is proven to be 18
years old or older.
50
The



age of a child may be determined from:
The child‘s birth certificate,
Baptismal certificate, or
Any other pertinent documents.
In the absence of these documents, age may be
based on:

information from the child himself/herself,

testimonies of other persons,

the physical appearance of the child, and

other relevant evidence.
In case of doubt as to the child‘s age, it shall be
resolved in his/her favor.
d. Exemption from criminal liability
(1) 15 yrs old or below at the time of commission
of offense: absolutely exempt from criminal
liability but subject to intervention program
(2) Over 15 yrs old but below 18: exempt from
criminal liability & subject to intervention
program

If acted w/ discernment subject to
diversion program
(3) Below 18 yrs are exempt from:
(1) Status offense
(2) Vagrancy and Prostitution
(3) Mendicancy (PD1563)
(4) Sniffing of Rugby (PD 1619)
Discernment – mental capacity to understand the
difference between right and wrong as determined
by the child‘s appearance , attitude, comportment
and behavior not only before and during the
commission of the offense but also after and during
the trial. It is manifested through:
(1) Manner of committing a crime – Thus, when
the minor committed the crime during
nighttime to avoid detection or took the loot
to another town to avoid discovery, he
manifested discernment.
(2) Conduct of the offender – The accused shot the
victim with his sling shot and shouted ―Putang
ina mo‖.
Note: The exemption from criminal liability shall not
include exemption from civil liability.
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.
Upon suspension of sentence and after considering
the various chcumstances 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. (Sec. 38)
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. (Sec. 39)
3. Accident
(Damnum Absque Injuria)
Requisites:
(1) A person performing a lawful act;
(2) With due care;
(3) He causes an injury to another by mere
accident;
(4) Without fault or intention of causing it.
Accident - something that happens outside the sway
of our will and, although coming about through some
act of our will, lies beyond the bounds of humanly
foreseeable consequences.
Under Article 12, paragraph 4, the offender is
exempt not only from criminal but also from civil
liability.
Illustration:

A person who is driving his car within the speed
limit, while considering the condition of the
traffic and the pedestrians at that time, tripped
on a stone with one of his car tires. The stone
flew hitting a pedestrian on the head. The
pedestrian suffered profuse bleeding. There is
no civil liability under paragraph 4 of Article 12.
Although this is just an exempting circumstance,
where generally there is civil liability, yet, in
paragraph 4 of Article 12, there is no civil
liability as well as criminal liability. The driver
is not under obligation to defray the medical
expenses.
4. Irresistible Force
Elements:
(1) That the compulsion is by means of physical
force.
(2) That the physical force must be irresistible.
(3) That the physical force must come from a third
person
Note: Before a force can be considered to be an
irresistible one, it must produce such an effect on
the individual that, in spite of all resistance, it
CRIMINAL LAW REVIEWER
reduces him to a mere instrument and, as such,
incapable of committing the crime. (Aquino, Revised
Penal Code)
People v. Lising (1998)
Held: To be exempt from criminal liability, a person
invoking irresistible force must show that the force
exerted was such that it reduced him to a mere
instrument who acted not only without will but
against his will.
5. Uncontrollable Fear
Requisites:
(1) That the threat which causes the fear is of an
evil greater than or at least equal to, that which
he is forced to commit;
(2) That it promises an evil of such gravity and
imminence that the ordinary man would have
succumbed to it.
A threat of future injury is not enough. The
compulsion must be of such a character as to leave
no opportunity to the accused for escape or selfdefense in equal combat.
6. Insuperable or Lawful Causes
Requisites:
(1) That an act is required by law to be done;
(2) That a person fails to perform such act;
(3) That his failure to perform such act was due to
some lawful or insuperable cause
Insuperable means insurmountable.
Illustration:
Person was arrested for direct assault at 5:00 pm
after government offices close. Art 125 RPC requires
that a person arrested be delivered to judicial
authorities within prescribed number of hours
according to the gravity of offense. But complaint
may only be filed the next day when offices open.
The circumstance of time of arrest may be
considered as an insuperable cause.
People v. Bandian (1936): A woman cannot be held
liable for infanticide when she left her newborn
child in the bushes without being aware that she
had given birth at all. Severe dizziness and extreme
debility made it physically impossible for Bandian to
take home the child plus the assertion that she
didn’t know that she had given birth.
Illustration:
A is forced at gun point to forge the signature of B.
See Part F for absolutory causes
US v. Exaltacion (1905): Exaltacion and Tanchico
were convicted w/ rebellion based on documents
found in the house of Contreras, a so-called general
of bandits, containing signatures of defendants
swearing allegiance to the Katipunan. Defendants
aver that these documents were signed under duress
and fear of death. They allege further that they
were abducted by thieves and that these men forced
the defendants to sign the documents
Held: The duress under which the defendants acted
relieved them from criminal liability . Prosecution
was unable to prove the guilt of the accused and
testimonies of witnesses for the accused further
corroborated their defense.
Irresistible Force
Irresistible force must
operate directly upon
the
person
of
the
accused and the injury
feared may be a lesser
degree than the damage
caused by the accused.
Offender uses physical
force or violence to
compel another person
to commit a crime.
Uncontrollable Fear
Uncontrollable fear may
be generated by a
threatened act directly
to a third person such as
the wife of the accused,
but the evil feared must
be greater or at least
equal to the damage
caused to avoid it.
Offender
employs
intimidation or threat in
compelling another to
commit a crime.
C. Mitigating Circumstances
(ASKED 19 TIMES IN BAR EXAMS)
TWELVE TYPES of mitigating circumstances:
1. Incomplete Justification and Exemption
2. Under 18 or Over 70 years of age
3. No intention to commit so grave a wrong
4. Sufficient Provocation or Threat
5. Immediate vindication of a grave offense
6. Passion or obfuscation
7. Voluntary surrender
8. Voluntary plea of guilt
9. Plea to a lower offense
10. Physical defect
11. Illness
12. Analogous Circumstances
Mitigating circumstances or causas attenuates are
those which, if present in the commission of the
crime, do not entirely free the actor from criminal
liability, but serve only to reduce the penalty.
Basis: They are based on the diminution of either
freedom of action, intelligence or intent or on the
lesser perversity of the offender. However, voluntary
surrender and plea of guilt which, being
circumstances that occur after the commission of
the offense, show the accused‘s respect for the law
(voluntary surrender) and remorse and acceptance
of punishment (plea of guilt), thereby necessitating
a lesser penalty to effect his rehabilitation (based on
the Positivist School)
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CRIMINAL LAW REVIEWER
52
The circumstances under Article 13 are generally
ordinary mitigating. However, paragraph 1, is
treated as a privileged mitigating circumstance if
majority of the requisites concurred, otherwise, it
will be treated as an ordinary mitigating
circumstance. (Reyes, citing Art. 69).
Correlate Article 13 with Articles 63 and 64. Article
13 is meaningless without knowing the rules of
imposing penalties under Articles 63 and 64.
TIP: In bar problems, when you are given
indeterminate sentences, these articles are very
important.
Distinctions
Ordinary MC
Can be offset by any
aggravating circumstance
If not offset by aggravating
circumstance,
produces
the effect of applying the
penalty provided by law
for the crime in its min
period in case of divisible
penalty
1. Incomplete
Privileged MC
Cannot be offset by
aggravating
circumstance
The
effect
of
imposing upon the
offender the penalty
lower by one or two
degrees than that
provided by law for
the crime.
Justification
and
Exemption
The circumstances of justification or exemption
which may give place to mitigation, because not all
the requisites necessary to justify the act or to
exempt from criminal liability in the respective
cases are attendant, are the following:
(1) Self-defense (Art. 11, par. 1)
(2) Defense of relatives (Art. 11, par. 2)
(3) Defense of strangers (Art. 11, par. 3)
(4) State of necessity (Art. 11, par. 4)
(5) Performance of duty (Art. 11, par. 5)
(6) Obedience to the order of superiors (Art. 11,
par. 6)
(7) Minority over 15 years of age but below 18
years of age (Art. 12, par. 3)
(8) Causing injury by mere accident (Art. 12,
par.4)
(9) Uncontrollable fear (Art. 12 par. 6)
Incomplete justifying circumstances:
a.
Incomplete self-defense, defense of relatives,
defense of stranger
In these 3 classes of defense, UNLAWFUL
AGGRESSION must always be present. It is an
indispensable requisite.
Par. 1 of Art. 13 is applicable only when

unlawful aggression is present

but one or both of the other 2 requisites are not
present in any of the cases referred to in
circumstances number 1, 2 and 3 or Art. 11.
Example: When the one making defense against
unlawful aggression used unreasonable means to
prevent or repel it, he is entitled to a privileged
mitigating circumstance.
Note: When two of the three requisites mentioned
therein are present, the case must be considered as
a privileged mitigating circumstance referred to in
Art. 69 of this Code. (Article 69 requires that a
majority of the conditions required must be
present.)
b.
Incomplete
justifying
circumstance
avoidance of greater evil or injury
of
Requisites under par. 4 of Art. 11:
(1) That the evil sought to be avoided actually
exists;
(2) That the injury feared be greater than that
done to avoid it;
(3) That there be no other practical and less
harmful means of preventing it.
Avoidance of greater evil or injury is a justifying
circumstance if all the three requisites mentioned in
par. 4 of Art. 11 are present.
But if any of the last two requisites is lacking, there
is only a mitigating circumstance. The first element
is indispensable.
c.
Incomplete
justifying
performance of duty
circumstance
of
Requisites under par.5, Art. 11
(1) That the accused acted in the performance
of a duty or in the lawful exercise of a right
or office; and
(2) That the injury caused or offense
committed be the necessary consequence of
the due performance of such duty or the
lawful exercise of such right or office.
In the case of People v. Oanis (1943), where only
one of the requisites was present, Article 69 was
applied.
People v. Oanis (1943): The SC considered one of
the 2 requisites as constituting the majority. It
seems that there is no ordinary mitigating
circumstance under Art. 13 par. 1 when the
justifying or exempting circumstance has 2
requisites only.
Incomplete exempting circumstances:
(1) Incomplete
accident
exempting
circumstance
of
Requisites under par. 4 of Art. 12:
(1) A person is performing a lawful act
(2) With due care
(3) He causes an injury to another by mere
accident
(4) Without fault or intention of causing it
There is NO SUCH MITIGATING CIRCUMSTANCE
because:
CRIMINAL LAW REVIEWER


If the 2nd requisite and 1st part of the 4th
requisite are absent, the case will fall under
Art.
365
which
punishes
reckless
imprudence.
If the 1st requisite and 2nd part of the 4th
requisite are absent, it will be an
intentional felony (Art. 4, par. 1).
(2) Incomplete
exempting
uncontrollable fear.
circumstance
of
Requisites under par. 6 of Art. 12:
(1) That the threat which caused the fear was
of an evil greater than, or at least equal to,
that which he was required to commit;
(2) That it promised an evil of such gravity and
imminence that an ordinary person would
have succumbed to it.
Note: If only one of these requisites is present, there
is only a mitigating circumstance.
2. Under 18 Or Over 70 Years Of Age
a. In lowering the penalty:
Based on age of the offender at the time of the
commission of the crime not the age when sentence
is imposed
b. In suspension of the sentence:
Based on age of the offender (under 18) at the time
the sentence is to be promulgated (See Art. 80,
RPC)
c.
Par. 2 contemplates the ff:
(1) An offender over 9 but under 15 of age who
acted with discernment.
(2) An offender fifteen or over but under 18
years of age.
(3) An offender over 70 years old
Legal effects of various ages of offenders:
1. 15 and below - Exempting
2. Above 15 but under 18 years of age, also an
exempting circumstance, unless he acted with
discernment (Art. 12, par. 3 as amended by RA
9344).
3. Minor delinquent under 18 years of age, the
sentence may be suspended. (Art. 192, PD No.
603 as amended by PD 1179)
4. 18 years or over, full criminal responsibility.
5. 70 years or over – mitigating, no imposition of
death penalty; if already imposed. Execution of
death penalty is suspended and commuted.
Determination of Age – The child in conflict with
the law shall enjoy the presumption of minority.
He/She shall enjoy all the rights of a child in conflict
with the law until he/she is proven to be eighteen
(18) years old or older. The age of a child may be
determined from the child's birth certificate,
baptismal certificate or any other pertinent
documents. In the absence of these documents, age
may be based on information from the child
himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant
evidence. In case of doubt as to the age of the child,
it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict
with the law prior to the filing of the information in
any appropriate court may file a case in a summary
proceeding for the determination of age before the
Family Court which shall decide the case within
twenty-four (24) hours from receipt of the
appropriate pleadings of all interested parties.
If a case has been fiied against the child in conflict
with the law and is pending in the appropriate court,
the person shall file a motion to determine the age
of the child in the same court where the case is
pending. Pending hearing on the said motion,
proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers,
prosecutors, judges and other government officials
concerned shall exert all efforts at determining the
age of the child in conflict with the law. (Sec. 7, RA
9344).
Basis: Diminution of intelligence
3. No Intention to Commit So Grave A
Wrong (Praeter Intentionem)








There must be a notable disproportion between
the means employed by the offender and the
resulting harm.
The intention, as an internal act, is judged
o not only by the proportion of the means
employed by him to the evil produced by his
act,
o but also by the fact that the blow was or
was not aimed at a vital part of the body;
o this includes: the weapon used, the injury
inflicted and his attitude of the mind when
the accused attacked the deceased.
The lack of intention to commit so grave a
wrong can also be inferred from the subsequent
acts of the accused immediately after
committing the offense, such as when the
accused helped his victim to secure medical
treatment.
This circumstance does not apply when the
crime results from criminal negligence or culpa.
Only applicable to offense resulting in death,
physical injuries, or material harm (including
property damage). It is not applicable to
defamation or slander.
This mitigating circumstance is not applicable
when the offender employed brute force.
Lack of intent to commit so grave a wrong is not
appreciated where the offense committed is
characterized by treachery.
When the victim does not die as a result of the
assault in cases of crimes against persons, the
absence of the intent to kill reduces the felony
to mere physical injuries, but it does not
53
CRIMINAL LAW REVIEWER
constitute a mitigating circumstance under Art.
13(3).
54
People v. Calleto (2002):
Held: The lack of "intent" to commit a wrong so
grave is an internal state. It is weighed based on the
weapon used, the part of the body injured, the
injury inflicted and the manner it is inflicted. The
fact that the accused used a 9-inch hunting knife in
attacking the victim from behind, without giving
him an opportunity to defend himself, clearly shows
that he intended to do what he actually did, and he
must be held responsible therefor, without the
benefit of this mitigating circumstance.
People v. Ural (1974):
Held: The intention, as an internal act, is judged
not only by the proportion of the means employed
by him to the evil produced by his act, but also by
the fact that the blow was or was not aimed at a
vital part of the body. Thus, it may be deduced
from the proven facts that the accused had no
intent to kill the victim, his design being only to
maltreat him, such that when he realized the
fearful consequences of his felonious act, he
allowed the victim to secure medical treatment
at the municipal dispensary.
4. Sufficient Provocation or Threat
Elements:
(1) That the provocation must be sufficient
(2) That it must originate from the offended party
(3) That the provocation must be immediate to
the act, i.e., to the commission of the crime
by the person who is provoked
Provocation - Any unjust or improper conduct or act
of the offended part capable of exciting, inciting, or
irritating anyone.
Provocation in order to be mitigating must be
SUFFICIENT and IMMEDIATELY preceding the act.
(People v. Pagal)

―Sufficient‖ means adequate to excite a
person to commit a wrong and must
accordingly be proportionate to its gravity.
(People v. Nabora).

Sufficiency depends upon:
a. the act constituting provocation
b. the social standing of the person
provoked
c. the place and time when the
provocation is made.

Between the provocation by the offended
party and the commission of the crime,
there should not be any interval in time.
Reason: When there is an interval of time
between
the
provocation
and
the
commission of the crime, the perpetrator
has time to regain his reason.
Sufficient provocation as
a requisite of incomplete
self-defense
It pertains to its absence
Provocation
as
a
mitigating circumstance
It
pertains
to
its
on the part of the person
defending
himself.
(People v. CA, G.R. No.
103613, 2001)
presence on the part of
the offended party.
TIP: The common set-up given in a bar problem is
that of provocation given by somebody against whom
the person provoked cannot retaliate; thus the
person provoked retaliated on a younger brother or
on the father. Although in fact, there is sufficient
provocation, it is not mitigating because the one
who gave the provocation is not the one against
whom the crime was committed.
You have to look at two criteria:
a. If from the element of time,
(1) there is a material lapse of time stated in
the problem and
(2) there is nothing stated in the problem that
the effect of the threat of provocation had
prolonged and affected the offender at the
time he committed the crime
(3) then you use the criterion based on the
time element.
b. If there is that time element and at the same
time,
(1) facts are given indicating that at the time
the offender committed the crime, he is
still suffering from outrage of the threat or
provocation done to him
(2) then he will still get the benefit of this
mitigating circumstance.
Romera v. People (2004: Provocation and passion
or obfuscation are not 2 separate mitigating
circumstances. It is well-settled that if these 2
circumstances are based on the same facts, they
should be treated together as one mitigating
circumstance. It is clear that both circumstances
arose from the same set of facts. Hence, they
should not be treated as two separate mitigating
circumstances.
5. Immediate Vindication of A Grave
Offense
Elements:
(1) That there be a grave offense done to the one
committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity
within the same degree.
(2) That the felony is committed in vindication of
such grave offense. A lapse of time is allowed
between the vindication and the doing of the
grave offense.
(3) The vindication need not be done by the
person upon whom the grave offense was
committed
Note: Lapse of time is allowed. The word
―immediate‖ used in the English text is not the
correct translation. The Spanish text uses
―proxima.‖ Although the grave offense (slapping of
the accused in front of many persons hours before
CRIMINAL LAW REVIEWER
the killing), which engendered the perturbation of
mind, was not so immediate, it was held that the
influence thereof, by reason of its gravity, lasted
until the moment the crime was committed. (People
v. Parana).
The question whether or not a certain personal
offense is grave must be decided by the court,
having in mind
a. the social standing of the person,
b. the place and
c. the time when the insult was made.
Vindication of a grave offense and passion or
obfuscation cannot be counted separately and
independently.
People v. Torpio (2004: The mitigating
circumstance of sufficient provocation cannot be
considered apart from the circumstance of
vindication of a grave offense. These two
circumstances arose from one and the same
incident, i.e., the attack on the appellant by
Anthony, so that they should be considered as only
one mitigating circumstance.
Provocation
It is made directly only
to
the
person
committing the felony.
The offense need not be
a grave offense.
The
provocation
or
threat must immediately
precede the act.
It is a mere spite against
the one giving the
provocation or threat.
Vindication
The grave offense may
be committed against
the offender‘s relatives
mentioned by law.
The offended party must
have done a grave
offense to the offender
or his relatives.
The grave offense may
be proximate, which
admits of an interval of
time between the grave
offense done by the
offended party and the
commission of the crime
by the accused.
It concerns the honor of
the person.
6. Passion or obfuscation (Arrebato y
Obsecacion)
Elements:
(1) The accused acted upon an impulse
(2) The impulse must be so powerful that it
naturally produces passion or obfuscation in
him.
Requisites:
(1) That there be an act, both unlawful and
sufficient to produce such condition of mind;
and
(2) That said act which produced the obfuscation
was not far removed from the commission of
the crime by a considerable length of time,
during which the perpetrator might recover his
normal equanimity. (People v. Alanguilang)
Note: Passion or obfuscation must arise from lawful
sentiments.
Passion or obfuscation not applicable when:
a. The act committed in a spirit of LAWLESSNESS.
b. The act is committed in a spirit of REVENGE.
The mitigating circumstance of obfuscation arising
from jealousy cannot be invoked in favor of the
accused whose relationship with the woman was
illegitimate.
Also, the act must be sufficient to produce such a
condition of mind. If the cause of loss of self-control
is trivial and slight, obfuscation is not mitigating.
Moreover, the defense must prove that the act
which produced the passion or obfuscation took
place at a time not far removed from the
commission of the crime. (People v. Gervacio, 1968)
Passion and obfuscation may lawfully arise from
causes existing only in the honest belief of the
offender.
US v. De la Cruz (1912): De la Cruz, in the heat of
passion, killed the deceased who was his querida
(lover) upon discovering her in the act of carnal
communication with a mutual acquaintance. He
claims that he is entitled to the mitigating
circumstance of passion or obfuscation and that the
doctrine in Hicks is inapplicable.
Held: US v. Hicks is not applicable to the case. In
Hicks, the cause of the alleged passion and
obfuscation of the aggressor was the convict's
vexation, disappointment and deliberate anger
engendered by the refusal of the woman to continue
to live in illicit relations with him, which she had a
perfect reason to do. In this case, the impulse upon
which the defendant acted was the sudden
revelation that his paramour was untrue to him and
his discovery of her in flagrante in the arms of
another. This was a sufficient impulse in the
ordinary and natural course of things to produce
the passion and obfuscation which the law declares
to be one of the mitigating circumstances to be
taken into the consideration of the court.
Passion and Obfuscation cannot co-exist with:
(1) Vindication of grave offense
 Exception: When there are other facts
closely connected. Thus, where the
deceased, had eloped with the daughter of
the accused, and later when the deceased
saw the accused coming, the deceased ran
upstairs, there are 2 facts which are
closely connected, namely: (1) elopement,
which is a grave offense for the family of
old customs, and (2) refusal to deal with
him, a stimulus strong enough to produce
55
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56
passion. The court in People v. Diokno
(G.R. No. L-45100), considered both
mitigating circumstances in favor of the
accused.
(2) Treachery (People v. Wong)
Passion/Obfuscation v. Irresistible Force (Reyes,
Revised Penal Code)
Passion/Obfuscation
Irresistible force
Mitigating Circumstance
Exempting circumstance
Cannot give rise to Physical force is a
physical force because it condition sine qua non.
does
not
involves
physical force.
Passion/obfuscation
Irresistible force comes
comes from the offender from a third person.
himself.
Must arise from lawful Irresistible
force
is
sentiments
to
be unlawful.
mitigating.
Passion/Obfuscation v. Provocation (Reyes, Revised
Penal Code)
Passion/Obfuscation
Provocation
Passion/obfuscation
is Provocation comes from
produced by an impulse the injured party.
which may be caused by
provocation.
The
offense
which Must
immediately
engenders
the precede the commission
perturbation of mind of the crime.
need not be immediate.
It is only required that
the influence thereof
lasts until the moment
the crime is committed.
In both, the effect of the loss of reason and selfcontrol on the part of the offender.
7. Voluntary Surrender
Requisites:
(1) That the offender had not been actually
arrested
(2) That the offender surrendered himself to a
person in authority or to the latter‘s agent
(3) That the surrender was voluntary.
Two Mitigating Circumstances Under This
Paragraph:
(1) Voluntary surrender to a person in authority or
his agents;
(2) Voluntary confession of guilt before the court
prior to the presentation of evidence for the
prosecution.
Whether or not a warrant of arrest had been issued
is immaterial and irrelevant.
Criterion is whether or not
a. the offender had gone into hiding
b. and the law enforcers do not know of his
whereabouts.
Note: For voluntary surrender to be appreciated, the
surrender must be spontaneous, made in such a
manner that it shows the interest of the accused to
surrender unconditionally to the authorities, either
because (1) he acknowledges his guilt or (2) wishes
to save them the trouble and expenses that would
be necessarily incurred in his search and capture.
(Andrada v. People). If none of these two reasons
impelled the accused to surrender, the surrender is
not spontaneous and therefore not voluntary.
(People v. Laurel).

The accused must actually surrender his own
person to the authorities, admitting complicity
of the crime. Merely requesting a policeman to
accompany the accused to the police
headquarters is not voluntary surrender.
(People v. Flores)
Effect of Arrest
General Rule: Not mitigating when defendant was in
fact arrested. (People v. Conwi)
Exceptions:
(1) But where a person, after committing the
offense and having opportunity to escape,
voluntarily waited for the agents of the
authorities and voluntarily gave up, he is
entitled to the benefit of the circumstance,
even if he was placed under arrest by a
policeman then and there. (People v. Parana)
(2) Where the arrest of the offender was after his
voluntary surrender or after his doing an act
amounting to a voluntary surrender to the agent
of a person in authority. (People v. Babiera;
People v. Parana)
Person in Authority and his Agent
Person in authority – is one directly vested with
jurisdiction, that is, a public officer who has the
power to govern and execute the laws whether as an
individual or as a member of some court or
governmental corporation, board or commission. A
barrio captain and a barangay chairman are also
persons in authority. (Art. 152, RPC, as amended by
PD No. 299).
Agent of a person in authority – is a person, who,
by direct provision of law, or by election or by
competent authority, is charged with the
maintenance of public order and the protection and
security of life and property and any person who
comes to the aid of persons in authority. (Art. 152,
as amended by RA 1978).
Time of Surrender
The RPC does not distinguish among the various
moments when the surrender may occur. (Reyes,
Revised Penal Code). The fact that a warrant of
arrest had already been issued is no bar to the
consideration of that circumstance because the law
does not require that the surrender be prior the
arrest. (People v. Yecla and Cahilig). What is
important is that the surrender be spontaneous.
CRIMINAL LAW REVIEWER
8. Plea Of Guilt
Requisites:
(1) That the offender spontaneously confessed his
guilt.
(2) That the confession of guilt was made in open
court, that is, before the competent court that
is to try the case; and

The extrajudicial confession made by the
accused is not voluntary confession
because it was made outside the court.
(People v. Pardo)
(3) That the confession of guilt was made prior to
the presentation of evidence for the
prosecution.

The change of plea should be made at the
first opportunity when his arraignment was
first set.

A conditional plea of guilty is not mitigating.

Plea of guilt on appeal is not mitigating.

Withdrawal of plea of not guilty before
presentation of evidence by prosecution is
still mitigating. All that the law requires is
voluntary plea of guilty prior to the
presentation of the evidence by the
prosecution.

A plea of guilty on an amended information
will be considered as an attenuating
circumstance if no evidence was presented
in connection with the charges made
therein. (People v. Ortiz)
9. Plea to a Lesser Offense
Rule 116, sec. 2, ROC:
At arraignment, the accused, with the consent of
the offended party and prosecutor, may be allowed
by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged.
After arraignment but before trial, the accused may
still be allowed to plead guilty to said lesser offense
after withdrawing his plea of not guilty. No
amendment of the complaint or information is
necessary.
People v. Dawaton (2002): Information for murder
was filed against Dawaton. When first arraigned he
pleaded not guilty, but during the pre-trial he
offered to plead guilty to the lesser offense of
homicide but was rejected by the prosecution. The
trial court sentenced him to death. He avers that he
is entitled to the mitigating circumstance of plea of
guilty.
Held: While the accused offered to plead guilty to
the lesser offense of homicide, he was charged with
murder for which he had already entered a plea of
not guilty. We have ruled that an offer to enter a
plea of guilty to a lesser offense cannot be
considered as an attenuating circumstance under
the provisions of Art. 13 of RPC because to be
voluntary the plea of guilty must be to the offense
charged.
Also, Sec. 2, Rule 116, of the Revised Rules of
Criminal Procedure requires the consent of the
offended party and the prosecutor before an
accused may be allowed to plead guilty to a lesser
offense necessarily included in the offense charged.
The prosecution rejected the offer of the accused.
10.
Physical Defects
This paragraph does not distinguish between
educated and uneducated deaf-mute or blind
persons.
Physical defect referred to in this paragraph is such
as being armless, cripple, or a stutterer, whereby his
means to act, defend himself or communicate with
his fellow beings are limited.
The physical defect that a person may have must
have a relation to the commission of the crime.
Where the offender is deaf and dumb, personal
property was entrusted to him and he
misappropriated the same. The crime committed
was estafa. The fact that he was deaf and dumb is
not mitigating since that does not bear any relation
to the crime committed.
If a person is deaf and dumb and he has been
slandered, he cannot talk so what he did was he got
a piece of wood and struck the fellow on the head.
The crime committed was physical injuries. The
Supreme Court held that being a deaf and dumb is
mitigating because the only way is to use his force
because he cannot strike back in any other way.
11.
Illness
Elements:
(1) That the illness of the offender must diminish
the exercise of his will-power
(2) That such illness should not deprive the
offender of consciousness of his acts.
When the offender completely lost the exercise of
will-power, it may be an exempting circumstance.
It is said that this paragraph refers only to diseases
of pathological state that trouble the conscience or
will.
A mother who, under the influence of a puerperal
fever, killed her child the day following her delivery.
People v. Javier (1999): Javier was married to the
deceased for 41 years. He killed the deceased and
then stabbed himself in the abdomen. Javier was
found guilty of parricide. In his appeal, he claims
that he killed his wife because he was suffering
from insomnia for a month and at the time of the
killing, his mind went totally blank and he did not
know what he was doing. He also claims that he was
insane then.
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Held: No sufficient evidence or medical finding was
offered to support his claim. The court also took
note of the fact that the defense, during the trial,
never alleged the mitigating circumstance of illness.
The alleged mitigating circumstance was a mere
afterthought to lessen the criminal liability of the
accused.
12.
Analogous
Circumstances
Mitigating
Any other circumstance of similar nature and
analogous to the nine mitigating circumstances
enumerated in art. 513 may be mitigating.
(1) The act of the offender of leading the law
enforcers to the place where he buried the
instrument of the crime has been considered as
equivalent to voluntary surrender.
(2) Stealing by a person who is driven to do so out
of extreme poverty is considered as analogous
to incomplete state of necessity.
Canta v. People: Canta stole a cow but alleges that
he mistook the cow for his missing cow. He made a
calf suckle the cow he found and when it did, Canta
thought that the cow he found was really his.
However, he falsified a document describing the
said cow’s cowlicks and markings. After getting
caught, he surrendered the cow to the custody of
the authorities in the municipal hall.
Held: Canta’s act of voluntarily taking the cow to
the municipal hall to place it in the custody of
authorities (to save them the time and effort of
having to recover the cow) was an analogous
circumstance to voluntary surrender.
(3) Over 60 years old with failing sight, similar to
over 70 years of age mentioned in par. 2.
(People v. Reantillo).
(4) Voluntary restitution of stolen goods similar to
voluntary surrender (People v. Luntao).
(5) Impulse of jealous feelings, similar to passion
and obfuscation. (People v. Libria).
(6) Extreme poverty and necessity, similar to
incomplete justification based on state of
necessity. (People v. Macbul).
(7) Testifying for the prosecution, without previous
discharge, analogous to a plea of guilty. (People
v. Narvasca).
D. Aggravating Circumstances
(ASKED 24 TIMES IN BAR EXAMS)
Those circumstances which raise the penalty for a
crime in its maximum period provided by law
applicable to that crime or change the nature of the
crime.
Note: The list in this Article is EXCLUSIVE – there are
no analogous aggravating circumstances.
The aggravating circumstances must be established
with moral certainty, with the same degree of proof
required to establish the crime itself.
According to the Revised Rules of Criminal
Procedure, BOTH generic and qualifying aggravating
circumstances must be alleged in the Information in
order to be considered by the Court in imposing the
sentence. (Rule 110, Sec. 9)
Basis
1. the motivating power behind the act
2. the place where the act was committed
3. the means and ways used
4. the time
5. the personal circumstance of the offender
and/or of the victim
Kinds
1. GENERIC – Those that can generally apply to all
crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10,
14, 18, 19, and 20 except ―by means of motor
vehicles‖. A generic aggravating circumstance
may be offset by a generic mitigating
circumstance.
2. SPECIFIC – Those that apply only to particular
crimes. Nos. 3 (except dwelling), 15, 16, 17 and
21.
3. QUALIFYING –Those that change the nature of
the crime. Art. 248 enumerates the qualifying
AC which qualify the killing of person to murder.
If two or more possible qualifying circumstances
were alleged and proven, only one would qualify
the offense and the others would be generic
aggravating. (ASKED TWICE BAR EXAMS)
4. INHERENT – Those that must accompany the
commission of the crime and is therefore not
considered in increasing the penalty to be
imposed such as evident premeditation in theft,
robbery, estafa, adultery and concubinage.
5. SPECIAL – Those which arise under special
conditions to increase the penalty of the offense
and
cannot
be
offset
by
mitigating
circumstances such as:
a. quasi-recidivism (Art. 160)
b. complex crimes (Art. 48)
c. error in personae (Art. 49)
d. taking advantage of public position and
membership in an organized/syndicated
crime group (Art. 62)
Generic aggravating
circumstances
The effect of a generic
AC, not offset by any
mitigating
circumstance, is to
increase the penalty
which
should
be
imposed
upon
the
accused
to
the
MAXIMUM PERIOD.
It is not an ingredient
of the crime. It only
affects the penalty to
be imposed but the
Qualifying aggravating
circumstances
The effect of a qualifying
AC is not only to give the
crime its proper and
exclusive name but also
to place the author
thereof in such a situation
as to deserve no other
penalty
than
that
specially prescribed by
law for said crime.
The circumstance affects
the nature of the crime
itself such that the
offender shall be liable
CRIMINAL LAW REVIEWER
crime remains the same
The circumstance can
be offset by an ordinary
mitigating circumstance
for a more serious crime.
The
circumstance
is
actually an ingredient of
the crime
Being an ingredient of the
crime, it cannot be offset
by
any
mitigating
circumstance
Aggravating circumstances which do not have the
effect of increasing the penalty:
(1) Aggravating circumstances which in themselves
constitute a crime especially punishable by law.
(2) Aggravating circumstances which are included
by the law in defining a crime and prescribing
the penalty therefore shall not be taken into
account for the purpose of increasing the
penalty. (Art. 62, par. 1).
(3) The same rule shall apply with respect to any
aggravating circumstance inherent in the crime
to such a degree that it must of necessity
accompany the commission thereof. (Art. 62,
par. 2).
Aggravating circumstances which are personal to
the offenders.
Aggravating circumstances which arise:
(1) from moral attributes of the offender;
(2) from his private relations with the offended
party; or
(3) from any personal cause, shall only serve to
aggravate the liability of the principals,
accomplices, accessories as to whom such
circumstances are attendant. (Art. 62, par. 3).
Aggravating circumstances which depend for their
application upon the knowledge of offenders.
The circumstances which consist (1) in the material
execution of the act, or (2) in the means employed
to accomplish it, shall serve to aggravate the
liability of those persons only who had knowledge of
them at the time of the execution of the act or their
cooperation therein. (Art. 62, par. 4).
1. Generic
TWENTY-ONE aggravating circumstances under Art.
14:
1. Taking Advantage of Public Office
2. In Contempt Of Or With Insult To Public
Authorities
3. With Insult Or Lack Of Regard Due To
Offended Party By Reason Of Rank, Age Or Sex
4. Abuse
Of
Confidence
And
Obvious
Ungratefulness
5. Crime In Palace Or In Presence Of The Chief
Executive
6. Nighttime; Uninhabited Place; With A Band
7. On Occasion Of A Calamity
8. Aid Of Armed Men Or Means To Ensure
Impunity
9. Recidivism
10. Reiteration or Habituality
11. Price, Reward Or Promise
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
Inundation, Fire, Poison
Evident Premeditation
Craft, Fraud Or Disguise
Superior Strength Or Means To Weaken
Defense
Treachery
Ignominy
Unlawful Entry
Breaking Wall, Floor, Roof
With Aid Of Persons Under 15 By Motor
Vehicle
Cruelty
1. Taking Advantage of Public Office
Par. 1 – ―that advantage be taken by the offender of
his public position‖
This is applicable only if the offender is a public
officer.
The public officer must:
(1) Use the influence, prestige or ascendancy which
his office gives him
(2) As means by which he realizes his purpose.
The essence of the matter is presented in the
inquiry, ―did the accused abuse his office in order to
commit the crime?‖(U.S. v. Rodriguez)
When a public officer
(1) commits a common crime independent of his
official functions and
(2) does acts that are not connected with the duties
of his office,
(3) he should be punished as a private individual
without this aggravating circumstance.
Even if defendant did not abuse his office, if it is
proven that he has failed in his duties as such public
officer, this circumstance would warrant the
aggravation of his penalty. Thus, the fact that the
vice-mayor of a town joined a band of brigands
made his liability greater. (U.S. v. Cagayan).
The circumstance cannot be taken into consideration
in offenses where taking advantage of official
position is made by law an integral element of the
crime such as in malversation (Art. 217) or
falsification of public documents under Art. 171.
Taking advantage of public position is also inherent
in the following cases:
(1) Accessories under Art. 19, par. 3 (harboring,
concealing or assisting in the escape of the
principal of the crime); and
(2) Title VII of Book Two of the RPC (Crimes
committed by public officers).
2. In Contempt of or With Insult to
Public Authorities
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Par. 2 – ―that the crime be committed in contempt
of or with insult to the public authorities‖.

Requisites:
(1) That the public authority is engaged in the
exercise of his functions.
(2) That he who is thus engaged in the exercise of
his functions is not the person against whom the
crime is committed.
(3) The offender knows him to be a public
authority.
(4) His presence has not prevented the offender
from committing the criminal act.

Public Authority / Person in Authority – is a person
directly vested with jurisdiction, that is, a public
officer who has the power to govern and execute the
laws. The councilor, mayor, governor, barangay
captain, barangay chairman etc. are persons in
authority. (Art. 152, as amended by P.D. 1232)

A school teacher, town municipal health officer,
agent of the BIR, chief of police, etc. are now
considered a person in authority.
Par. 2 is not applicable if committed in the
presence of an agent only such as a police officer.
Agent - A subordinate public officer charged with
the maintenance of public order and the protection
and security of life and property, such as barrio
policemen, councilmen, and any person who comes
to the aid of persons in authority. (Art. 152, as
amended by BP 873).
Knowledge that a public authority is present is
essential. Lack of such knowledge indicates lack of
intention to insult public authority.
If crime is committed against the public authority
while in the performance of his duty, the offender
commits direct assault without this aggravating
circumstance.
People v. Rodil (1981): There is the aggravating
circumstance that the crime was committed in
contempt of or with insult to public authorities
when the chief of police was present when the
incident occurred. The chief of police should be
considered a public authority because he is vested
with authority to maintain peace and order over the
entire municipality.

a. RANK OF THE OFFENDED PARTY
Designation or title used to fix the relative position
of the offended party in reference to others.
There must be a difference in the social condition of
the offender and the offended party.
b. AGE OF THE OFFENDED PARTY
May refer to old age or tender age of the victim.
c. SEX OF THE OFFENDED PARTY
This refers to the female sex, not to the male sex.
The aggravating circumstance is NOT to be
considered in the following cases:
(1) When the offender acted with passion and
obfuscation. (People v. Ibanez)
(2) When there exists a relationship between the
offended party and the offender. (People v.
Valencia)
(3) When the condition of being a woman is
indispensable in the commission of the crime.
Thus, in rape, abduction, or seduction, sex is
not aggravating. (People v. Lopez)
d. DWELLING (Morada)
Building or structure, exclusively used for rest and
comfort. Thus, in the case of People v. Magnaye, a
―combination of a house and a store‖, or a market
stall where the victim slept is not a dwelling.




3. With Insult or Lack of Regard Due
to Offended Party by Reason of
Rank, Age or Sex
Par. 3 – ―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 is be
committed in the dwelling of the offended party, if
the latter has not given provocation.‖

Four circumstances are enumerated in this
paragraph, which can be considered singly or
together.
If all the 4 circumstances are present, they
have the weight of one aggravating
circumstance only.
There must be evidence that in the commission
of the crime, the accused deliberately
intended to offend or insult the sex or age of
the offended party. (People v. Mangsat)
Disregard of rank, age or sex may be taken into
account only in crimes against persons or
honor. (People v. Pugal; People vs. Ga)



This is considered an AC because in certain
cases, there is an abuse of confidence which
the offended party reposed in the offender by
opening the door to him.
Dwelling need not be owned by the offended
party.
It is enough that he used the place for his
peace of mind, rest, comfort and privacy.
Dwelling should not be understood in the
concept of a domicile: A person has more than
one dwelling. So, if a man has so many wives
and he gave them places of their own, each
one is his own dwelling. If he is killed there,
dwelling will be aggravating, provided that he
also stays there once in a while.
If a crime of adultery was committed. Dwelling
was considered aggravating on the part of the
paramour. However, if the paramour was also
residing in the same dwelling, it will not be
aggravating.
The offended party must not give provocation.
(People v. Ambis).
When a crime is committed in the dwelling of
the offended party and the latter has not given
CRIMINAL LAW REVIEWER


provocation, dwelling may be appreciated as
an aggravating circumstance. Provocation in
the aggravating circumstance of dwelling must
be:
(a) given by the offended party
(b) sufficient, and
(c) immediate to the commission of the
crime. (People v. Rios, 2000)
It is not necessary that the accused should
have actually entered the dwelling of the
victim to commit the offense: it is enough that
the victim was attacked inside his own house,
although the assailant may have devised means
to perpetrate the assault. (People v. Ompaid,
1969)
Dwelling includes dependencies, the foot of
the staircase and the enclosure under the
house. (U.S. v. Tapan)
Illustration:
Husband and wife quarrelled. Husband inflicted
physical violence upon a wife. The wife left the
conjugal home and went to the house of her sister
bringing her personal belongings with her. The sister
accommodated the wife in her home. The husband
went to the house of the sister-in-law and tried to
persuade the wife to return to the conjugal home
but the wife refused since she was more at peace in
her sister‘s home than in their conjugal abode. Due
to the wife‘s refusal the husband pulled out a knife
and stabbed the wife to death.
It was held that dwelling was aggravating although it
is not owned by the victim since she is considered a
member of the family who owns the dwelling and
that place is where she enjoyed privacy, peace of
mind and comfort.
coerced their inhabitants into submission, disabled
Laurencio and Jimmy by tying their hands before
dragging them out of the house to be killed.
Dwelling is not aggravating in the following cases:
(1) When both offender and offended party are
occupants of the same house (U.S. v.
Rodriguez), and this is true even if offender is a
servant of the house. (People v. Caliso)
(2) When the robbery is committed by the use of
force things, dwelling is not aggravating because
it is inherent. (U.S. v. Cas). But dwelling is
aggravating in robbery with violence or
intimidation of persons because this class or
robbery can be committed without the necessity
of trespassing the sanctity of the offended
party‘s house. (People v. Cabato)
(3) In the crime of trespass to dwelling, it is
inherent or included by law in defining the
crime.
(4) When the owner of the dwelling gave sufficient
and immediate provocation. (Art. 14 par. 3)
4. Abuse of Confidence and Obvious
Ungratefulness
Par. 4 – ―That the act be committed with abuse of
confidence or obvious ungratefulness‖.
Par. 4 provides two aggravating circumstances. If
present in the same case, they must be
independently appreciated.
a.
People vs. Taoan: Teachers, professors, supervisors
of public and duly recognized private schools,
colleges and universities, as well as lawyers are
persons in authority for purposes of direct assault
and simple resistance, but not for purposes of
aggravating circumstances in paragraph 2, Article
14.
People v. Taño (2000):
Held: Dwelling cannot be appreciated as an
aggravating circumstance in this case because the
rape was committed in the ground floor of a twostory structure, the lower floor being used as a
video rental store and not as a private place of
abode or residence.
People v. Arizobal (2000):
Generally, dwelling is considered inherent in the
crimes which can only be committed in the abode of
the victim, such as trespass to dwelling and robbery
in an inhabited place. However, in robbery with
homicide the authors thereof can commit the
heinous crime without transgressing the sanctity of
the victim's domicile. In the case at bar, the robbers
demonstrated an impudent disregard of the
inviolability of the victims' abode when they forced
their way in, looted their houses, intimidated and
ABUSE OF CONFIDENCE (Abuso de confianza)
(1) That the offended party had trusted the
offender.
(2) That the offender abused such trust by
committing a crime against the offended
party.
(3) That the abuse of confidence facilitated the
commission of the crime.


b.
The confidence between the offender and
the offended party must be immediate and
personal.
It is inherent in malversation (Art. 217),
qualified theft (Art. 310), estafa by
conversion or misappropriation (Art. 315)
and qualified seduction. (Art. 337).
OBVIOUS UNGRATEFULNESS
(1) That the offended party had trusted the
offender;
(2) That the offender abused such trust by
committing a crime against the offended
party;
(3) That the act be committed with obvious
ungratefulness.
The ungratefulness must be obvious: (1) manifest
and (2) clear.
In a case where the offender is a servant, the
offended party is one of the members of the family.
The servant poisoned the child. It was held that
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62
abuse of confidence is aggravating. This is only true,
however, if the servant was still in the service of the
family when he did the killing. If he was driven by
the master out of the house for some time and he
came back to poison the child, abuse of confidence
will no longer be aggravating. The reason is because
that confidence has already been terminated when
the offender was driven out of the house.
People v. Arrojado (2001): Arrojado is the first
cousin of the victim, Mary Ann and lived with her
and her father. Arrojado helped care for the
victim’s father for which he was paid a P1,000
monthly salary. Arrojado killed Mary Ann by
stabbing her with a knife. Thereafter he claimed
that the latter committed suicide.
Held: The aggravating circumstance of abuse of
confidence is present in this case. For this
aggravating circumstance to exist, it is essential to
show that the confidence between the parties must
be immediate and personal such as would give the
accused some advantage or make it easier for him to
commit the criminal act. The confidence must be a
means of facilitating the commission of the crime,
the culprit taking advantage of the offended party's
belief that the former would not abuse said
confidence.
5. Crime in Palace or in Presence of
the Chief Executive
Par. 5 – ―That the crime be committed in the palace
of the Chief Executive or in his presence, or where
public authorities are engaged in the discharge of
their duties, or in a place dedicated to religious
worship.‖
If it is the Malacañang palace or a church it is
aggravating regardless of whether State or official or
religious functions are being held.

The President need not be in the palace.

His presence alone in any place where the crime
is committed is enough to constitute the AC.

It also applies even if he is not engaged in the
discharge of his duties in the place where the
crime was committed.
Note: Offender must have the intention to commit a
crime when he entered the place. (People v.
Jaurigue)

Cemeteries are not places dedicated for
religious worship.
Par. 5
Par. 2
Where
public
Contempt or insult to authorities are engaged
public authorities
in the discharge of
their duties.
Public authorities are engaged in the performance
of their duties.
Public duty is performed Public duty is performed
in their office
outside of their office
The offended party may The public authority
or may not be the public
authority

should not be
offended party
the
As regards the place where the public
authorities are engaged in the discharge of
their duties, there must be some
performance of public functions.
6. Nighttime
(Nocturnidad);
Uninhabited Place (Despoblado);
With a Band (Cuadrilla)
Par. 6 ―That the crime be committed in the night
time, or in an uninhabited place, or by a band,
whenever such circumstances may facilitate the
commission of the offense.
Whenever more than three armed malefactors shall
have acted together in the commission of an
offense, it shall be deemed to have been committed
by a band.‖
These 3 circumstances may be considered
separately:
(1) when their elements are distinctly perceived
and
(2) can subsist independently,
(3) revealing a greater degree of perversity.
Requisites:
(1) When it facilitated the commission of the crime;
or
(2) When especially sought for by the offender to
insure the commission of the crime or for the
purpose of impunity; or
(3) When the offender took advantage thereof for
the purpose of impunity.
a. NIGHTTIME (Nocturnidad)
The commission of the crime must begin and be
accomplished in the nighttime (after sunset and
before sunrise).

Nighttime by and of itself is not an aggravating
circumstance.

The offense must be actually committed in the
darkness of the night.

When the place is illuminated by light,
nighttime is not aggravating.

Nighttime need not be specifically sought for
when:
(1) the offender purposely took advantage of
nighttime; or
(2) it facilitated the commission of the offense.
b. UNINHABITED PLACE (Desplobado)
It is determined not by the distance of the nearest
house to the scene of the crime but whether or not
in the place of the commission of the offense, there
was a reasonable possibility of the victim receiving
some help.


Solitude must be sought to better attain the
criminal purpose. (People v. Aguinaldo)
The offenders must choose the place as an
aid either (1) to an easy and uninterrupted
CRIMINAL LAW REVIEWER
accomplishment of their criminal designs,
or (2) to insure concealment of the offense,
that he might thereby be better secured
against detection and punishment. (U.S. v.
Vitug).
c. BAND (Cuadrilla)
There should
(1) Be at least be four persons
(2) At least 4 of them should be armed
(3) and are principals by direct participation.



This aggravating circumstance is absorbed
in the circumstance of abuse of superior
strength.
This is inherent in brigandage.
The armed men must have acted together
in the commission of the crime.
Illustration:
A is on board a banca, not so far away. B and C also
are on board their respective bancas. Suddenly, D
showed up from underwater and stabbed B. Is there
an aggravating circumstance of uninhabited place
here?
Yes, considering the fact that A and C before being
able to give assistance still have to jump into the
water and swim towards B and the time it would
take them to do that, the chances of B receiving
some help was very little, despite the fact that there
were other persons not so far from the scene.
People v. Librando (2000): Edwin, his daughter
Aileen, and a relative, Fernando, were traversing a
hilly portion of a trail on their way home when they
met Raelito Librando, Larry and Eddie. Edwin was
carrying a torch at that time as it was already dark.
Raelito inquired from Edwin the whereabouts of
Fernando and without any warning hit Edwin with a
piece of wood. Eddie followed suit and delivered
another blow to Edwin. Edwin ran but he was chased
by Raelito. Thereafter, the three men took turns
hitting Edwin with pieces of wood until the latter
fell and died. The trial court considered nighttime
and uninhabited place as just one aggravating
circumstance.
Held: The court did not err in considering nighttime
and uninhabited place as just one aggravating
circumstance. The court cited the case of People vs.
Santos where it has been held that if the
aggravating circumstances of nighttime, uninhabited
place or band concur in the commission of the
crime, all will constitute one aggravating
circumstance only as a general rule although they
can be considered separately if their elements are
distinctly perceived and can subsist independently,
revealing a greater degree of perversity.
People v. Bermas (1999): By and of itself, nighttime
is not an aggravating circumstance; it becomes so
only when:
1) it is specially sought by the offender; or
2)
3)
it was taken advantage of by him; or
it facilitates the commission of the crime by
insuring the offender‘s immunity from capture.
In this case, other than the time of the occurrence
of the felony, nothing else suggests that it was
consciously resorted to by Bermas. In fact, the crime
was well illuminated by two pressure gas lamps.
Also, if treachery is also present in the commission
of the crime, nighttime is absorbed in treachery and
can not be appreciated as a generic aggravating
circumstance.
7. On Occasion of a Calamity
Par. 7. ―That the crime be committed on the
occasion of a conflagration, shipwreck, earthquake,
epidemic or other calamity or misfortune.‖
The rationale for this AC is the debased form of
criminality of one who, in the midst of a great
calamity, instead of lending aid to the afflicted,
adds to their suffering by taking advantage of their
misfortune and despoiling them.

The offender must take advantage of the
calamity or misfortune.

―OR OTHER CALAMITY OR MISFORTUNE‖ – refers
to other conditions of distress similar to
―conflagration, shipwreck, earthquake or
epidemic.‖
8. Aid of Armed Men or Means to
Ensure Impunity (Auxilio de Gente
Armada)
Par. 7 ―That the crime be committed on the
occasion of a conflagration, shipwreck, earthquake,
epidemic or other calamity or misfortune‖
Requisites:
(1) That the armed men or persons took indirectly
part in the commission of the crime,
(2) That the accused availed himself of their aid or
relied upon them when the crime was
committed.
Not applicable 
When both the attacking party and the party
attacked were equally armed.

When the accused as well as those who
cooperated with him in the commission of the
crime acted under the same plan and for the
same purpose.

Casual presence, or when the offender did not
avail himself of their aid nor knowingly count
upon their assistance in the commission of the
crime.
Par. 6
By a band
Requires more than 3
armed malefactors
Requires that more than
three
armed
malefactors shall have
Par. 8
With aid of armed men
At least two armed men
This circumstance is
present even if one of
the offenders merely
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64
acted together in the
commission
of
an
offense
Band members are all
principals
relied on their aid, for
actual
aid
is
not
necessary
Armed men are mere
accomplices
People v. Licop: Aid of armed men includes ―armed
women‖.
Note: ―Aid of armed men‖
―employment of a band‖.
is
absorbed
by
9. Recidivism (Reincidencia)
Par. 8 ―That the crime be committed with the aid of
armed men or persons who insure or afford
impunity.‖
Requisites:
(1) That the offender is on trial for an offense;
(2) That he was previously convicted by final
judgment of another crime;
(3) That both the first and the second offenses are
embraced in the same title of the Code;
(4) That the offender is convicted of the new
offense.
Different forms of repetition or habituality of
offender
a. Recidivism under Article 14 (9)—The offender
at the time of his trial for one crime shall have
been previously convicted by final judgment of
another embraced in the same title of the
Revised Penal Code.
b. Repetition or reiteracion under Article 14
(9)—The offender has been previously punished
for an offense to which the law attaches an
equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty.
c. Habitual delinquency under Article 62 (5)—The
offender within a period of 10 years from the
date of his release or last conviction of the
crimes of serious or less serious physical
injuries, robo, hurto, estafa or falsification, is
found guilty of any of the said crimes a third
time or another.
d. Quasi-recidivism under Article 160—Any person
who shall ` a felony after having been convicted
by final judgment before beginning to serve
such sentence or while serving such sentence
shall be punished by the maximum period
prescribed by law for the new felony
In recidivism, the crimes committed should be
felonies. There is no recidivism if the crime
committed is a violation of a special law.
What is controlling is the time of the trial, not the
time of the commission of the offense (i.e. there
was already a conviction by final judgment at the
time of the trial for the second crime).

What is required is previous conviction at the
time of the trial.

The best evidence of a prior conviction is a
certified copy of the original judgment of
conviction, and such evidence is always
admissible and conclusive unless the accused

himself denies his identity with the person
convicted at the former trial. (Aquino, Revised
Penal Code)
At the time of the trial means from the
arraignment until after sentence is announced
by the judge in open court.
Recidivism does not prescribe. No matter how long
ago the offender was convicted, if he is subsequently
convicted of a crime embraced in the same title of
the Revised Penal Code, it is taken into account as
aggravating in imposing the penalty.
Pardon does not erase recidivism, even if it is
absolute because it only excuses the service of the
penalty, not the conviction. However, if a person
was granted an amnesty, and thereafter he is
convicted of another crime of the same class as the
former crimes, his former conviction would not be
aggravating. According to Art. 89, amnesty
extinguishes not only the penalty but also its effects.
If the offender has

already served his sentence and

he was extended an absolute pardon,
o the pardon shall erase the conviction
including recidivism because there is no
more penalty
o so the pardon shall be understood as
referring to the conviction or the effects of
the crime.
Illustration:
In 1980, A committed robbery.
While the case was being tried, he committed theft
in 1983.
He was also found guilty and was convicted of theft
also in 1983.
The conviction became final because he did not
appeal anymore and the trial for the earlier crime of
robbery ended in 1984 for which he was also
convicted. He also did not appeal this decision.
Is the accused a recidivist? NO.
The subsequent conviction must refer to a felony
committed later in order to constitute recidivism.
The reason for this is at the time the first crime was
committed, there was no other crime of which he
was convicted so he cannot be regarded as a
repeater.
People vs. Molina (2000): To prove recidivism, it is
necessary to allege the same in the information
and to attach thereto certified copies of the
sentences
rendered
against
the
accused.
Nonetheless, the trial court may still give such AC
credence if the accused does not object to the
presentation.
People v. Dacillo (2004):
In order to appreciate recidivism as an aggravating
circumstance, it is necessary to allege it in the
information and to attach certified true copies of
CRIMINAL LAW REVIEWER
the sentences previously meted out to the accused,
in accordance with Rule 110, Section 8 of the
Revised Rules of Criminal Procedure.
10.
Reiteracion/Habituality
Par. 10 ―That the offender has been previously
punished by an offense to which the law attaches an
equal or greater penalty or for two or more crimes
to which it attaches a lighter penalty.‖
Requisites:
(1) That the accused is on trial for an offense;
(2) That he previously served sentence for another
offense to which the law attaches:
(a) an equal or
(b) greater penalty, or
(c) for 2 or more crimes to which it attaches
lighter penalty than that for the new
offense; and
(3) That he is convicted of the new offense.
In Reiteracion or Habituality, it is essential that the
offender be previously punished; that is, he has
served sentence.
Par. 10 speaks of

penalty attached to the offense,

not the penalty actually imposed
Par. 9 Recidivism
It is enough that a final
judgment
has
been
rendered in the first
offense.
Requires
that
the
offenses be included in
the same title of the
Code
Always to be taken into
consideration in fixing
the penalty to be
imposed
upon
the
accused
Rationale is the proven
tendency to commit a
similar offense
Art.
14,
Par.
9
Recidivism
Two convictions are
enough
The crimes are not
specified; it is enough
that they may be
embraced under the
same title of the
Revised Penal Code
Par. 10 Reiteracion
It is necessary that the
offender
shall
have
served out his sentence
for the first offense.
The
previous
and
subsequent
offenses
must not be embraced
in the same title of the
Code
There is no time limit
between
the
first
conviction
and
the
subsequent conviction.
Recidivism
is
imprescriptible.
It
is
a
generic
aggravating
circumstance which can
be offset by an ordinary
mitigating
circumstance.
If not offset, it would
only
increase
the
penalty prescribed by
law for the crime
committed
to
its
maximum period
f. falsification
There is a time limit of
not more than 10 years
between
every
conviction
computed
from the first conviction
or
release
from
punishment thereof to
conviction
computed
from
the
second
conviction or release
therefrom to the third
conviction and so on
Habitual delinquency is
a special aggravating
circumstance, hence it
cannot be offset by any
mitigating
circumstance.
Aside from the penalty
prescribed by law for
the crime committed,
an additional penalty
shall
be
imposed
depending
upon
whether it is already
the third conviction, the
fourth, the fifth and so
on
Since reiteracion provides that the accused has duly
served the sentence for previous conviction/s, or is
legally considered to have done so,

quasi-recidivism cannot at the same time
constitute reiteracion, hence the latter cannot
apply to a quasi-recidivist.
an
If the same set of facts constitutes recidivism and
reiteracion,

the liability of the accused should be
aggravated by recidivism which can be easily
proven.
Rationale is the proven
resistance
to
rehabilitation
People v. Cajara (2000): Accused Cajara raped 16year old Marita in front of his common-law wife who
is the half-sister of the victim and his two small
children. The trial court convicted him as charged
and sentenced him to death.
Art. 62 par. 5 Habitual
Delinquency
At
least
three
convictions are required
The crimes are limited
and specified to:
a. serious
physical
injuries,
b. Less
serious
physical injuries,
c. robbery,
d. theft,
e. estafa or swindling
and
Held: The records show that the crime was
aggravated by reiteracion under Art. 14, par. 10, of
The Revised Penal Code, the accused having been
convicted of frustrated murder in 1975 and of
homicide, frustrated homicide, trespass to dwelling,
illegal possession of firearms and murder sometime
in 1989 where his sentences were later commuted to
imprisonment for 23 years and a fine of P200,000.00.
He was granted conditional pardon by the President
of the Philippines on 8 November 1991. Reiteracion
or habituality under Art. 14, par. 10, herein cited,
is present when the accused has been previously
punished for an offense to which the law attaches
an equal or greater penalty than that attached by
law to the second offense or for two or more
Not
always
aggravating
circumstance
65
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66
offenses to which it attaches a lighter penalty. As
already discussed, herein accused can be convicted
only of simple rape and the imposable penalty
therefor is reclusion perpetua. Where the law
prescribes a single indivisible penalty, it shall be
applied regardless of the mitigating or aggravating
circumstances attendant to the crime, such as in the
instant case.
11.
in
When this AC is present, there must be 2 or more
principals:
a. the one who gives or offers the price or
promise; and
b. the one who accepts it.

Both of whom are principals to the former,
because he directly induces the latter to
commit the crime, and the latter because
he commits it.

When this AC is present, it affects not only
the person who received the price or
reward, but also the person who gave it.

The evidence must show that one of the
accused
used
money
or
valuable
consideration for the purpose of inducing
another to perform the deed. (U.S. v.
Gamao).

If without previous promise it was given
voluntarily after a crime was committed as
an expression of his appreciation for the
sympathy and aid shown by the other
accused, it should not be taken into
consideration for the purpose of increasing
the penalty.
The price, reward or promise:

Need not consist of or refer to material things;
or

That the same were actually delivered,
o it being sufficient that the offer made by
the principal by inducement was accepted
by the principal by direct participation
before the commission of the offense.
12.
lInundation, Fire, Poison
Par. 12 – ―That the crime be committed by means of
inundation, fire, poison, explosion, stranding of a
vessel or international damage thereto, derailment
of a locomotive, or by the use of any other artifice
involving great waste and ruin.‖



When another AC already qualifies the crime,
any of these AC‘s shall be considered as
generic aggravating circumstance only.
Fire is not aggravating in the crime of arson.
Whenever a killing is done with the use of
fire, as when you kill someone, you burn
down his house while the latter is inside, this
is murder.
There is no such crime as murder with arson or arson
with homicide. The crime is only murder.
Prize, Reward or Promise
Par. 11 ―That the crime be committed
consideration of a price, reward, or promise.‖

Unless used by the offender as a means to
accomplish a criminal purpose, any of the
circumstances in paragraph 12 cannot be
considered to increase the penalty or to
change the nature of the offense.
If the intent is to destroy property - the crime is
arson even if someone dies as a consequence.
If the intent is to kill - there is murder even if the
house is burned in the process.
Illustration:
A and B were arguing about something. One
argument led to another until A struck B to death
with a bolo. A did not know that C, the son of B was
also in their house and who was peeping through the
door and saw what A did. Afraid that A might kill him
too, he hid somewhere in the house. A then dragged
B‘s body and poured gasoline on it and burned the
house altogether. As a consequence, C was burned
and eventually died too.
As far as the killing of B is concerned, it is homicide
since it is noted that they were arguing. It could not
be murder. As far as the killing of C is concerned, it
is arson since he intended to burn the house only.
13.
Evident
Premeditation
(Premeditacion Conocida)
Par. 12 ―That the act be committed with evident
premeditation.‖
Requisites:
(1) The time when the offender determined to
commit the crime;
(2) An act manifestly indicating that the culprit has
clung to his determination; and
(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 is conscience to overcome the resolution
of his will.
Evident premeditation implies

a deliberate planning of the act

before executing it.
The essence of premeditation

an opportunity to coolly and serenely think and
deliberate
o on the meaning and
o consequences of what he planned to do,

an interval long enough for his conscience and
better judgment to overcome his evil desire and
scheme. (People v. Durante)

The premeditation must be based upon external
facts, and must be evident, not merely
suspected indicating deliberate planning.
CRIMINAL LAW REVIEWER





The date and time when the offender
determined to commit the crime is essential,
because the lapse of time for the purpose of the
third requisite is computed from that date and
time.
After the offenders had determined to clung
commit the crime, there must be a manifest
indication
that
they
clung
to
their
determination.
Where conspiracy is directly established, with
proof of the attendant deliberation and
selection of the method, time and means of
executing the crime, the existence of evident
premeditation can be taken for granted. (U.S. v.
Cornejo)
Evident premeditation is inherent in robbery,
adultery, estafa, and falsification. However, it
may be aggravating in robbery with homicide if
the premeditation included the killing of the
victim. (People v. Valeriano)
In order that premeditation may exist, it is not
necessary that the accused premeditated the
killing of a particular individual. If the offender
premeditated on the killing of any person
(general attack), it is proper to consider against
the offender the aggravating circumstance of
evident premeditation, because whoever is
killed by him is contemplated in the
premeditation. (US v. Manalinde, 1909)
Illustrations:
1. A and B fought on Monday. A told B that
someday he will kill B. On Friday, A killed B.
2. C and D fought on Monday but since C already
suffered so many blows, he told D, ―This week
shall not pass, I will kill you.‖ On Friday, C
killed D.
Is there evident premeditation in both cases? None in
both cases.
What condition is missing to bring about evident
premeditation? Evidence to show that between
Monday and Friday, the offender clung to his
determination to kill the victim, acts indicative of
his having clung to his determination to kill B.
3.
A and B had a quarrel. A boxed B. A told B, ―I
will kill you this week.‖ A bought firearms. On
Friday, he waited for B but killed C instead.
Was there evident premeditation?
There is aberratio ictus. So, qualify.
Insofar as B is concerned, the crime is attempted
murder because there is evident premeditation.
However, that murder cannot be considered for C.
Insofar as C is concerned, the crime is homicide
because there was no evident premeditation.
People v. Salpigao: Evident premeditation is
presumed to exist when conspiracy is directly
established. When conspiracy is merely implied,
evident premeditation cannot be presumed, the
latter must be proved just like any other fact.
People v. Mondijar (2002):
Held: There was no evident premeditation. For the
circumstance of evident premeditation to be
appreciated, the prosecution must present clear and
positive evidence of the planning and preparation
undertaken by the offender prior to the commission
of the crime. Settled is the rule that evident
premeditation, like any other circumstance that
qualifies a killing to murder, must be established
beyond reasonable doubt as conclusively and
indubitably as the killing itself. In the present case,
no evidence was presented by the prosecution as to
when and how appellant planned and prepared for
the killing of the victim. There is no showing of any
notorious act evidencing a determination to commit
the crime which could prove appellant's criminal
intent.
People v. Biso (2003): Dario, a black belt in karate,
entered an eatery, seated himself beside Teresita
and made sexual advances to her in the presence of
her brother, Eduardo. Eduardo contacted his cousin,
Biso, an ex-convict and a known toughie in the area,
and related to him what Dario had done to Teresita.
Eduardo and Pio, and 2 others decided to confront
Dario. They positioned themselves in the alley near
the house of Dario. When Dario arrived on board a
taxicab, the four assaulted Dario. Eduardo held, with
his right hand, the wrist of Dario and covered the
mouth of Dario with his left hand. The 2 others held
Dario's right hand and hair. Pio then stabbed Dario
near the breast with a fan knife. Eduardo stabbed
Dario and fled with his three companions from the
scene.
Held: There was no evident premeditation. The
prosecution failed to prove that the four intended to
kill Dario and if they did intend to kill him, the
prosecution failed to prove how the malefactors
intended to consummate the crime. Except for the
fact that the appellant and his three companions
waited in an alley for Dario to return to his house,
the prosecution failed to prove any overt acts on the
part of the appellant and his cohorts showing that
that they had clung to any plan to kill the victim.
14.
Craft (Astucia), Fraud (Fraude)
or Disguise (Disfraz)
Par. 14 ―That the craft, fraud or disguise be
employed.‖
Involves intellectual trickery and cunning on the part
of the accused.
It is employed as a scheme in the execution of the
crime.
FRAUD

Insidious words or machinations used
o to induce the victim
o to act in a manner
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CRIMINAL LAW REVIEWER

68
which would enable the offender to carry out
his design.
CRAFT

Craft and fraud may be
o absorbed in treachery if they have been
deliberately adopted as the means,
methods or forms for the treacherous
strategy, or
o they may co-exist independently where
they are adopted for a different purpose in
the commission of the crime.
Fraud
When there is a DIRECT
INDUCEMENT
by
insidious
words
or
machinations
Craft
The act of the accused
was done in order NOT
TO AROUSE SUSPICION
DISGUISE

Resorting to any device to conceal identity.

The test of disguise is
o whether the device or contrivance resorted
to by the offender
o was intended to or did make identification
more difficult, such as the use of a mask,
false hair or beard.

But if in spite of the use of handkerchief to
cover their faces, the culprits were recognized
by the victim, disguise is not considered
aggravating.
People v. San Pedro: Where the accused pretended
to hire the driver in order to get his vehicle, it was
held that there was craft directed to the theft of the
vehicle, separate from the means subsequently used
to treacherously kill the defenseless driver.
People v. Masilang: There was also craft where
after hitching a ride, the accused requested the
driver to take them to a place to visit somebody,
when in fact they had already planned to kill the
driver.
People v. Labuguen (2000): Craft involves
intellectual trickery and cunning on the part of the
offender. When there is a direct inducement by
insidious words or machinations, fraud is present. By
saying that he would accompany the victim to see
the cows which the latter intended to buy, appellant
was able to lure the victim to go with him.
15.
Superior Strength or Means to
Weaken Defense
To TAKE ADVANTAGE of superior strength means

to use purposely excessive force

out of proportion to the means of defense
available to the person attacked.
Superiority may arise from

aggressor‘s sex, build, weapon or number

as compared to that of the victim (e.g. accused
attacked an unarmed girl with a knife; 3 men
stabbed to death the female victim).
No advantage of superior strength when

one who attacks is overcome with passion and
obfuscation or

when quarrel arose unexpectedly and the fatal
blow was struck while victim and accused were
struggling.
Versus by a band:

In the circumstance of abuse of superior
strength, what is taken into account is
o not the number of aggressors nor the fact
that they are armed
o but their relative physical might vis-à-vis
the offended party
Means Employed to Weaken Defense

This circumstance is applicable only
o to crimes against persons and
o sometimes against person and property,
such as robbery with physical injuries or
homicide.
The means used must not totally eliminate possible
defense of the victim,

otherwise it will fall under treachery
People v. Carpio: There must be evidence of
notorious inequality of forces between the offender
and the offended party in their age, size and
strength, and that the offender took advantage of
such superior strength in the commission of the
crime. The mere fact that there were two persons
who attacked the victim does not per se constitute
abuse of superior strength.
People v. Lobrigas (2002): The crime committed
was murder qualified by the aggravating
circumstance of abuse of superior strength. To
appreciate abuse of superior strength, there must be
a deliberate intent on the part of the malefactors to
take advantage of their greater number. They must
have notoriously selected and made use of superior
strength in the commission of the crime. To take
advantage of superior strength is to use excessive
force that is out of proportion to the means for selfdefense available to the person attacked; thus, the
prosecution must clearly show the offenders'
deliberate intent to do so.
People v. Barcelon (2002):
Held: Abuse of superior strength was present in the
commission of the crime. The court cited the case
of People vs. Ocumen, where an attack by a man
with a deadly weapon upon an unarmed woman
constitutes the circumstance of abuse of that
superiority which his sex and the weapon used in the
act afforded him, and from which the woman was
unable to defend herself.
The disparity in age between the assailant and the
victim, aged 29 and 69, respectively, indicates
physical superiority on appellant's part over the
deceased. It did not matter that appellant was "dark"
with a "slim body build" or "medyo mataba." What
mattered was that the malefactor was male and
armed with a lethal weapon that he used to slay the
victim.
CRIMINAL LAW REVIEWER
People v. Sansaet (2002):
Held: Mere superiority in number, even assuming it
to be a fact, would not necessarily indicate the
attendance of abuse of superior strength. The
prosecution should still prove that the assailants
purposely used excessive force out of proportion to
the means of defense available to the persons
attacked.
Finally, to appreciate the qualifying circumstance of
abuse of superior strength, what should be
considered is whether the aggressors took advantage
of their combined strength in order to consummate
the offense. To take advantage of superior strength
means to purposely use excessive force out of
proportion to the means available to the person
attacked to defend himself.
People v. Ventura (2004): Ventura armed with a
.38 Caliber Home-made Revolver and Flores armed
with a bladed weapon, entered the house of the
Bocatejas by cutting a hole in the kitchen door.
Ventura announced a hold-up and hit Jaime on the
head and asked for the keys. Jaime called out for
help and tried to wrestle the gun away from
Ventura. Flores then stabbed Jaime 3 times. Flores
also stabbed Jaime‘s wife Aileen who had been
awakened. Aileen tried to defend herself with an
electric cord to no avail. Aileen died on the hospital
on the same day.
Held: By deliberately employing a deadly weapon
against Aileen, Flores took advantage of the
superiority which his strength, sex and weapon gave
him over his unarmed victim. The fact that Aileen
attempted to fend off the attack on her and her
husband by throwing nearby objects, such as an
electric cord, at appellant Flores does not
automatically negate the possibility that the latter
was able to take advantage of his superior strength.
16.
Treachery (Alevosia)
Par. 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.‖
Requisites:
(1) The employment of means of execution that
gave the person attacked no opportunity to
defens himself or retaliate; and
(2) That the offender consciously adopted the
particular means, method or form of attack
employed by him.
Employment of means, methods and form in the
commission of the crime:
 which tend directly and specially to


ensure its execution
without risk to himself arising from the defense
which the offended party might make.
The essence of treachery is that by virtue of the
means, method or form employed by the offender,
the offended party was not able to put up any
defense.

If the offended party was able to put up a
defense, even only a token one, there is no
treachery.

Instead, some other aggravating circumstance
may be present but it is no longer treachery.
Rules Regarding Treachery
(1) Applicable only to crimes against persons.
(2) Means, methods or forms need not insure
accomplishment or consummation of the crime.

The treacherous character of the means
employed in the aggression does not depend
upon the result thereof but upon the means
itself. Thus, frustrated murder could be
aggravated by treachery.
(3) The mode of attack must be consciously
adopted.

The accused must make some preparation to
kill the deceased in such manner as to insure
the execution of the crime or to make it
impossible or hard for the person attacked to
defend himself or retaliate. (People v.
Tumaob)

It must be a result of meditation, calculation
or reflection. (U.S. v. Balagtas)
(4) Treachery cannot be presumed. The suddenness
of the attack does not, of itself, suffice to
support a finding of alevosia, even if the
purpose was to kill, so long as the decision was
made all of a sudden and the victim‘s helpless
position was accidental. (People v. Lubreo). It
must be proved by clear and convincing
evidence. (People v. Santos).
Attacks show intention to eliminate risk:

Victim asleep

Victim half-awake or just awakened

Victim grappling or being held.

Attacked from behind
Additional rules:

When the aggression is CONTINUOUS, treachery
must be present in the BEGINNING of the
assault.

When the assault WAS NOT CONTINUOUS, in that
there was an interruption, it is sufficient that
treachery was present AT THE MOMENT THE
FATAL BLOW WAS GIVEN.
Illustration:
A and B have been quarreling for some time. One
day, A approached B and befriended him. B
accepted. A proposed that to celebrate their
renewed friendship, they were going to drink. B was
having too much to drink. A was just waiting for him
to get intoxicated and after which, he stabbed B.
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70
A pretended to befriend B, just to intoxicate the
latter. Intoxication is the means deliberately
employed by the offender to weaken the defense of
the other party.
If this was the very means employed, the
circumstance may be treachery and not abuse of
superior strength or means to weaken the defense
People vs. Ilagan: Suddenness of the attack does
not by itself constitute treachery in the absence of
evidence that the manner of attack was consciously
adopted by the offender to render the victim
defenseless.
People v. Malejana: Treachery may still be
appreciated even when the victim was forewarned of
danger to his person. What is decisive is that the
execution of the attack made it impossible for the
victim to defend himself or to retaliate. Thus, even
a frontal attack could be treacherous when
unexpected and on an unarmed victim who would be
in no position to repel the attack or avoid it.
Treachery cannot
obfuscation.
co-exist
with
passion
and
People v. Rendaje (2000):
Treachery qualified the killing to murder.
To constitute treachery, two conditions must concur:
(1) the employment of means, methods or manner of
execution that would ensure the offender's safety
from any defense or retaliatory act on the part of
the offended party; and (2) the offender's deliberate
or conscious choice of the means, method or manner
of execution.
No one has positively testified on how Lennie was
killed but the victim‘s body shows the manner in
which she was attacked by her assailant. It
eloquently speaks for itself. The injuries established
the manner in which the killing was cruelly carried
out with little or no risk to the assailant. The
number of stab wounds, most of which were
inflicted at the back of the child — unarmed and
alone — shows the deliberateness, the suddenness
and the unexpectedness of the attack, which thus
deprived her of the opportunity to run or fight back.
People v. Dumadag (2004): Prudente with his
friends including Meliston agreed to meet at a
swimming pool to celebrate the feast of St. John. On
their way home, there was heavy downpour so they
decided to take a shelter at a store where 2 men, 1
of whom is Dumadag are having some drinks.
Dumadag offered Prudente a drink of Tanduay but
the latter refused then left. Dumadag followed
Prudente and stabbed the victim on his breast with a
knife which resulted to his death.
Held: As a general rule, a sudden attack by the
assailant, whether frontally or from behind, is
treachery if such mode of attack was deliberately
adopted by him with the purpose of depriving the
victim of a chance to either fight or retreat. The
rule does not apply if the attack was not
preconceived but merely triggered by infuriation of
the appellant on an act made by the victim. In the
present case, it is apparent that the attack was not
preconceived. It was triggered by the appellant's
anger because of the victim's refusal to have a drink
with the appellant and his companions.
Treachery absorbs:
(1) Abuse of superior strength (U.S. v. Estopia)
(2) Use of means to weaken the defense (People v.
Siatong)
(3) Aid of armed men (People v. Ferrera)
(4) Nighttime (People v. Kintuan)
(5) Craft (People v. Malig)
(6) By a band (People v. Ampo-an)
17.
Ignominy
Par. 17 ―That means be employed or circumstances
brought about which add ignominy to the natural
effects of the act.‖




It is a circumstance pertaining to the moral
order, which adds disgrace to the material
injury caused by the crime.
The means employed or the circumstances
brought about must tend to make the effects
of the crime MORE HUMILIATING or TO PUT
THE OFFENDED PARTY TO SHAME.
Applicable to crimes against chastity, rape,
less serious physical injuries, light or grave
coercion and murder.
Raping a woman from behind is ignominous
because that is not the normal form of
intercourse, it is something which offends the
morals of the offended woman. This is how
animals do it.
People v. Torrefiel (1947): The novelty of the
manner in which the accused raped the victim by
winding cogon grass around his genitals augmented
the wrong done by increasing its pain and adding
ignominy thereto.
People v. Alfanta (1999): There was ignominy
because the accused not only used missionary
position but also ―the same position as dogs do.‖ He
also inserted his finger inside her. Although the ―dog
position‖ is not novel and often been used by
couples, there is ignominy if the sexual act is
performed not by consenting parties.
People v. Cachola (2004): For ignominy to be
appreciated, it is required that the offense be
committed in a manner that tends to make its effect
more humiliating, thus adding to the victim's moral
suffering. Where the victim was already dead when
his body or a part thereof was dismembered,
ignominy cannot be taken against the accused. In
this case, the information states that Victorino's
sexual organ was severed after he was shot and
there is no allegation that it was done to add
ignominy to the natural effects of the act. We
cannot, therefore, consider ignominy as an
CRIMINAL LAW REVIEWER
building. What aggravates the liability of the
offender is the breaking of a part of the
building as a means to the commission of the
crime.
aggravating circumstance.
People v. Bumidang (2000): The aggravating
circumstance of ignominy
shall be taken into
account if means are employed or circumstances
brought about which add ignominy to the natural
effects of the offense; or if the crime was
committed in a manner that tends to make its
effects more humiliating to the victim, that is, add
to her moral suffering. It was established that
Baliwang used the flashlight and examined the
genital of Gloria before he ravished her. He
committed his bestial deed in the presence of
Gloria's old father. These facts clearly show that
Baliwang deliberately wanted to further humiliate
Gloria, thereby aggravating and compounding her
moral sufferings. Ignominy was appreciated in a case
where a woman was raped in the presence of her
betrothed, or of her husband, or was made to
exhibit to the rapists her complete nakedness before
they raped her.
18.
Unlawful Entry
Par. 18 – ―That the crime be committed after an
unlawful entry.
There is an unlawful entry when an entrance of a
crime a wall, roof, floor, door, or window be
broken.‖



There is unlawful entry when an entrance is
effected by a way not intended for the
purpose.
Unlawful entry must be a means to effect
entrance and not for escape.
There is no unlawful entry when the door is
broken and thereafter the accused made an
entry thru the broken door. The breaking of
the door is covered by paragraph 19.
Unlawful entry is inherent in the crime of trespass to
dwelling and robbery with force upon things but
aggravating in the crime of robbery with violence
against or intimidation of persons.
19.
Breaking Wall, Floor, Roof
Par. 19 – ―as a means to the commission of the
crime, a wall, roof, floor, door or window be
broken‖.




To be considered as an AC, breaking the door
must be utilized as a means to the commission
of the crime.
It is only aggravating in cases where the
offender resorted to any of said means TO
ENTER the house.
If the wall, etc. is broken in order to get out of
the place, it is not aggravating.
Because of the phrase ―as a means to the
commission of a crime‖, it is not necessary
that the offender should have entered the
20.
With Aid of Persons Under 15;
By Motor Vehicle
Par. 20 – ―That the crime be committed with the aid
of persons under fifteen years of age or by means of
motor vehicles, motorized watercraft, airships, or
other similar means‖
a.
With the aid of persons under 15 years of age

To repress, so far as possible, the frequent
practice resorted to by professional
criminals of availing themselves of minors
taking advantage of their lack of criminal
responsibility (remember that minors are
given leniency when they commit a crime)
b.
By means of a motor vehicle
To counteract the great facilities found by
modern criminals in said means to commit crime
and flee and abscond once the same is
committed.
This circumstance is aggravating only when used
in the commission of the offense.

If motor vehicles are used only in the
escape of the offender, it is not
aggravating. It must have been used to
facilitate the commission of the crime to
be aggravating.
―Or other similar means‖ – the expression
should be understood as referring to

MOTORIZED vehicles or

other efficient means of transportation
similar to automobile or airplane.
21.
Cruelty
Requisites:
(1) That the injury caused be deliberately increased
by causing other wrong;
(2) That the other wrong be unnecessary for the
execution of the purpose of the offender.
For it to exist, it must be shown that the accused
enjoyed and delighted in making his victim suffer.
If the victim was already dead when the acts of
mutilation were being performed,

this would also qualify the killing to murder
due to outraging of his corpse.
Ignominy
shocks
the
moral
conscience of man
refers to the moral
effect of a crime and it
pertains to the moral
order, whether or not
Cruelty
physical
refers to the physical
suffering of the victim
so he has to be alive
71
CRIMINAL LAW REVIEWER
the victim is dead or
alive
72
People v. Catian (2002): Catian repeatedly struck
Willy with a "chako" on the head, causing Willy to
fall on his knees. Calunod seconded by striking the
victim with a piece of wood on the face. When Willy
finally collapsed, Sumalpong picked him up, carried
him over his shoulder, and carried Willy to a place
where they burned Willy. The latter‘s skeletal
remains were discovered by a child who was
pasturing his cow near a peanut plantation.
Held: The circumstance of cruelty may not be
considered as there is no showing that the victim
was burned while he was still alive. For cruelty to
exist, there must be proof showing that the accused
delighted in making their victim suffer slowly and
gradually, causing him unnecessary physical and
moral pain in the consummation of the criminal act.
No proof was presented that would show that
accused-appellants deliberately and wantonly
augmented the suffering of their victim.
People v. Guerrero (2002): Appellant first severed
the victim's head before his penis was cut-off. This
being the sequence of events, cruelty has to be
ruled out for it connotes an act of deliberately and
sadistically augmenting the wrong by causing
another wrong not necessary for its commission, or
inhumanely increasing the victim's suffering. As
testified to by Dr. Sanglay, and reflected in her
medical certificate, Ernesto in fact died as a result
of his head being severed. No cruelty is to be
appreciated where the act constituting the alleged
cruelty in the killing was perpetrated when the
victim was already dead.

2.
3.
4.
ammunition or instruments used or intended to
be used in the manufacture of firearms or
ammunition…
Provided, That no other crime is committed.
a. If homicide or murder is committed with
the use of an unlicensed firearm, such use
of an unlicensed firearm shall be considered
as an aggravating circumstance.
b. If the violation of this section is in
furtherance of or incident to, or in
connection with the crime of rebellion or
insurrection, sedition, or attempted coup
d'etat, such violation shall be absorbed as
an element of the crime of rebellion, or
insurrection, sedition, or attempted coup
d'etat.
Unlawful
manufacture,
sale,
acquisition,
disposition or possession of explosives.
a. When a person commits any of the crimes
defined in the Revised Penal Code or
special laws

with the use of the aforementioned
explosives, detonation agents or incendiary
devices, which results in the death of any
person or persons,

the use of such explosives, detonation
agents or incendiary devices shall be
considered as an aggravating circumstance.
Tampering of firearm's serial number.
Repacking or altering the composition of
lawfully manufactured explosives.
People vs. De Gracia (1994):
Ownership is not an essential element of illegal
possession of firearms and ammunition.
What the law requires is merely possession which
includes not only actual physical possession but
also constructive possession.
1. Qualifying
a. Decree Codifying the Laws on
llegal/Unlawful Possession etc. of Firearms,
Ammunition or Explosives (P.D. 1866, as
amended by R.A. 8294)
b. The Comprehensive Dangerous Drugs Act of
2002 (R.A.9165)
Palaganas vs. Court of Appeals (2006):
With the passage of Republic Act. No. 8294 on 6
June 1997, the use of an unlicensed firearm in
murder homicide is now considered as a SPECIAL
aggravating circumstance and not a generic
aggravating circumstance.
1. Decree Codifying the Laws on
Note:
Under 2012 Supreme Court Syllabus, acts punishable
under PD 1866, as amended by RA 8294, are under
the subtopic qualifying aggravating circumstances
but tagged as AGGRAVATING only.
Illegal/Unlawful
Possession,
Manufacture,
Dealing
in,
Acquisition or Disposition, of
Firearms,
Ammunition
or
Explosives (P.D. 1866, as amended
by R.A. 8294) as an aggravating
circumstance
(Asked once in the Bar during 1979-1982, twice
during 2000-2006)
Acts punished
1. Unlawful
manufacture,
sale,
acquisition,
disposition or possession of firearms or
People vs. Ladjaalam (2000):
If an unlicensed firearm is used in the commission of
any crime, there can be no separate offense of
simple illegal possession of firearms.
Hence, if the ―other crime‖ is murder or homicide,
illegal possession of firearms becomes merely an
aggravating circumstance, not a separate offense.
Since direct assault with multiple attempted
homicide was committed in this case, appellant can
no longer be held liable for illegal possession of
CRIMINAL LAW REVIEWER
firearms.
2. Comprehensive Dangerous Drugs
Act of 2002 (RA 9165)
Provided, further, That this immunity may be
enjoyed by such informant or witness who does not
appear to be most guilty for the offense with
reference to which his/her information or testimony
were given: Provided, finally, That there is no direct
evidence available for the State except for the
information and testimony of the said informant or
witness.
i. As a qualifying aggravating circumstance
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
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.
ii. Immunity from prosecution and punishment,
coverage
Sec. 33. Immunity from Prosecution and
Punishment. – Notwithstanding the provisions of
Section 17, Rule 119 of the Revised Rules of Criminal
Procedure and the provisions of Republic Act No.
6981 or the Witness Protection, Security and Benefit
Act of 1991, any person who has violated Sections 7,
11, 12, 14, 15, and 19, Article II of this Act, who
voluntarily gives information about any violation of
Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this
Act as well as any violation of the offenses
mentioned if committed by a drug syndicate, or any
information leading to the whereabouts, identities
and arrest of all or any of the members thereof; and
who willingly testifies against such persons as
described above, shall be exempted from
prosecution or punishment for the offense with
reference to which his/her information of testimony
were given, and may plead or prove the giving of
such information and testimony in bar of such
prosecution: Provided, That the following conditions
concur:
(1) The information and testimony are necessary for
the conviction of the persons described above;
(2) Such information and testimony are not yet in
the possession of the State;
(3) Such information and testimony
corroborated on its material points;
can
be
(4) the informant or witness has not been previously
convicted of a crime involving moral turpitude,
except when there is no other direct evidence
available for the State other than the information
and testimony of said informant or witness; and
(5) The informant or witness shall strictly and
faithfully comply without delay, any condition or
undertaking, reduced into writing, lawfully imposed
by the State as further consideration for the grant of
immunity from prosecution and punishment.
Sec. 34. Termination of the Grant of Immunity. –
The immunity granted to the informant or witness,
as prescribed in Section 33 of this Act, shall not
attach should it turn out subsequently that the
information and/or testimony is false, malicious or
made only for the purpose of harassing, molesting or
in any way prejudicing the persons described in the
preceding Section against whom such information or
testimony is directed against. In such case, the
informant or witness shall be subject to prosecution
and the enjoyment of all rights and benefits
previously accorded him under this Act or any other
law, decree or order shall be deemed terminated.
In case an informant or witness under this Act fails
or refuses to testify without just cause, and when
lawfully obliged to do so, or should he/she violate
any condition accompanying such immunity as
provided above, his/her immunity shall be removed
and he/she shall likewise be subject to contempt
and/or criminal prosecution, as the case may be,
and the enjoyment of all rights and benefits
previously accorded him under this Act or in any
other law, decree or order shall be deemed
terminated.
In case the informant or witness referred to under
this Act falls under the applicability of this Section
hereof, such individual cannot avail of the provisions
under Article VIII of this Act.
iii. Minor offenders
Sec. 66. Suspension of Sentence of a First-Time
Minor Offender. – An accused who is over fifteen
(15) years of age at the time of the commission of
the offense mentioned in Section 11 of this Act, but
not more than eighteen (18) years of age at the time
when judgment should have been promulgated after
having been found guilty of said offense, may be
given the benefits of a suspended sentence, subject
to the following conditions:
(a) He/she has not been previously convicted of
violating any provision of this Act, or of the
Dangerous Drugs Act of 1972, as amended; or of
the Revised Penal Code; or of any special penal
laws;
(b) He/she has not been previously committed to a
Center or to the care of a DOH-accredited
physician; and
(c) The Board favorably recommends that his/her
sentence be suspended.
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While under suspended sentence, he/she shall be
under the supervision and rehabilitative surveillance
of the Board, under such conditions that the court
may impose for a period ranging from six (6) months
to eighteen (18) months.
Upon recommendation of the Board, the court may
commit the accused under suspended sentence to a
Center, or to the care of a DOH-accredited physician
for at least six (6) months, with after-care and
follow-up program for not more than eighteen (18)
months.
In the case of minors under fifteen (15) years of age
at the time of the commission of any offense
penalized under this Act, Article 192 of Presidential
Decree No. 603, otherwise known as the Child and
Youth Welfare Code, as amended by Presidential
Decree No. 1179 shall apply, without prejudice to
the application of the provisions of this Section.
Sec. 67. Discharge After Compliance with
Conditions of Suspended Sentence of a First-Time
Minor Offender. – If the accused first time minor
offender under suspended sentence complies with
the applicable rules and regulations of the Board,
including confinement in a Center, the court, upon a
favorable recommendation of the Board for the final
discharge of the accused, shall discharge the
accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the
accused, the court shall enter an order to expunge
all official records, other than the confidential
record to be retained by the DOJ relating to the
case. Such an order, which shall be kept
confidential, shall restore the accused to his/her
status prior to the case. He/she shall not be held
thereafter 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 of him for
any purpose.
Sec. 68. Privilege of Suspended Sentence to be
Availed of Only Once by a First-Time Minor
Offender. – The privilege of suspended sentence
shall be availed of only once by an accused drug
dependent who is a first-time offender over fifteen
(15) years of age at the time of the commission of
the violation of Section 15 of this Act but not more
than eighteen (18) years of age at the time when
judgment should have been promulgated.
Sec. 69. Promulgation of Sentence for First-Time
Minor Offender. – If the accused first-time minor
offender violates any of the conditions of his/her
suspended sentence, the applicable rules and
regulations of the Board exercising supervision and
rehabilitative surveillance over him, including the
rules and regulations of the Center should
confinement be required, the court shall pronounce
judgment of conviction and he/she shall serve
sentence as any other convicted person.
Sec. 70. Probation or Community Service for a
First-Time
Minor
Offender
in
Lieu
of
Imprisonment. – Upon promulgation of the
sentence, the court may, in its discretion, place the
accused under probation, even if the sentence
provided under this Act is higher than that provided
under existing law on probation, or impose
community service in lieu of imprisonment. In case
of probation, the supervision and rehabilitative
surveillance shall be undertaken by the Board
through the DOH in coordination with the Board of
Pardons
and
Parole
and
the
Probation
Administration. Upon compliance with the conditions
of the probation, the Board shall submit a written
report to the court recommending termination of
probation and a final discharge of the probationer,
whereupon the court shall issue such an order.
The community service shall be complied with under
conditions, time and place as may be determined by
the court in its discretion and upon the
recommendation of the Board and shall apply only to
violators of Section 15 of this Act. The completion of
the community service shall be under the supervision
and rehabilitative surveillance of the Board during
the period required by the court. Thereafter, the
Board shall render a report on the manner of
compliance of said community service. The court in
its discretion may require extension of the
community service or order a final discharge.
In both cases, the judicial records shall be covered
by the provisions of Sections 60 and 64 of this Act.
If the sentence promulgated by the court requires
imprisonment, the period spent in the Center by the
accused during the suspended sentence period shall
be deducted from the sentence to be served.
Section 71. Records to be kept by the Department
of Justice. – The DOJ shall keep a confidential
record of the proceedings on suspension of sentence
and shall not be used for any purpose other than to
determine whether or not a person accused under
this Act is a first-time minor offender.
iv. Application/Non application of RPC
provisions (Sec. 98, R.A. No. 9165) provisions
(sec. 98) cf. Art. 10, RPC
Section 98, RA 9165. Limited Applicability of the
Revised Penal Code. – 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, except
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.
Art. 10, RPC. Offenses not subject to the provisions
of this Code. — Offenses which are or in the future
may be punishable under special laws are not
subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the
CRIMINAL LAW REVIEWER
latter should specially provide the contrary.
OTHER AGGRAVATING CIRCUMSTANCE
Organized or Syndicated Crime Group (Art. 62, RPC)
Organized or syndicated crime group:
a. A group of two or more persons
b. collaborating, confederating or mutually helping
one another
c. for the purpose of gain in the commission of a
crime.
Special aggravating circumstance
The maximum penalty shall be imposed

if the offense was committed by any person

who belongs to an organized or syndicated crime
group.
E. Alternative Circumstances
(ASKED TWICE IN BAR EXAMS)
THREE TYPES of alternative circumstances:
1. Relationship
2. Intoxication
3. Degree of education/instruction
IMPORTANT POINT:
Circumstances which must be taken in consideration
as aggravating or mitigating according to the nature
and effects of the crime
1. Relationship
(BRADSS)
i.
ii.
iii.
iv.
v.
vi.
Spouse
Ascendant
Descendant
Brother
Sister
Relative by Affinity
a. Where relationship is exempting
In the case of an accessory who is related to the
principal within the relationship prescribed in Article
20;
Also in Article 247, a spouse does not incur criminal
liability for a crime of less serious physical injuries
or serious physical injuries if this was inflicted after
having surprised the offended spouse or paramour
or mistress committing actual sexual intercourse.
Those commonly given in Article 332 when the
crime of theft, malicious mischief and swindling or
estafa.
b. Where relationship is aggravating
In CRIMES AGAINST PERSONS in cases where
 the offended party is a relative of a higher
degree than the offender (grandson kills
grandfather), or

when the offender and the offended party are
relatives of the same level, as killing a brother,
a brother-in-law, a half-brother or adopted
brother.
When CRIME AGAINST PERSONS is any of the
SERIOUS PHYSICAL INJURIES (Art. 263), even if the
offended party is a descendant of the offender,
relationship is AGGRAVATING.
 But the serious physical injuries must not be
inflicted by a parent upon his child by excessive
chastisement.
When the crime is LESS SERIOUS PHYSICAL INJURIES
OR SLIGHT PHYSICAL INJURIES
 if the offended party is a relative of a higher
degree than the offender
When crime against persons is HOMICIDE OR
MURDER,
 relationship is aggravating even if the victim of
the crime is a relative of lower degree.
In CRIMES AGAINST CHASTITY,
 relationship is always aggravating
In the CRIME OF QUALIFIED SEDUCTION,
 the offended woman must be a virgin and less
than 18 years old.
 But if the offender is a brother of the offended
woman or an ascendant of the offended woman,
o regardless of whether the woman is of bad
reputation,
o even if the woman is 60 years old or more,
 crime is qualified seduction. In such a case,
relationship is qualifying.
c. Where relationship is mitigating
When the CRIME IS LESS SERIOUS PHYSICAL
INJURIES OR SLIGHT PHYSICAL INJURIES
 if the offended party is a relative of a higher
degree than the offender
When crime against persons is HOMICIDE OR
MURDER,
 relationship is aggravating even if the victim of
the crime is a relative of lower degree.
In CRIMES AGAINST CHASTITY,
 relationship is always aggravating
In the CRIME OF QUALIFIED SEDUCTION,
 the offended woman must be a virgin and less
than 18 years old.
 But if the offender is a brother of the offended
woman or an ascendant of the offended woman,
o regardless of whether the woman is of bad
reputation,
o even if the woman is 60 years old or more,
 crime is qualified seduction. In such a case,
relationship is qualifying.
When the CRIME IS LESS SERIOUS
People v. Atop (1998): 11-year-old Regina lives with
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76
her grandmother. Atop is the common-law husband
of her grandmother. Atop was found guilty of 4
counts of rape which was committed in 1993 (2x),
1994 and 1995. The lower court took into account
the Aggravating Circumstance of relationship.
Held: The law cannot be stretched to include
persons attached by common-law relations. In this
case, there is no blood relationship or legal bond
that links Atop to his victim.
People v. Marcos (2001):
In order that the alternative circumstance of
relationship may be taken into consideration in the
imposition of the proper penalty, the offended party
must either be the (a) spouse, (b) ascendant, (c)
descendant, (d) legitimate, natural or adopted
brother or sister, or (e) relative by affinity in the
same degree, of the offender.. The rule is that
relationship is aggravating in crimes against persons
as when the offender and the offended party are
relatives of the same level, such as killing a brother.
2. Intoxication
It is only the circumstance of intoxication which
a. if not mitigating,
b. is automatically aggravating.
a.
b.
When mitigating
(1) There must be an indication that
(a) because of the alcoholic intake of the
offender,
(b) he is suffering from diminished selfcontrol.
(c) It is not the quantity of alcoholic drink.
(d) Rather it is the effect of the alcohol
upon the offender which shall be the
basis of the mitigating circumstance.
(2) That offender is
(a) not a habitual drinker and
(b) did not take alcoholic drink with the
intention to reinforce his resolve to
commit crime
When Aggravating:
(1) If intoxication is habitual
(2) If it is intentional to embolden offender to
commit crime
People v. Camano (1982):
Intoxication is mitigating if accidental, not habitual
nor intentional, i.e., not subsequent to the plan to
commit the crime. It is aggravating if habitual or
intentional. To be mitigating, it must be indubitably
proved. A habitual drunkard is one given to
intoxication by excessive use of intoxicating drinks.
The habit should be actual and confirmed. It is
unnecessary that it be a matter of daily occurrence.
Intoxication lessens the individual resistance to evil
thought and undermines will-power making its victim
a potential evil doer. In this case, the intoxication of
the appellant not being habitual and considering
that the said appellant was in a state of intoxication
at the time of the commission of the felony, the
alternative circumstance of intoxication should be
considered mitigating.
3. Degree of Instruction/ Education
Refers to the lack of sufficient intelligence of and
knowledge of the full significance of one‘s act
Being illiterate does not mitigate liability if crime
committed is one which one inherently understands
as wrong (e.g. parricide)
To be considered mitigating, degree of instruction
must have some reasonable connection to the
offense.
F. Absolutory Causes
There are FOUR TYPES of absolutory circumstances:
1. INSTIGATION
2. PARDON
3. OTHER ABSOLUTORY CAUSES
4. ACTS NOT COVERED BY LAW AND IN CASE OF
EXCESSIVE PUNISHMENT (ART. 5)
IMPORTANT POINTS:
Acts not covered by law and in case of excessive
punishment (art. 5)
Absolutory causes are those where the act
committed is a crime but for reasons of public policy
and sentiment there is no penalty imposed.
1. Instigation
Entrapment
Ways and means are
resorted to for the
purpose of trapping and
capturing
the
lawbreaker
in
the
execution of his criminal
plan
The means originate
from the mind of the
criminal.
A person has planned or
is about to commit a
crime and ways and
means are resorted to
by a public officer to
trap and catch the
criminal.
Not a bar to
prosecution
conviction
of
lawbreaker.
the
and
the
Instigation
The
instigator
practically induces the
would-be accused into
the commission of the
offense and himself
becomes a co-principal.
The
law
enforcer
conceives
the
commission of the crime
and suggests to the
accused who carries it
into execution.
A public officer or a
private
detective
induces an innocent
person to commit a
crime and would arrest
him upon or after the
commission of the crime
by the latter.
The accused must be
acquitted because the
offender simply acts as
a tool of the law
enforcers
EXAMPLE OF ENTRAPMENT:
A, a government anti-narcotics agent, acted as a
poseur buyer of shabu and negotiated with B, a
suspected drug pusher who is unaware that A is a
police officer. A then paid B in marked money and
CRIMINAL LAW REVIEWER
the latter handed over a sachet of shabu. Upon
signal, the cops closed in on B
EXAMPLE OF INSTIGATION:
A, leader of an anti-narcotics team, approached and
persuaded B to act as a buyer of shabu and transact
with C, a suspected pusher. B was given marked
money to pay C for a sachet of shabu. After the sale
was consummated, the cops closed in and arrested
both B and C.
People v. Pacis (2002): Yap, an NBI agent, received
information that a Pacis was offering to sell ½ kg of
"shabu." A buy-bust operation was approved. The
informant introduced Yap to Pacis as an interested
buyer. They negotiated the sale of ½ kg of shabu.
Pacis handed to Yap a paper bag with the markings
"Yellow Cab". While examining it, Pacis asked for the
payment. Yap gave the "boodle money" to Pacis.
Upon Pacis's receipt of the payment, the officers
identified themselves as NBI agents and arrested
him.
Held: The operation that led to the arrest of
appellant was an entrapment, not instigation. In
entrapment, ways and means are resorted to for the
purpose of trapping and capturing lawbreakers in the
execution of their criminal plan. In instigation,
instigators practically induce the would-be
defendant into the commission of the offense and
become co-principals themselves. Entrapment is
sanctioned by law as a legitimate method of
apprehending criminal elements engaged in the sale
and distribution of illegal drugs.
US v. Phelps (1910): Phelps was charged and found
guilty for violating the Opium Law (Act No. 1761).
Phelps was induced by Smith, an employee of the
Bureau of Internal Revenue, into procuring opium,
providing for a venue and making arrangements for
the two of them to smoke opium.
Held: Smith not only suggested the commission of
the crime but also expressed his desire to commit
the offense in paying the amount required for the
arrangements. Such acts done by employees of
government in encouraging or inducing persons to
commit a crime in order to prosecute them are most
reprehensible.
This is an instance of instigation where Smith, the
instigator (who is either a public officer or a private
detective) practically induces the would-be accused
into the commission of the offense.
People v. Lua Chu and Uy Se Tieng (1931)
Held: Entrapment is not a case where an innocent
person is induced to commit a crime merely to
prosecute him, but it simply a trap set to catch a
criminal.
Entrapment - Entrapping persons into crime for the
purpose of instituting criminal prosecutions. It is a
scheme or technique ensuring the apprehension of
the criminals by being in the actual crime scene.
The law officers shall not be guilty to the crime if
they have done the following:
a. He does not induce a person to commit a crime
for personal gain or is not involved in the
planning of the crime.
b. Does take the necessary steps to seize the
instrument of the crime and to arrest the
offenders before he obtained the profits in
mind.
Instigation - The involvement of a law officer in the
crime itself in the following manner:
a. He induces a person to commit a crime for
personal gain.
b. Doesn‘t take the necessary steps to seize the
instrument of the crime & to arrest the
offenders before he obtained the profits in
mind.
c. He obtained the profits in mind even through
afterwards does take the necessary steps seize
the instrument of the crime and to arrest the
offenders.
2. Pardon
General rule: Pardon does not extinguish criminal
action (Art 23).
Exception: Pardon by marriage between the accused
and the offended party in cases of SEDUCTION,
ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS (Art
344).
3. Other Absolutory Causes
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
Spontaneous desistance
Light felonies not consummated
Accessories in light felonies
Accessories exempt under Article 20
Trespass to dwelling to prevent serious
harm to self
exemption from criminal liability in crimes
against property
Under Article 332, exemptions from
criminal liability for cases of theft,
swindling and malicious mischief. There
would only be civil liability.
Death under exceptional circumstances
(Art. 247)
Under Article 219, discovering secrets
through seizure of correspondence of the
ward by their guardian is not penalized.
Ways on how criminal liability is
extinguished under Art 89.
4. Acts Not Covered By Law And In
Case Of Excessive Punishment
Article 5 covers two situations:
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a.
78
b.
The court cannot convict the accused because
the acts do not constitute a crime. The proper
judgment is acquittal, but the court is
mandated to report to the Chief Executive that
said act be made subject of penal legislation
and why.
Where the court finds the penalty prescribed for
the crime too harsh considering the conditions
surrounding the commission of the crime, the
judge should impose the law the judge should
impose the law. The most that he could do is
recommend to the Chief Executive to grant
executive clemency.
People v. Veneracion (1995):
Held: The law plainly and unequivocally provides
that ―when by reason or on the occasion of rape, a
homicide is committed, the penalty shall be death.
Courts are not concerned with wisdom, efficacy or
morality of law. The discomfort faced by those
forced by law to impose death penalty is an ancient
one, but it is a matter upon which judges have no
choice. The Rules of Court mandates that after an
adjudication of guilt, the judges should impose the
proper penalty and civil liability provided for by the
law on the accused.
EXTENUATING CIRCUMSTANCES
Circumstances which mitigate the criminal liability
of the offender but not found in Article 13
Illustration:
A kleptomaniac is criminally liable. But he would be
given the benefit of a mitigating circumstance
analogous to paragraph 9 of Article 13, that of
suffering from an illness which diminishes the
exercise of his will poser without, however,
depriving him of the consciousness of his act.
An
unwed mother killed her child in order to conceal a
dishonor. The concealment of dishonor is an
extenuating circumstance insofar as the unwed
mother or the maternal grandparents are concerned,
but not insofar as the father of the child is
concerned. Mother killing her new born child to
conceal her dishonor, penalty is lowered by two
degrees. Since there is a material lowering of the
penalty or mitigating the penalty, this is an
extenuating circumstance.
CHAPTER IV. PERSONS
CRIMINALLY LIABLE/DEGREE OF
PARTICIPATION
Including
A.
DECREE
PENALIZING
OBSTRUCTION
OF
APPREHENSION AND PROSECUTION OF CRIMINAL
OFFENDERS (P.D. 1829)
Under the Revised Penal Code, when more than one
person participated in the commission of the crime,
the law looks into their participation because in
punishing offenders, the Revised Penal Code
classifies them as:
A.
B.
C.
PRINCIPAL
ACCOMPLICE
ACCESSORY
This classification is true only under the RPC and is
not applied under special laws, because the
penalties under the latter are never graduated.
Do not use the term ―principal‖ when the crime
committed is a violation of special law (use the term
―offender/s, culprit/s, accused)
As to the liability of the participants in the grave,
less grave or light felony:

When the felony is grave, or less grave, all
participants are criminally liable.

But when the felony is only light, only the
principal and the accomplice are liable. The
accessory is not.

Therefore, it is only when the light felony is
against persons or property that criminal
liability attaches to the principal or accomplice,
even though the felony is only attempted or
frustrated, but accessories are not liable for
light felonies.
A. Principal
1.
2.
3.
By Direct Participation
By Inducement
By Indispensable Cooperation
1. By Direct Participation
Those who are liable:

materially execute the crime;

appear at the scene of the crime;

perform acts necessary in the commission of the
offense.
Why one who does not appear at the scene of the
crime is not liable:

his non-appearance is deemed desistance which
is favored and encouraged.

conspiracy is generally not a crime unless the
law specifically provides a penalty therefore.

there is no basis for criminal liability because
there is no criminal participation.
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2. By Inducement
Inducement must be strong enough that the person
induced could not resist.

This is tantamount to an irresistible force
compelling the person induced to carry out the
crime.

Ill-advised language is not enough unless he who
made such remark or advice is a co-conspirator
in the crime committed.
When does a principal by induction become liable:

The principal by induction becomes liable only
when the principal by direct participation
committed the act induced.
What are the effects of acquittal of principal by
direct participation upon the liability of principal by
inducement:

Conspiracy is negated by the acquittal of codefendant.
Illustrations:
a. While in the course of a quarrel, a person
shouted to A, ―Kill him! Kill him!‖ A killed the
other person. Is the person who shouted
criminally liable? Is that inducement? No. The
shouting must be an irresistible force for the
one shouting to be liable.
b. There was a quarrel between two families. One
of the sons of family A came out with a shotgun.
His mother then shouted, ―Shoot!‖ He shot and
killed someone. Is the mother liable? No.
People v. Valderrama (1993):
Ernesto shouted to his younger brother Oscar,
―Birahin mo na, birahin mo na!‖ Oscar stabbed the
victim.
It was held that there was no conspiracy.
Joint or simultaneous action per se is not indicia of
conspiracy without showing of common design. Oscar has
no rancor with the victim for him to kill the latter.
Considering that Ernesto had great moral ascendancy and
influence over Oscar, being much older (35 years old)
than the latter, who was 18 years old, and it was Ernesto
who provided his allowance, clothing as well as food and
shelter,
Ernesto is principal by inducement.
People v. Agapinay (1990):
The one who uttered ―kill him, we will bury him‖
while the felonious aggression was taking place
cannot be held liable as principal by inducement.
Utterance was said in the excitement of the hour,
not a command to be obeyed.
People v. Madall (1990):
The son was mauled.
The family was not in good terms with their
neighbors.
The father challenged everybody and when the
neighbors approached, he went home to get a rifle.
The shouts of his wife ―here comes another, shoot
him‖ cannot make the wife a principal by
inducement.
It is not the determining cause of the crime in the
absence of proof that the words had great influence
over the husband.
Neither is the wife‘s act of beaming the victim with
a flashlight indispensable to the killing. She assisted
her husband in taking good aim, but such assistance
merely facilitated the felonious act of shooting.
Considering that it was not so dark and the husband
could have accomplished the deed without his wife‘s
help, and considering further that doubts must be
resolved in favor of the accused, the liability of the
wife is only that of an accomplice.
3. By Indispensable Cooperation
The focus is not just on participation but on the
importance of participation in committing the crime.
The basis is the importance of the cooperation to
the consummation of the crime.

If the crime could hardly be committed without
such cooperation, then such cooperator would
be a principal.

If the cooperation merely facilitated or
hastened the consummation of the crime, the
cooperator is merely an accomplice.
In case of doubt, favor the lesser penalty or liability.
Apply the doctrine of pro reo.
B. Accomplices
When is one regarded as an accomplice

Determine if there is a conspiracy.

If there is, as a general rule, the criminal
liability of all will be the same, because the act
of one is the act of all.
What are the other traits of an accomplice

does not have previous agreement or
understanding; or

is not in conspiracy with the principal by direct
participation.
Conspirator
They know of and join
in the criminal design
Conspirators know the
criminal
intention
because
they
themselves
have
Accomplice
They know and agree
with
the
criminal
design
Accomplices come to
know about it after the
principals have reached
the decision and only
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decided
upon
course of action
such
80
Conspirators
decide
that a crime should be
committed
Conspirators are
authors of a crime
the
then do they agree to
cooperate
in
its
execution
Accomplices
merely
assent to the plan and
cooperate
in
its
accomplishment
Accomplices are merely
instruments
who
perform
acts
not
essential
to
the
perpetration of the
offense.
Requisites

That there be community of design; that is,
knowing the criminal design of the principal by
direct participation, he concurs with the latter
in his purpose;

That he cooperates in the execution of the
offense by previous or simultaneous acts, with
the intention of supplying material or moral aid
in the execution of the crime in an efficacious
way; and

That there be a relation between the acts done
by the principal and those attributed to the
person charged as accomplice.
Principal
by
Cooperation
Cooperation
is
indispensable to the
commission of the act
Accomplice
Cooperation
is
not
indispensable to the
commission of the act
C. Accessories
1. When
accessories
criminally liable:
1.
2.
are
not
When the felony committed is a light felony
When the accessory is related to the principal as
i. spouse
ii. ascendant, or descendant, or
iii. brother or sister whether legitimate, or
natural or adopted or
iv. where the accessory is a relative by affinity
within the same degree,

unless the accessory himself profited
from the effects or proceeds of the
crime or assisted the offender to profit
therefrom.
2. When one cannot be an accessory:


he does not know the commission of the crime
he participated in the crime as a principal or an
accomplice
3. When an accessory is exempt from
criminal liability:
(ASKED 4 TIMES IN THE BAR EXAMS)
When the principal is his:

spouse,

ascendant

descendant

legitimate, natural or adopted brother, sister or
relative by affinity within the same degree.
Note: Even if only two of the principals guilty of
murder are the brothers of the accessory and the
others are not related to him, such accessory is
exempt from criminal liability.
4. When an accessory is NOT exempt
from criminal liability even if the
principal is related to him:

If such accessory
o profited from the effects of the crime, or
o assisted the offender to profit by the
effects of the crime
5. Other
instances
when
becomes an accessory:
one
1.
2.
3.
4.
5.
accessory as a fence
acquiring the effects of piracy or brigandage
destroying the corpus delicti
harboring or concealing an offender
whether the accomplice and the accessory may
be tried and convicted even before the principal
is found guilty
1.
Accessory as a fence:
Presidential Decree No. 1612 (Anti-Fencing Law)
One who knowingly profits or assists the principal to
profit by the effects of robbery or theft (i.e. a
fence) is not just an accessory to the crime, but
principally liable for fencing
The penalty is higher than that of a mere accessory
to the crime of robbery or theft.
Mere possession of any article of value which has
been the subject of robbery or theft brings about the
presumption of ―fencing‖.
PD 1612 has, therefore, modified Art. 19 of the RPC.
2.
Acquiring the effects of piracy or brigandage:
Presidential Decree 532 (Anti-piracy and Highway
Robbery law of 1974)
If the crime was piracy or brigandage under PD 532,
said act constitutes the crime of abetting piracy or
abetting brigandage as the case may be, although
the penalty is that of an accomplice, not just an
accessory, to the piracy or the brigandage.
Section 4 of PD 532 provides that any person who
knowingly and in any manner acquires or receives
property taken by such pirates or brigands or in any
manner derives benefit therefrom, shall be
considered as an accomplice of the principal
offenders in accordance with the Rules prescribed by
the Revised Penal Code.
It shall be presumed that any person who does any
acts provided in this section has performed them
knowingly, unless the contrary is proven.
CRIMINAL LAW REVIEWER
Although Republic Act 7659, in amending Article 122
of the RPC, incorporated therein the crime of piracy
in
Philippine
territorial
waters
and
thus
correspondingly superseding PD 532 section 4 of said
Decree, which punishes said acts as a crime of
abetting piracy or brigandage, still stands as it has
not been replaced or modified, and is not
inconsistent with any provision of RA 7659.
3. Destroying the Corpus Delicti
When the crime is robbery or theft, with respect to
the third involvement of the accessory, do not
overlook the purpose which must be to prevent
discovery of the crime.
The corpus delicti is not the body of the person who
is killed.

Even if the corpse is not recovered, as long as
that killing is established beyond reasonable
doubt, criminal liability will arise.

If there is someone who destroys the corpus
delicti to prevent discovery, he becomes an
accessory.
4. Harboring or Concealing an Offender
In the fourth form or manner of becoming an
accessory, take note that the law distinguishes
between:

a public officer harboring, concealing or
assisting the principal to escape, and

a private citizen or civilian harboring,
concealing or assisting the principal to escape.
Public Officer
The nature of the crime
is immaterial
What is material is that
he used his public
function in assisting the
escape
Civilian
The nature of the crime
is material
For him to become an
accessory, the principal
must have committed
the crime of treason,
parricide, murder or
attempt on the life of
the Chief Executive
Illustration:
a. Crime committed is kidnapping for ransom of his
employer. Principal was being chased by police.
b. His aunt hid him in the ceiling of her house and
she told the soldiers that her nephew had never
visited her. When the soldiers left, the aunt
even gave money to her nephew for the latter
to go to the province.
c. Is the aunt criminally liable? No. Article 20 does
not include an aunt. However, this is not the
reason.
d. The principal must have committed either
treason, parricide, murder, or attempt on the
life of the Chief Executive, or that the principal
is known to be habitually guilty of some other
crime,
e. for a person who is not a public officer and who
assists an offender to escape or otherwise
harbors, or conceals such offender, to be
criminally liable.
f.
In this case,
kidnapping.
the

In the preceding illustration, the aunt is not
criminally liable under the Revised Penal Code
because the crime is kidnapping, but she can be
held liable under PD 1829.
Revised Penal Code
Specifies the crimes
that
should
be
committed in case a
civilian aids in the
escape
The offender is the
principal or must be
convicted of the crime
charged
The one who harbored
or
concealed
an
offender is still an
accessory
5.
crime
committed
was
PD 1829 (Also Known
as the Law Penalizing
―Obstruction
of
Justice‖)
No specification of the
crime to be committed
by the offender in
order that criminal
liability be incurred
The offender need not
even be the principal or
need not be convicted
of the crime charged
An offender of any
crime is no longer an
accessory but is simply
an offender without
regard to the crime of
the person assisted to
escape
Whether the accomplice and the accessory
may be tried and convicted even before the
principal is found guilty
There is an earlier Supreme Court ruling that the
accessory and accomplice must be charged together
with the principal; if the latter is acquitted, the
accomplice and the accessory shall not be criminally
liable, unless the acquittal is based on a defense
which is personal only to the principal.

However, it is not always true that the
accomplice and the accessory cannot be
criminally liable without the principal being first
convicted.

Under Rule 110 of the Revised Rules on Criminal
Procedure, it is required that all those involved
in the commission of the crime must be included
in the information that may be filed.
The liability of the accused will depend on the
quantum of evidence adduced by the prosecution
against the particular accused but the prosecution
must initiate the proceedings against the principal.
Even if the principal is convicted, if the evidence
presented against a supposed accomplice or
accessory does not meet the required proof beyond
reasonable doubt, then said accused will be
acquitted.
So the criminal liability of an accomplice or
accessory does not depend on the criminal liability
of the principal but depends on the quantum of
evidence.
81
CRIMINAL LAW REVIEWER
82
But if the evidence shows that the act done does not
constitute a crime and the principal is acquitted,
then the supposed accomplice and accessory should
also be acquitted.
If there is no crime, then there is no criminal
liability, whether principal, accomplice or accessory.
Taer v. CA (1990):
Accused received from his co-accused two stolen
male carabaos. Conspiracy was not proven. Taer was
held liable as an accessory in the crime of cattlerustling under PD 533. Taer should have been liable
as principal for violation of the Anti-Fencing Law
since cattle-rustling is a form of theft or robbery of
large cattle, except that he was not charged with
fencing.
Enrile v. Amin (1990): A person charged with
rebellion should not be separately charged under PD
1829. The theory of absorption must not confine
itself to common crimes but also to offenses
punished under special laws which are perpetrated
in furtherance of the political offense.
Decree
Penalizing
Obstruction
Apprehension
and
Prosecution
Criminal Offenders (P.D. 1829)
of
of
What is imposed:

Prision correccional in its maximum period, or

Fine ranging from PhP 1,000 – 6,000, or

Both
Upon any person who knowingly or willfully
obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and
prosecution of criminal cases through the acts
enumerated in Sec. 1
i. Punishable acts (Sec. 1)
a)
b)
c)
d)
Preventing witnesses from testifying in any
criminal proceeding or from reporting the
commission of any offense or the identity of any
offender/s
by
means
of
bribery,
misrepresentation, deceit, intimidation, force or
threats;
Altering, destroying, suppressing or concealing
any paper, record, document, or object with
intent to impair its veracity, authenticity,
legibility, availability, or admissibility as
evidence in any investigation of or official
proceedings in criminal cases, or to be used in
the investigation of, or official proceedings in,
criminal cases;
Harboring or concealing, or facilitating the
escape of, any persons he knows, or has
reasonable ground to believe or suspect, has
committed any offense under existing penal
laws in order to prevent his arrest, prosecution
and conviction;
Publicly using a fictitious name for the purpose
of concealing a crime, evading prosecution or
the execution of a judgment, or concealing his
e)
f)
g)
h)
i)
true name and other personal circumstances for
the same purpose or purposes;
Delaying the prosecution of criminal cases by
obstructing the service of process or court
orders or disturbing proceedings in the fiscals‘
offices, in Tanodbayan, or in the courts;
Making, presenting or using any record,
document, paper or object with knowledge of
its falsity and with intent to affect the course or
outcome of the investigation of, or official
proceedings in criminal cases;
Soliciting, accepting, or agreeing to accept any
benefit in consideration of abstaining from,
discontinuing, or impeding the prosecution of a
criminal offender;
Threatening directly or indirectly another with
the infliction of any wrong upon his person,
honor or property or that of any immediate
member or members of his family in order to
prevent such person from appearing in the
investigation of, or official proceedings in,
criminal cases, or imposing a condition, whether
lawful or unlawful, in order to prevent a person
from appearing in the investigation of, or in
official proceedings in criminal cases;
Giving a false or fabricated information to
mislead or prevent the law enforcement
agencies from apprehending the offender or
from protecting the life or property of the
victim; or fabricating information from the data
gathered in confidence by investigating
authorities for purposes of background
information and not for publication and
publishing or disseminating the same to mislead
the investigator or the court.
ii. Compare with Article 20, RPC (accessories
exempt from criminal liability)
Art. 20. Accessories who are exempt from criminal
liability – 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 paragraph 1 of the
next preceding article.
Ground for exemption under Art. 20
Based on ties of blood and the preservation of the
cleanliness of one‘s name, which compels one to
conceal crimes committed by relatives so near as
those mentioned.
Accessory is not exempt from criminal liability even
if the principal is related to him if he
a) profited by the effects of the crime, or
b) assisted the offender to profit by the effect of
the crime.
The punishable acts in PD 1829, compared to RPC
Art. 20, are prompted by a detestable greed, not by
affection.
CRIMINAL LAW REVIEWER
CHAPTER V. PENALTIES
A.
B.
C.
GENERAL PRINCIPLES
PENALTIES WHICH MAY BE IMPOSED
SPECIFIC
PRINCIPAL
AND
ACCESSORY
PENALTIES
D. ACCESSORY PENALTIES
E. MEASURES NOT CONSIDERED PENALTY
F. APPLICATION
AND
COMPUTATION
OF
PENALTIES
G. SPECIAL RULES FOR CERTAIN SITUATIONS
H. EXECUTION AND SERVICE OF PENALTIES.
PENALTY is the suffering that is inflicted by the
State for the transgression of a law.
Different Juridical Conditions of Penalty:
1. Must be PRODUCTIVE OF SUFFERING, without
affecting the integrity of the human personality.
2. Must be COMMENSURATE to the offense –
different crimes must be punished with
different penalties.
3. Must be PERSONAL – no one should be punished
for the crime of another.
4. Must be LEGAL – it is the consequence of a
judgment according to law.
5. Must be CERTAIN – no one may escape its
effects.
6. Must be EQUAL for all.
7. Must be CORRECTIONAL.
Theories justifying penalty:
1. PREVENTION – to suppress danger to the State
2. SELF-DEFENSE – to protect the society from the
threat and wrong inflicted by the criminal.
3. REFORMATION – to correct and reform the
offender.
4. EXEMPLARITY – to serve as an example to deter
others from committing crimes.
5. JUSTICE – for retributive justice, a vindication of
absolute right and moral law violated by the
criminal.
A. General Principles
Art. 21. Penalties that may be imposed. — No
felony shall be punishable by any penalty not
prescribed by law prior to its commission.
This article prohibits the Government from punishing
any person for any felony with any penalty which has
not been prescribed by the law.
It has no application to any of the provisions of the
RPC for the reason that for every felony defined in
the Code, a penalty has been prescribed.
REASON: An act or omission cannot be punished by
the State if at the time it was committed there was
no law prohibiting it, because a law cannot be
rationally obeyed unless it is first shown, and a man
cannot be expected to obey an order that has not
been given.
Act Prohibiting the Imposition of Death
Penalty in the Philippines (R.A. 9346)
RA 9346 or ―An Act Prohibiting the Imposition of
Death Penalty in the Philippines‖
Expressly repealed RA 8177 or ―Act Designating
Death by Lethal Injection‖ and RA 7659 or ―Death
Penalty Law‖
RA 9346 repealed all the other laws imposing death
penalty.

Section 2 states that: ―In lieu of the death
penalty, the following shall be imposed:
a. the penalty of reclusion perpetua, when the
law violated makes use of the nomenclature
of the penalties of the Revised Penal Code;
or
b. the penalty of life imprisonment, when the
law violated does not make use of the
nomenclature of the penalties of the
Revised Penal Code.‖
People v. Bon (2006): Yet in truth, there is no
material difference between ―imposition‖ and
―application,‖ for both terms embody the operation
in law of the death penalty.
Since Article 71 denominates ―death‖ as an element
in the graduated scale of penalties, there is no
question that the operation of Article 71 involves the
actual application of the death penalty as a means
of determining the extent which a person‘s liberty is
to be deprived.
Since Rep. Act No. 9346 unequivocally bars the
application of the death penalty, as well as expressly
repeals all such statutory provisions requiring the
application of the death penalty, such effect
necessarily extends to its relevance to the graduated
scale of penalties under Article 71.
The court cannot find basis to conclude that Rep.
Act No. 9346 intended to retain the operative
effects of the death penalty in the graduation of the
other penalties in our penal laws.
Munoz cannot enjoin us to adopt such conclusion.
Rep. Act No. 9346 is not swaddled in the same
restraints appreciated by Muñoz on Section 19(1),
Article III.
The very Congress empowered by the Constitution to
reinstate the imposition of the death penalty once
thought it best to do so, through Rep. Act No. 7650.
Within the same realm of constitutional discretion,
Congress has reversed itself.
It must be asserted that today, the legal status of
the suppression of the death penalty in the
Philippines has never been more secure than at any
time in our political history as a nation.
83
CRIMINAL LAW REVIEWER
84
1. Purposes
Purpose of penalty under the RPC:
1. RETRIBUTION OR EXPIATION – the penalty is
commensurate with the gravity of the offense.
It permits society to exact proportionate
revenge, and the offender to atone for his
wrongs.
2. CORRECTION OR REFORMATION – as shown by
the rules which regulate the execution of the
penalties consisting in deprivation of liberty.
3. SOCIAL DEFENSE – shown by its inflexible
severity to recidivist and habitual delinquents.
2. Classification
1. Major Classification
(Asked 3 times in the Bar Exams)
a.
b.
c.
PRINCIPAL PENALTIES – those expressly imposed
by the court in the judgment of conviction.
ACCESSORY PENALTIES – those that are deemed
included in the imposition of the principal
penalties.
SUBSIDIARY PENALTIES – those imposed in lieu
of principal penalties, i.e., imprisonment in
case of inability to pay the fine.
Note: Public censure is a penalty,

Thus, it is not proper in acquittal.

However, the Court in acquitting the accused
may criticize his acts or conduct.
Penalties that are either principal or accessory:

Perpetual
or
temporary
absolute
disqualification,

Perpetual or temporary special disqualification,
and

Suspension
o May be principal or accessory penalties,
because they are formed in the 2 general
classes. (Asked 3 times in the Bar Exams)
c. According to their gravity
(1) Capital
(2) Afflictive
(3) Correctional
(4) Light
3. Duration and Effect
Art. 22. Retroactive effect of penal laws. — Penal
Laws shall have a retroactive effect insofar as they
favor the persons guilty of a felony, who is not a
habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been
pronounced and the convict is serving the same.
This article states that Penal Laws shall only have
retroactive effect if it favors persons guilty of
felonies, who are not considered habitual criminals
as defined in Article 62.
Art. 23. Effect of pardon by the offended party.
— A pardon of the offended party does not
extinguish criminal action except as provided in
Article 344 of this Code; but civil liability with
regard to the interest of the injured party is
extinguished by his express waiver.
This article states the extent of a pardon made by
the offended party. Under this article, a pardon does
not extinguish the criminal liability of an offender
except for cases under Article 344 (Prosecution of
the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness).
But the civil liability with regard to the interest of
the injured party is extinguished.
Art. 25. Penalties which may be imposed.
The penalties which may be imposed according to
this Code, and their different classes, are those
included in the following:
2. Other Classifications of Penalties
a. According to their divisibility:
(1) Divisible
(a) those that have fixed duration
(b) divisible into three periods.
(2) Indivisible
(a) those which have no fixed duration:
(b) Death
(c) Reclusion perpetua
(d) Perpetual
absolute
or
special
disqualification
(e) Public censure
b. According to subject-matter
(1) Corporal (death)
(2) Deprivation of freedom (reclusion, prision,
arresto)
(3) Restriction of freedom (destierro)
(4) Deprivation of rights (disqualification and
suspension)
(5) Pecuniary (fine)
B. Penalties which may be
imposed
1. Scale of Principal Penalties
a.
b.
c.
Capital punishment: (D)
(1) Death.
Afflictive penalties: (RP, RT, PAD, TAD, PSD,
TSD, PM)
(1) Reclusion perpetua,
(2) Reclusion temporal,
(3) Perpetual or temporary absolute
disqualification,
(4) Perpetual
or
temporary
special
disqualification,
(5) Prision mayor.
Correctional penalties: (PC, AM, S, Des)
(1) Prision correccional,
(2) Arresto mayor,
(3) Suspension,
CRIMINAL LAW REVIEWER
d.
e.
(4) Destierro.
Light penalties: (Am, Pc)
(1) Arresto menor,
(2) Public censure.
Penalties common to the three preceding
classes: (F, Bond)
(1) Fine, and
(2) Bond
to
keep
the
peace.
2. Scale of Accessory Penalties
(PAD, TAD, PSD, TSD, S, CI, I, F,
Pay)
a.
b.
c.
d.
e.
f.
Perpetual
or
temporary
absolute
disqualification,
Perpetual or temporary special disqualification,
Suspension from public office, the right to vote
and be voted for, the profession or calling.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and
proceeds of the offense,
PENALTY
DURATION
Death
(REPEALED)
Death,
when
not
executed due to pardon
or commutation
(REPEALED)
Reclusion perpetua
g.
Payment of costs
LIFE IMPRISONMENT
Imposed
for
serious
offenses penalized by
special laws
Does not carry with it
accessory penalties
Does not appear to have
any definite extent or
duration
RECLUSION PERPETUA
Prescribed
RPC
under
the
Carries with it accessory
penalties
Entails imprisonment for
at least 30 years after
which
the
convict
becomes eligible for
pardon although the
maximum period shall in
no case exceed 40 years
The following table also contains DISQUALIFICATION
as an afflictive penalty, because its different forms
can also be imposed as a principal although it is
primarily categorized as an accessory penalty.
EFFECTS
ACCESSORIES
Indivisible
(1) PAD
(2) Civil interdiction 30
yrs from sentence
20 years & 1 day
to
40
years
(Indivisible)
(1) PAD
(2) Civil interdiction for
life
(1) Deprivation
of
public
office, even if by election
(2) Deprivation of right to vote
& be voted for
(3) Disqualification from public
office held
(4) Loss of retirement rights
(1) Deprivation
of
office,
employment, profession, or
calling affected
(2) Disqualification
from
similar
offices
or
employments
Perpetual
absolute
disqualification (PAD)
For life
Perpetual
special
disqualification (PSD)
For life
Reclusion temporal
12 years & 1 day
to 20 years
(1) PAD
(2) Civil interdiction for
duration of sentence
Prision mayor
6 years & 1 day
to 12 years
(1) TAD
(2) PSD of suffrage
Temporary
disqualification
(TAD)
absolute
Temporary
disqualification
(TSD)
special
6 years & 1 day
to 12 years
6 years & 1 day
to 12 years
(1) Deprivation
of
public
office, even if by election
(2) Deprivation of right to vote
& be voted for during
sentence
(3) Disqualification from public
office held during sentence
(4) Loss of retirement rights
(1) Deprivation
of
office,
employment, profession, or
calling affected
(2) Disqualification
from
85
CRIMINAL LAW REVIEWER
PENALTY
DURATION
EFFECTS
ACCESSORIES
similar
offices
employments
86
C. Specific Principal And
Accessory Penalties
People v. Gatward (1997):
Held:
As amended by RA 7659, the penalty of reclusion
perpetua is now accorded a defined duration ranging
from 20 years and 1 day to 40 years.
1. Afflictive penalties
Art. 27.
a. Reclusion perpetua.
Any person sentenced to any of the perpetual
penalties shall be pardoned after undergoing the
penalty for thirty years, unless such person by
reason of his conduct or some other serious cause
shall be considered by the Chief Executive as
unworthy of pardon.
b. Reclusion temporal.
The penalty of reclusion temporal shall be from
twelve years and one day to twenty years.
c. Prision mayor and temporary disqualification.
The duration of the penalties of prision mayor and
temporary disqualification shall be from six years
and one day to twelve years, except when the
penalty of disqualification is imposed as an accessory
penalty, in which case its duration shall be that of
the principal penalty.
Art. 41. Reclusion perpetua and
temporal; Their accessory penalties:
or
reclusion
The penalties of reclusion perpetua and reclusion
temporal shall carry with them that of civil
interdiction for life or during the period of the
sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall
suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly
remitted in the pardon.
Art. 42. Prision mayor; Its accessory penalties:
The penalty of prision mayor, shall carry with it that
of temporary absolute disqualification and that of
perpetual special disqualification from the right of
suffrage which the offender shall suffer although
pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the
pardon.
1. Reclusion Perpetua
Duration: 20 years and 1 day to 40 years
Accessory Penalties:
(1) Civil interdiction for life or during the period of
the sentence as the case may be.
(2) Perpetual Absolute Disqualification which the
offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have
been expressly remitted in the pardon.
The Court held that in spite of the amendment
putting the duration of RP, it should remain as an
indivisible penalty since there was never intent on
the part of Congress to reclassify it into a divisible
penalty.
The maximum duration of reclusion perpetua is not
and has never been 30 years which is merely the
number of years which the convict must serve in
order to be eligible for pardon or for the application
of the 3-fold rule (infra).
People v. Ramirez (2001):
The SC disagrees with the trial court in sentencing
appellant "to suffer imprisonment of forty (40) years
reclusion perpetua."
There was no justification or need for the trial court
to specify the length of imprisonment, because
reclusion perpetua is an indivisible penalty.
The significance of this fundamental principle was
laid down by the Court in People v. Diquit. "Since
reclusion perpetua is an indivisible penalty, it has no
minimum, medium or maximum periods.
It is imposed in its entirety regardless of any
mitigating or aggravating circumstances that may
have attended the commission of the crime. (Art.
63, Revised Penal Code)
Reclusion Perpetua is imprisonment for life but the
person sentenced to suffer it shall be pardoned after
undergoing the penalty for thirty (30) years, unless
by reason of his conduct or some other serious
cause, he shall be considered by the Chief Executive
as unworthy of pardon (Art. 27, Revised Penal
Code)."
Distinguished from Life Imprisonment
(ASKED 5 TIMES IN THE BAR EXAMS)
People v. Ballabare (1996):
The trial court erred in imposing the penalty of life
imprisonment for violation of PD 1866.
The crime of illegal possession of firearm in its
aggravated form is punished by the penalty of death.
Since the offense was committed on Sep. 16, 1990,
at a time when the imposition of the death penalty
was prohibited, the penalty next lower in degree
CRIMINAL LAW REVIEWER
which is reclusion perpetua should be imposed.
2)
This is not equivalent to life imprisonment.

While life imprisonment may appear to be the
English translation of reclusion perpetua, in reality,
it goes deeper than that.

2. Reclusion Temporal
Duration: 12 years and 1 day to 20 years
Accessory Penalties:
(1) Civil interdiction for life or during the period of
the sentence as the case may be.
(2) Perpetual Absolute Disqualification which the
offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have
been expressly remitted in the pardon.
3)

4)



3. Prision mayor
Duration: 6 years and 1 day to 12 years
Accessory Penalties:
(1) Temporary Absolute Disqualification
(2) Perpetual Special Disqualification from the right
to suffrage which the offender shall suffer
although pardoned as to the principal penalty
unless the same shall have been expressly
remitted in the pardon.
1. Correctional penalties
Art. 27 (4). Prision correccional, suspension, and
destierro.
1) The duration of the penalties of prision
correccional, suspension and destierro
2) shall be from six months and one day to six
years,
3) except when suspension is imposed as an
accessory penalty,
4) in which case, its duration shall be that of the
principal penalty.
Arresto mayor.
The duration of the penalty of arresto mayor shall be
from one month and one day to six months.
Art. 39. Subsidiary penalty.
If the convict has no property with which to meet
the fine mentioned in the paragraph 3 of the next
preceding article, he shall be subject to a subsidiary
personal liability at the rate of one day for each
eight pesos, subject to the following rules:
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.
5)

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.
When the principal imposed is higher than
prision correccional,
no subsidiary imprisonment shall be imposed
upon the culprit.
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.
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. (As amended by RA 5465, April
21, 1969).
(Asked 2 times in the Bar Exams)
Art. 43. Prision correccional; Its accessory
penalties.
The penalty of prision correccional shall carry with it
that of suspension from public office, from the right
to follow a profession or calling, and that of
perpetual special disqualification from the right of
suffrage, if the duration of said imprisonment shall
exceed eighteen months.
The offender shall suffer the disqualification
provided in the article although pardoned as to the
principal penalty, unless the same shall have been
expressly remitted in the pardon.
Art. 44. Arresto; Its accessory penalties.
The penalty of arresto shall carry with it that of
suspension of the right to hold office and the right of
suffrage during the term of the sentence.
1. Prision Correccional
Duration: 6 months and 1 day to 6 years
Accessory Penalties:
(1) Suspension from public office
(2) Suspension from the right to follow a profession
or calling
(3) Perpetual Special Disqualification for the right
of suffrage, if the duration of the imprisonment
shall exceed 18 months
2. Arresto Mayor
Duration: 1 month and 1 day to 6 months
Accessory Penalties:
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CRIMINAL LAW REVIEWER
(1) Suspension of right to hold office
(2) Suspension of the right of suffrage during the
term of the sentence.
88
PENALTY
DURATION
EFFECTS
ACCESSORIES
(1) Suspension from public office
(2) Suspension from profession or
calling
(3) PSD of suffrage, if the
duration
of
imprisonment
exceeds 18 mos.
Prision
correccional
6 months & 1 day
to 6 years
Suspension
6 months & 1 day
to 6 years
(1) Public office
(2) Profession or calling
(3) Suffrage
Destierro
6 months & 1 day
to 6 years
Prohibition to enter w/in 25250 km radius from the
designated place
Arresto mayor
1 month & 1 day
to 6 months
(1) Suspension of right to hold
office
(2) Suspension of the right of
suffrage
CRIMINAL LAW REVIEWER
3. Light penalties
Art. 27 (6). Arresto menor.
The duration of the penalty of arresto menor shall
be from one day to thirty days.
Art. 39. Subsidiary penalty. If the convict has no
property with which to meet the fine mentioned in
the paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal liability at
the rate of one day for each eight pesos, subject to
the following rules:
6)



7)


8)

9)



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.
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.
When the principal imposed is higher than
prision correccional,
no subsidiary imprisonment shall be imposed
upon the culprit.
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.
10) 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. (As amended by RA 5465, April
21, 1969).
Art. 44. Arresto; Its accessory penalties.
The penalty of arresto shall carry with it that of
suspension of the right too hold office and the right
of suffrage during the term of the sentence.
1. Arresto Menor
Duration: 1 day to 30 days
Accessory Penalties:
(1) Suspension of right to hold office
(2) Suspension of the right of suffrage during the
term of the sentence.
2. Public Censure
Censure, being a penalty is not proper in acquittal.
4. Penalties common to afflictive,
correctional, and light penalties
1. Fine
Art. 26. When afflictive, correctional, or light
penalty.
1) A fine, whether imposed as a single or as an
alternative penalty,
2) shall be considered an afflictive penalty, if it
exceeds 6,000 pesos;
3) a correctional penalty, if it does not exceed
6,000 pesos but is not less than 200 pesos;
4) and a light penalty if it less than 200 pesos.
This article merely classifies fine and has nothing to
do with the definition of light felony.
Fine is:

Afflictive –more thanP6,000

Correctional – P200 to P6,000

Light Penalty – less than P200
Art. 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.
The court can fix any amount of the fine within the
limits established by law.
The court must consider:

The mitigating and aggravating circumstances;
and

More particularly, the wealth or means of the
culprit.
When the law does not fix the minimum of the
fine,

the determination of the amount of the fine to
be imposed upon the culprit

is left to the sound discretion of the court,

provided it shall not exceed the maximum
authorized by law.
Fines are not divided into 3 equal portions.
2. Bond to Keep the Peace
Art. 35. Effects of bond to keep the peace. —
It shall be the duty of any person sentenced to give
bond to keep the peace,
to present two sufficient sureties who shall
undertake that such person will not commit the
offense sought to be prevented,
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CRIMINAL LAW REVIEWER
1.
90
and that in case such offense be committed they will
pay the amount determined by the court in the
judgment, or otherwise to deposit such amount in
the office of the clerk of the court to guarantee said
undertaking.
The court shall determine, according to
discretion, the period of duration of the bond.
2.
3.
its
4.
5.
Should the person sentenced fail to give the bond as
required
6.
he shall be detained for a period which shall in no
case exceed six months, is he shall have been
prosecuted for a grave or less grave felony, and shall
not exceed thirty days, if for a light felony.
2 WAYS OF GIVING BOND:
a.
b.
The offender must present

2 sufficient sureties who shall undertake
that
o the offender will not commit the
offense sought to be prevented,
o and that in case such offense be
committed

they will pay the amount
determined by the court;
The offender must

deposit such amount with the clerk of court
to guarantee said undertaking;
The court shall determine the period of
duration of the bond.
The offender may be detained, if he cannot
give the bond,

for a period not to exceed 6 months if
prosecuted for grave or less grave felony,
or

for a period not to exceed 30 days, if for a
light felony.
Bond to keep the peace is different from bail
bond which is posted for the provisional release
of a person arrested for or accused of a crime.
PENALTY
DURATION
ACCESSORIES
Arresto
menor
1 day to 30
days
Suspension of right
to hold office and
right of suffrage
Public
censure
(Penalties Common to All Three Types)
PENALTY
DURATION
ACCESSORIES
Fine
Bond to keep As determined
the peace
by the court
D. Accessory penalties
Perpetual
or
temporary
absolute
disqualification,
Perpetual
or
temporary
special
disqualification,
Suspension from public office, the right to
vote and be voted for, the profession or
calling.
Civil interdiction,
Indemnification/ Forfeiture or confiscation of
instruments and proceeds of the offense,
Payment of costs.
1. Perpetual or Temporary Absolute
Disqualification
Art. 30. Effects of the penalties of perpetual or
temporary absolute disqualification. —
1) The deprivation of the public offices and
employments which the offender may have held
even if conferred by popular election.
2) The deprivation of the right to vote in any
election for any popular office or to be elected
to such office.
3) The disqualification for the offices or public
employments and for the exercise of any of the
rights mentioned.

In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2
and 3 of this article shall last during the term of
the sentence.
4)
The loss of all rights to retirement pay or other
pension for any office formerly held.
Effects:
(1) Deprivation of any public office or employment
of offender;
(2) Deprivation of the right to vote in any election
or to be voted upon;
(3) Loss of rights to retirement pay or pension
Note: Perpetual absolute disqualification is effective
during the lifetime of the convict and even after the
service of the sentence. Temporary absolute
disqualification lasts during the term of the sentence
except (1) deprivation of the public office or
employment; and (2) loss of all rights to retirement
pay or other pension for any office formerly held.
(See Art. 30, par. 3).
Art. 32. Effect of the penalties of perpetual or
temporary special disqualification for the
exercise of the right of suffrage.
(1) The
perpetual
or
temporary
special
disqualification for the exercise of the right of
suffrage
(2) shall deprive the offender perpetually or during
the term of the sentence, according to the
nature of said penalty,
(3) of the right to vote in any popular election for
any public office or to be elected to such office.
(4) Moreover, the offender shall not be permitted
to hold any public office during the period of his
disqualification.
CRIMINAL LAW REVIEWER
Art. 33. Effects of the penalties of suspension
from any public office, profession or calling, or
the right of suffrage.
The suspension from public office, profession or
calling, and the exercise of the right of suffrage shall
disqualify the offender from holding such office or
exercising such profession or calling or right of
suffrage during the term of the sentence.
The penalty for disqualification if imposed as an
accessory penalty is imposed for PROTECTION and
NOT for the withholding of a privilege.
Note: If temporary disqualification or suspension is
imposed as an accessory penalty, the duration is the
same as that of the principal penalty.
3. Suspension from Public Office, the
Right to Vote and Be Voted for,
the Right to Practice a Profession
or Calling
The person suspended from holding public office
shall not hold another having similar functions during
the period of his suspension.
Art. 34. Civil interdiction.
Civil interdiction shall deprive the offender during
the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or
property of any ward, of marital authority, of the
right to manage his property and of the right to
dispose of such property by any act or any
conveyance inter vivos.
Art. 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. Such proceeds and
instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be
property of a third person not liable for the offense,
but those articles which are not subject of lawful
commerce shall be destroyed.
(Asked once in the Bar Exams)
Effects:
(1) Disqualification from holding such office or the
exercise of such profession or right of suffrage
during the term of the sentence;
(2) Cannot hold another office having similar
functions during the period of suspension. (Art.
32).
4. Civil Interdiction
Effects: Deprivation of the following rights:
(1) Parental authority
(2) Guardianship over the ward
(3) Marital authority
(4) Right to manage property and to dispose of the
same by acts inter vivos. (Note: The convict can
still dispose his property mortis causa).
Civil interdiction is an accessory penalty to the
following principal penalties:
(1) Death if commuted to life imprisonment;
(2) Reclusion perpetua
(3) Reclusion temporal
2. Perpetual or Temporary Special
5. Indemnification or Confiscation of
Disqualification
Art. 31. Effect of the penalties of perpetual or
temporary special disqualification.
(1) The deprivation of the office, employment,
profession or calling affected;
(2) The disqualification for holding similar offices or
employments either perpetually or during the
term of the sentence according to the extent of
such disqualification.
Instruments or Proceeds of the
Offense




Effects: For public office, profession or calling:
(1) Deprivation of the office, employment,
profession or calling affected;
(2) Disqualification for holding similar offices or
employments
during
the
period
of
disqualification.
Effects: For the exercise of right to suffrage:
(1) Deprivation of the right to vote or to be elected
in an office;
(2) Cannot hold any public office during the period
of disqualification. (Art. 31).
This is included in every penalty for the
commission of the crime.
The confiscation is in favor of the
government.
Property of a third person not liable for the
offense is not subject to confiscation.
If the trial court did not order
confiscation of the process of the crime,
government cannot appeal from
confiscation as that would increase
penalty already imposed.
any
the
the
the
6. Payment of Costs
Includes:
(1) Fees, and
(2) Indemnities,
proceedings.

in
the
course
of
judicial
Costs may be fixed amounts already
determined by law or regulations or amounts
subject to a schedule.
91
CRIMINAL LAW REVIEWER

92



If the accused is convicted; costs may be
charged against him.
If he is acquitted, costs are de officio,
meaning each party bears his own expense.
No costs shall be allowed against the Republic
of the Philippines. (Rule 142, Sec. 1).
Whether costs should be assessed against the
accused lie within the discretion of the court.
ACCESSORY
PENALTY
EFFECTS
Deprivation of any public
office or employment of
offender;
Perpetual
Temporary
Absolute
Disqualification
or
Deprivation of the right to
vote in any election or to be
voted upon;
Perpetual
or
Temporary
Special
Disqualification
Suspension
from
Public Office, the
Right to Vote and
Be Voted for, the
Right to Practice a
Profession
or
Calling
Civil Interdiction
Indemnification
Confiscation
Instruments
Proceeds of
Offense
or
of
or
the
Loss of rights to retirement
pay or pension
For public office, profession
or calling:
 Deprivation of the office,
employment, profession
or calling affected;
 Disqualification
for
holding similar offices or
employments during the
period of disqualification;
For the exercise of right to
suffrage:
 Deprivation of the right to
vote or to be elected in an
office;
 Cannot hold any public
office during the period of
disqualification
Disqualification from holding
such office or the exercise
of such profession or right of
suffrage during the term of
the sentence;
Cannot hold another office
having similar functions
during
the
period
of
suspension.
Deprivation of the following
rights:

Parental authority

Guardianship over the
ward

Marital authority

Right
to
manage
property and to dispose
of the same by acts
inter vivos
Forfeiture in favor of the
Government of the proceeds
of the crime and the
instruments or tools with
which it was committed
If the accused be convicted,
the costs may be charged
against him
Payment of Costs
If he be acquitted, costs are
de officio, i.e., each party
will bear his/her own
expense
E. Measures not considered
penalty
Art. 24. Measures of prevention or safety which
are nor considered penalties.
The following shall not be considered as penalties:
(1) The arrest and temporary detention of accused
persons, as well as their detention by reason of
insanity or imbecility, or illness requiring their
confinement in a hospital.
(2) The commitment of a minor to any of the
institutions mentioned in Article 80 and for the
purposes specified therein.
(3) Suspension from the employment of public
office during the trial or in order to institute
proceedings.
(4) Fines and other corrective measures which, in
the exercise of their administrative disciplinary
powers, superior officials may impose upon their
subordinates.
(5) Deprivation of rights and the reparations which
the civil laws may establish in penal form.
Measures not considered penalties:
(1) Preventive detention
(2) Detention for medical causes
(3) Rehabilitation of minors
(4) Preventive suspension from public office
(5) Administrative fines and penalties
(6) Civil law deprivation of rights and reparations
They are not penalties because they are not imposed
as a result of judicial proceedings.
Those mentioned in par. 3 and 4 are merely
preventive measures before conviction of offenders.
The commitment of a minor mentioned in par. 2 is
not a penalty because it is not imposed by the court
in a judgment of conviction.
The imposition of the sentence in such case is
suspended.
The succeeding provisions are some examples of
deprivation of rights established in penal form:
Family Code, Art. 228. Parental authority
terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)
Family Code, Art. 229. Unless subsequently revived
by a final judgment, parental authority also
terminates:
CRIMINAL LAW REVIEWER
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the
child in a case filed for the purpose;
(4) Upon final judgment of a competent court
divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or
incapacity of the person exercising parental
authority. (327a)
F. Application
1. Indeterminate Sentence Law
2. Three-fold Rule
3. Subsidiary Imprisonment
General Rules
Art. 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, through the Department of Justice,
the reasons which induce the court to believe that
said act should be made the subject of legislation.
the term of the duration of the penalty consisting of
deprivation of liberty shall be computed from the
day that the offender is placed at the disposal of the
judicial authorities for the enforcement of the
penalty.
The duration of the other penalties shall be
computed only from the day on which the defendant
commences to serve his sentence.
RULES ON THE COMPUTATION OF PENALTIES:
(1) WHEN THE OFFENDER IS IN PRISON – the
duration of temporary penalties is from the
day on which the judgment of conviction
becomes final.
(2) WHEN THE OFFENDER IS NOT IN PRISON – the
duration of penalty consisting in deprivation
of liberty, is from the day that the offender
is placed at the disposal of judicial
authorities for the enforcement of the
penalty.
(3) THE DURATION OF OTHER PENALTIES – the
duration is from the day on which the
offender commences to serve his sentence

Examples of temporary penalties:
(1) Temporary absolute disqualification
(2) Temporary special disqualification
(3) Suspension
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.

In case of excessive penalties, the court must still
impose the penalty but it shall recommend
reduction, commutation, or other actions to the
Chief Executive.
Examples of penalties consisting in deprivation
of liberty:
(1) Imprisonment
(2) Destierro

When the offender is not in prison, Rule No. 2
applies.

If the offender is undergoing preventive
imprisonment, Rule No. 3 applies but the
offender is entitled to a deduction of full time
or 4/5 of the time of his detention.
Art. 21. Penalties that may be imposed. — No
felony shall be punishable by any penalty not
prescribed by law prior to its commission.
Nulla poena sine lege.‖ This article prohibits the
Government from imposing punishment to any
person for a felony with any penalty which has not
been prescribed by the law.
In addition, penalties must be individual, i.e., not
shared, and definite, e.g., imprisonment, fine,
imprisonment and fine, imprisonment or fine; but
not imprisonment and/or fine.
Art. 28. Computation of penalties. — If the
offender shall be in prison, the term of the duration
of the temporary penalties shall be computed from
the day on which the judgment of conviction shall
have become final.
If the offender be not in prison,
If offender is under detention, as when he is
undergoing preventive imprisonment, Rule No. 1
applies.
If not under detention, because the offender has
been released on bail, Rule No. 3 applies.
Art. 29. Period of preventive imprisonment
deducted from term of imprisonment.
Offenders
who
have
undergone
preventive
imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty,
with the full time during which they have undergone
preventive imprisonment, if the detention prisoner
agrees voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners,
except in the following cases:
a.
When they are recidivists or have been
convicted previously twice or more times of any
crime; and
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CRIMINAL LAW REVIEWER
When upon being summoned for the execution
of their sentence they have failed to surrender
voluntarily.
his physical, mental and moral record as a
prisoner, to be determined by the Board of
Indeterminate Sentence.
If the detention prisoner does not agree to abide by
the same disciplinary rules imposed upon convicted
prisoners,
The settled practice is to give the accused the
benefit of the law even in crimes punishable with
death or life imprisonment provided the resulting
penalty,
after
considering
the
attending
circumstances, is reclusion temporal or less.
b.
94
he shall be credited in the service of his sentence
with four-fifths of the time during which he has
undergone preventive imprisonment. (As amended
by Republic Act 6127, June 17, 1970).
Whenever an accused has undergone preventive
imprisonment

for a period equal to or more than the possible
maximum imprisonment of the offense charged
to which he may be sentenced

and his case is not yet terminated,
he shall be released immediately without prejudice
to the continuation of the trial thereof or the
proceeding on appeal,
if the same is under review.
In case the maximum penalty to which the accused
may be sentenced is destierro, he shall be released
after thirty (30) days of preventive imprisonment.
(As amended by E.O. No. 214, July 10, 1988).
The accused undergoes preventive imprisonment
when the offense charged is nonbailable, or even if
bailable, he cannot furnish the required bail.
The convict is to be released immediately if the
penalty imposed after trial is less than the full time
or four-fifths of the time of the preventive
imprisonment.
The accused shall be released immediately whenever
he has undergone preventive imprisonment for a
period equal to or more than the possible maximum
imprisonment for the offense charged.
(Asked 4 times in the Bar Exams)
1. Indeterminate Sentence Law (R.A.
4013, as amended)
The Indeterminate Sentence is composed of:
(1) A MAXIMUM taken from the penalty imposable
under the penal code (considering attendant
circumstances)
(2) A MINIMUM taken from the penalty next lower
to that fixed in the code.
Purpose of the law: to uplift and redeem valuable
human material and prevent unnecessary and
excessive deprivation of liberty and economic
usefulness.

It is necessary to consider the criminal first as
an individual, and second as a member of the
society.

The law is intended to favor the defendant,
particularly
to
shorten
his
term
of
imprisonment, depending upon his behavior and
ISL does not apply to destierro. ISL is expressly
granted to those who are sentenced to imprisonment
exceeding 1 year.
a. Application on the imposed sentence
PROCEDURE FOR DETERMING THE MAXIMUM AND
MINIMUM SENTENCE
(1) It consists of a maximum and a minimum
instead of a single fixed penalty.
(2) Prisoner must serve the minimum before he is
eligible for parole.
(3) The period between the minimum and
maximum is indeterminate in the sense that
the prisoner may be exempted from serving
said indeterminate period in whole or in part.
(4) The maximum is determined in any case
punishable under the RPC in accordance with
the rules and provisions of said code exactly as
if the ISL had never been enacted.
(5) Apply first the effect of privileged mitigating
circumstances then consider the effects of
aggravating
and
ordinary
mitigating
circumstances.
(6) The minimum depends upon the court‘s
discretion with the limitation that it must be
within the range of the penalty next lower in
degree to that prescribed by the Code for the
offense committed.
Note: A minor who escaped from confinement in the
reformatory is entitled to the benefits of the ISL
because his confinement is not considered
imprisonment.
b. Coverage
The law does not apply to certain offenders:
(1) Persons convicted of offense punished with
death penalty or life imprisonment (or reclusion
perpetua).
(2) Those convicted of treason, conspiracy or
proposal to commit treason.
(3) Those convicted of misprision of treason,
rebellion, sedition or espionage.
(4) Those convicted of piracy.
(5) Those who are habitual delinquents (but applies
to recidivists).
(6) Those who shall have escaped from confinement
or evaded service of sentence.
(7) Those who violated the terms of conditional
pardon granted to them by the Chief Executive.
(8) Those whose maximum term of imprisonment
does not exceed one year.
(9) Those who, upon the approval of the law, had
been sentenced by final judgment.
CRIMINAL LAW REVIEWER
(10) Those sentenced to the penalty of destierro or
suspension.
Art. 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:
a) When there are neither aggravating nor
mitigating circumstances, they shall impose the
penalty prescribed by law in its medium period.
a) When only a mitigating circumstance is present
in the commission of the act, they shall impose
the penalty in its minimum period.
b) When an aggravating circumstance is present in
the commission of the act, they shall impose the
penalty in its maximum period.
c) 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.
d) When there are two or more mitigating
circumstances and no aggravating circumstances
are present, the court shall:
i)
impose the penalty next lower to that
prescribed by law,
ii) in the period that it may deem applicable,
iii) according to the number and nature of such
circumstances.
e) 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.
f) 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.
De la Cruz v. CA (1996):
In as much as the amount of P715k is P693k more
than the abovementioned benchmark of P22k, then
adding one year for each additional P10k,
the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor minimum would be
increased by 69 years, as computed by the trial
court.
But the law categorically declares that the maximum
penalty then shall not exceed 20 years of reclusion
temporal.
Under the ISL, the minimum term of the
indeterminate penalt should be within the range of
the penalty next lower in degree to that prescribed
b the Code for the offense committed, which is
prision correccional.
People v. Saley (supra):
Under the Indeterminate Sentence Law,
a) the maximum term of the penalty shall be "that
which, in view of the attending circumstances,
could be properly imposed" under the Revised
Penal Code,
b) and the minimum shall be "within the range of
the penalty next lower to that prescribed" for
the offense.
The penalty next lower should be based on the
penalty prescribed by the Code for the offense,
without first considering any modifying circumstance
attendant to the commission of the crime.
The determination of the minimum penalty is left by
law to the sound discretion of the court and it can
be anywhere within the range of the penalty next
lower without any reference to the periods into
which it might be subdivided.
The modifying circumstances are considered only
in the imposition of the maximum term of the
indeterminate sentence.
The fact that the amounts involved in the instant
case exceed P22,000.00 should not be considered in
the initial determination of the indeterminate
penalty;
instead, the matter should be so taken as analogous
to modifying circumstances in the imposition of
the maximum term of the full indeterminate
sentence.
This interpretation of the law accords with the rule
that penal laws should be construed in favor of the
accused. Since the penalty prescribed by law for the
estafa charge against accused-appellant is prision
correccional maximum to prision mayor minimum,
the penalty next lower would then be prision
correccional minimum to medium. Thus, the
minimum term of the indeterminate sentence should
be anywhere within six (6) months and one (1) day to
four (4) years and two (2) months.
People v. Campuhan (supra):
The penalty for attempted rape is two (2) degrees
lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor
below seven (7) years.
Two (2) degrees lower is reclusion temporal, the
range of which is twelve (12) years and one (1) day
to twenty (20) years.
Applying the Indeterminate Sentence Law, and in
the absence of any mitigating or aggravating
circumstance,
the maximum of the penalty to be imposed upon the
accused shall be taken from the medium period of
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CRIMINAL LAW REVIEWER
96
reclusion temporal, the range of which is fourteen
(14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months,
while the minimum shall be taken from the penalty
next lower in degree, which is prision mayor, the
range of which is from six (6) years and one (1) day
to twelve (12) years, in any of its periods.
(ASKED 15 TIMES IN THE BAR EXAMS)
c. Conditions of parole
Section 6: Duty of the prisoner released
under this Code: Report personally to such
government officials or other parole officers
appointed by the Board for a period of surveillance
equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release by
the Board. If it is shown that he is a law-abiding
citizen and did not violate any laws of the country,
the Board may issue a final certificate of release
which will entitle him to final release and discharge.
Section 8: Violations of the conditions of the
parole: If he/she violates any of the conditions of
the parole, the Board may issue his warrant of
arrest. If captured/arrested, he shall serve the
remaining unexpired portion of the maximum
sentence for which he was originally committed
unless a new parole was granted.
2. The Three-fold rule
Art. 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) Prision correccional,
(6) Arresto mayor,
(7) Arresto menor,
(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 shall be computed at thirty
years. (As amended).
Outline of the provisions of this Article:
(1) When the culprit has to serve 2 or more
penalties, he shall serve them simultaneously
if the nature of the penalties will so permit.
(2) Otherwise, the order of their respective
severity shall be followed.
The respective severity of the penalties is as
follows:
(1) Death (repealed)
(2) Reclusion perpetua
(3) Reclusion temporal
(4) Prision mayor
(5) Prision correccional
(6) Arresto mayor
(7) Arresto menor
(8) Destierro
(9) Perpetual absolute disqualification
(10) Temporary absolute disqualification
(11) Suspension from public office, the right to
vote, and be voted for, the right to follow
profession or calling, and
(12) Public censure
The penalties which can be simultaneously served
are:
(1) Perpetual absolute disqualification
(2) Perpetual special disqualification
(3) Temporary absolute disqualification
(4) Temporary special disqualification
(5) Suspension
(6) Destierro
(7) Public Censure
(8) Fine and Bond to keep the peace
(9) Civil interdiction
(10) Confiscation and payment of costs


The above penalties, except destierro, can be
served simultaneously with imprisonment.
Penalties consisting in deprivation of liberty
cannot be served simultaneously by reason of
the nature of such penalties.
Three-fold Rule:
CRIMINAL LAW REVIEWER
The maximum duration of the convict‘s sentence
shall not be more than three times the length of
time corresponding to the most severe of the
penalties imposed upon him.
The phrase ―the most severe of the penalties‖
includes equal penalties.
The three-fold rule applies only when the convict
has to serve at least four sentences.
All the penalties, even if by different courts at
different times, cannot exceed three-fold the most
severe.
The Rules of Court specifically provide that any
information must not charge more than one offense.
Necessarily, the various offense punished with
different penalties must be charged under different
informations which may be filed in the same court or
in different courts, at the same time or at different
times.
Subsidiary imprisonment forms part of the penalty.
Indemnity is a penalty.
Court must impose all the penalties for all the
crimes of which the accused is found guilty,
but in the service of the same, they shall not exceed
three times the most severe and shall not exceed 40
years.
Mejorada v. Sandiganbayan (1987):
The petitioner was convicted of violating Section
3(E) of RA No. 3019 aka the Anti-Graft and Corrupt
Practices Act.
One of the issues raised by the petitioner concerns
the penalty imposed by the Sandiganbayan which
totals 56 years and 8 days of imprisonment.
He impugns this as contrary to the three-fold rule
and insists that the duration of the aggregate
penalties should not exceed 40 years.
Held:
Petitioner is mistaken in his application of the 3-fold
rule as set forth in Art. 70 of the RPC.
This article is to be taken into account not in the
imposition of the penalty but in connection with
the service of the sentence imposed.
Art. 70 speaks of ―service‖ of sentence, ―duration‖
of penalty and penalty ―to be inflicted‖.
(Asked once in the Bar Exams)
Where the Penalty Is Not Composed of 3 Periods
Art. 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.
Meaning of the Rule
a. Compute and determine first the 3 periods of
the entire penalty.
b. The time included in the penalty prescribed
should be divided into 3 equal portions, after
subtracting the minimum (eliminate the 1 day)
from the maximum of the penalty.
c. The minimum of the minimum period should be
the minimum of the given penalty (including the
1 day).
d. The quotient should be added to the minimum
prescribed (eliminate the 1 day) and the total
will represent the maximum of the minimum
period.

Take the maximum of the minimum period,
add 1 day and make it the minimum of the
medium period; then add the quotient to
the minimum (eliminate the 1 day) of the
medium period and the total will represent
the maximum of the medium period.

Take the maximum of the medium period,
add 1 day and make it the minimum of the
maximum period; then add the quotient to
the minimum (eliminate the 1 day) of the
maximum period and the total will
represent the maximum of the maximum
period.
3. Subsidiary imprisonment
Art. 38. Pecuniary liabilities; Order of payment. — In
case the property of the offender should not be
sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following
order:
1.
2.
3.
4.
The reparation of the damage caused.
Indemnification of consequential damages.
The fine.
The cost of the proceedings.
Nowhere in the article is anything mentioned about
the ―imposition of penalty‖.
It merely provides that the prisoner cannot be made
to serve more than three times the most severe of
these penalties the maximum which is 40 years.
Art. 39. Subsidiary penalty.
If the convict has no property with which to meet
the fine mentioned in the paragraph 3 of the next
preceding article, he shall be subject to a subsidiary
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CRIMINAL LAW REVIEWER
personal liability at the rate of one day for each
eight pesos, subject to the following rules:
98
(2)
1)



2)


3)

4)



5)

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.
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.
When the principal imposed is higher than
prision correccional,
no subsidiary imprisonment shall be imposed
upon the culprit.
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.
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. (As amended by RA 5465, April
21, 1969).
Subsidiary penalty – it is personal liability to be
suffered by the convict who has no property with
which to meet the fine at the rate of one day for
each P8, subject to the rules provided for in Articles
39.

An accused cannot be made to undergo
subsidiary imprisonment in case of
insolvency to pay the fine imposed upon
him when the subsidiary imprisonment is
not imposed in the judgment of conviction.
(Ramos v. Gonong)

A convict who has property not exempt
from execution sufficient enough to meet
the fine cannot choose to serve the
subsidiary penalty.

Subsidiary imprisonment is not an
accessory penalty.
Rules as to subsidiary imprisonment:
(1) If the penalty imposed is prision correcccional
or arresto and fine – subsidiary imprisonment
not to exceed 1/3 of the term of the
sentence, and in no case to continue for more
(3)
(4)
(5)
than 1 year. Fraction or part of the day not
counted.
When the penalty imposed is fine only –
subsidiary imprisonment, not to exceed 6
months, if the culprit is prosecuted for grave
or less grave felony, and not to exceed 15
days, if prosecuted for light felony.
When the penalty imposed is higher than
prision
correccional
–
no
subsidiary
imprisonment.
If the penalty imposed is not to be executed
by confinement, but of fixed duration –
subsidiary penalty shall consist in the same
deprivations as those of the principal penalty,
under the same rules as in Nos. 1, 2 and 3
above.
In case the financial circumstances of the
convict should improve, he shall pay the fine,
notwithstanding the fact that the convict
suffered subsidiary penalty thereof.
No subsidiary penalty in the following cases:
(1) When the penalty imposed is higher than
prision correccional. (Art. 39 par.
(2) For failure to pay the reparation of the
damage caused, indemnification of the
consequential damages, and the costs of the
proceedings.
(3) When the penalty imposed is fine and a
penalty not to be executed by confinement in
a penal institution and which has no fixed
duration.
Art. 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.
Whenever the law prescribes a penalty for a felony is
general terms, it shall be understood as applicable
to the consummated felony.
GENERAL RULE: The penalty prescribed by law in
general terms shall be imposed:

Upon the principals

For consummated felony
EXCEPTION: The exception is when the penalty to
be imposed upon the principal in frustrated or
attempted felony is fixed by law.
Whenever it is believed that the penalty lower by
one or two degrees corresponding to said acts of
execution is not in proportion to the wrong done,
the law fixes a distinct penalty for the principal in
frustrated or attempted felony.
There are two ways to graduate penalties:
1. By Degrees, which is affected by the following
factors:
a. Stage
of
Execution
(consummated,
frustrated, or attempted)
b. Extent
of
Participation
(principal,
accomplice, or accessory)
c. Privileged mitigating circumstances
d. Qualifying circumstances
CRIMINAL LAW REVIEWER
Principals, Accomplices and Accessories in
Consummated,
Frustrated
and
Attempted
Felonies.
Art. 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.
Whenever the law prescribes a penalty for a felony is
general terms, it shall be understood as applicable
to the consummated felony.
Art. 50. Penalty to be imposed upon principals of
a frustrated crime.
The penalty next lower in degree than that
prescribed by law for the consummated felony shall
be imposed upon the principal in a frustrated felony.
Art. 51. Penalty to be imposed upon principals of
attempted crimes.
A penalty lower by two degrees than that prescribed
by law for the consummated felony shall be imposed
upon the principals in an attempt to commit a
felony.
Art. 52. Penalty to be imposed upon accomplices
in consummated crime.
The penalty next lower in degree than that
prescribed by law for the consummated shall be
imposed upon the accomplices in the commission of
a consummated felony.
Art. 53. Penalty to be imposed upon accessories
to the commission of a consummated felony.
The penalty lower by two degrees than that
prescribed by law for the consummated felony shall
be imposed upon the accessories to the commission
of a consummated felony.
Art. 54. Penalty to imposed upon accomplices in a
frustrated crime.
The penalty next lower in degree than prescribed by
law for the frustrated felony shall be imposed upon
the accomplices in the commission of a frustrated
felony.
Art. 55. Penalty to be imposed upon accessories
of a frustrated crime.
The penalty lower by two degrees than that
prescribed by law for the frustrated felony shall be
Art. 56. Penalty to be imposed upon accomplices
in an attempted crime.
The penalty next lower in degree than that
prescribed by law for an attempt to commit a felony
shall be imposed upon the accomplices in an attempt
to commit the felony.
Art. 57. Penalty to be imposed upon accessories
of an attempted crime.
The penalty lower by two degrees than that
prescribed by law for the attempted felony shall be
imposed upon the accessories to the attempt to
commit a felony.
PRINCIPALS
0
1° 2°
ACCOMPLICES
1° 2° 3°
ACCESSORIES
2° 3° 4°
DIAGRAM OF THE APPLICATION
OF ARTS. 50-57:
ATTEMPTED
By Periods (for divisible penalties, i.e.,
penalties with minimum, medium, and
maximum periods), which is affected by the
attendant
ordinary
mitigating/aggravating
circumstances
imposed upon the accessories to the commission of a
frustrated felony.
FRUSTRATED
2.
Indeterminate Sentence Law (minimum,
which is within the range of the penalty 1°
lower than the penalty prescribed by the
RPC)
CONSUMMATED
e.
―0‖ represents the penalty prescribed by law in
defining a crime, which is to be imposed on the
PRINCIPAL in a CONSUMMATED OFFENSE, in
accordance with the provisions of Art. 46.
The other figures represent the degrees to which the
penalty must be lowered, to meet the different
situations anticipated by law.
EXCEPTIONS: Arts. 50 to 57 shall not apply to cases
where the law expressly prescribes the penalty for
frustrated or attempted felony, or to be imposed
upon accomplices or accessories. (Art. 60).
Art. 60. Exception to the rules established in
Articles 50 to 57.
The provisions contained in Articles 50 to 57,
inclusive, of this Code shall not be applicable to
cases in which the law expressly prescribes the
penalty provided for a frustrated or attempted
felony, or to be imposed upon accomplices or
accessories.
A DEGREE is one entire penalty, one whole penalty
or one unit of the penalties enumerated in the
graduated scales provided for in Art. 71.
Each of the penalties of reclusion perpetua,
reclusion temporal, prision mayor, etc., enumerated
in the graduated scales of Art. 71 is a degree.
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100
When there is a mitigating or aggravating
circumstance, the penalty is lowered or increased by
PERIOD only,
3)
EXCEPT when the penalty is divisible and there are
two or more mitigating and without aggravating
circumstances, in which case the penalty is lowered
by degree.
A PERIOD is one of the three equal portions called
the minimum, medium and maximum of a divisible
penalty.
4)
GENERAL RULE: An accomplice is punished by a
penalty one degree lower than the penalty imposed
upon the principal.
EXCEPTIONS:

The ascendants, guardians, curators, teachers
and any person who, by abuse of authority or
confidential relationship, shall cooperate as
accomplices in the crimes of rape, acts of
lasciviousness, seduction, corruption of minors,
white slate trade or abduction. (Art. 346)

One who furnished the place for the
perpetration of the crime of slight illegal
detention. (Art. 268)
GENERAL RULE: An accessory is punished by a
penalty two degrees lower than the penalty imposed
upon the principal.
EXCEPTIONS:

When accessory is punished as principal –
knowingly concealing certain evil practices is
ordinarily an act of the accessory, but in Art.
142, such act is punished as the act of the
principal.

When accessories are punished with a penalty
one degree lower:
o Knowingly using counterfeited seal or
forged signature or stamp of the President
(Art. 162).
o Illegal possession and use of a false treasury
or bank note (Art. 168).
o Using falsified document (Art. 173 par.3)
o Using falsified dispatch (Art. 173 par. 2)
Art. 61. Rules for graduating penalties.
For the purpose of graduating the penalties which,
according to the provisions of Articles 50 to 57,
inclusive, of this Code, are to be imposed upon
persons guilty as principals of any frustrated or
attempted felony, or as accomplices or accessories,
the following rules shall be observed:
1) When the penalty prescribed for the felony is
single and indivisible, the penalty next lower in
degrees shall be that immediately following that
indivisible penalty in the respective graduated
scale prescribed in Article 71 of this Code.
2) When the penalty prescribed for the crime is
composed of two indivisible penalties, or of one
or more divisible penalties to be impose to their
full extent, the penalty next lower in degree
shall be that immediately following the lesser of
5)
the penalties prescribed in the respective
graduated scale.
When the penalty prescribed for the crime is
composed of one or two indivisible penalties and
the maximum period of another divisible
penalty, the penalty next lower in degree shall
be composed of the medium and minimum
periods of the proper divisible penalty and the
maximum periods of the proper divisible penalty
and the maximum period of that immediately
following in said respective graduated scale.
When the penalty prescribed for the crime is
composed of several periods, corresponding to
different divisible penalties, the penalty next
lower in degree shall be composed of the period
immediately following the minimum prescribed
and of the two next following, which shall be
taken from the penalty prescribed, if possible;
otherwise from the penalty immediately
following in the above mentioned respective
graduated scale.
When the law prescribes a penalty for a crime in
some manner not especially provided for in the
four preceding rules, the courts, proceeding by
analogy, shall impose corresponding penalties
upon those guilty as principals of the frustrated
felony, or of attempt to commit the same, and
upon accomplices and accessories.
This article provides for the rules to be observed in
lowering the penalty by one or two degrees:

For the principal in frustrated felony  one
degree lower;

For the principal in attempted felony  two
degrees lower;

For the accomplice in consummated felony 
one degree lower; and

For the accessory in consummated felony  two
degrees lower.
The rules provided for in Art. 61 should also apply in
determining the MINIMUM of the indeterminate
penalty under the Indeterminate Sentence Law.
The MINIMUM of the indeterminate penalty is within
the range of the penalty next lower than that
prescribed by the RPC for the offense.
Those rules also apply in lowering the penalty by one
or two degrees by reason of the presence of
privileged mitigating circumstance (Arts. 68 and 69),
or when the penalty is divisible and there are two or
more mitigating circumstances (generic) and no
aggravating circumstance (Art. 64).
The lower penalty shall be taken from the graduated
scale in Art. 71.
The
(1)
(2)
(3)
INDIVISIBLE PENALTIES are:
death
reclusion perpetua
public censure
The DIVISIBLE PENALTIES are:
(1) reclusion temporal
CRIMINAL LAW REVIEWER
(2)
(3)
(4)
(5)
(6)

prision mayor
prision correccional
arresto mayor
destierro
arresto menor


The divisible penalties are divided into three
periods: MINIMUM, MEDIUM AND THE MAXIMUM
FIRST RULE: When the penalty is single and
indivisible.

Ex. reclusion perpetua

The penalty immediately following it is reclusion
temporal.

Thus, reclusion temporal is the penalty next
lower in degree.
SECOND RULE (a): When the penalty is composed of
two indivisible penalties

Ex. reclusion perpetua to death

The penalty immediately following the lesser of
the penalties, which is reclusion perpetua, is
reclusion temporal.
SECOND RULE (b): When the penalty is composed of
one or more divisible penalties to be imposed to
their full extent

Ex. prision correccional to prision mayor

The penalty immediately following the lesser of
the penalties of prision correccional to prision
mayor is arresto mayor.
THIRD RULE (a): When the penalty is composed of
two indivisible penalties and the maximum period of
a divisible penalty

Ex. reclusion temporal in its MAXIMUM period to
death

The MEDIUM and MINIMUM period of the divisible
penalty and the MAXIMUM of that immediately
following penalty is the penalty next lower in
degree.
Death
Reclusion
Perpetua
Reclusion
Temporal
Maximum
Medium
Minimum
Maximum
Prision
Mayor
Penalty
for
the
principal
in
consummated murder
Penalty
for
accomplice; or for
principal in frustrated
murder
Medium
Minimum
THIRD RULE (b): When the penalty is composed of
one indivisible penalty and the maximum period of a
divisible penalty.

Ex. Reclusion temporal in its MAXIMUM period to
Reclusion perpetua

The same rule shall be observed in lowering the
penalty by one or two degrees.
FOURTH RULE: When the penalty is composed of
several periods.
Ex. Prision Mayor in its MEDIUM period to
Reclusion temporal in its MINIMUM period.
This rule contemplates a penalty composed of at
least 3 periods.
The several periods must correspond to
different divisible penalties.
Reclusion
temporal
Prision
Mayor
Prision
Correccional
Maximum
Medium
Minimum
Maximum
Medium
Minimum
Maximum
Medium
Penalty
for
the
principal
in
the
consummated felony
Penalty
for
the
accomplice;
or
principal in frustrated
felony
Minimum
FIFTH RULE (a): When the penalty has two periods

Ex. Prision correccional in its MINIMUM and
MEDIUM periods
Prision
correccional
Maximum
Medium
Minimum
The
prescribed
felony
penalty
for the
Maximum
Arresto
Mayor
Medium
The penalty
lower
next
Minimum
FIFTH RULE (b): When the penalty has one period.

Ex. Prision Mayor in its MAXIMUM period

If the penalty is any one of the three periods of
a divisible penalty, the penalty next lower in
degree shall be that period next following the
given penalty.

The penalty immediately inferior is prision
mayor in its MEDIUM period.
SIMPLIFIED RULES:
The rules prescribed in pars. 4 and 5 of Art. 61 may
be simplified as follows:
(1) If the penalty prescribed by the Code consists in
3 periods, corresponding to different divisible
penalties, the penalty next lower in degree is
the penalty consisting in the 3 periods down in
the scale.
(2) If the penalty prescribed by the Code consists in
2 periods, the penalty next lower in degree is
the penalty consisting in 2 periods down in the
scale.
(3) If the penalty prescribed by the Code consists in
only 1 period, the penalty next lower in degree
is the next period down in the scale.
Effects
of
Circumstances
Mitigating
and
Aggravating
Art. 62. Effect of the attendance of mitigating or
aggravating circumstances and of habitual
delinquency.
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CRIMINAL LAW REVIEWER
102
Mitigating or aggravating circumstances and habitual
delinquency shall be taken into account for the
purpose of diminishing or increasing the penalty in
conformity with the following rules:
(1) Aggravating circumstances which in themselves
constitute a crime specially punishable by law or
which are included by the law in defining a
crime and prescribing the penalty therefor shall
not be taken into account for the purpose of
increasing the penalty.
(2) The same rule shall apply with respect to any
aggravating circumstance inherent in the crime
to such a degree that it must of necessity
accompany the commission thereof.
(3) Aggravating or mitigating circumstances which
arise from the moral attributes of the offender,
or from his private relations with the offended
party, or from any other personal cause, shall
only serve to aggravate or mitigate the liability
of the principals, accomplices and accessories as
to whom such circumstances are attendant.
(4) The circumstances which consist in the material
execution of the act, or in the means employed
to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who
had knowledge of them at the time of the
execution of the act or their cooperation
therein.
(5) Habitual delinquency shall have the following
effects:
a.
Upon a third conviction the culprit shall be
sentenced to the penalty provided by law
for the last crime of which he be found
guilty and to the additional penalty of
prision correccional in its medium and
maximum periods;
b.
Upon a fourth conviction, the culprit shall
be sentenced to the penalty provided for
the last crime of which he be found guilty
and to the additional penalty of prision
mayor in its minimum and medium periods;
and
c.
Upon a fifth or additional conviction, the
culprit shall be sentenced to the penalty
provided for the last crime of which he be
found guilty and to the additional penalty
of prision mayor in its maximum period to
reclusion temporal in its minimum period
(6) Notwithstanding the provisions of this article,
the total of the two penalties to be imposed
upon the offender, in conformity herewith, shall
in no case exceed 30 years.
(7) For the purpose of this article, a person shall be
deemed to be habitual delinquent, is within a
period of ten years from the date of his release
or last conviction of the crimes of serious or less
serious physical injuries, robo, hurto, estafa or
falsification, he is found guilty of any of said
crimes a third time or oftener.
What are the effects of the attendance of
mitigating or aggravating circumstances?
1) Aggravating circumstances which are not
considered for the purpose of increasing the
penalty:
a. Those that constitute a separate crime
punishable by law.
b.
2)
3)
Those that are inherent in the crime
committed:
i. Included by law in defining the crime
ii.
Inherent in the crime but of necessity
they accompany the commission
thereof
Aggravating or mitigating circumstances that
serve to aggravate or mitigate the liability of
the offender to whom such are attendant. Those
arising from:

Moral attributes of the offender

His private relations with the offended
party

Any other personal cause
Aggravating or mitigating circumstances that
affect the offenders only who had knowledge of
them at the time of the execution of the act or
their cooperation therein.
What are the legal effects of habitual delinquency?

Third conviction. The culprit is sentenced to
the penalty for the crime committed and to the
additional penalty of prision correccional in its
medium and maximum period.

Fourth conviction. The penalty is that provided
by law for the last crime and the additional
penalty of prision mayor in its minimum and
medium periods.

Fifth or additional conviction. The penalty is
that provided by law for the last crime and the
additional penalty of prision mayor in its
maximum period to reclusion temporal in its
minimum period.
Note:

In no case shall the total of the 2 penalties
imposed upon the offender exceed 30 years.

The law does not apply to crimes described in
Art. 155.

The imposition of the additional penalty on
habitual delinquents are CONSTITUTIONAL
because such law is neither an EX POST FACTO
LAW nor an additional punishment for future
crimes.

It is simply a punishment on future crimes on
account of the criminal propensities of the
accused.

The imposition of such additional penalties is
mandatory and is not discretionary.

Habitual delinquency applies at any stage of the
execution because subjectively, the offender
reveals the same degree of depravity or
perversity as the one who commits a
consummated crime.

It applies to all participants because it reveals
persistence in them of the inclination to
wrongdoing and of the perversity of character
that led them to commit the previous crime.
Cases where attending aggravating or mitigating
circumstances are not considered in the
imposition of penalties
1) Penalty that is single and indivisible
2) Felonies through negligence
3) When the penalty is a fine
4) When the penalty is prescribed by a special law.
CRIMINAL LAW REVIEWER
(Asked 3 times in the Bar Exams)
Art. 63. Rules for the application of indivisible
penalties.
1) In all cases in which the law prescribes a single
indivisible penalty,
2) it shall be applied by the courts regardless of
any mitigating or aggravating circumstances that
may have attended the commission of the deed.
3) In all cases in which the law prescribes a penalty
composed of two indivisible penalties,
4) the following rules shall be observed in the
application thereof:
a.
When in the commission of the deed there
is
present
only
one
aggravating
circumstance, the greater penalty shall be
applied.
b.
When there are neither mitigating nor
aggravating circumstances and there is no
aggravating circumstance, the lesser
penalty shall be applied.
c.
When the commission of the act is
attended by some mitigating circumstances
and there is no aggravating circumstance,
the lesser penalty shall be applied.
d.
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.
Rules for the application of indivisible penalties:
a. Penalty is single and indivisible
i. The penalty shall be applied regardless of
the presence of mitigating or aggravating
circumstances.
ii. Ex. reclusion perpetua or death
b. Penalty is composed of 2 indivisible penalties:
1. One aggravating circumstance present:
HIGHER penalty
2. No mitigating circumstances present:
LESSER penalty
3. Some mitigating circumstances present and
no aggravating: LESSER penalty
4. Mitigating and aggravating circumstances
offset each other

Basis
of
penalty:
number
and
importance.
(Asked 2 times in the Bar Exams)
People v. Formigones (1950):
Held:
The penalty applicable for parricide under Art. 246
of the RPC is composed only of 2 indivisible
penalties, reclusion perpetua to death. Although the
commission of the act is attended by some
mitigating circumstance without any aggravating
circumstance to offset them, Art. 63 of the RPC
should be applied. The said article provides that
when the commission of the act is attended by some
mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied.
Art. 64. Rules for the application of penalties
which contain three periods.
1) In cases in which the penalties prescribed by law
contain three periods,
2) whether it be a single divisible penalty or
composed of three different penalties,
3) each one of which forms a period in accordance
with the provisions of Articles 76 and 77,
4) 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:
i.
When there are neither aggravating nor
mitigating circumstances, they shall impose
the penalty prescribed by law in its
medium period.
ii.
When only a mitigating circumstances is
present in the commission of the act, they
shall impose the penalty in its minimum
period.
iii. When an aggravating circumstance is
present in the commission of the act, they
shall impose the penalty in its maximum
period.
iv. 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.
v.
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.
vi. 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.
vii. 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.
Rules for the application of DIVISIBLE PENALTIES
1) No aggravating and No mitigating: MEDIUM
PERIOD
2) One mitigating: MINIMUM PERIOD
3) One aggravating: (but regardless of the number
of aggravating circumstances, the courts cannot
exceed the penalty provided by law in its
maximum period): MAXIMUM PERIOD
4) Mitigating and aggravating circumstances
present:

to offset each other according to relative
weight
5) 2 or more mitigating and no aggravating:
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
104
one degree lower (has the effect of a
privileged mitigating circumstance)
NOTE: Art. 64 does not apply to:
1) indivisible penalties
2) penalties prescribed by special laws
3) fines
4) crimes committed by negligence
(Asked 3 times in the Bar Exams)
Art. 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 prision correccional in its minimum period shall be
imposed upon the culprit if he shall have been guilty
of a grave felony,
and arresto mayor in its minimum and medium
periods, if of a less grave felony.
Penalty to be imposed if the requisites of accident
(Art. 12 par 4) are not all present:
a) GRAVE FELONY: arresto mayor maximum period
to prision correccional minimum period
b) LESS GRAVE FELONY: arresto mayor minimum
period and medium period
Art. 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.
Penalty to be imposed when the crime committed
is not wholly excusable:

One or two degrees lower

if the majority of the conditions for justification
or exemption in the cases provided in Arts. 11
and 12 are present.
People v. Lacanilao (1988):
Held:
Incomplete fulfillment of duty is a privileged
mitigating circumstance which not only cannot be
offset by aggravating circumstances but also reduces
the penalty by one or two degrees than that
prescribed b law. The governing provision is Art. 69
of the RPC.
G. Special rules for certain
situations
1. Complex Crimes
Art. 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.
The rule for complex crimes is to impose the penalty
for the most serious offense in its MAXIMUM period.
Monteverde v. People (2002):
Monteverde was purportedly charged with the
complex crime of estafa through falsification of a
commercial document for allegedly falsifying the
document she had submitted to show that the money
donated by PAGCOR was used and spent for lighting
materials for her barangay.
Held:
Under Article 48 of the Revised Penal Code, a
complex crime refers to:
1) the commission of at least two grave or less
grave felonies that must both (or all) be the
result of a single act, or
2) one offense must be a necessary means for
committing the other (or others).
Using the above guidelines,
constitute a complex crime.
the
acts
cannot
Specifically, the alleged actions showing falsification
of a public and/or a commercial document were not
necessary to commit estafa.
Neither were the two crimes the result of a single
act.
People v. Gonzalez (Supra):
Both of the families of Andres and that of Gonzalez
were on their way to the exit of the Loyola Memorial
Park.
Gonzales was driving with his grandson and 3
housemaids, while Andres was driving with his
pregnant wife, Feliber, his 2yr old son, Kenneth, his
nephew Kevin and his sister-in-law.
At an intersection, their two vehicles almost
collided. Gonzales continued driving while Andres
tailed Gonzales‘ vehicle and cut him off when he
found the opportunity to do so, then got out of his
vehicle and knocked on the appellant's car window.
Heated exchange of remarks followed. On his way
back to his vehicle, he met Gonzales son, Dino.
Andres had a shouting match this time with Dino.
Gonzales then alighted from his car and fired a
single shot at the last window on the left side of
Andres' vehicle at an angle away from Andres.
The single bullet fired hit Kenneth, Kevin and Feliber
CRIMINAL LAW REVIEWER
which caused the latter‘s death.
Held:
The rules on the imposition of penalties for complex
crimes under Art. 48 of the Revised Penal Code are
not applicable in this case.
Art. 48 applies if a single act constitutes two or
more grave and less grave felonies or when an
offense is a necessary means of committing another;
in such a case, the penalty for the most serious
offense shall be imposed in its maximum period.
Considering that the offenses committed by the act
of the appellant of firing a single shot are: one
count of homicide, a grave felony, and two counts of
slight physical injuries, a light felony, the rules on
the imposition of penalties for complex crimes,
which requires two or more grave and/or less grave
felonies, will not apply.
People v. Comadre (2004):
Robert Agbanlog, Wabe, Bullanday, Camat and
The underlying philosophy of complex crimes in the
Revised Penal Code, which follows the pro reo
principle, is intended to favor the accused by
imposing a single penalty irrespective of the crimes
committed.
The rationale being, that the accused who commits
two
crimes
with
single
criminal
impulse
demonstrates lesser perversity than when the crimes
are committed by different acts and several criminal
resolutions.
The single act by appellant of detonating a hand
grenade may quantitatively constitute a cluster of
several separate and distinct offenses, yet these
component criminal offenses should be considered
only as a single crime in law on which a single
penalty is imposed because the offender was
impelled by a ―single criminal impulse‖ which shows
his lesser degree of perversity.
People v. Delos Santos (2001):
Held:
Considering that the incident was not a product of a
malicious intent but rather the result of a single act
of reckless driving,
Glenn should be held guilty of the complex crime of
reckless imprudence resulting in multiple homicide
with serious physical injuries and less serious
physical injuries.
The slight physical injuries caused by Glenn to the
ten other victims through reckless imprudence,
would, had they been intentional, have constituted
light felonies.
Being light felonies, which are not covered by Article
48, they should be treated and punished as separate
offenses.
Separate informations should have, therefore, been
filed.
People v. Velasquez (2000):
Velasquez, poked a toy gun and forced Karen to go
with her at his grandmother‘s house.
Out of fear and not knowing that the gun that
Velasquez was holding is a mere toy, Karen went
with Velasquez.
Velasquez then raped Karen twice.
The trial court convicted Velasquez of two counts of
rape.
Held:
Considering that Velasquez forcibly abducted Karen
and then raped her twice, he should be convicted of
the complex crime of forcible abduction with rape
and simple rape.
The penalty for complex crimes is the penalty for
the most serious crime which shall be imposed in its
maximum period.
Rape is the more serious of the two crimes and is
punishable with reclusion perpetua under Article
266-A of the Revised Penal Code and since reclusion
perpetua is a single indivisible penalty, it shall be
imposed as it is.
The subsequent rape committed by Velasquez can no
longer be considered as a separate complex crime of
forcible abduction with rape but only as a separate
act of rape punishable by reclusion perpetua.
2. Crimes
Different
from
That
Intended
Art. 49. Penalty to be imposed upon the
principals when the crime committed is different
from that intended. — In cases in which the felony
committed is different from that which the offender
intended to commit, the following rules shall be
observed:
1. If the penalty prescribed for the felony committed
be higher than that corresponding to the offense
which the accused intended to commit, the penalty
corresponding to the latter shall be imposed in its
maximum period.
2. If the penalty prescribed for the felony committed
be lower than that corresponding to the one which
the accused intended to commit, the penalty for the
former shall be imposed in its maximum period.
3. The rule established by the next preceding
paragraph shall not be applicable if the acts
committed by the guilty person shall also constitute
an attempt or frustration of another crime, if the
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CRIMINAL LAW REVIEWER
106
law prescribes a higher penalty for either of the
latter offenses, in which case the penalty provided
for the attempted or the frustrated crime shall be
imposed in its maximum period.
Either the crime committed be more grave than the
crime intended or the crime intended be more grave
than the crime committed, the penalty to be
imposed should be the penalty for the lesser felony
in its MAXIMUM period.
Except: if the lesser felony constitutes an attempt or
frustration of another felony.
Example: If the crime intended was homicide, but
the crime committed was parricide, the penalty to
be imposed is the penalty for homicide in its
MAXIMUM period.
Impossible Crimes
Art. 59. Penalty to be imposed in case of failure
to commit the crime because the means employed
or the aims sought are impossible. — When the
person intending to commit an offense has already
performed the acts for the execution of the same
but nevertheless the crime was not produced by
reason of the fact that the act intended was by its
nature one of impossible accomplishment or because
the means employed by such person are essentially
inadequate to produce the result desired by him, the
court, having in mind the social danger and the
degree of criminality shown by the offender, shall
impose upon him the penalty of arresto mayor or a
fine from 200 to 500 pesos.
Depending upon the social danger and the degree of
criminality shown by the offender, the penalty for
impossible crimes is arresto mayor or fine of P200P500.
Plural Crimes (supra)
Additional Penalty for Certain Accessories
Art. 58. Additional penalty to be imposed upon
certain accessories.
Those accessories falling within the terms of
paragraphs 3 of Article 19 of this Code
who should act with abuse of their public functions,
shall suffer the additional penalty of

absolute perpetual disqualification if the
principal offender shall be guilty of a grave
felony, and that

of absolute temporary disqualification if he shall
be guilty of a less grave felony.
Absolute perpetual disqualification if the principal
offender is guilty of a grave felony.
Absolute temporary disqualification if the principal
offender is guilty of a less grave felony.
3. Where the Offender Is Below 18
Years
Art. 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.
PD No. 603. ART. 192. Suspension of Sentence and
Commitment of Youthful Offender.
(1) If after hearing the evidence in the proper
proceedings, the court should find that the
youthful offender has committed the acts
charged against him
(2) the court shall determine the imposable
penalty, including any civil liability chargeable
against him.
(3) However, instead of pronouncing judgment of
conviction, the court shall suspend all further
proceedings and shall commit such minor to the
custody or care of the Department of Social
Welfare, or to any training institution
(4) until he shall have reached twenty-one years of
age or, for a shorter period as the court may
deem proper,
(5) after
considering
the
reports
and
recommendations of the Department of Social
Welfare or the agency or responsible individual
under whose care he has been committed.
The youthful offender shall be subject to visitation
and supervision
by a representative of the Department of Social
Welfare or any duly licensed agency or such other
officer as the court may designate subject to such
conditions as it may prescribe.
Art. 68 applies to such minor if his application for
suspension of sentence is disapproved or if while in
the reformatory institution he becomes incorrigible
in which case he shall be returned to the court for
the imposition of the proper penalty.
9 to 15 years only with discernment: at least 2
degrees lower.
15 to 18 years old: penalty next lower
CRIMINAL LAW REVIEWER
Except if the act is attended by two or more
mitigating and no aggravating circumstance, the
penalty being divisible, a minor over 15 but under 18
years old may still get a penalty two degrees lower.
Art. 68 provides for two of the PRIVILEGED
MITIGATING CIRCUMSTANCES
(Asked once in the Bar Exams)
H. Execution and Service
Execution of Penalties
Art. 78. When and how a penalty is to be
executed.
No penalty shall be executed except by virtue of a
final judgment.
A penalty shall not be executed in any other form
than that prescribed by law, nor with any other
circumstances or 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.
The judgment must be final before it can be
executed, because the accused may still appeal
within 15 days from its promulgation.
But if the defendant has expressly waived in writing
his right to appeal, the judgment becomes final and
executory.
See Rules and regulations to implement RA No. 8177
under Capital Punishment.
Art. 86. Reclusion perpetua, reclusion temporal,
prision mayor, prision correccional and arresto
mayor.
The penalties of reclusion perpetua, reclusion
temporal, prision mayor, prision correccional 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.
Art. 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.
Convict shall not be permitted to enter the place
designated in the sentence nor within the radius
specified,

which shall not more than 250 and not less than
25 km from the place designated.
If the convict enters the prohibited area, he commits
evasion of sentence.
Destierro is imposed:

When the death or serious physical injuries is
caused or are inflicted under exceptional
circumstances (art. 247);

When a person fails to give bond for good
behavior (art. 284);

As a penalty for the concubine in the crime of
concubinage (Art. 334);

When after lowering the penalty by degrees,
destierro is the proper penalty.
Art. 88. Arresto menor.
The penalty of arresto menor shall be served in the
municipal jail, or in the house of the defendant
himself under the surveillance of an officer of the
law,
when the court so provides in its decision, taking
into consideration the health of the offender and
other reasons which may seem satisfactory to it.
Service of the penalty of arresto menor:

In the municipal jail

In the house of the offender, but under the
surveillance of an officer of the law For health
or other good reasons as determined by the
court.
In the Matter of the petition for Habeas Corpus of
Pete Lagran (2001):
The accused was convicted of 3 counts of violating
BP22 and was sentenced to imprisonment of 1 year
for each count.
He was detained on Feb. 24, 1999.
On Mar. 19, 2001, he filed a petition for habeas
corpus claiming he completed the service of his
sentence.
Citing Art. 70, RPC, he claimed that he shall serve
the penalties simultaneously.
Thus, there is no more legal basis for his detention.
Held:
Art. 70 allows simultaneous service of two or more
penalties only if the nature of the penalties so
permit.
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CRIMINAL LAW REVIEWER
108
In the case at bar, the petitioner was sentenced to
suffer one year imprisonment for every count of the
offense committed.
The nature of the sentence does not allow petitioner
to serve all the terms simultaneously.
The rule of successive service of sentence must be
applied.
(Asked once in the Bar Exams)
1. Probation
Law
(P.D.
968,
as
amended)
a. Definition of terms (Sec. 3)
Probation – a disposition under which a defendant,
after conviction and sentence, is released subject to
conditions imposed by the court and to the
supervision of a probation officer.
filed their respective applications for probation at
the time of the effectivity of this Decree.
Llamado v. CA (1989):
In its present form, Section 4 of the Probation Law
establishes a much narrower period during which an
application for probation may be filed with the trial
court: ―after the trial curt shall have convicted and
sentenced a defendant and – within the period for
perfecting an appeal‖.
The provision expressly prohibits the grant of an
application for probation if the defendant has
perfected an appeal from the judgment of
conviction.
Petitioner‘s right to apply for probation was lost
when he perfected his appeal from the judgment of
the trial court.
The trial court lost jurisdiction already over the
case.
Probationer – a person placed on probation
Probation officer – one who investigates for the
court a referral for probation or supervises a
probationer or both.
b.Purpose (Sec. 2)
1.
2.
3.
Promote the correction and rehabilitation of an
offender by providing him with individualized
treatment
Provide an opportunity for the reformation of a
penitent offender which might be less probable
if he were to serve a prison sentence
Prevent the commission of offenses
c. Grant of probation, manner and conditions
Grant of probation (Sec. 4)
Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and
sentenced a defendant and upon application by said
defendant within the period for perfecting an
appeal, suspend the execution of the sentence and
place the defendant on probation for such period
and upon such terms and conditions as it may deem
best: Provided, That no application for probation
shall be entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence
imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial
court. The filing of the application shall be deemed
a waiver of the right to appeal.
An order granting or denying probation shall not be
appealable.
The provisions of Sec. 4 of PD 968, as above
amended, shall not apply to those who have already
Salgado v. CA (1990):
There is no question that the decision convicting
Salgado of the crime of serious physical injuries had
become final and executory because the filing by
respondent of an application for probation is
deemed a waiver of his right to appeal.
The grant of probation does not extinguish the civil
liability of the offender.
The order of probation with one of the conditions
providing for the manner of payment of the civil
liability during the period of probation did not
increase or decrease the civil liability adjudged.
The conditions listed under Sec. 10 of the Probation
law are not exclusive.
Courts are allowed to impose practically any term it
chooses, the only limitation being that it does not
jeopardize the constitutional rights of the accused.
Office of the Court Administrator v. Librado
(1996):
Held:
While indeed the purpose of the Probation Law is to
save valuable human material,
it must not be forgotten that unlike pardon
probation does not obliterate the crime of which the
person under probation has been convicted.
The image of the judiciary is tarnished by conduct
involving moral turpitude.
The reform and rehabilitation of the probationer
cannot justify his retention in the government
service.
CRIMINAL LAW REVIEWER
Conditions of probation (Sec. 10)
Sec. 10. Conditions of Probation – Every probation
order issued by the court shall contain conditions
requiring that the probationer shall:
a) Present himself to the probation officer
designated to undertake his supervision at such
place as may be specified in the order within 72
hours from receipt of the order;
b) Report to the probation officer at least once a
month at such time and place as specified by
said officer.
The
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
court may also require the probationer to:
Cooperate with a program of supervision;
Meet his family responsibilities;
Devote himself to a specific employment and
not to change said employment without the
prior written approval of the probation officer;
Undergo medical, psychological or psychiatric
examination and treatment and enter and
remain in a specified institution, when required
for that purpose;
Pursue a prescribed secular study or vocational
training;
Attend or reside in a facility established for
instruction, recreation or residence of persons
on probation;
Refrain from visiting houses of ill-repute;
Abstain from drinking intoxicating beverages to
excess;
Permit the probation officer or an authorized
social worker to visit his home and place of
work;
Reside at premises approved by it and not to
change his residence without its prior written
approval; or
Satisfy any other condition related to the
rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his
freedom of conscience.
d. Criteria of placing
probation (Sec. 8)
1.
2.
All
a.
b.
c.
d.
e.
an
offender
on
information relative to the –
character,
antecedents,
environment,
mental, and
physical
condition of the offender
Available institutional and community resources.
e. Disqualified offenders
Probation under PD No. 968, as amended, is
intended for offenders who are 18 years of age and
above, and who are not otherwise disqualified by
law.
Offenders who are disqualified are those:
a) Sentenced to serve a maximum
imprisonment of more than six years;
term
of
b)
c)
d)
e)
Convicted of subversion or any offense against
the security of the State, or the Public Order;
Who have previously been convicted by final
judgment of an offense punished by
imprisonment of not less than one month and
one day and/or a fine of not more than Two
Hundred Pesos;
Who have been once on probation under the
provisions of this Decree; and
Who are already serving sentence at the time
the substantive provisions of PD 968 became
applicable pursuant to Sec. 33 hereof
(Effectivity clause: PD 968‘s substantive
provisions took effect on 3 January 1978)
f. Period of probation (Sec. 14)
Sec. 14.
a. The period of probation of a defendant
sentenced to a term of imprisonment of not
more than one year shall not exceed 2 years,
and in all other cases, said period shall not
exceed 6 years.
b. When the sentence imposes a fine only and the
offender is made to serve subsidiary
imprisonment in case of insolvency, the period
of probation shall not be less than nor be more
than twice the total number of days of
subsidiary imprisonment as computed at the rate
established in Art. 39 of the RPC, as amended.
Question: When is the period for filing of
probation?
Answer: Filing period is within the period for
perfecting an appeal.
Question: Where do you file your probation
application?
Answer: Trial Court
Question: Does the law allow the simultaneous
filing of probation and appeal?
Answer: No. It‘s either you file for probation or you
file for appeal. Only one choice, if you choose one
then you are barred from using the other.
Question: When shall probation be denied?
Answer: Probation shall be denied when:
1. the offender is in need of correctional
treatment that can be provided most effectively
by his commitment to an institution.
2. there is undue risk that during the probation,
the offender will commit another crime.
3. probation will deprecate the seriousness of the
offense committed.
Question: What if the offender violates the
conditions of his probation?
Answer: S/He shall serve the penalty imposed for the
offense under which s/he was placed on probation.
Question: How long may a convict be placed on
probation?
Answer:
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1.
110
2.
3.
if the convict is sentence to imprisonment of not
more than one year, probation shall not exceed
two years
if s/he sentenced to more than one year,
probation shall not exceed six years.
if the sentence is only a fine (offender in this
case is made to suffer subsidiary imprisonment),
probation Shall be not less than nor more than
twice
the
total
days
of
subsidiary
imprisonment.
Question: Does the probation law apply to Drug
Traffickers and Pushers?
Answer: NO
Section 24 of RA 9165 (The
Dangerous Drugs Act) states that:
Comprehensive
Section 24. Non-Applicability of the Probation
Law for Drug Traffickers and Pushers. – Any person
convicted for drug trafficking or pushing under this
Act, regardless of the penalty imposed by the Court,
cannot avail of the privilege granted by the
Probation Law or Presidential Decree No. 968, as
amended.
Lagrosa vs. People (2003): A person who appeals his
conviction for purposes of reducing the penalty to
that which is within the probationable limit may still
apply for probation.
(ASKED 16 TIMES IN THE BAR EXAMS)
g. Arrest of probationer (Sec. 15)
Sec. 15. Arrest of probationer; subsequent
dispositions. – At any time during probation, the
court may issue a warrant for the arrest of a
probationer for any serious violation of the
conditions of probation. The probationer, once
arrested and detained, shall immediately be brought
before the court for a hearing of the violation
charged. The defendant may be admitted to bail
pending such hearing. In such case, the provisions
regarding release on bail of persons charged with a
crime shall be applicable to probationers arrested
under this provision.
In the hearing, which shall be summary in nature,
the probationer shall have the right to be informed
of the violation charged and to adduce evidence in
his favor. The court shall not be bound by the
technical rules of evidence but may inform itself of
all the facts which are material and relevant to
ascertain the veracity of the charge. The State shall
be represented by a prosecuting officer in any
contested hearing. If the violation is established, the
court may revoke or continue his probation and
modify the conditions thereof. If revoked, the court
shall order the probationer to serve the sentence
originally imposed. An order revoking the grant of
probation or modifying the terms and conditions
thereof shall not be appealable.
Suspension in case of Insanity or Minority
Insanity
Art. 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.
If at any time the convict shall recover his reason,
his sentence shall be executed, unless the penalty
shall have prescribed in 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.
Only execution of personal penalty is suspended:
civil liability may be executed even in case of
insanity of convict.
An accused may become insane:
1) at the time of commission of the crime

exempt from criminal liability
2) at the time of the trial

court shall suspend hearings and order his
confinement in a hospital until he recovers
his reason
3) at the time of final judgment or while serving
sentence
execution suspended with regard to the personal
penalty only
Minority
Please refer to succeeding subsection on RA 9344
and PD 603
h. Termination of probation; exception
i. The Comprehensive Dangerous Drugs Act of
2002 (R.A. 9165)
Sec. 16. Termination of probation – After the
period of probation and upon consideration of the
report and recommendation of the probation officer,
the court may order the final discharge of the
probationer upon finding that he has fulfilled the
terms and conditions of his probation and thereupon,
the case is deemed terminated.
The final discharge of the probationer shall operate
to restore to him all civil rights lost or suspended as
a result of his conviction and to fully discharge his
liability for any fine imposed as to the offense for
which probation was granted.
The probationer and the probation officer shall each
be furnished with a copy of such order.
The expiration of the probation period alone does
not automatically terminate probation. Probation is
not coterminous with its period. There must first be
CRIMINAL LAW REVIEWER
issued by the court, an order of final discharge based
on the report and recommendation of the probation
officer. Only from such issuance can the case of the
probationer be deemed terminated. (Bala v.
Martinez, supra)
EXCEPTION
The Comprehensive Dangerous Drugs Act of 2002
(R.A. 9165)
RA 9165, Sec. 24. Non-applicability of the
Probation Law for drug traffickers and pushers –
Any person convicted for drug trafficking or pushing
under this Act, regardless of the penalty imposed by
the Court, cannot avail of the privilege granted by
the Probation Law or PD 968, as amended.
ii. Juvenile Justice and Welfare Act of 2006 (R.A.
9344); also refer to Child and Youth Welfare Code
(P.D. 603, as amended)
(a) Definition of child in conflict with
the law (Sec. 4, RA 9344)
Child in conflict with the law – a child who is
alleged as, accused of, or adjudged as, having
committed an offense under Philippine laws
Child – a person under 18 years
1.
2.
(b) Exemption from criminal liability
Child 15 years of age or under at the time of the
commission of the offense = EXEMPT from
criminal liability

However, the child shall be subjected to an
intervention program (per Sec. 20 of RA
9344)
Child above 15 years but below 18 years of age
(15 ≤ Age of child at time of commission of
offense ≤ 18) = EXEMPT from criminal liability
and subjected to intervention program

UNLESS the child acted with discernment, in
which case, such child shall be subjected to
the appropriate proceedings in accordance
with RA 9344
Exemption from criminal liability herein established
does not include exemption from civil liability,
which shall be enforced in accordance with existing
laws. (Sec. 6, RA 9344)
RA 9344 compared to PD 603
1. Minimum age of criminal responsibility
PD 603
Sec. 189. EXEMPT from criminal liability:
 Child 9 years of age or under at time of
commission of offense
 9 ≤ Age of child at time of commission of offense
≤ 15 (UNLESS s/he acted with discernment
RA 9344
Child under 15 years of age shall be exempt from
criminal liability, regardless of whether or not s/he
acted with discernment
2.
Discernment
PD 603 (Secs. 189 & 192)
Child over 9 years and under 15 years of age who
acted w/ discernment – court shall determine
imposable penalty, including any civil liability
chargeable against him.
However, instead of pronouncing judgment of
conviction, the court, upon application of the
youthful offender and if it finds that the best
interest of the public as well as that of the offender
will be served thereby, may suspend all further
proceedings and shall commit such minor to the
custody or care of the DSWD or to any training
institution operated by the government, or duly
licensed agencies or any other responsible person,
until he shall have reached 21 years of age or, for a
shorter period as the court may deem proper.
RA 9344
Child above 15 years but below 18 years of age who
acted with discernment shall be subjected to the
appropriate proceedings in accordance with the Act.
3.
Suspension of sentence
PD 603 (Sec. 193)
No automatic suspension of sentence.

The youthful offender should apply for a
suspended sentence and it is discretionary on
the court to approve the application. The order
of the court denying an application for
suspension of sentence shall not be appealable.
RA 9344
Suspension of sentence is automatic
(c) Juvenile justice and welfare system
RA 9344, Sec. 4(m). ―Juvenile Justice and Welfare
System‖ refers to a system dealing with children at
risk and children in conflict with the law, which
provides child-appropriate proceedings, including
programs and services for prevention, diversion,
rehabilitation, re-integration and aftercare to ensure
their normal growth and development.
NOTE: Please refer to Title V of RA 9344 for the
pertinent provisions. (Sections on:
1. Initial contact with the child
2. Diversion
3. Prosecution
4. Court proceedings
5. Confidentiality of records and proceedings)
Diversion
RA 9344, Sec. 4(j). ―Diversion‖ 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 resulting to formal court proceedings.
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112
―Diversion Program‖ 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.
Intervention program
SEC. 18. Development of a Comprehensive
Juvenile Intervention Program. - A Comprehensive
juvenile intervention program covering at least a 3year period shall be instituted in LGUs from the
barangay to the provincial level.
The LGUs shall set aside an amount necessary to
implement their respective juvenile intervention
programs in their annual budget.
The LGUs, in coordination with the LCPC, shall call
on all sectors concerned, particularly the childfocused institutions, NGOs, people's organizations,
educational institutions and government agencies
involved in delinquency prevention to participate in
the planning process and implementation of juvenile
intervention programs. Such programs shall be
implemented consistent with the national program
formulated and designed by the JJWC. The
implementation of the comprehensive juvenile
intervention program shall be reviewed and assessed
annually by the LGUs in coordination with the LCPC.
Results of the assessment shall be submitted by the
provincial and city governments to the JJWC not
later than March 30 of every year.
SEC. 19. Community-based Programs on Juvenile
Justice and Welfare. - Community-based programs
on juvenile justice and welfare shall be instituted by
the LGUs through the LCPC, school, youth
organizations and other concerned agencies. The
LGUs shall provide community-based services which
respond to the special needs, problems, interests
and concerns of children and which offer appropriate
counseling and guidance to them and their families.
These programs shall consist of three levels:
(a) Primary intervention includes general measures
to promote social justice and equal opportunity,
which tackle perceived root causes of offending;
(b) Secondary intervention includes measures to
assist children at risk; and
(c) Tertiary intervention includes measures to avoid
unnecessary contact with the formal justice
system and other measures to prevent reoffending.
System of diversion (Sec. 23, RA 9344)
SEC. 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
committee 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.
Distinguished from Preventive Imprisonment
Art. 29. Period of preventive imprisonment
deducted from term of imprisonment.
Offenders
who
have
undergone
preventive
imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty,
with the full time during which they have undergone
preventive imprisonment, if the detention prisoner
agrees voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners,
except in the following cases:
a. When they are recidivists or have been convicted
previously twice or more times of any crime; and
b. When upon being summoned for the execution of
their sentence they have failed to surrender
voluntarily.
If the detention prisoner does not agree to abide by
the same disciplinary rules imposed upon convicted
prisoners, he shall be credited in the service of his
sentence with four-fifths of the time during which he
has undergone preventive imprisonment. (As
amended by Republic Act 6127, June 17, 1970).
Whenever an accused has undergone preventive
imprisonment

for a period equal to or more than the possible
maximum imprisonment of the offense charged
to which he may be sentenced

and his case is not yet terminated,
he shall be released immediately without prejudice
to the continuation of the trial thereof or the
proceeding on appeal,
if the same is under review.
In case the maximum penalty to which the accused
may be sentenced is destierro, he shall be released
after thirty (30) days of preventive imprisonment.
(As amended by E.O. No. 214, July 10, 1988).
The accused undergoes preventive imprisonment
when the offense charged is nonbailable, or even if
bailable, he cannot furnish the required bail.
CRIMINAL LAW REVIEWER
The convict is to be released immediately if the
penalty imposed after trial is less than the full time
or four-fifths of the time of the preventive
imprisonment.
CHAPTER VI. MODIFICATION AND
EXTINCTION OF CRIMINAL
LIABILITY
The accused shall be released immediately whenever
he has undergone preventive imprisonment for a
period equal to or more than the possible maximum
imprisonment for the offense charged.
(ASKED 7 TIMES IN THE BAR EXAMS)
This section enumerates and explains the ways in
which criminal liability is extinguished. ONLY
PRESCRIPTION OF CRIMES, PRESCRIPTION OF
PENALTIES, PARDON BY OFFENDED PARTY,
PARDON BY THE CHIEF EXECUTIVE AND AMNESTY
SHALL BE DISCUSSED IN DETAIL, FOLLOWING THE SC
OUTLINE.
Two kinds of extinguishment of criminal liability:
A.
1.
2.
3.
4.
5.
6.
7.
TOTAL EXTINGUISHMENT
By prescription of crime
By prescription of penalty
By the death of the convict
By Service of sentence
By Amnesty
By Absolute Pardon
By the marriage of the offended woman and the
offender in the crimes of rape, abduction,
seduction and acts of lasciviousness. (Art. 344)
B.
1.
2.
3.
PARTIAL EXTINGUISHMENT
By Conditional Pardon
By Commutation of sentence
For good conduct, allowances which the culprit
may earn while he is serving sentence
By Parole
By Probation
4.
5.
Important: The Supreme Court ruled that re-election
to public office is not one of the grounds by which
criminal liability is extinguished. This is only true in
administrative cases but not in criminal cases.
A. Prescription of crimes (Art. 90)
(ASKED 4 TIMES IN THE BAR EXAMS)
Definition: The forfeiture or loss of the right of the
State to prosecute the offender, after the lapse of a
certain period of time.
General Rule: Prescription of the crime begins on
the day the crime was committed.
Exception: The crime was concealed, not public, in
which case, the prescription thereof would only
commence from the time the offended party or the
government learns of the commission of the crime.
Difference between Prescription of Crime and
Prescription of the Penalty
Prescription of the
Prescription of crime
penalty
Forfeiture of the State Forfeiture to execute
to prosecute after a the final sentence after
lapse of a certain time
the lapse of a certain
113
CRIMINAL LAW REVIEWER
time
114
1)
Question: What happens when the last day of the
prescriptive period falls on a Sunday or legal holiday?
Answer: The information can no longer be filed on
the next day as the crime has already prescribed.
Prescriptive Periods of Crimes
(ASKED 4 TIMES IN THE BAR EXAMS)
1) Crimes punishable by death,
reclusion perpetua or reclusion
temporal
2) Afflictive penalties
3)
Correctional penalties
Note: Those punishable by
arresto mayor
Note: When the penalty fixed
law is a compound one
4)
5)
6)
7)
8)
9)
Libel
Oral defamation and slander
by deed
Simple slander
Grave slander
Light offenses
Crimes punishable by fines
a) Fine is afflictive
b) Fine is correctional
c) Fine is light
Note: Subsidiary penalty
for
nonpayment
not
considered in determining
the period
Note: When fine is an
alternative
penalty
higher than the other
penalty which is by
imprisonment,
prescription of the crime
is based on the fine.
2)
3)
20 years
15 years
10 years
5 years
The highest
penalty
shall
be
made
a
basis
1 year
4)
5)
Commences to run from the day on which the
crime is discovered by the offended party, the
authorities or their agents.
Interrupted by the filing of complaint or
information
It shall commence to run again when such
proceedings terminate without the accused
being convicted or acquitted, or unjustifiably
stopped for any reason not imputable to the
accused.
Note: Termination must be FINAL as to
amount to a jeopardy that would bar a
subsequent prosecution.
The term of prescription shall not run when the
offender is absent from the Philippine
archipelago.
For continuing crimes, prescriptive period
cannot begin to run because the crime does not
end.
B. Prescription of penalties (Art.
92)
6 months
2 months
6 months
2 months
15 years
10 years
2 months
Prescriptive periods under special laws and
municipal ordinances (Act 3763, amending Act
3326)
Offenses punished only by fine or
imprisonment for not more than one 1 year
month or both
Imprisonment for more than one
4 years
month, but less than two years
Imprisonment for two years but less
8 years
than six years
Imprisonment for six years or more
12 years
Offenses under Internal Revenue Law
5 years
Violations of municipal ordinances
2 months
Violations of the regulations or
conditions
of
certificate
of
2 months
convenience by the Public Service
Commission
*Not applicable where the special law provides for
its own prescriptive period
Computation of Prescription of Offenses (Art. 91)
(ASKED 4 TIMES IN THE BAR EXAMS)
Definition: The loss or forfeiture of the right of the
government to execute the final sentence after the
lapse of a certain period of time.
Prescriptive Periods of Penalties
Death and reclusion perpetua
Other afflictive penalties
Correctional penalties
Note: If arresto mayor
Light penalties
20 years
15 years
10 years
5 years
1 year
Computation of Prescription of Penalties (Art. 93)
Elements:
1. Penalty is imposed by final judgment
2. Convict evaded service of sentence by escaping
during the term of his sentence
3. The convict who has escaped from prison has
not given himself up, or been captured, or gone
to a foreign country with which we have no
extradition treaty, or committed another crime
4. The penalty has prescribed because of the lapse
of time from the date of the evasion of service
of the sentence by the convict.
Period commences to run from the date when he
culprit evaded18 the service of sentence
When interrupted:

Convict gives himself up

Is captured

Goes to a foreign country with which we
have no extradition treaty
18
"Escape" in legal parlance and for purposes of Articles 93
and 157 of the RPC means unlawful departure of prisoner
from the limits of his custody. Clearly, one who has not been
committed to prison cannot be said to have escaped
therefrom (Del Castillo v. Torrecampo (2002).
CRIMINAL LAW REVIEWER

Commits any crime before the expiration of
the period of prescription
Question: What happens in cases where our
government has extradition treaty with another
country but the crime is not included in the treaty?
Answer: It would interrupt the running of the
prescriptive period.
Question: What is the effect of the acceptance of
the convict of a conditional pardon?
Answer: It would interrupt the acceptance of the
prescriptive period.
Question: What happens if the culprit is captured
but he evades again the service of his sentence?
Answer: The period of prescription that ran during
the evasion is not forfeited. The period of
prescription that has run in his favor should be taken
into account.
NOTE: THE RPC PROVISIONS ON CIVIL LIABILITY IS
NOT INCLUDED IN THE SC OUTLINE.
C. Pardon by the offended party
Art. 23. Effect of pardon by the offended party.
— A pardon of the offended party does not
extinguish criminal action except as provided in
Article 344 of this Code; but civil liability with
regard to the interest of the injured party is
extinguished by his express waiver.
This article states the extent of a pardon made by
the offended party. Under this article, a pardon does
not extinguish the criminal liability of an offender
except for cases under Article 344 (Prosecution of
the crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness).
release the latter upon compliance with the
condition. One usual condition is ―not again violate
any of the penal laws of the country‖.
Effects of Pardon of the President
Art. 36. Pardon; its effects. – A pardon shall not
work the restoration of the right to hold public
office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit
from the payment of civil indemnity imposed upon
him by the sentence.
Effects:
(1) A pardon shall not restore the right to hold
public office or the right of suffrage.
Exception: When any or both such rights is or
are expressly restored by the terms of the
pardon.
(2) It shall not exempt the culprit from the payment
of the civil indemnity. The pardon cannot make
an exception to this rule.
Limitations upon the exercise of pardoning power
(1) That the power can be exercised only after
conviction.
a. Thus in applying for pardon, the
convict must not appeal the
judgment of conviction or the
appeal must be abandoned.
(2) That such power does not extend to cases of
impeachment. (Cristobal v. Labrador).
Pardon by the Chief
Executive
Extinguishes the criminal
liability of the offender.
But the civil liability with regard to the interest of
the injured party is extinguished.
D. Pardon by the Chief Executive
Absolute Pardon
An act of grace, proceeding from the power
entrusted with the execution of the laws.
Exempts the individual from the penalty of the crime
he has committed.
Monsanto v Factoran (1989):
1. Absolute pardon does not ipso facto entitle the
convict to reinstatement to the public office
forfeited by reason of his conviction.
2. Although pardon restores his eligibility for
appointment to that office, the pardoned convict
must reapply for a new appointment.
Cannot
include
civil
liabilities
which
the
offender must pay.
Conditional or Absolute
Granted only after the
conviction.
Pardon by the offended
party
Does
not
extinguish
criminal
liability.
Although
it
may
constitute a bar to the
prosecution of the: (1)
crimes of seduction,
abduction and acts of
lasciviousness by the
valid marriage of the
offended party and the
offender; and (2) in
adultery
and
concubinage, by the
express
or
implied
pardon by the offended
spouse.
The offended party can
waive the civil liability
which the offender must
pay.
Cannot be conditional
Pardon should be given
before the institution of
criminal prosecution.
E. Amnesty
Conditional Pardon
If delivered and accepted, it is a contract between
the executive and the convict tat the former will
An act of the sovereign power granting oblivion or
general pardon for a past offense.
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CRIMINAL LAW REVIEWER
116
Rarely exercised in favor of a single individual;
usually extended in behalf of certain classes of
persons who are subject trial but have not yet been
convicted.
Erases not only the conviction but the crime itself.
Difference between Amnesty and Absolute Pardon
AMNESTY
ABSOLUTE PARDON
Blanket
pardon
to Includes any crime and is
classes of persons, guilty exercised individually
of political offenses
May still be exercised The person is already
before
trial
or convicted
investigation
Looks backward- it is as Looks forward- he is
if he has committed no relieved
from
the
offense
consequences of the
offense, but rights not
restored unless explicitly
provided by the terms of
the pardon
Both do not extinguish civil liability
Public act which the Private act of the
court shall take judicial President and must be
notice of
pleaded and proved by
the person pardoned
Valid only when there is Valid if given either
final judgment
before or after final
judgment
The effects of amnesty as well as absolute pardon
are not the same. Amnesty erases not only the
conviction but also the crime itself.
If an offender was convicted for rebellion and he
qualified for amnesty, and so he was given an
amnesty, then years later he rebelled again and
convicted, is he a recidivist?
No. Because the amnesty granted to him erased not
only the conviction but also the effects of the
conviction itself.
Suppose, instead of amnesty, what was given was
absolute pardon, then years later, the offended was
again captured and charged for rebellion, he was
convicted, is he a recidivist?
Yes. Pardon, although absolute does not erase the
effects of conviction. Pardon only excuses the
convict from serving the
sentence. There is an exception to this and that is
when the pardon was granted when the convict had
already served the sentence such that there is no
more service of sentence to be executed then the
pardon shall be understood as intended to erase the
effects of the conviction.
So if the convict has already served the sentence and
in spite of that he was given a pardon that pardon
will cover the effects of the crime and therefore, if
he will be subsequently convicted for a felony
embracing the same title as that crime, he cannot
be considered a recidivist, because the pardon wipes
out the effects of the crime.
But if he was serving sentence when he was
pardoned, that pardon will not wipe out the effects
of the crime, unless the language of the pardon
absolutely relieve the offender of all the effects
thereof. Considering that recidivism does not
prescribe, no matter how long ago was the first
conviction, he shall still be a recidivist.
CRIMINAL LAW REVIEWER
Republic Act No. 9344
AN ACT ESTABLISHING A COMPREHENSIVE
JUVENILE JUSTICE AND WELFARE SYSTEM,
CREATING THE JUVENILE JUSTICE AND WELFARE
COUNCIL UNDER THE DEPARTMENT OF JUSTICE,
APPROPRIATING FUNDS THEREFOR AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
TITLE I
GOVERNING PRINCIPLES
CHAPTER 1
TITLE, POLICY AND DEFINITION OF TERMS
Section 1. Short Title and Scope. - This Act shall be
known as the "Juvenile Justice and Welfare Act of
2006." It shall cover the different stages involving
children at risk and children in conflict with the law
from prevention to rehabilitation and reintegration.
SEC. 2. Declaration of State Policy. - The following
State policies shall be observed at all times:
(a) The State recognizes the vital role of
children and youth in nation building and
shall promote and protect their physical,
moral, spiritual, intellectual and social
well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage
their involvement in public and civic affairs.
(b) The State shall protect the best
interests of the child through measures that
will ensure the observance of international
standards of child protection, especially
those to which the Philippines is a party.
Proceedings before any authority shall be
conducted in the best interest of the child
and in a manner which allows the child to
participate and to express himself/herself
freely. The participation of children in the
program and policy formulation and
implementation related to juvenile justice
and welfare shall be ensured by the
concerned government agency.
(c) The State likewise recognizes the right
of children to assistance, including proper
care and nutrition, and special protection
from all forms of neglect, abuse, cruelty
and exploitation, and other conditions
prejudicial to their development.
(d) Pursuant to Article 40 of the United
Nations Convention on the Rights of the
Child, the State recognizes the right of
every child alleged as, accused of,
adjudged, or recognized as having infringed
the penal law to be treated in a manner
consistent with the promotion of the child's
sense of dignity and worth, taking into
account the child's age and desirability of
promoting his/her reintegration. Whenever
appropriate and desirable, the State shall
adopt measures for dealing with such
children without resorting to judicial
proceedings, providing that human rights
and legal safeguards are fully respected. It
shall ensure that children are dealt with in
a manner appropriate to their well-being by
providing for, among others, a variety of
disposition measures such as care, guidance
and
supervision
orders,
counseling,
probation, foster care, education and
vocational training programs and other
alternatives to institutional care.
(e) The administration of the juvenile
justice and welfare system shall take into
consideration the cultural and religious
perspectives of the Filipino people,
particularly the indigenous peoples and the
Muslims, consistent with the protection of
the rights of children belonging to these
communities.
(f) The State shall apply the principles of
restorative justice in all its laws, policies
and programs applicable to children in
conflict with the law.
SEC. 3. Liberal Construction of this Act. - In case
of doubt, the interpretation of any of the provisions
of this Act, including its implementing rules and
regulations (IRRs), shall be construed liberally in
favor of the child in conflict with the law.
SEC. 4. Definition of Terms. - The following terms
as used in this Act shall be defined as follows:
(a) "Bail" refers to the security given for the
release of the person in custody of the law,
furnished by him/her or a bondsman, to
guarantee his/her appearance before any
court. Bail may be given in the form of
corporate security, property bond, cash
deposit, or recognizance.
(b) "Best Interest of the Child" refers to 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.
(e) "Child" refers to a person under the age
of eighteen (18) years.
(d) "Child at Risk" 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;
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118
(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.
(e) "Child in Conflict with the Law" refers to
a child who is alleged as, accused of, or
adjudged as, having committed an offense
under Philippine laws.
(f) "Community-based Programs" refers to
the programs provided in a community
setting
developed
for
purposes
of
intervention and diversion, as well as
rehabilitation of the child in conflict with
the law, for reintegration into his/her
family and/or community.
(g) "Court" refers to a family court or, in
places where there are no family courts,
any regional trial court.
(h) "Deprivation of Liberty" refers to any
form of detention or imprisonment, or to
the placement of a child in conflict with the
law in a public or private custodial setting,
from which the child in conflict with the
law is not permitted to leave at will by
order of any judicial or administrative
authority.
(i) "Diversion" 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.
(j) "Diversion Program" 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.
(k) "Initial Contact With-the Child" refers to
the apprehension or taking into custody of a
child in conflict with the law by law
enforcement officers or private citizens. It
includes the time when the child alleged to
be in conflict with the law receives a
subpoena under Section 3(b) of Rule 112 of
the Revised Rules of Criminal Procedure or
summons under Section 6(a) or Section 9(b)
of the same Rule in cases that do not
require preliminary investigation or where
there is no necessity to place the child
alleged to be in conflict with the law under
immediate custody.
(I) "Intervention" refers to a series of
activities which are designed to address
issues that caused the child to commit an
offense. It may take the form of an
individualized treatment program which
may include counseling, skills training,
education, and other activities that will
enhance his/her psychological, emotional
and psycho-social well-being.
(m) "Juvenile Justice and Welfare System"
refers to a system dealing with children at
risk and children in conflict with the law,
which
provides
child-appropriate
proceedings, including programs and
services
for
prevention,
diversion,
rehabilitation, re-integration and aftercare
to ensure their normal growth and
development.
(n) "Law Enforcement Officer" refers to the
person in authority or his/her agent as
defined in Article 152 of the Revised Penal
Code, including a barangay tanod.
(0) "Offense" refers to any act or omission
whether punishable under special laws or
the Revised Penal Code, as amended.
(p) "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.
(q) "Restorative Justice" 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
reparation for the victim; reconciliation of
the offender, the offended and the
community; and reassurance to the
offender that he/she can be reintegrated
into society. It also enhances public safety
by activating the offender, the victim and
the community in prevention strategies.
(r) "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.
(s) "Youth Detention Home" refers to a 24hour child-caring institution managed by
accredited local government units (LGUs)
and
licensed
and/or
accredited
nongovernment
organizations
(NGOs)
providing short-term residential care for
children in conflict with the law who are
awaiting court disposition of their cases or
transfer to other agencies or jurisdiction.
(t) "Youth Rehabilitation Center" refers to a
24-hour residential care facility managed by
the Department of Social Welfare and
Development (DSWD), LGUs, licensed
and/or accredited NGOs monitored by the
DSWD, which provides care, treatment and
rehabilitation services for children in
conflict with the law. Rehabilitation
services are provided under the guidance of
a trained staff where residents are cared
CRIMINAL LAW REVIEWER
for under a structured therapeutic
environment with the end view of
reintegrating them into their families and
communities
as
socially
functioning
individuals. Physical mobility of residents of
said centers may be restricted pending
court disposition of the charges against
them.
(u) "Victimless Crimes" refers to offenses
where there is no private offended party.
CHAPTER 2
PRINCIPLES IN THE ADMINISTRATION OF JUVENILE
JUSTICE AND WELFARE
SEC. 5. Rights of the Child in Conflict with the
Law. - Every child in conflict with the law shall have
the following rights, including but not limited to:
(a) the right not to be subjected to torture
or other cruel, inhuman or degrading
treatment or punishment;
(b) the right not to be imposed a sentence
of capital punishment or life imprisonment,
without the possibility of release;
(c) the right not to be deprived, unlawfully
or arbitrarily, of his/her liberty; detention
or imprisonment being a disposition of last
resort, and which shall be for the shortest
appropriate period of time;
(d) the right to be treated with humanity
and respect, for the inherent dignity of the
person, and in a manner which takes into
account the needs of a person of his/her
age. In particular, a child deprived of
liberty shall be separated from adult
offenders at all times. No child shall be
detained together with adult offenders.
He/She shall be conveyed separately to or
from court. He/She shall await hearing of
his/her own case in a separate holding
area. A child in conflict with the law shall
have the right to maintain contact with
his/her family through correspondence and
visits, save in exceptional circumstances;
(e) the right to prompt access to legal and
other appropriate assistance, as well as the
right to challenge the legality of the
deprivation of his/her liberty before a court
or other competent, independent and
impartial authority, and to a prompt
decision on such action;
(f) the right to bail and recognizance, in
appropriate cases;
(g) the right to testify as a witness in
hid/her own behalf under the rule on
examination of a child witness;
(h) the right to have his/her privacy
respected fully at all stages of the
proceedings;
(i) the right to diversion if he/she is
qualified and voluntarily avails of the same;
(j) the right to be imposed a judgment in
proportion to the gravity of the offense
where his/her best interest, the rights of
the victim and the needs of society are all
taken into consideration by the court, under
the principle of restorative justice;
(k) the right to have restrictions on his/her
personal liberty limited to the minimum,
and where discretion is given by law to the
judge to determine whether to impose fine
or imprisonment, the imposition of fine
being preferred as the more appropriate
penalty;
(I) in general, the right to automatic
suspension of sentence;
(m) the right to probation as an alternative
to imprisonment, if qualified under the
Probation Law;
(n) the right to be free from liability for
perjury, concealment or misrepresentation;
and
(o) other rights as provided for under
existing laws, rules and regulations.
The State further adopts the provisions of the United
Nations
Standard
Minimum
Rules
for
the
Administration of Juvenile Justice or "Beijing Rules",
United Nations Guidelines for the Prevention of
Juvenile Delinquency or the "Riyadh Guidelines", and
the United Nations Rules for the Protection of
Juveniles Deprived of Liberty.
SEC. 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 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.
SEC. 7. Determination ofAge. - The child in conflict
with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child
in conflict with the law until he/she is proven to be
eighteen (18) years old or older. The age of a child
may be determined from the child's birth certificate,
baptismal certificate or any other pertinent
documents. In the absence of these documents, age
may be based on information from the child
himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant
evidence. In case of doubt as to the age of the child,
it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict
with the law prior to the filing of the information in
any appropriate court may file a case in a summary
proceeding for the determination of age before the
Family Court which shall decide the case within
twenty-four (24) hours from receipt of the
appropriate pleadings of all interested parties.
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120
If a case has been fiied against the child in conflict
with the law and is pending in the appropriate court,
the person shall file a motion to determine the age
of the child in the same court where the case is
pending. Pending hearing on the said motion,
proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers,
prosecutors, judges and other government officials
concerned shall exert all efforts at determining the
age of the child in conflict with the law.
TITLE II
STRUCTURES IN THE ADMINISTRATION OF JUVENILE
JUSTICE AND WELFARE
SEC. 8. Juvenile Justice and Welfare Council
(JJWC). - A Juvenile Justice and Welfare Council
(JJWC) is hereby created and attached to the
Department of Justice and placed under its
administrative supervision. The JJWC shall be
chaired by an undersecretary of the Department of
Social Welfare and Development. It shall ensure the
effective implementation of this Act and
coordination among the following agencies:
(a) Council for the Welfare of Children
(CWC);
(b) Department of Education (DepEd);
(c) Department of the Interior and Local
Government (DILG);
(d) Public Attorney's Office (PAO);
(e) Bureau of Corrections (BUCOR);
(f) Parole and Probation Administration
(PPA)
(g) National Bureau of Investigation (NBI);
(h) Philippine National Police (PNP);.
(i) Bureau of Jail Management and Penology
(BJMP);
(i) Commission on Human Rights (CHR);
(k)
Technical
Education
and
Skills
Development Authority (TESDA);
(l) National Youth Commission (NYC); and
(m) Other institutions focused on juvenile
justice and intervention programs.
The JJWC shall be composed of representatives,
whose ranks shall not be lower than director, to be
designated by the concerned heads of the following
departments or agencies:
(a) Department of Justice (DOJ);
(b) Department of Social Welfare and
Development (DSWD);
(c) Council for the Welfare of Children
(CWC)
(d) Department of Education (DepEd);
(e) Department of the Interior and Local
Government (DILG)
(f) Commission on Human Rights (CHR);
(g) National Youth Commission (NYC); and
(h) Two (2) representatives from NGOs, one
to be designated by the Secretary of Justice
and the other to be designated by the
Secretary
of
Social
Welfare
and
Development.
The JJWC shall convene within fifteen (15) days
from the effectivity of this Act. The Secretary of
Justice and the Secretary of Social Welfare and
Development shall determine the organizational
structure and staffing pattern of the JJWC.
The JJWC shall coordinate with the Office of the
Court Administrator and the Philippine Judicial
Academy to ensure the realization of its mandate
and the proper discharge of its duties and functions,
as herein provided.
SEC. 9. Duties and Functions of the JJWC. - The
JJWC shall have the following duties and functions:
(a) To oversee the implementation of this
Act;
(b) To advise the President on all matters
and policies relating to juvenile justice and
welfare;
(c) To assist the concerned agencies in the
review
and
redrafting
of
existing
policies/regulations or in the formulation of
new ones in line with the provisions of this
Act;
(d) To periodically develop a comprehensive
3 to 5-year national juvenile intervention
program, with the participation of
government agencies concerned, NGOs and
youth organizations;
(e) To coordinate the implementation of
the juvenile intervention programs and
activities by national government agencies
and other activities which may have an
important bearing on the success of the
entire
national
juvenile
intervention
program. All programs relating to juvenile
justice and welfare shall be adopted in
consultation with the JJWC;
(f) To formulate and recommend policies
and strategies in consultation with children
for the prevention of juvenile delinquency
and the administration of justice, as well as
for the treatment and rehabilitation of the
children in conflict with the law;
(g) To collect relevant information and
conduct continuing research and support
evaluations and studies on all matters
relating to juvenile justice and welfare,
such as but not limited to:
(1) the performance and results
achieved by juvenile intervention
programs and by activities of the
local government units and other
government agencies;
(2) the periodic trends, problems
and causes of juvenile delinquency
and crimes; and
(3) the particular needs of children
in conflict with the law in custody.
The data gathered shall be used by the
JJWC in the improvement of the
administration of juvenile justice and
welfare system.
The JJWC shall set up a mechanism to
ensure that children are involved in
research and policy development.
(h) Through duly designated persons and
with the assistance of the agencies provided
in the preceding section, to conduct regular
inspections in detention and rehabilitation
CRIMINAL LAW REVIEWER
facilities and to undertake spot inspections
on their own initiative in order to check
compliance with the standards provided
herein and to make the necessary
recommendations to appropriate agencies;
(i) To initiate and coordinate the conduct of
trainings for the personnel of the agencies
involved in the administration of the
juvenile justice and welfare system and the
juvenile intervention program;
(j) To submit an annual report to the
President on the implementation of this
Act; and
(k) To perform such other functions as may
be necessary to implement the provisions of
this Act.
SEC. 10. Policies and Procedures on Juvenile
Justice and Welfare. - All government agencies
enumerated in Section 8 shall, with the assistance of
the JJWC and within one (1) year from the
effectivity of this Act, draft policies and procedures
consistent with the standards set in the law. These
policies and procedures shall be modified
accordingly in consultation with the JJWC upon the
completion of the national juvenile intervention
program as provided under Section 9 (d).
SEC. 11. Child Rights Center (CRC). - The existing
Child Rights Center of the Commission on Human
Rights shall ensure that the status, rights and
interests of children are upheld in accordance with
the Constitution and international instruments on
human rights. The CHR shall strengthen the
monitoring of government compliance of all treaty
obligations, including the timely and regular
submission of reports before the treaty bodies, as
well as the implementation and dissemination of
recommendations and conclusions by government
agencies as well as NGOs and civil society.
TITLE III
PREVENTION OF JUVENILE DELINQUENCY
CHAPTER 1
THE ROLE OF THE DIFFERENT SECTORS
SEC. 12. The Family. - The family shall be
responsible for the primary nurturing and rearing of
children which is critical in delinquency prevention.
As far as practicable and in accordance with the
procedures of this Act, a child in conflict with the
law shall be maintained in his/her family.
SEC. 13. The Educational System. - Educational
institutions shall work together with families,
community organizations and agencies in the
prevention of juvenile delinquency and in the
rehabilitation and reintegration of child in conflict
with the law. Schools shall provide adequate,
necessary and individualized educational schemes
for children manifesting difficult behavior and
children in conflict with the law. In cases where
children in conflict with the law are taken into
custody or detained in rehabilitation centers, they
should be provided the opportunity to continue
learning under an alternative learning system with
basic literacy program or non- formal education
accreditation equivalency system.
SEC. 14. The Role of the Mass Media. - The mass
media shall play an active role in the promotion of
child rights, and delinquency prevention by relaying
consistent messages through a balanced approach.
Media practitioners shall, therefore, have the duty
to maintain the highest critical and professional
standards in reporting and covering cases of children
in conflict with the law. In all publicity concerning
children, the best interest of the child should be the
primordial and paramount concern. Any undue,
inappropriate and sensationalized publicity of any
case involving a child in conflict with the law is
hereby declared a violation of the child's rights.
SEC. 15. Establishment and Strengthening of Local
Councils for the Protection of Children. - Local
Councils for the Protection of Children (LCPC) shall
be established in all levels of local government, and
where they have already been established, they shall
be strengthened within one (1) year from the
effectivity of this Act. Membership in the LCPC shall
be chosen from among the responsible members of
the community, including a representative from the
youth sector, as well as representatives from
government and private agencies concerned with the
welfare of children.
The local council shall serve as the primary agency
to coordinate with and assist the LGU concerned for
the adoption of a comprehensive plan on
delinquency prevention, and to oversee its proper
implementation.
One percent (1%) of the internal revenue allotment
of barangays, municipalities and cities shall be
allocated for the strengthening and implementation
of the programs of the LCPC: Provided, That the
disbursement of the fund shall be made by the LGU
concerned.
SEC. 16. Appointment of Local Social Welfare and
Development Officer. - All LGUs shall appoint a duly
licensed social worker as its local social welfare and
development officer tasked to assist children in
conflict with the law.
SEC. 17. The Sangguniang Kabataan. - The
Sangguniang Kabataan (SK) shall coordinate with the
LCPC in the formulation and implementation of
juvenile intervention and diversion programs in the
community.
CHAPTER 2
COMPREHENSIVE JUVENILE INTERVENTION
PROGRAM
SEC. 18. Development of a Comprehensive
Juvenile Intervention Program. - A Comprehensive
juvenile intervention program covering at least a 3year period shall be instituted in LGUs from the
barangay to the provincial level.
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The LGUs shall set aside an amount necessary to
implement their respective juvenile intervention
programs in their annual budget.
The LGUs, in coordination with the LCPC, shall call
on all sectors concerned, particularly the childfocused institutions, NGOs, people's organizations,
educational institutions and government agencies
involved in delinquency prevention to participate in
the planning process and implementation of juvenile
intervention programs. Such programs shall be
implemented consistent with the national program
formulated and designed by the JJWC. The
implementation of the comprehensive juvenile
intervention program shall be reviewed and assessed
annually by the LGUs in coordination with the LCPC.
Results of the assessment shall be submitted by the
provincial and city governments to the JJWC not
later than March 30 of every year.
SEC. 19. Community-based Programs on Juvenile
Justice and Welfare. - Community-based programs
on juvenile justice and welfare shall be instituted by
the LGUs through the LCPC, school, youth
organizations and other concerned agencies. The
LGUs shall provide community-based services which
respond to the special needs, problems, interests
and concerns of children and which offer appropriate
counseling and guidance to them and their families.
These programs shall consist of three levels:
(a) Primary intervention includes general
measures to promote social justice and
equal opportunity, which tackle perceived
root causes of offending;
(b)
Secondary
intervention
includes
measures to assist children at risk; and
(c) Tertiary intervention includes measures
to avoid unnecessary contact with the
formal justice system and other measures
to prevent re-offending.
TITLE IV
TREATMENT OF CHILDREN BELOW THE AGE OF
CRIMINAL RESPONSIBILITY
SEC. 20. Children Below the Age of Criminal
Responsibility. - If it has been determined that the
child taken into custody is fifteen (15) years old or
below, the authority which will have an initial
contact with the child has the duty to immediately
release the child to the custody of his/her parents or
guardian, or in the absence thereof, the child's
nearest relative. Said authority shall give notice to
the local social welfare and development officer who
will determine the appropriate programs in
consultation with the child and to the person having
custody over the child. If the parents, guardians or
nearest relatives cannot be located, or if they refuse
to take custody, the child may be released to any of
the following: a duly registered nongovernmental or
religious organization; a barangay official or a
member of the Barangay Council for the Protection
of Children (BCPC); a local social welfare and
development officer; or when and where
appropriate, the DSWD. If the child referred to
herein has been found by the Local Social Welfare
and Development Office to be abandoned, neglected
or abused by his parents, or in the event that the
parents will not comply with the prevention
program, the proper petition for involuntary
commitment shall be filed by the DSWD or the Local
Social Welfare and Development Office pursuant to
Presidential Decree No. 603, otherwise ,known as
"The Child and Youth Welfare Code".
TITLE V
JUVENILE JUSTICE AND WELFARE SYSTEM
CHAPTER I
INITIAL CONTACT WITH THE CHILD
SEC. 21. Procedure for Taking the Child into
Custody. - From the moment a child is taken into
custody, the law enforcement officer shall:
(a) Explain to the child in simple language
and in a dialect that he/she can understand
why he/she is being placed under custody
and the offense that he/she allegedly
committed;
(b) Inform the child of the reason for such
custody and advise the child of his/her
constitutional rights in a language or dialect
understood by him/her;
(e) Properly identify himself/herself and
present proper identification to the child;
(d) Refrain from using vulgar or profane
words and from sexually harassing or
abusing, or making sexual advances on the
child in conflict with the law;
(e) Avoid displaying or using any firearm,
weapon, handcuffs or other instruments of
force or restraint, unless absolutely
necessary and only after all other methods
of control have been exhausted and have
failed;
(f) Refrain from subjecting the child in
conflict with the law to greater restraint
than is necessary for his/her apprehension;
(g) Avoid violence or unnecessary force;
(h) Determine the age of the child pursuant
to Section 7 of this Act;
(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 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;
(k) Ensure that should detention of the child
in conflict with the law be necessary, the
child shall be secured in quarters separate
CRIMINAL LAW REVIEWER
from that of the opposite sex and adult
offenders;
(l) Record the following in the initial
investigation:
1. Whether handcuffs or other
instruments of restraint were used,
and if so, the reason for such;
2. That the parents or guardian of
a child, the DSWD, and the PA0
have been informed of the
apprehension and the details
thereof; and
3. The exhaustion of measures to
determine the age of a child and
the precise details of the physical
and medical examination or the
failure to submit a child to such
examination; and
(m) Ensure that all statements signed by the
child during investigation shall be witnessed
by the child's parents or guardian, social
worker, or legal counsel in attendance who
shall affix his/her signature to the said
statement.
A child in conflict with the law shall only be
searched by a law enforcement officer of the same
gender and shall not be locked up in a detention
cell.
SEC. 22. Duties During Initial Investigation. - The
law enforcement officer shall, in his/her
investigation, determine where the case involving
the child in conflict with the law should be referred.
The taking of the statement of the child shall be
conducted in the presence of the following: (1)
child's counsel of choice or in the absence thereof, a
lawyer from the Public Attorney's Office; (2) the
child's parents, guardian, or nearest relative, as the
case may be; and (3) the local social welfare and
development officer. In the absence of the child's
parents, guardian, or nearest relative, and the local
social welfare and development officer, the
investigation shall be conducted in the presence of a
representative of an NGO, religious group, or
member of the BCPC.
After the initial investigation, the local social worker
conducting the same may do either of the following:
(a) Proceed in accordance with Section 20 if
the child is fifteen (15) years or below or
above fifteen (15) but below eighteen (18)
years old, who acted without discernment;
and
(b) If the child is above fifteen (15) years
old but below eighteen (18) and who acted
with discernment, proceed to diversion
under the following chapter.
CHAPTER 2
DIVERSION
SEC. 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 committee 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.
SEC. 24. Stages Where Diversion May be
Conducted. - Diversion may be conducted at the
Katarungang Pambarangay, the police investigation
or the inquest or preliminary investigation stage and
at all 1evels and phases of the proceedings including
judicial level.
SEC.
25.
Conferencing,
Mediation
and
Conciliation. - A child in conflict with law may
undergo conferencing, mediation or conciliation
outside the criminal justice system or prior to his
entry into said system. A contract of diversion may
be entered into during such conferencing, mediation
or conciliation proceedings.
SEC. 26. Contract of Diversion. - If during the
conferencing, mediation or conciliation, the child
voluntarily admits the commission of the act, a
diversion program shall be developed when
appropriate and desirable as determined under
Section 30. Such admission shall not be used against
the child in any subsequent judicial, quasi-judicial or
administrative proceedings. The diversion program
shall be effective and binding if accepted by the
parties concerned. The acceptance shall be in
writing and signed by the parties concerned and the
appropriate authorities. The local social welfare and
development
officer
shall
supervise
the
implementation of the diversion program. The
diversion proceedings shall be completed within
forty-five (45) days. The period of prescription of
the offense shall be suspended until the completion
of the diversion proceedings but not to exceed fortyfive (45) days.
The child shall present himself/herself to the
competent authorities that imposed the diversion
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CRIMINAL LAW REVIEWER
124
program at least once a month for reporting and
evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of
the contract of diversion, as certified by the local
social welfare and development officer, shall give
the offended party the option to institute the
appropriate legal action.
The period of prescription of the offense shall be
suspended during the effectivity of the diversion
program, but not exceeding a period of two (2)
years.
SEC. 27. Duty of the Punong Barangay When There
is No Diversion. - If the offense does not fall under
Section 23(a) and (b), or if the child, his/her parents
or guardian does not consent to a diversion, the
Punong Barangay handling the case shall, within
three (3) days from determination of the absence of
jurisdiction over the case or termination of the
diversion proceedings, as the case may be, forward
the records of the case of the child to the law
enforcement officer, prosecutor or the appropriate
court, as the case may be. Upon the issuance of the
corresponding document, certifying to the fact that
no agreement has been reached by the parties, the
case shall be filed according to the regular process.
SEC. 28. Duty of the Law Enforcement Officer
When There is No Diversion. - If the offense does
not fall under Section 23(a) and (b), or if the child,
his/her parents or guardian does not consent to a
diversion, the Women and Children Protection Desk
of the PNP, or other law enforcement officer
handling the case of the child under custody, to the
prosecutor or judge concerned for the conduct of
inquest and/or preliminary investigation to
determine whether or not the child should remain
under custody and correspondingly charged in court.
The document transmitting said records shall display
the word "CHILD" in bold letters.
SEC. 29. Factors in Determining Diversion
Program. - In determining whether diversion is
appropriate and desirable, the following factors shall
be taken into consideration:
(a) The nature and circumstances of the
offense charged;
(b) The frequency and the severity of the
act;
(c) The circumstances of the child (e.g.
age, maturity, intelligence, etc.);
(d) The influence of the family and
environment on the growth of the child;
(e) The reparation of injury to the victim;
(f) The weight of the evidence against the
child;
(g) The safety of the community; and
(h) The best interest of the child.
SEC. 30. Formulation of the Diversion Program. In formulating a diversion program, the individual
characteristics and the peculiar circumstances of the
child in conflict with the law shall be used to
formulate an individualized treatment.
The following factors shall be considered in
formulating a diversion program for the child:
(a) The child's feelings of remorse for the
offense he/she committed;
(b) The parents' or legal guardians' ability to
guide and supervise the child;
(c) The victim's view about the propriety of
the measures to be imposed; and
(d) The availability of community-based
programs
for
rehabilitation
and
reintegration of the child.
SEC. 31. Kinds of Diversion Programs. - The
diversion program shall include adequate sociocultural 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
(iv) other skills 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
(9) Participation in education,
vocation and life skills programs.
(b) At the level of the law enforcement
officer and the prosecutor:
(1) Diversion programs specified
under paragraphs (a)(1) to (a)(9)
herein; and
(2) Confiscation and forfeiture of
the proceeds or instruments of the
crime;
(c) At the level of the appropriate court:
(1) Diversion programs specified
under paragraphs(a)and (b) above;
(2) Written or oral reprimand or
citation;
(3) Fine:
(4) Payment of the cost of the
proceedings; or
(5) Institutional care and custody.
CHAPTER 3
PROSECUTION
CRIMINAL LAW REVIEWER
SEC. 32. Duty of the Prosecutor's Office. - There
shall be a specially trained prosecutor to conduct
inquest, preliminary investigation and prosecution of
cases involving a child in conflict with the law. If
there is an allegation of torture or ill-treatment of a
child in conflict with the law during arrest or
detention, it shall be the duty of the prosecutor to
investigate the same.
SEC. 33. Preliminary Investigation and Filing of
Information. - The prosecutor shall conduct a
preliminary investigation in the following instances:
(a) when the child in conflict with the law does not
qualify for diversion: (b) when the child, his/her
parents or guardian does not agree to diversion as
specified in Sections 27 and 28; and (c) when
considering the assessment and recommendation of
the social worker, the prosecutor determines that
diversion is not appropriate for the child in conflict
with the law.
Upon serving the subpoena and the affidavit of
complaint, the prosecutor shall notify the Public
Attorney's Office of such service, as well as the
personal information, and place of detention of the
child in conflict with the law.
Upon determination of probable cause by the
prosecutor, the information against the child shall
be filed before the Family Court within forty-five
(45) days from the start of the preliminary
investigation.
CHAPTER 4
COURT PROCEEDINGS
SEC. 34. Bail. - For purposes of recommending the
amount of bail, the privileged mitigating
circumstance of minority shall be considered.
SEC. 35. Release on Recognizance. - Where a child
is detained, the court shall order:
(a) the release of the minor on
recognizance to his/her parents and other
suitable person;
(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.
The court shall not order the detention of a child in
a jail pending trial or hearing of his/her case.
SEC. 36. Detention of the Child Pending Trial. Children detained pending trial may be released on
bail or recognizance as provided for under Sections
34 and 35 under this Act. In all other cases and
whenever possible, detention pending trial may be
replaced by alternative measures, such as close
supervision, intensive care or placement with a
family or in an educational setting or home.
Institutionalization or detention of the child pending
trial shall be used only as a measure of last resort
and for the shortest possible period of time.
Whenever detention is necessary, a child will always
be detained in youth detention homes established by
local governments, pursuant to Section 8 of the
Family Courts Act, in the city or municipality where
the child resides.
In the absence of a youth detention home, the child
in conflict with the law may be committed to the
care of the DSWD or a local rehabilitation center
recognized by the government in the province, city
or municipality within the jurisdiction of the court.
The center or agency concerned shall be responsible
for the child's appearance in court whenever
required.
SEC. 37. Diversion Measures. - Where the maximum
penalty imposed by law for the offense with which
the child in conflict with the law is charged is
imprisonment of not more than twelve (12) years,
regardless of the fine or fine alone regardless of the
amount, and before arraignment of the child in
conflict with the law, the court shall determine
whether or not diversion is appropriate.
SEC. 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.
Upon suspension of sentence and after considering
the various chcumstances 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.
SEC. 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.
SEC. 40. Return of the Child in Conflict with the
Law to Court. - If the court finds that the objective
of the disposition measures imposed upon the child
in conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed
to comply with the conditions of his/her disposition
or rehabilitation program, the child in conflict with
the law shall be brought before the court for
execution of judgment.
If said child in conflict with the law has reached
eighteen (18) years of age while under suspended
sentence, the court shall determine whether to
discharge the child in accordance with this Act, to
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order execution of sentence, or to extend the
suspended sentence for a certain specified period or
until the child reaches the maximum age of twentyone (21) years.
SEC. 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.
SEC. 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.
CHAPTER 5
CONFIDENTIALITY OF RECORDS AND PROCEEDINGS
SEC. 43. Confedentiality of Records and
Proceedings. - All records and proceedings involving
children in conflict with the law from initial contact
until final disposition of the case shall be considered
privileged and confidential. The public shall be
excluded during the proceedings and the records
shall not be disclosed directly or indirectly to anyone
by any of the parties or the participants in the
proceedings for any purpose whatsoever, except to
determine if the child in conflict with the law may
have his/hes sentence suspended or if he/she may
be granted probation under the Probation Law, or to
enforce the civil liability imposed in the criminal
action.
The component authorities shall undertake all
measures to protect this confidentiality of
proceedings, including non-disclosure of records to
the media, maintaining a separate police blotter for
cases involving children in conflict with the law and
adopting a system of coding to conceal material
information which will lead to the child's identity.
Records of a child in conflict with the law shall not
be used in subsequent proceedings for cases
involving the same offender as an adult, except
when beneficial for the offender and upon his/her
written consent.
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.
TITLE VI
REHABILITATION AND REINTEGRATION
SEC. 44. Objective of Rehabilitation and
Reintegration. - The objective of rehabilitation and
reintegration of children in conflict with the law is
to provide them with interventions, approaches and
strategies that will enable them to improve their
social functioning with the end goal of reintegration
to their families and as productive members of their
communities.
SEC. 45. Court Order Required. - No child shall be
received in any rehabilitation or training facility
without a valid order issued by the court after a
hearing for the purpose. The details of this order
shall be immediately entered in a register
exclusively for children in conflict with the law. No
child shall be admitted in any facility where there is
no such register.
SEC. 46, Separate Facilities from Adults. - In all
rehabilitation or training facilities, it shall be
mandatory that children shall be separated from
adults unless they are members of the same family.
Under no other circumstance shall a child in conflict
with the law be placed in the same confinement as
adults.
The rehabilitation, training or confinement area of
children in conflict with the law shall provide a
home environment where children in conflict with
the law can be provided with quality counseling and
treatment.
SEC. 47. Female Children. - Female children in
conflict with the law placed in an institution shall be
given special attention as to their personal needs
and problems. They shall be handled by female
doctors, correction officers and social workers, and
shall be accommodated separately from male
children in conflict with the law.
SEC. 48. Gender-Sensitivity Training. - No
personnel of rehabilitation and training facilities
shall handle children in conflict with the law without
having undergone gender sensitivity training.
SEC. 49. Establishment of Youth Detention
Homes. - The LGUs shall set aside an amount to
build youth detention homes as mandated by the
Family Courts Act. Youth detention homes may also
be established by private and NGOs licensed and
accredited by the DSWD, in consultation with the
JJWC.
SEC. 50. Care and Maintenance of the Child in
Conflict with the Law. - The expenses for the care
and maintenance of a child in conflict with the law
under institutional care shall be borne by his/her
parents or those persons liable to support him/her:
Provided, That in case his/her parents or those
persons liable to support him/her cannot pay all or
part of said expenses, the municipality where the
offense was committed shall pay one-third (1/3) of
said expenses or part thereof; the province to which
the municipality belongs shall pay one-third (1/3)
and the remaining one-third (1/3) shall be borne by
the national government. Chartered cities shall pay
two-thirds (2/3) of said expenses; and in case a
chartered city cannot pay said expenses, part of the
internal revenue allotments applicable to the unpaid
portion shall be withheld and applied to the
settlement of said obligations: Provided, further,
That in the event that the child in conflict with the
law is not a resident of the municipality/city where
the offense was committed, the court, upon its
determination, may require the city/municipality
where the child in conflict with the law resides to
shoulder the cost.
CRIMINAL LAW REVIEWER
All city and provincial governments must exert effort
for the immediate establishment of local detention
homes for children in conflict with the law.
SEC. 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
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.
SEC. 52. Rehabilitation of Children in Conflict
with the Law. - Children in conflict with the law,
whose sentences are suspended may, upon order of
the court, undergo any or a combination of
disposition measures best suited to the rehabilitation
and welfare of the child as provided in the Supreme
Court Rule on Juveniles in Conflict with the Law.
If the community-based rehabilitation is availed of
by a child in conflict with the law, he/she shall be
released to parents, guardians, relatives or any
other responsible person in the community. Under
the supervision and guidance of the local social
welfare and development officer, and in
coordination with his/her parents/guardian, the
child in conflict with the law shall participate in
community-based programs, which shall include, but
not limited to:
(1) Competency and life skills development;
(2)
Socio-cultural
and
recreational
activities;
(3) Community volunteer projects;
(4) Leadership training;
(5) Social services;
(6) Homelife services;
(7) Health services; .
(8) Spiritual enrichment; and
(9) Community and family welfare services.
In accordance therewith, the family of the child in
conflict with the law shall endeavor to actively
participate in the community-based rehabilitation.
Based on the progress of the youth in the
community, a final report will be forwarded by the
local social welfare and development officer to the
court for final disposition of the case.
If the community-based programs are provided as
diversion measures under Chapter II, Title V, the
programs enumerated above shall be made available
to the child in conflict with the law.
SEC. 53. Youth Rehabilitation Center. - The youth
rehabilitation center shall provide 24-hour group
care, treatment and rehabilitation services under
the guidance of a trained staff where residents are
cared for under a structured therapeutic
environment with the end view of reintegrating
them in their families and communities as socially
functioning individuals. A quarterly report shall be
submitted by the center to the proper court on the
progress of the children in conflict with the law.
Based on the progress of the youth in the center, a
final report will be forwarded to the court for final
disposition of the case. The DSWD shall establish
youth rehabilitation centers in each region of the
country.
SEC. 54. Objectives of Community Based
Programs. - The objectives of community-based
programs are as follows:
(a) Prevent disruption in the education or
means of livelihood of the child in conflict
with the law in case he/she is studying,
working or attending vocational learning
institutions;
(b) Prevent separation of the child in
conflict with the law from his/her
parents/guardians to maintain the support
system fostered by their relationship and to
create greater awareness of their mutual
and reciprocal responsibilities;
(c) Facilitate the rehabilitation and
mainstreaming of the child in conflict with
the law and encourage community support
and involvement; and
(d) Minimize the stigma that attaches to the
child in conflict with the law by preventing
jail detention.
SEC. 55. Criteria of Community-Based Programs. Every LGU shall establish community-based programs
that will focus on the rehabilitation and
reintegration of the child. All programs shall meet
the criteria to be established by the JJWC which
shall take into account the purpose of the program,
the need for the consent of the child and his/her
parents or legal guardians, and the participation of
the child-centered agencies whether public or
private.
SEC. 56. After-Care Support Services for Children
in Conflict with the Law. - Children in conflict with
the law whose cases have been dismissed by the
proper court because of good behavior as per
recommendation of the DSWD social worker and/or
any accredited NGO youth rehabilitation center shall
be provided after-care services by the local social
welfare and development officer for a period of at
least six (6) months. The service includes counseling
and other community-based services designed to
facilitate social reintegration, prevent re-offending
and make the children productive members of the
community.
TITLE VII
GENERAL PROVISIONS
CHAPTER 1
EXEMPTING PROVISIONS
SEC. 57. Status Offenees. - Any conduct not
considered an offense or not penalized if committed
by an adult shall not be considered an offense and
shall not be punished if committed by a child.
SEC. 58. Offenses Not Applicable to Children. Persons below eighteen (18) years of age shall be
exempt from prosecution for the crime of vagrancy
and prostitution under Section 202 of the Revised
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Penal Code, of mendicancy under Presidential
Decree No. 1563, and sniffing of rugby under
Presidential Decree No. 1619, such prosecution being
inconsistent with the United Nations Convention on
the Rights of the Child: Provided, That said persons
shall undergo appropriate counseling and treatment
program.
discretion of the court, unless a higher penalty is
provided for in the Revised Penal Code or special
laws. If the offender is a public officer or employee,
he/she shall, in addition to such fine and/or
imprisonment, be held administratively liable and
shall suffer the penalty of perpetual absolute
disqualification.
SEC. 59. Exemption from the Application of Death
Penalty. - The provisions of the Revised Penal Code,
as amended, Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of
2002, and other special laws notwithstanding, no
death penalty shall be imposed upon children in
conflict with the law.
CHAPTER 4
APPROPRIATION PROVISION
CHAPTER 2
PROHIBITED ACTS
SEC. 60. Prohibition Against Labeling and
Shaming. - In the conduct of the proceedings
beginning from the initial contact with the child, the
competent authorities must refrain from branding or
labeling children as young criminals, juvenile
delinquents, prostitutes or attaching to them in any
manner any other derogatory names. Likewise, no
discriminatory remarks and practices shall be
allowed particularly with respect to the child's class
or ethnic origin.
SEC. 61. Other Prohibited Acts. - The following and
any other similar acts shall be considered prejudicial
and detrimental to the psychological, emotional,
social, spiritual, moral and physical health and wellbeing of the child in conflict with the law and
therefore, prohibited:
(a) Employment of threats of whatever kind
and nature;
(b) Employment of abusive, coercive and
punitive measures such as cursing, beating,
stripping, and solitary confinement;
(c) Employment of degrading, inhuman end
cruel forms of punishment such as shaving
the heads, pouring irritating, corrosive or
harmful substances over the body of the
child in conflict with the law, or forcing
him/her to walk around the community
wearing signs which embarrass, humiliate,
and degrade his/her personality and
dignity; and
(d) Compelling the child to perform
involuntary servitude in any and all forms
under any and all instances.
SEC. 63. Appropriations. - The amount necessary to
carry out the initial implementation of this Act shall
be charged to the Office of the President.
Thereafter, such sums as may be necessary for the
continued implementation of this Act shall be
included in the succeeding General Appropriations
Act.
An initial amount of Fifty million pesos
(P50,000,000.00) for the purpose of setting up the
JJWC shall be taken from the proceeds of the
Philippine Charity Sweepstakes Office.
TITLE VIII
TRANSITORY PROVISIONS
SEC. 64. Children in Conflict with the Law Fifteen
(15) Years Old and Below. - Upon effectivity of this
Act, cases of children fifteen (15) years old and
below at the time of the commission of the crime
shall immediately be dismissed and the child shall be
referred to the appropriate local social welfare and
development officer. Such officer, upon thorough
assessment of the child, shall determine whether to
release the child to the custody of his/her parents,
or refer the child to prevention programs as provided
under this Act. Those with suspended sentences and
undergoing rehabilitation at the youth rehabilitation
center shall likewise be released, unless it is
contrary to the best interest of the child.
SEC. 65. Children Detained Pending Dial. - If the
child is detained pending trial, the Family Court
shall also determine whether or not continued
detention is necessary and, if not, determine
appropriate alternatives for detention.
If detention is necessary and he/she is detained with
adults, the court shall immediately order the
transfer of the child to a youth detention home.
CHAPTER 3
PENAL PROVISION
SEC. 66. Inventory of "Locked-up" and Detained
Children in Conflict with the Law. - The PNP, the
BJMP and the BUCOR are hereby directed to submit
to the JJWC, within ninety (90) days from the
effectivity of this Act, an inventory of all children in
conflict with the law under their custody.
SEC. 62. Violation of the Provisions of this Act or
Rules or Regulations in General. - Any person who
violates any provision of this Act or any rule or
regulation promulgated in accordance thereof shall,
upon conviction for each act or omission, be
punished by a fine of not less than Twenty thousand
pesos (P20,000.00) but not more than Fifty thousand
pesos (P50,000.00) or suffer imprisonment of not less
than eight (8) years but not more than ten (10)
years, or both such fine and imprisonment at the
SEC. 67. Children Who Reach the Age of Eighteen
(18) Years Pending Diversion and Court
Proceedings. - If a child reaches the age of eighteen
(18) years pending diversion and court proceedings,
the appropriate diversion authority in consultation
with the local social welfare and development
officer or the Family Court in consultation with the
Social Services and Counseling Division (SSCD) of the
Supreme Court, as the case may be, shall determine
the appropriate disposition. In case the appropriate
CRIMINAL LAW REVIEWER
court executes the judgment of conviction, and
unless the child in conflict the law has already
availed of probation under Presidential Decree No.
603 or other similar laws, the child may apply for
probation if qualified under the provisions of the
Probation Law.
SEC. 68. Children Who Have Been Convicted and
are Serving Sentence. - Persons who have been
convicted and are serving sentence at the time of
the effectivity of this Act, and who were below the
age of eighteen (18) years at the time the
commission of the offense for which they were
convicted and are serving sentence, shall likewise
benefit from the retroactive application of this Act.
They shall be entitled to appropriate dispositions
provided under this Act and their sentences shall be
adjusted accordingly. They shall be immediately
released if they are so qualified under this Act or
other applicable law.
TITLE IX
FINAL PROVISIONS
SEC. 69. Rule Making Power. - The JJWC shall issue
the IRRs for the implementation of the provisions of
this act within ninety (90) days from the effectivity
thereof.
SEC. 70. Separability Clause. - If, for any reason,
any section or provision of this Act is declared
unconstitutional or invalid by the Supreme Court,
the other sections or provisions hereof not dfected
by such declaration shall remain in force and effect.
SEC. 71. Repealing Clause. - All existing laws,
orders, decrees, rules and regulations or parts
thereof inconsistent with the provisions of this Act
are hereby repealed or modified accordingly.
SEC. 72. Effectivity. - This Act shall take effect
after fifteen (15) days from its publication in at least
two (2) national newspapers of general circulation.
REPUBLIC ACT NO. 9165
June 7, 2002
AN ACT INSTITUTING THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002, REPEALING
REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS
THE DANGEROUS DRUGS ACT OF 1972, AS
AMENDED, PROVIDING FUNDS THEREFOR, AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
Section 1. Short Title. – This Act shall be known and
cited as the "Comprehensive Dangerous Drugs Act of
2002".
Section 2. Declaration of Policy. – It is the policy of
the State to safeguard the integrity of its territory
and the well-being of its citizenry particularly the
youth, from the harmful effects of dangerous drugs
on their physical and mental well-being, and to
defend the same against acts or omissions
detrimental to their development and preservation.
In view of the foregoing, the State needs to enhance
further the efficacy of the law against dangerous
drugs, it being one of today's more serious social ills.
Toward this end, the government shall pursue an
intensive and unrelenting campaign against the
trafficking and use of dangerous drugs and other
similar substances through an integrated system of
planning, implementation and enforcement of antidrug abuse policies, programs, and projects. The
government shall however aim to achieve a balance
in the national drug control program so that people
with legitimate medical needs are not prevented
from being treated with adequate amounts of
appropriate medications, which include the use of
dangerous drugs.
It is further declared the policy of the State to
provide effective mechanisms or measures to reintegrate into society individuals who have fallen
victims to drug abuse or dangerous drug dependence
through sustainable programs of treatment and
rehabilitation.
ARTICLE I
Definition of terms
Section 3. Definitions. As used in this Act, the
following terms shall mean:
(a) Administer. – Any act of introducing any
dangerous drug into the body of any person, with or
without his/her knowledge, by injection, inhalation,
ingestion or other means, or of committing any act
of indispensable assistance to a person in
administering a dangerous drug to himself/herself
unless administered by a duly licensed practitioner
for purposes of medication.
(b) Board. - Refers to the Dangerous Drugs Board
under Section 77, Article IX of this Act.
(c) Centers. - Any of the treatment and
rehabilitation centers for drug dependents referred
to in Section 34, Article VIII of this Act.
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CRIMINAL LAW REVIEWER
130
(d) 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.
(e) Clandestine Laboratory. – Any facility used for
the illegal manufacture of any dangerous drug
and/or controlled precursor and essential chemical.
(f) 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.
(g) Controlled Delivery. – The investigative technique
of allowing an unlawful or suspect consignment of
any dangerous drug and/or controlled precursor and
essential chemical, equipment or paraphernalia, or
property believed to be derived directly or indirectly
from any offense, to pass into, through or out of the
country under the supervision of an authorized
officer, with a view to gathering evidence to identify
any person involved in any dangerous drugs related
offense, or to facilitate prosecution of that offense.
(h) Controlled Precursors and Essential Chemicals. –
Include those listed in Tables I and II of the 1988 UN
Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances as enumerated in the
attached annex, which is an integral part of this Act.
(i) Cultivate or Culture. – Any act of knowingly
planting, growing, raising, or permitting the
planting, growing or raising of any plant which is the
source of a dangerous drug.
(j) Dangerous Drugs. – Include those listed in the
Schedules annexed to the 1961 Single Convention on
Narcotic Drugs, as amended by the 1972 Protocol,
and in the Schedules annexed to the 1971 Single
Convention
on
Psychotropic
Substances
as
enumerated in the attached annex which is an
integral part of this Act.
(k) Deliver. – Any act of knowingly passing a
dangerous drug to another, personally or otherwise,
and by any means, with or without consideration.
(l) 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.
(m) Dispense. – Any act of giving away, selling or
distributing medicine or any dangerous drug with or
without the use of prescription.
(n) Drug Dependence. – As based on the World
Health Organization definition, 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 substance and the
difficulties in controlling substance-taking behavior
in terms of its onset, termination, or levels of use.
(o) Drug Syndicate. – Any organized group of two (2)
or more persons forming or joining together with the
intention of committing any offense prescribed
under this Act.
(p) Employee of Den, Dive or Resort. – 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.
(q) Financier. – Any person who pays for, raises or
supplies money for, or underwrites any of the illegal
activities prescribed under this Act.
(r) Illegal Trafficking. – 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.
(s) Instrument. – Any thing that is used in or
intended to be used in any manner in the
commission of illegal drug trafficking or related
offenses.
(t) Laboratory Equipment. – The paraphernalia,
apparatus, materials or appliances when used,
intended for use or designed for use in the
manufacture of any dangerous drug and/or
controlled precursor and essential chemical, such as
reaction vessel, preparative/purifying equipment,
fermentors, separatory funnel, flask, heating
mantle, gas generator, or their substitute.
(u) Manufacture. – The production, preparation,
compounding or processing of any dangerous drug
and/or controlled precursor and essential chemical,
either directly or indirectly or by extraction from
substances of natural origin, or independently by
means of chemical synthesis or by a combination of
extraction and chemical synthesis, and shall include
any packaging or repackaging of such substances,
design or configuration of its form, or labeling or
relabeling of its container; except that such terms
do not include the preparation, compounding,
packaging or labeling of a drug or other substances
by a duly authorized practitioner as an incident to
his/her administration or dispensation of such drug
or substance in the course of his/her professional
practice including research, teaching and chemical
analysis of dangerous drugs or such substances that
are not intended for sale or for any other purpose.
(v) Cannabis or commonly known as "Marijuana" or
"Indian Hemp" or by its any other name. – Embraces
every kind, class, genus, or specie of the plant
Cannabis sativa L. including, but not limited to,
Cannabis americana, hashish, bhang, guaza, churrus
and ganjab, and embraces every kind, class and
character of marijuana, whether dried or fresh and
flowering, flowering or fruiting tops, or any part or
portion of the plant and seeds thereof, and all its
geographic varieties, whether as a reefer, resin,
extract, tincture or in any form whatsoever.
(w) Methylenedioxymethamphetamine (MDMA) or
commonly known as "Ecstasy", or by its any other
name. – Refers to the drug having such chemical
composition, including any of its isomers or
derivatives in any form.
CRIMINAL LAW REVIEWER
(x) Methamphetamine Hydrochloride or commonly
known as "Shabu", "Ice", "Meth", or by its any other
name. – Refers to the drug having such chemical
composition, including any of its isomers or
derivatives in any form.
(y) Opium. – Refers to the coagulated juice of the
opium poppy (Papaver somniferum L.) 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.
(z) Opium Poppy. – Refers to any part of the plant of
the species Papaver somniferum L., Papaver
setigerum
DC,
Papaver
orientale,
Papaver
bracteatum and Papaver rhoeas, which includes the
seeds, straws, branches, leaves or any part thereof,
or substances derived therefrom, even for floral,
decorative and culinary purposes.
(aa) PDEA. – Refers to the Philippine Drug
Enforcement Agency under Section 82, Article IX of
this Act.
(bb) Person. – Any entity, natural or juridical,
including among others, a corporation, partnership,
trust or estate, joint stock company, association,
syndicate, joint venture or other unincorporated
organization or group capable of acquiring rights or
entering into obligations.
(cc) Planting of Evidence. – 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.
(dd) Practitioner. – Any person who is a licensed
physician, dentist, chemist, medical technologist,
nurse, midwife, veterinarian or pharmacist in the
Philippines.
(ee) Protector/Coddler. – Any person who knowingly
and willfully consents to the unlawful acts provided
for in this Act and uses his/her influence, power or
position in shielding, harboring, screening or
facilitating the escape of any person he/she 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.
(ff) Pusher. – 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.
(gg) School. – Any educational institution, private or
public, undertaking educational operation for
pupils/students pursuing certain studies at defined
levels, receiving instructions from teachers, usually
located in a building or a group of buildings in a
particular physical or cyber site.
(hh) Screening Test. – A rapid test performed to
establish potential/presumptive positive result.
(ii) Sell. – Any act of giving away any dangerous drug
and/or controlled precursor and essential chemical
whether for money or any other consideration.
(jj) Trading. – Transactions involving the illegal
trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic
devices such as, but not limited to, text messages,
email, mobile or landlines, two-way radios, internet,
instant messengers and chat rooms or acting as a
broker in any of such transactions whether for
money or any other consideration in violation of this
Act.
(kk) Use. – 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.
ARTICLE II
Unlawful Acts and Penalties
Section 4. Importation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals.- .The
penalty of life imprisonment to death and a 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 import or bring into the Philippines any
dangerous drug, regardless of the quantity and
purity involved, including any and all species of
opium poppy or any part thereof or substances
derived therefrom even for floral, decorative and
culinary purposes.
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 import any
controlled precursor and essential chemical.
The maximum penalty provided for under this
Section shall be imposed upon any person, who,
unless authorized under this Act, shall import or
bring into the Philippines any dangerous drug and/or
controlled precursor and essential chemical through
the use of a diplomatic passport, diplomatic
facilities or any other means involving his/her
official status intended to facilitate the unlawful
entry of the same. In addition, the diplomatic
passport shall be confiscated and canceled.
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.
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.
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CRIMINAL LAW REVIEWER
132
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.
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 away to another,
distribute, dispatch in transit or transport any
controlled precursor and essential chemical, or shall
act as a broker in such transactions.
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.
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 chemical 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.
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.
Section 6. Maintenance of a Den, Dive or Resort. 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 or group of
persons who shall maintain a den, dive or resort
where any dangerous drug is used or sold in any
form.
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 or
group of persons who shall maintain a den, dive, or
resort where any controlled precursor and essential
chemical is used or sold in any form.
The maximum penalty provided for under this
Section shall be imposed in every case where any
dangerous drug is administered, delivered or sold to
a minor who is allowed to use the same in such a
place.
Should any dangerous drug be the proximate cause
of the death of a person using the same in such den,
dive or resort, the penalty of death and a fine
ranging from One million (P1,000,000.00) to Fifteen
million pesos (P500,000.00) shall be imposed on the
maintainer, owner and/or operator.
If such den, dive or resort is owned by a third
person, the same shall be confiscated and escheated
in favor of the government: Provided, That the
criminal complaint shall specifically allege that such
place is intentionally used in the furtherance of the
crime: Provided, further, That the prosecution shall
prove such intent on the part of the owner to use
the property for such purpose: Provided, finally,
That the owner shall be included as an accused in
the criminal complaint.
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.
The penalty 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.
Section 7. Employees and Visitors of a Den, Dive or
Resort. - 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
(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
Section 8. Manufacture of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. - The
penalty of life imprisonment to death and a fine
ranging 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 engage in the manufacture of any
dangerous drug.
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 manufacture
any controlled precursor and essential chemical.
CRIMINAL LAW REVIEWER
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:
(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.
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.
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.
Section 9. Illegal Chemical Diversion of Controlled
Precursors and Essential Chemicals. - 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 illegally divert any controlled precursor
and essential chemical.
Section 10. Manufacture or Delivery of Equipment,
Instrument, Apparatus, and Other Paraphernalia for
Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals. - 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 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.
The penalty of imprisonment ranging from six (6)
months and one (1) day to four (4) years and a fine
ranging from Ten thousand pesos (P10,000.00) to
Fifty thousand pesos (P50,000.00) shall be imposed if
it will be used to inject, ingest, inhale or otherwise
introduce into the human body a dangerous drug in
violation of this Act.
The maximum penalty provided for under this
Section shall be imposed upon any person, who uses
a minor or a mentally incapacitated individual to
deliver such equipment, instrument, apparatus and
other paraphernalia for dangerous drugs.
Section 11. Possession of Dangerous Drugs. - 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 possess any dangerous drug
in the following quantities, regardless of the degree
of purity thereof:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine
hydrochloride;
(5) 50 grams or more of methamphetamine
hydrochloride or "shabu";
(6) 10 grams or more of marijuana resin or
marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous
drugs such as, but not limited to,
methylenedioxymethamphetamine (MDA) or
"ecstasy", paramethoxyamphetamine (PMA),
trimethoxyamphetamine (TMA), lysergic
acid
diethylamine
(LSD),
gamma
hydroxyamphetamine (GHB), and those
similarly designed or newly introduced
drugs and their derivatives, without having
any therapeutic value or if the quantity
possessed is far beyond therapeutic
requirements,
as
determined
and
promulgated by the Board in accordance to
Section 93, Article XI of this Act.
Otherwise, if the quantity involved is less than the
foregoing quantities, the penalties shall be
graduated as follows:
(1) Life imprisonment and a fine ranging
from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand
pesos (P500,000.00), if the quantity of
methamphetamine hydrochloride or "shabu"
is ten (10) grams or more but less than fifty
(50) grams;
(2) Imprisonment of twenty (20) years and
one (1) day to life imprisonment and a fine
ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand
pesos (P500,000.00), if the quantities of
dangerous drugs are five (5) grams or more
but less than ten (10) grams of opium,
morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana
resin oil, methamphetamine hydrochloride
or "shabu", or other dangerous drugs such
as, but not limited to, MDMA or "ecstasy",
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134
PMA, TMA, LSD, GHB, and those similarly
designed or newly introduced drugs and
their derivatives, without having any
therapeutic value or if the quantity
possessed is far beyond therapeutic
requirements; or three hundred (300) grams
or more but less than five (hundred) 500)
grams of marijuana; and
(3) Imprisonment of twelve (12) years and
one (1) day to twenty (20) years and a fine
ranging from Three hundred thousand pesos
(P300,000.00) to Four hundred thousand
pesos (P400,000.00), if the quantities of
dangerous drugs are less than five (5) grams
of opium, morphine, heroin, cocaine or
cocaine hydrochloride, marijuana resin or
marijuana resin oil, methamphetamine
hydrochloride or "shabu", or other
dangerous drugs such as, but not limited to,
MDMA or "ecstasy", PMA, TMA, LSD, GHB,
and those similarly designed or newly
introduced drugs and their derivatives,
without having any therapeutic value or if
the quantity possessed is far beyond
therapeutic requirements; or less than
three hundred (300) grams of marijuana.
this Act shall be imposed upon any person, who shall
possess or have under his/her control any
equipment, instrument, apparatus and other
paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body, during
parties, social gatherings or meetings, or in the
proximate company of at least two (2) persons.
Section 12. Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous
Drugs. - The penalty of imprisonment ranging from
six (6) months and one (1) day to four (4) years and a
fine ranging from Ten thousand pesos (P10,000.00)
to Fifty thousand pesos (P50,000.00) shall be
imposed upon any person, who, unless authorized by
law, shall possess or have under his/her control any
equipment, instrument, apparatus and other
paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body:
Provided, That in the case of medical practitioners
and various professionals who are required to carry
such equipment, instrument, apparatus and other
paraphernalia in the practice of their profession, the
Board shall prescribe the necessary implementing
guidelines thereof.
The possession of such equipment, instrument,
apparatus and other paraphernalia fit or intended
for any of the purposes enumerated in the preceding
paragraph shall be prima facie evidence that the
possessor has smoked, consumed, administered to
himself/herself, injected, ingested or used a
dangerous drug and shall be presumed to have
violated Section 15 of this Act.
Section 16. Cultivation or Culture of Plants
Classified as Dangerous Drugs or are Sources
Thereof. - 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 shall plant,
cultivate or culture marijuana, opium poppy or any
other plant regardless of quantity, which is or may
hereafter be classified as a dangerous drug or as a
source from which any dangerous drug may be
manufactured or derived: Provided, That in the case
of medical laboratories and medical research centers
which cultivate or culture marijuana, opium poppy
and other plants, or materials of such dangerous
drugs for medical experiments and research
purposes, or for the creation of new types of
medicine, the Board shall prescribe the necessary
implementing guidelines for the proper cultivation,
culture, handling, experimentation and disposal of
such plants and materials.
The land or portions thereof and/or greenhouses on
which any of said plants is cultivated or cultured
shall be confiscated and escheated in favor of the
State, unless the owner thereof can prove lack of
knowledge of such cultivation or culture despite the
exercise of due diligence on his/her part. If the land
involved is part of the public domain, the maximum
penalty provided for under this Section shall be
imposed upon the offender.
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.
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.
Section 13. Possession of Dangerous Drugs During
Parties, Social Gatherings or Meetings. – Any person
found possessing any dangerous drug during a party,
or at a social gathering or meeting, or in the
proximate company of at least two (2) persons, shall
suffer the maximum penalties provided for in
Section 11 of this Act, regardless of the quantity and
purity of such dangerous drugs.
Section 14. Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous
Drugs During Parties, Social Gatherings or Meetings.
- The maximum penalty provided for in Section 12 of
Section 15. Use of Dangerous Drugs. – A person
apprehended or arrested, who is found to be positive
for use of any dangerous drug, after a confirmatory
test, shall be imposed a penalty of a minimum of six
(6) months rehabilitation in a government center for
the first offense, subject to the provisions of Article
VIII of this Act. If apprehended using any dangerous
drug for the second time, he/she shall suffer the
penalty of imprisonment ranging from six (6) years
and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (P50,000.00) to
Two hundred thousand pesos (P200,000.00):
Provided, That this Section shall not be applicable
where the person tested is also found to have in
his/her possession such quantity of any dangerous
drug provided for under Section 11 of this Act, in
which case the provisions stated therein shall apply.
CRIMINAL LAW REVIEWER
Section 17. Maintenance and Keeping of Original
Records of Transactions on Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. - The
penalty of imprisonment ranging from one (1) year
and one (1) day to six (6) years and a fine ranging
from Ten thousand pesos (P10,000.00) to Fifty
thousand pesos (P50,000.00) shall be imposed upon
any
practitioner,
manufacturer,
wholesaler,
importer, distributor, dealer or retailer who violates
or fails to comply with the maintenance and keeping
of the original records of transactions on any
dangerous drug and/or controlled precursor and
essential chemical in accordance with Section 40 of
this Act.
An additional penalty shall be imposed through the
revocation of the license to practice his/her
profession, in case of a practitioner, or of the
business, in case of a manufacturer, seller,
importer, distributor, dealer or retailer.
Section 18. Unnecessary Prescription of Dangerous
Drugs. – 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) and the additional penalty of the
revocation of his/her license to practice shall be
imposed upon the practitioner, who shall prescribe
any dangerous drug to any person whose physical or
physiological condition does not require the use or in
the dosage prescribed therein, as determined by the
Board in consultation with recognized competent
experts who are authorized representatives of
professional
organizations
of
practitioners,
particularly those who are involved in the care of
persons with severe pain.
Section 19. Unlawful Prescription of Dangerous
Drugs. – 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 make or issue a prescription
or any other writing purporting to be a prescription
for any dangerous drug.
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 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.
After conviction in the Regional Trial Court in the
appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation
and forfeiture of all the proceeds of the offense and
all the assets and properties of the accused either
owned or held by him or in the name of some other
persons if the same shall be found to be manifestly
out of proportion to his/her lawful income:
Provided, however, That if the forfeited property is
a vehicle, the same shall be auctioned off not later
than five (5) days upon order of confiscation or
forfeiture.
During the pendency of the case in the Regional Trial
Court, no property, or income derived therefrom,
which may be confiscated and forfeited, shall be
disposed, alienated or transferred and the same
shall be in custodia legis and no bond shall be
admitted for the release of the same.
The proceeds of any sale or disposition of any
property confiscated or forfeited under this Section
shall be used to pay all proper expenses incurred in
the proceedings for the confiscation, forfeiture,
custody and maintenance of the property pending
disposition, as well as expenses for publication and
court costs. The proceeds in excess of the above
expenses shall accrue to the Board to be used in its
campaign against illegal drugs.
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 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;
(2) Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well
as
instruments/paraphernalia
and/or
laboratory equipment, the same shall be
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136
submitted to the PDEA Forensic Laboratory
for
a
qualitative
and
quantitative
examination;
(3) A certification of the forensic laboratory
examination results, which shall be done
under oath by the forensic laboratory
examiner, shall be issued within twentyfour (24) hours after the receipt of the
subject item/s: Provided, That when the
volume of the dangerous drugs, plant
sources of dangerous drugs, and controlled
precursors and essential chemicals does not
allow the completion of testing within the
time
frame,
a
partial
laboratory
examination report shall be provisionally
issued stating therein the quantities of
dangerous drugs still to be examined by the
forensic laboratory: Provided, however,
That a final certification shall be issued on
the
completed
forensic
laboratory
examination on the same within the next
twenty-four (24) hours;
(4) After the filing of the criminal case, the
Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the
confiscated, seized and/or surrendered
dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and
essential
chemicals,
including
the
instruments/paraphernalia
and/or
laboratory equipment, and through the
PDEA shall within twenty-four (24) hours
thereafter proceed with the destruction or
burning of 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 DOJ,
civil society groups and any elected public
official. The Board shall draw up the
guidelines on the manner of proper
disposition and destruction of such item/s
which shall be borne by the offender:
Provided, That those item/s of lawful
commerce, as determined by the Board,
shall be donated, used or recycled for
legitimate purposes: Provided, further,
That a representative sample, duly weighed
and recorded is retained;
(5) The Board shall then issue a sworn
certification as to the fact of destruction or
burning of the subject item/s which,
together with the representative sample/s
in the custody of the PDEA, shall be
submitted to the court having jurisdiction
over the case. In all instances, the
representative sample/s shall be kept to a
minimum quantity as determined by the
Board;
(6) The alleged offender or his/her
representative or counsel shall be allowed
to personally observe all of the above
proceedings and his/her presence shall not
constitute an admission of guilt. In case the
said offender or accused refuses or fails to
appoint a representative after due notice in
writing to the accused or his/her counsel
within seventy-two (72) hours before the
actual burning or destruction of the
evidence in question, the Secretary of
Justice shall appoint a member of the
public attorney's office to represent the
former;
(7) After the promulgation and judgment in
the
criminal
case
wherein
the
representative sample/s was presented as
evidence in court, the trial prosecutor shall
inform the Board of the final termination of
the case and, in turn, shall request the
court for leave to turn over the said
representative sample/s to the PDEA for
proper disposition and destruction within
twenty-four (24) hours from receipt of the
same; and
(8) Transitory Provision: a) Within twentyfour (24) hours from the effectivity of this
Act, dangerous drugs defined herein which
are presently in possession of law
enforcement agencies shall, with leave of
court, be burned or destroyed, in the
presence of representatives of the Court,
DOJ, Department of Health (DOH) and the
accused/and or his/her counsel, and, b)
Pending the organization of the PDEA, the
custody, disposition, and burning or
destruction
of
seized/surrendered
dangerous drugs provided under this Section
shall be implemented by the DOH.
Section 22. Grant of Compensation, Reward and
Award. – The Board shall recommend to the
concerned government agency the 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 23. Plea-Bargaining Provision. – Any person
charged under any provision of this Act regardless of
the imposable penalty shall not be allowed to avail
of the provision on plea-bargaining.
Section 24. Non-Applicability of the Probation Law
for Drug Traffickers and Pushers. – Any person
convicted for drug trafficking or pushing under this
Act, regardless of the penalty imposed by the Court,
cannot avail of the privilege granted by the
Probation Law or Presidential Decree No. 968, as
amended.
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
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 26. Attempt or Conspiracy. – Any attempt or
conspiracy to commit the following unlawful acts
CRIMINAL LAW REVIEWER
shall be penalized by the same penalty prescribed
for the commission of the same as provided under
this Act:
(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.
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, Plant Sources
of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment Including the Proceeds
or Properties Obtained from the Unlawful Act
Committed. – 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), in addition to absolute perpetual
disqualification from any public office, shall be
imposed upon any public officer or employee who
misappropriates, misapplies or fails to account for
confiscated, seized or surrendered dangerous drugs,
plant sources of dangerous drugs, controlled
precursors
and
essential
chemicals,
instruments/paraphernalia
and/or
laboratory
equipment including the proceeds or properties
obtained from the unlawful acts as provided for in
this Act.
Any elective local or national official found 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.
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 office, if those
found guilty of such unlawful acts are government
officials and employees.
Section 29. Criminal Liability for Planting of
Evidence. – 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.
Section 30. Criminal Liability of Officers of
Partnerships, Corporations, Associations or Other
Juridical Entities. – In case any violation of this Act
is committed by a partnership, corporation,
association or any juridical entity, the partner,
president, director, manager, trustee, estate
administrator, or officer who consents to or
knowingly tolerates such violation shall be held
criminally liable as a co-principal.
The penalty provided for the offense under this Act
shall be imposed upon the partner, president,
director, manager, trustee, estate administrator, or
officer who knowingly authorizes, tolerates or
consents to the use of a vehicle, vessel, aircraft,
equipment or other facility, as an instrument in the
importation,
sale,
trading,
administration,
dispensation, delivery, distribution, transportation
or manufacture of dangerous drugs, or chemical
diversion, if such vehicle, vessel, aircraft,
equipment or other instrument is owned by or under
the control or supervision of the partnership,
corporation, association or juridical entity to which
they are affiliated.
Section 31. Additional Penalty if Offender is an
Alien. – In addition to the penalties prescribed in the
unlawful act committed, any alien who violates such
provisions of this Act shall, after service of sentence,
be
deported
immediately
without
further
proceedings, unless the penalty is death.
Section 32. Liability to a Person Violating Any
Regulation Issued by the Board. – The penalty of
imprisonment ranging from six (6) months and one
(1) day to four (4) years and a fine ranging from Ten
thousand pesos (P10,000.00) to Fifty thousand pesos
(P50,000.00) shall be imposed upon any person found
violating any regulation duly issued by the Board
pursuant to this Act, in addition to the
administrative sanctions imposed by the Board.
Section 33. Immunity from Prosecution and
Punishment. – Notwithstanding the provisions of
Section 17, Rule 119 of the Revised Rules of Criminal
Procedure and the provisions of Republic Act No.
6981 or the Witness Protection, Security and Benefit
Act of 1991, any person who has violated Sections 7,
11, 12, 14, 15, and 19, Article II of this Act, who
voluntarily gives information about any violation of
Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this
Act as well as any violation of the offenses
mentioned if committed by a drug syndicate, or any
information leading to the whereabouts, identities
and arrest of all or any of the members thereof; and
who willingly testifies against such persons as
described above, shall be exempted from
prosecution or punishment for the offense with
reference to which his/her information of testimony
were given, and may plead or prove the giving of
such information and testimony in bar of such
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138
prosecution: Provided, That the following conditions
concur:
(1) The information and testimony are
necessary for the conviction of the persons
described above;
(2) Such information and testimony are not
yet in the possession of the State;
(3) Such information and testimony can be
corroborated on its material points;
(4) the informant or witness has not been
previously convicted of a crime involving
moral turpitude, except when there is no
other direct evidence available for the
State other than the information and
testimony of said informant or witness; and
(5) The informant or witness shall strictly
and faithfully comply without delay, any
condition or undertaking, reduced into
writing, lawfully imposed by the State as
further consideration for the grant of
immunity from prosecution and punishment.
Provided, further, That this immunity may be
enjoyed by such informant or witness who does not
appear to be most guilty for the offense with
reference to which his/her information or testimony
were given: Provided, finally, That there is no direct
evidence available for the State except for the
information and testimony of the said informant or
witness.
Section 34. Termination of the Grant of Immunity. –
The immunity granted to the informant or witness,
as prescribed in Section 33 of this Act, shall not
attach should it turn out subsequently that the
information and/or testimony is false, malicious or
made only for the purpose of harassing, molesting or
in any way prejudicing the persons described in the
preceding Section against whom such information or
testimony is directed against. In such case, the
informant or witness shall be subject to prosecution
and the enjoyment of all rights and benefits
previously accorded him under this Act or any other
law, decree or order shall be deemed terminated.
In case an informant or witness under this Act fails
or refuses to testify without just cause, and when
lawfully obliged to do so, or should he/she violate
any condition accompanying such immunity as
provided above, his/her immunity shall be removed
and he/she shall likewise be subject to contempt
and/or criminal prosecution, as the case may be,
and the enjoyment of all rights and benefits
previously accorded him under this Act or in any
other law, decree or order shall be deemed
terminated.
In case the informant or witness referred to under
this Act falls under the applicability of this Section
hereof, such individual cannot avail of the provisions
under Article VIII of this Act.
Section 35. Accessory Penalties. – A person
convicted under this Act shall be disqualified to
exercise his/her civil rights such as but not limited
to, the rights of parental authority or guardianship,
either as to the person or property of any ward, the
rights to dispose of such property by any act or any
conveyance inter vivos, and political rights such as
but not limited to, the right to vote and be voted
for. Such rights shall also be suspended during the
pendency of an appeal from such conviction.
ARTICLE III
Dangerous Drugs Test and Record Requirements
Section 36. Authorized Drug Testing. – Authorized
drug testing shall be done by any government
forensic laboratories or by any of the drug testing
laboratories accredited and monitored by the DOH to
safeguard the quality of test results. The DOH shall
take steps in setting the price of the drug test with
DOH accredited drug testing centers to further
reduce the cost of such drug test. The drug testing
shall employ, among others, two (2) testing
methods, the screening test which will determine
the positive result as well as the type of the drug
used and the confirmatory test which will confirm a
positive screening test. Drug test certificates issued
by accredited drug testing centers shall be valid for
a one-year period from the date of issue which may
be used for other purposes. The following shall be
subjected to undergo drug testing:
(a) Applicants for driver's license. – No
driver's license shall be issued or renewed
to any person unless he/she presents a
certification that he/she has undergone a
mandatory drug test and indicating thereon
that he/she is free from the use of
dangerous drugs;
(b) Applicants for firearm's license and for
permit to carry firearms outside of
residence. – All applicants for firearm's
license and permit to carry firearms outside
of residence shall undergo a mandatory
drug test to ensure that they are free from
the use of dangerous drugs: Provided, That
all persons who by the nature of their
profession carry firearms shall undergo drug
testing;
(c) Students of secondary and tertiary
schools. – Students of secondary and
tertiary schools shall, pursuant to the
related rules and regulations as contained
in the school's student handbook and with
notice to the parents, undergo a random
drug testing: Provided, That all drug testing
expenses whether in public or private
schools under this Section will be borne by
the government;
(d) Officers and employees of public and
private offices. – Officers and employees of
public and private offices, whether
domestic or overseas, shall be subjected to
undergo a random drug test as contained in
the company's work rules and regulations,
which shall be borne by the employer, for
purposes of reducing the risk in the
workplace. Any officer or employee found
positive for use of dangerous drugs shall be
dealt with administratively which shall be a
ground for suspension or termination,
subject to the provisions of Article 282 of
the Labor Code and pertinent provisions of
the Civil Service Law;
(e) Officers and members of the military,
police and other law enforcement agencies.
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– Officers and members of the military,
police and other law enforcement agencies
shall undergo an annual mandatory drug
test;
(f) All persons charged before the
prosecutor's office with a criminal offense
having
an
imposable
penalty
of
imprisonment of not less than six (6) years
and one (1) day shall have to undergo a
mandatory drug test; and
(g) All candidates for public office whether
appointed or elected both in the national or
local government shall undergo a mandatory
drug test.
In addition to the above stated penalties in
this Section, those found to be positive for
dangerous drugs use shall be subject to the
provisions of Section 15 of this Act.
Section 37. Issuance of False or Fraudulent Drug
Test Results. – Any person authorized, licensed or
accredited under this Act and its implementing rules
to conduct drug examination or test, who issues
false or fraudulent drug test results knowingly,
willfully or through gross negligence, shall suffer the
penalty of imprisonment ranging from six (6) years
and one (1) day to twelve (12) years and a fine
ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos
(P500,000.00).
An additional penalty shall be imposed through the
revocation of the license to practice his/her
profession in case of a practitioner, and the closure
of the drug testing center.
Section 38. Laboratory Examination or Test on
Apprehended/Arrested Offenders. – Subject to
Section 15 of this Act, any person apprehended or
arrested for violating the provisions of this Act shall
be subjected to screening laboratory examination or
test within twenty-four (24) hours, if the
apprehending or arresting officer has reasonable
ground to believe that the person apprehended or
arrested, on account of physical signs or symptoms
or other visible or outward manifestation, is under
the influence of dangerous drugs. If found to be
positive, the results of the screening laboratory
examination or test shall be challenged within
fifteen (15) days after receipt of the result through a
confirmatory test conducted in any accredited
analytical laboratory equipment with a gas
chromatograph/mass spectrometry equipment or
some such modern and accepted method, if
confirmed the same shall be prima facie evidence
that such person has used dangerous drugs, which is
without prejudice for the prosecution for other
violations of the provisions of this Act: Provided,
That a positive screening laboratory test must be
confirmed for it to be valid in a court of law.
Section 39. Accreditation of Drug Testing Centers
and Physicians. – The DOH shall be tasked to license
and accredit drug testing centers in each province
and city in order to assure their capacity,
competence, integrity and stability to conduct the
laboratory examinations and tests provided in this
Article, and appoint such technical and other
personnel as may be necessary for the effective
implementation of this provision. The DOH shall also
accredit physicians who shall conduct the drug
dependency examination of a drug dependent as
well as the after-care and follow-up program for the
said drug dependent. There shall be a control
regulations, licensing and accreditation division
under the supervision of the DOH for this purpose.
For this purpose, the DOH shall establish, operate
and maintain drug testing centers in government
hospitals, which must be provided at least with basic
technologically advanced equipment and materials,
in order to conduct the laboratory examination and
tests herein provided, and appoint such qualified
and duly trained technical and other personnel as
may be necessary for the effective implementation
of this provision.
Section 40. Records Required for Transactions on
Dangerous Drug and Precursors and Essential
Chemicals. –
a) Every pharmacist dealing in dangerous
drugs and/or controlled precursors and
essential chemicals shall maintain and keep
an original record of sales, purchases,
acquisitions and deliveries of dangerous
drugs, indicating therein the following
information:
(1) License number and address of
the pharmacist;
(2) Name, address and license of
the manufacturer, importer or
wholesaler
from
whom
the
dangerous
drugs
have
been
purchased;
(3) Quantity and name of the
dangerous drugs purchased or
acquired;
(4) Date of acquisition or purchase;
(5) Name, address and community
tax certificate number of the
buyer;
(6)
Serial
number
of
the
prescription and the name of the
physician, dentist, veterinarian or
practitioner issuing the same;
(7) Quantity and name of the
dangerous drugs sold or delivered;
and
(8) Date of sale or delivery.
A certified true copy of such record
covering a period of six (6) months, duly
signed by the pharmacist or the owner of
the drugstore, pharmacy or chemical
establishment, shall be forwarded to the
Board within fifteen (15) days following the
last day of June and December of each
year, with a copy thereof furnished the city
or municipal health officer concerned.
(b) A physician, dentist, veterinarian or
practitioner authorized to prescribe any
dangerous drug shall issue the prescription
therefor in one (1) original and two (2)
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CRIMINAL LAW REVIEWER
140
duplicate copies. The original, after the
prescription has been filled, shall be
retained by the pharmacist for a period of
one (1) year from the date of sale or
delivery of such drug. One (1) copy shall be
retained by the buyer or by the person to
whom the drug is delivered until such drug
is consumed, while the second copy shall be
retained by the person issuing the
prescription.
For purposes of this Act, all prescriptions
issued by physicians, dentists, veterinarians
or practitioners shall be written on forms
exclusively issued by and obtainable from
the DOH. Such forms shall be made of a
special kind of paper and shall be
distributed in such quantities and contain
such information and other data as the DOH
may, by rules and regulations, require. Such
forms shall only be issued by the DOH
through its authorized employees to
licensed physicians, dentists, veterinarians
and practitioners in such quantities as the
Board may authorize. In emergency cases,
however, as the Board may specify in the
public interest, a prescription need not be
accomplished
on
such
forms.
The
prescribing physician, dentist, veterinarian
or practitioner shall, within three (3) days
after issuing such prescription, inform the
DOH of the same in writing. No prescription
once served by the drugstore or pharmacy
be reused nor any prescription once issued
be refilled.
(c)
All
manufacturers,
wholesalers,
distributors,
importers,
dealers
and
retailers of dangerous drugs and/or
controlled
precursors
and
essential
chemicals shall keep a record of all
inventories, sales, purchases, acquisitions
and deliveries of the same as well as the
names, addresses and licenses of the
persons from whom such items were
purchased or acquired or to whom such
items were sold or delivered, the name and
quantity of the same and the date of the
transactions. Such records may be
subjected anytime for review by the Board.
ARTICLE IV
Participation of the Family, Students, Teachers
and School Authorities in the Enforcement of this
Act
Section 41. Involvement of the Family. – The family
being the basic unit of the Filipino society shall be
primarily responsible for the education and
awareness of the members of the family on the ill
effects of dangerous drugs and close monitoring of
family members who may be susceptible to drug
abuse.
Section 42. Student Councils and Campus
Organizations. – All elementary, secondary and
tertiary schools' student councils and campus
organizations shall include in their activities a
program for the prevention of and deterrence in the
use of dangerous drugs, and referral for treatment
and rehabilitation of students for drug dependence.
Section 43. School Curricula. – Instruction on drug
abuse prevention and control shall be integrated in
the elementary, secondary and tertiary curricula of
all public and private schools, whether general,
technical, vocational or agro-industrial as well as in
non-formal, informal and indigenous learning
systems. Such instructions shall include:
(1) Adverse effects of the abuse and misuse
of dangerous drugs on the person, the
family, the school and the community;
(2) Preventive measures against drug abuse;
(3) Health, socio-cultural, psychological,
legal and economic dimensions and
implications of the drug problem;
(4) Steps to take when intervention on
behalf of a drug dependent is needed, as
well as the services available for the
treatment and rehabilitation of drug
dependents; and
(5) Misconceptions about the use of
dangerous drugs such as, but not limited to,
the importance and safety of dangerous
drugs for medical and therapeutic use as
well as the differentiation between medical
patients and drug dependents in order to
avoid
confusion
and
accidental
stigmatization in the consciousness of the
students.
Section 44. Heads, Supervisors, and Teachers of
Schools. – For the purpose of enforcing the provisions
of Article II of this Act, all school heads, supervisors
and teachers shall be deemed persons in authority
and, as such, are hereby empowered to apprehend,
arrest or cause the apprehension or arrest of any
person who shall violate any of the said provisions,
pursuant to Section 5, Rule 113 of the Rules of
Court. They shall be deemed persons in authority if
they are in the school or within its immediate
vicinity, or even beyond such immediate vicinity if
they are in attendance at any school or class
function in their official capacity as school heads,
supervisors, and teachers.
Any teacher or school employee, who discovers or
finds that any person in the school or within its
immediate vicinity is liable for violating any of said
provisions, shall have the duty to report the same to
the school head or immediate superior who shall, in
turn, report the matter to the proper authorities.
Failure to do so in either case, within a reasonable
period from the time of discovery of the violation
shall, after due hearing, constitute sufficient cause
for disciplinary action by the school authorities.
Section 45. Publication and Distribution of
Materials on Dangerous Drugs. – With the assistance
of the Board, the Secretary of the Department of
Education (DepEd), the Chairman of the Commission
on Higher Education (CHED) and the DirectorGeneral of the Technical Education and Skills
Development Authority (TESDA) shall cause the
development, publication and distribution of
information and support educational materials on
CRIMINAL LAW REVIEWER
dangerous drugs to the students, the faculty, the
parents, and the community.
Section 46. Special Drug Education Center. – With
the assistance of the Board, the Department of the
Interior and Local Government (DILG), the National
Youth Commission (NYC), and the Department of
Social Welfare and Development (DSWD) shall
establish in each of its provincial office a special
education drug center for out-of-school youth and
street children. Such Center which shall be headed
by the Provincial Social. Welfare Development
Officer shall sponsor drug prevention programs and
activities and information campaigns with the end in
view of educating the out-of-school youth and street
children regarding the pernicious effects of drug
abuse. The programs initiated by the Center shall
likewise be adopted in all public and private
orphanage and existing special centers for street
children.
ARTICLE V
Promotion of a National Drug-Free Workplace
Program With the Participation of Private and
Labor Sectors and the Department of Labor and
Employment
Section 47. Drug-Free Workplace. – It is deemed a
policy of the State to promote drug-free workplaces
using a tripartite approach. With the assistance of
the Board, the Department of Labor and Employment
(DOLE) shall develop, promote and implement a
national drug abuse prevention program in the
workplace to be adopted by private companies with
ten (10) or more employees. Such program shall
include the mandatory drafting and adoption of
company policies against drug use in the workplace
in close consultation and coordination with the
DOLE, labor and employer organizations, human
resource development managers and other such
private sector organizations.
Section 48. Guidelines for the National Drug-Free
Workplace Program. – The Board and the DOLE shall
formulate the necessary guidelines for the
implementation of the national drug-free workplace
program.
The
amount
necessary
for
the
implementation of which shall be included in the
annual General Appropriations Act.
ARTICLE VI
Participation of the Private and Labor Sectors in
the Enforcement of this Act
Section 49. Labor Organizations and the Private
Sector. – All labor unions, federations, associations,
or organizations in cooperation with the respective
private sector partners shall include in their
collective bargaining or any similar agreements,
joint
continuing
programs
and
information
campaigns for the laborers similar to the programs
provided under Section 47 of this Act with the end in
view of achieving a drug free workplace.
Section 50. Government Assistance. – The labor
sector and the respective partners may, in pursuit of
the programs mentioned in the preceding Section,
secure the technical assistance, such as but not
limited to, seminars and information dissemination
campaigns of the appropriate government and law
enforcement agencies.
ARTICLE VII
Participation of Local Government Units
Section 51. Local Government Units' Assistance. –
Local government units shall appropriate a
substantial portion of their respective annual
budgets to assist in or enhance the enforcement of
this Act giving priority to preventive or educational
programs and the rehabilitation or treatment of drug
dependents.
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, pursuant to the following
procedures:
(1) Any city or municipality may, by
ordinance, create an administrative board
to hear complaints regarding the nuisances;
(2) any employee, officer, or resident of the
city or municipality may bring a complaint
before the Board after giving not less than
three (3) days written notice of such
complaint to the owner of the place or
premises at his/her last known address; and
(3) 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.
Section 53. Effect of Board Declaration. – If the
Board declares a place or premises to be a public
nuisance, it may declare an order immediately
prohibiting the conduct, operation, or maintenance
of any business or activity on the premises which is
conducive to such nuisance.
An order entered under this Section shall expire
after one (1) year or at such earlier time as stated in
the order. The Board may bring a complaint seeking
a permanent injunction against any nuisance
described under this Section.
This Article does not restrict the right of any person
to proceed under the Civil Code against any public
nuisance.
ARTICLE VIII
Program for Treatment and Rehabilitation of Drug
Dependents
Section 54. Voluntary Submission of a Drug
Dependent to Confinement, Treatment and
Rehabilitation. – A drug dependent or any person
who violates Section 15 of this Act may, by
himself/herself or through his/her parent, spouse,
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CRIMINAL LAW REVIEWER
142
guardian or relative within the fourth degree of
consanguinity or affinity, apply to the Board or its
duly recognized representative, for treatment and
rehabilitation of the drug dependency. Upon such
application, the Board shall bring forth the matter to
the Court which shall order that the applicant be
examined for drug dependency. If the examination
by a DOH-accredited physician results in the issuance
of a certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to
undergo treatment and rehabilitation in a Center
designated by the Board for a period of not less than
six (6) months: Provided, That a drug dependent
may be placed under the care of a DOH-accredited
physician where there is no Center near or
accessible to the residence of the drug dependent or
where said drug dependent is below eighteen (18)
years of age and is a first-time offender and nonconfinement in a Center will not pose a serious
danger to his/her family or the community.
Confinement in a Center for treatment and
rehabilitation shall not exceed one (1) year, after
which time the Court, as well as the Board, shall be
apprised by the head of the treatment and
rehabilitation center of the status of said drug
dependent
and
determine
whether
further
confinement will be for the welfare of the drug
dependent and his/her family or the community.
Section 55. Exemption from the Criminal Liability
Under the Voluntary Submission Program. A drug
dependent under the voluntary submission program,
who is finally discharged from confinement, shall be
exempt from the criminal liability under Section 15
of this act subject to the following conditions:
(1) He/she has complied with the rules and
regulations of the center, the applicable
rules and regulations of the Board, including
the after-care and follow-up program for at
least eighteen (18) months following
temporary discharge from confinement in
the Center or, in the case of a dependent
placed under the care of the DOHaccredited
physician,
the
after-care
program and follow-up schedule formulated
by the DSWD and approved by the Board:
Provided, That capability-building of local
government social workers shall be
undertaken by the DSWD;
(2) He/she has never been charged or
convicted of any offense punishable under
this Act, the Dangerous Drugs Act of 1972 or
Republic Act No. 6425, as amended; the
Revised Penal Code, as amended; or any
special penal laws;
(3) He/she has no record of escape from a
Center: Provided, That had he/she escaped,
he/she surrendered by himself/herself or
through his/her parent, spouse, guardian or
relative within the fourth degree of
consanguinity or affinity, within one (1)
week from the date of the said escape; and
(4) He/she poses no serious danger to
himself/herself, his/her family or the
community by his/her exemption from
criminal liability.
Section 56. Temporary Release From the Center;
After-Care and Follow-Up Treatment Under the
Voluntary Submission Program. – Upon certification
of the Center that the drug dependent within the
voluntary submission program may be temporarily
released, the Court shall order his/her release on
condition that said drug dependent shall report to
the DOH for after-care and follow-up treatment,
including urine testing, for a period not exceeding
eighteen (18) months under such terms and
conditions that the Court may impose.
If during the period of after-care and follow-up, the
drug dependent is certified to be rehabilitated,
he/she may be discharged by the Court, subject to
the provisions of Section 55 of this Act, without
prejudice to the outcome of any pending case filed
in court.
However, should the DOH find that during the initial
after-care and follow-up program of eighteen (18)
months, the drug dependent requires further
treatment and rehabilitation in the Center, he/she
shall be recommitted to the Center for confinement.
Thereafter, he/she may again be certified for
temporary release and ordered released for another
after-care and follow-up program pursuant to this
Section.
Section 57. Probation and Community Service Under
the Voluntary Submission Program. – A drug
dependent who is discharged as rehabilitated by the
DOH-accredited Center through the voluntary
submission program, but does not qualify for
exemption from criminal liability under Section 55 of
this Act, may be charged under the provisions of this
Act, but shall be placed on probation and undergo a
community service in lieu of imprisonment and/or
fine in the discretion of the court, without prejudice
to the outcome of any pending case filed in court.
Such drug dependent shall undergo community
service as part of his/her after-care and follow-up
program, which may be done in coordination with
nongovernmental civil organizations accredited by
the DSWD, with the recommendation of the Board.
Section 58. Filing of Charges Against a Drug
Dependent Who is Not Rehabilitated Under the
Voluntary Submission Program. – A drug dependent,
who is not rehabilitated after the second
commitment to the Center under the voluntary
submission program, shall, upon recommendation of
the Board, 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 59. Escape and Recommitment for
Confinement and Rehabilitation Under the
Voluntary Submission Program. – Should a drug
dependent under the voluntary submission program
escape from the Center, he/she may submit
himself/herself for recommitment within one (1)
week therefrom, or his/her parent, spouse, guardian
or relative within the fourth degree of consanguinity
or affinity may, within said period, surrender him for
recommitment, in which case the corresponding
order shall be issued by the Board.
CRIMINAL LAW REVIEWER
Should the escapee fail to submit himself/herself or
be surrendered after one (1) week, the Board shall
apply to the court for a recommitment order upon
proof of previous commitment or his/her voluntary
submission by the Board, the court may issue an
order for recommitment within one (1) week.
If, subsequent to a recommitment, the dependent
once again escapes from confinement, he/she shall
be charged for violation of Section 15 of this Act and
he subjected under section 61 of this Act, either
upon order of the Board or upon order of the court,
as the case may be.
Section 60. Confidentiality of Records Under the
Voluntary Submission Program. – Judicial and
medical records of drug dependents under the
voluntary submission program shall be confidential
and shall not be used against him for any purpose,
except to determine how many times, by
himself/herself or through his/her parent, spouse,
guardian or relative within the fourth degree of
consanguinity or affinity, he/she voluntarily
submitted
himself/herself
for
confinement,
treatment and rehabilitation or has been committed
to a Center under this program.
Section 61. Compulsory Confinement of a Drug
Dependent Who Refuses to Apply Under the
Voluntary Submission Program. – Notwithstanding
any law, rule and regulation to the contrary, any
person determined and found to be dependent on
dangerous drugs shall, upon petition by the Board or
any of its authorized representative, be confined for
treatment and rehabilitation in any Center duly
designated or accredited for the purpose.
A petition for the confinement of a person alleged to
be dependent on dangerous drugs to a Center may
be filed by any person authorized by the Board with
the Regional Trial Court of the province or city
where such person is found.
After the petition is filed, the court, by an order,
shall immediately fix a date for the hearing, and a
copy of such order shall be served on the person
alleged to be dependent on dangerous drugs, and to
the one having charge of him.
If after such hearing and the facts so warrant, the
court shall order the drug dependent to be examined
by two (2) physicians accredited by the Board. If
both physicians conclude that the respondent is not
a drug dependent, the court shall order his/her
discharge. If either physician finds him to be a
dependent, the court shall conduct a hearing and
consider all relevant evidence which may be offered.
If the court finds him a drug dependent, it shall issue
an order for his/her commitment to a treatment and
rehabilitation center under the supervision of the
DOH. In any event, the order of discharge or order of
confinement or commitment shall be issued not later
than fifteen (15) days from the filing of the
appropriate petition.
Section 62. Compulsory Submission of a Drug
Dependent Charged with an Offense to Treatment
and Rehabilitation. – If a person charged with an
offense
where
the
imposable
penalty
is
imprisonment of less than six (6) years and one (1)
day, and is found by the prosecutor or by the court,
at any stage of the proceedings, to be a drug
dependent, the prosecutor or the court as the case
may be, shall suspend all further proceedings and
transmit copies of the record of the case to the
Board.
In the event he Board determines, after medical
examination, that public interest requires that such
drug dependent be committed to a center for
treatment and rehabilitation, it shall file a petition
for his/her commitment with the regional trial court
of the province or city where he/she is being
investigated or tried: Provided, That where a
criminal case is pending in court, such petition shall
be filed in the said court. The court shall take
judicial notice of the prior proceedings in the case
and shall proceed to hear the petition. If the court
finds him to be a drug dependent, it shall order
his/her commitment to a Center for treatment and
rehabilitation. The head of said Center shall submit
to the court every four (4) months, or as often as the
court may require, a written report on the progress
of the treatment. If the dependent is rehabilitated,
as certified by the center and the Board, he/she
shall be returned to the court, which committed
him, for his/her discharge therefrom.
Thereafter, his/her prosecution for any offense
punishable by law shall be instituted or shall
continue, as the case may be. In case of conviction,
the judgment shall, if the accused is certified by the
treatment and rehabilitation center to have
maintained good behavior, indicate that he/she shall
be given full credit for the period he/she was
confined in the Center: Provided, however, That
when the offense is for violation of Section 15 of this
Act and the accused is not a recidivist, the penalty
thereof shall be deemed to have been served in the
Center upon his/her release therefrom after
certification by the Center and the Board that
he/she is rehabilitated.
Section 63. Prescription of the Offense Charged
Against a Drug Dependent Under the Compulsory
Submission Program. – The period of prescription of
the offense charged against a drug dependent under
the compulsory submission program shall not run
during the time that the drug dependent is under
confinement in a Center or otherwise under the
treatment and rehabilitation program approved by
the Board.
Upon certification of the Center that he/she may
temporarily be discharged from the said Center, the
court shall order his/her release on condition that
he/she shall report to the Board through the DOH for
after-care and follow-up treatment for a period not
exceeding eighteen (18) months under such terms
and conditions as may be imposed by the Board.
If at anytime during the after-care and follow-up
period, the Board certifies to his/her complete
rehabilitation, the court shall order his/her final
discharge from confinement and order for the
immediate resumption of the trial of the case for
which he/she is originally charged. Should the Board
through the DOH find at anytime during the after-
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CRIMINAL LAW REVIEWER
144
care and follow-up period that he/she requires
further treatment and rehabilitation, it shall report
to the court, which shall order his/her
recommitment to the Center.
Should the drug dependent, having been committed
to a Center upon petition by the Board escape
therefrom, he/she may resubmit himself/herself for
confinement within one (1) week from the date of
his/her escape; or his/her parent, spouse, guardian
or relative within the fourth degree of consanguinity
or affinity may, within the same period, surrender
him for recommitment. If, however, the drug
dependent does not resubmit himself/herself for
confinement or he/she is not surrendered for
recommitment, the Board may apply with the court
for the issuance of the recommitment order. Upon
proof of previous commitment, the court shall issue
an order for recommitment. If, subsequent to such
recommitment, he/she should escape again, he/she
shall no longer be exempt from criminal liability for
use of any dangerous drug.
A drug dependent committed under this particular
Section who is finally discharged from confinement
shall be exempt from criminal liability under Section
15 of this Act, without prejudice to the outcome of
any pending case filed in court. On the other hand, a
drug dependent who is not rehabilitated after a
second commitment to the Center shall, upon
conviction by the appropriate court, suffer the same
penalties provided for under Section 15 of this Act
again without prejudice to the outcome of any
pending case filed in court.
Section 64. Confidentiality of Records Under the
Compulsory Submission Program. – The records of a
drug dependent who was rehabilitated and
discharged from the Center under the compulsory
submission program, or who was charged for
violation of Section 15 of this Act, shall be covered
by Section 60 of this Act. However, the records of a
drug dependent who was not rehabilitated, or who
escaped but did not surrender himself/herself within
the prescribed period, shall be forwarded to the
court and their use shall be determined by the court,
taking into consideration public interest and the
welfare of the drug dependent.
Section 65. Duty of the Prosecutor in the
Proceedings. – It shall be the duty of the provincial
or the city prosecutor or their assistants or state
prosecutors to prepare the appropriate petition in all
proceedings arising from this Act.
Section 66. Suspension of Sentence of a First-Time
Minor Offender. – An accused who is over fifteen
(15) years of age at the time of the commission of
the offense mentioned in Section 11 of this Act, but
not more than eighteen (18) years of age at the time
when judgment should have been promulgated after
having been found guilty of said offense, may be
given the benefits of a suspended sentence, subject
to the following conditions:
(a) He/she has not been previously
convicted of violating any provision of this
Act, or of the Dangerous Drugs Act of 1972,
as amended; or of the Revised Penal Code;
or of any special penal laws;
(b) He/she has not been previously
committed to a Center or to the care of a
DOH-accredited physician; and
(c) The Board favorably recommends that
his/her sentence be suspended.
While under suspended sentence, he/she shall be
under the supervision and rehabilitative surveillance
of the Board, under such conditions that the court
may impose for a period ranging from six (6) months
to eighteen (18) months.
Upon recommendation of the Board, the court may
commit the accused under suspended sentence to a
Center, or to the care of a DOH-accredited physician
for at least six (6) months, with after-care and
follow-up program for not more than eighteen (18)
months.
In the case of minors under fifteen (15) years of age
at the time of the commission of any offense
penalized under this Act, Article 192 of Presidential
Decree No. 603, otherwise known as the Child and
Youth Welfare Code, as amended by Presidential
Decree No. 1179 shall apply, without prejudice to
the application of the provisions of this Section.
Section 67. Discharge After Compliance with
Conditions of Suspended Sentence of a First-Time
Minor Offender. – If the accused first time minor
offender under suspended sentence complies with
the applicable rules and regulations of the Board,
including confinement in a Center, the court, upon a
favorable recommendation of the Board for the final
discharge of the accused, shall discharge the
accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the
accused, the court shall enter an order to expunge
all official records, other than the confidential
record to be retained by the DOJ relating to the
case. Such an order, which shall be kept
confidential, shall restore the accused to his/her
status prior to the case. He/she shall not be held
thereafter 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 of him for
any purpose.
Section 68. Privilege of Suspended Sentence to be
Availed of Only Once by a First-Time Minor
Offender. – The privilege of suspended sentence
shall be availed of only once by an accused drug
dependent who is a first-time offender over fifteen
(15) years of age at the time of the commission of
the violation of Section 15 of this Act but not more
than eighteen (18) years of age at the time when
judgment should have been promulgated.
Section 69. Promulgation of Sentence for First-Time
Minor Offender. – If the accused first-time minor
offender violates any of the conditions of his/her
suspended sentence, the applicable rules and
regulations of the Board exercising supervision and
rehabilitative surveillance over him, including the
rules and regulations of the Center should
confinement be required, the court shall pronounce
judgment of conviction and he/she shall serve
sentence as any other convicted person.
CRIMINAL LAW REVIEWER
Section 70. Probation or Community Service for a
First-Time Minor Offender in Lieu of Imprisonment.
– Upon promulgation of the sentence, the court may,
in its discretion, place the accused under probation,
even if the sentence provided under this Act is
higher than that provided under existing law on
probation, or impose community service in lieu of
imprisonment. In case of probation, the supervision
and rehabilitative surveillance shall be undertaken
by the Board through the DOH in coordination with
the Board of Pardons and Parole and the Probation
Administration. Upon compliance with the conditions
of the probation, the Board shall submit a written
report to the court recommending termination of
probation and a final discharge of the probationer,
whereupon the court shall issue such an order.
The community service shall be complied with under
conditions, time and place as may be determined by
the court in its discretion and upon the
recommendation of the Board and shall apply only to
violators of Section 15 of this Act. The completion of
the community service shall be under the supervision
and rehabilitative surveillance of the Board during
the period required by the court. Thereafter, the
Board shall render a report on the manner of
compliance of said community service. The court in
its discretion may require extension of the
community service or order a final discharge.
In both cases, the judicial records shall be covered
by the provisions of Sections 60 and 64 of this Act.
If the sentence promulgated by the court requires
imprisonment, the period spent in the Center by the
accused during the suspended sentence period shall
be deducted from the sentence to be served.
Section 71. Records to be kept by the Department
of Justice. – The DOJ shall keep a confidential
record of the proceedings on suspension of sentence
and shall not be used for any purpose other than to
determine whether or not a person accused under
this Act is a first-time minor offender.
Section 72. Liability of a Person Who Violates the
Confidentiality of Records. – The penalty of
imprisonment ranging from six (6) months and one
(1) day to six (6) years and a fine ranging from One
thousand pesos (P1,000.00) to Six thousand pesos
(P6,000.00), shall be imposed upon any person who,
having official custody of or access to the
confidential records of any drug dependent under
voluntary submission programs, or anyone who,
having gained possession of said records, whether
lawfully or not, reveals their content to any person
other than those charged with the prosecution of the
offenses under this Act and its implementation. The
maximum penalty shall be imposed, in addition to
absolute perpetual disqualification from any public
office, when the offender is a government official or
employee. Should the records be used for unlawful
purposes, such as blackmail of the drug dependent
or the members of his/her family, the penalty
imposed for the crime of violation of confidentiality
shall be in addition to whatever crime he/she may
be convicted of.
Section 73. Liability of a Parent, Spouse or
Guardian Who Refuses to Cooperate with the Board
or any Concerned Agency. – Any parent, spouse or
guardian who, without valid reason, refuses to
cooperate with the Board or any concerned agency
in the treatment and rehabilitation of a drug
dependent who is a minor, or in any manner,
prevents or delays the after-care, follow-up or other
programs for the welfare of the accused drug
dependent, whether under voluntary submission
program or compulsory submission program, may be
cited for contempt by the court.
Section 74. Cost-Sharing in the Treatment and
Rehabilitation of a Drug Dependent. – The parent,
spouse, guardian or any relative within the fourth
degree of consanguinity of any person who is
confined under the voluntary submission program or
compulsory submission program shall be charged a
certain percentage of the cost of his/her treatment
and rehabilitation, the guidelines of which shall be
formulated by the DSWD taking into consideration
the economic status of the family of the person
confined. The guidelines therein formulated shall be
implemented by a social worker of the local
government unit.
Section 75. Treatment and Rehabilitation Centers. –
The existing treatment and rehabilitation centers for
drug dependents operated and maintained by the
NBI and the PNP shall be operated, maintained and
managed by the DOH in coordination with other
concerned agencies. For the purpose of enlarging the
network of centers, the Board through the DOH shall
encourage, promote or whenever feasible, assist or
support in the establishment, operations and
maintenance of private centers which shall be
eligible to receive grants, donations or subsidy from
either government or private sources. It shall also
support the establishment of government-operated
regional treatment and rehabilitation centers
depending upon the availability of funds. The
national government, through its appropriate
agencies shall give priority funding for the increase
of subsidy to existing government drug rehabilitation
centers, and shall establish at least one (1) drug
rehabilitation center in each province, depending on
the availability of funds.
Section 76. The Duties and Responsibilities of the
Department of health (DOH) Under this Act. – The
DOH shall:
(1) Oversee the monitor the integration,
coordination and supervision of all drug
rehabilitation, intervention, after-care and
follow-up programs, projects and activities
as well as the establishment, operations,
maintenance and management of privatelyowned drug treatment rehabilitation
centers and drug testing networks and
laboratories throughout the country in
coordination with the DSWD and other
agencies;
(2) License, accredit, establish and
maintain drug test network and laboratory,
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146
initiate, conduct and support scientific
research on drugs and drug control;
(3) Encourage, assist and accredit private
centers, promulgate rules and regulations
setting minimum standards for their
accreditation to assure their competence,
integrity and stability;
(4) Prescribe and promulgate rules and
regulations governing the establishment of
such Centers as it may deem necessary
after conducting a feasibility study thereof;
(5) The DOH shall, without prejudice to the
criminal prosecution of those found guilty
of violating this Act, order the closure of a
Center for treatment and rehabilitation of
drug dependency when, after investigation
it is found guilty of violating the provisions
of this Act or regulations issued by the
Board; and
(6) Charge reasonable fees for drug
dependency examinations, other medical
and legal services provided to the public,
which shall accrue to the Board. All income
derived from these sources shall be part of
the funds constituted as special funds for
the implementation of this Act under
Section 87.
ARTICLE IX
Dangerous Drugs Board and Philippine Drug
Enforcement Agency
Section 77. The Dangerous Drugs Board. – The Board
shall be the policy-making and strategy-formulating
body in the planning and formulation of policies and
programs on drug prevention and control. It shall
develop and adopt a comprehensive, integrated,
unified and balanced national drug abuse prevention
and control strategy. It shall be under the Office of
the President.
Section 78. Composition of the Board. – The Board
shall be composed of seventeen (17) members
wherein three (3) of which are permanent members,
the other twelve (12) members shall be in an ex
officio capacity and the two (2) shall be regular
members.
The three (3) permanent members, who shall possess
at least seven-year training and experience in the
field of dangerous drugs and in any of the following
fields: in law, medicine, criminology, psychology or
social work, shall be appointed by the President of
the Philippines. The President shall designate a
Chairman, who shall have the rank of a secretary
from among the three (3) permanent members who
shall serve for six (6) years. Of the two (2) other
members, who shall both have the rank of
undersecretary, one (1) shall serve for four (4) years
and the other for two (2) years. Thereafter, the
persons appointed to succeed such members shall
hold office for a term of six (6) years and until their
successors shall have been duly appointed and
qualified.
The other twelve (12) members who shall be ex
officio members of the Board are the following:
(1) Secretary of the Department of Justice
or his/her representative;
(2) Secretary of the Department of Health
or his/her representative;
(3) Secretary of the Department of National
Defense or his/her representative;
(4) Secretary of the Department of Finance
or his/her representative;
(5) Secretary of the Department of Labor
and Employment or his/her representative;
(6) Secretary of the Department of the
Interior and Local Government or his/her
representative;
(7) Secretary of the Department of Social
Welfare and Development or his/her
representative;
(8) Secretary of the Department of Foreign
Affairs or his/her representative;
(9) Secretary of the Department of
Education or his/her representative;
(10) Chairman of the Commission on Higher
Education or his/her representative;
(11) Chairman of the National Youth
Commission;
(12) Director General of the Philippine Drug
Enforcement Agency.
Cabinet secretaries who are members of the Board
may designate their duly authorized and permanent
representatives whose ranks shall in no case be
lower than undersecretary.
The two (2) regular members shall be as follows:
(a) The president of the Integrated Bar of
the Philippines; and
(b) The chairman or president of a nongovernment
organization
involved
in
dangerous drug campaign to be appointed
by the President of the Philippines.
The Director of the NBI and the Chief of the PNP
shall be the permanent consultants of the Board,
and shall attend all the meetings of the Board.
All members of the Board as well as its permanent
consultants shall receive a per diem for every
meeting actually attended subject to the pertinent
budgetary laws, rules and regulations on
compensation, honoraria and allowances: Provided,
That where the representative of an ex officio
member or of the permanent consultant of the Board
attends a meeting in behalf of the latter, such
representative shall be entitled to receive the per
diem.
Section 79. Meetings of the Board. – The Board shall
meet once a week or as often as necessary at the
discretion of the Chairman or at the call of any four
(4) other members. The presence of nine (9)
members shall constitute a quorum.
Section 80. Secretariat of the Board. – The Board
shall recommend to the President of the Philippines
the appointment of an Executive Director, with the
rank of an undersecretary, who shall be the
Secretary of the Board and administrative officer of
its secretariat, and shall perform such other duties
that may be assigned to him/her. He/she must
possess
adequate
knowledge,
training
and
experience in the field of dangerous drugs, and in
any of the following fields: law enforcement, law,
medicine, criminology, psychology or social work.
CRIMINAL LAW REVIEWER
Two deputies executive director, for administration
and operations, with the ranks of assistant
secretary, shall be appointed by the President upon
recommendation of the Board. They shall possess the
same qualifications as those of the executive
director. They shall receive a salary corresponding to
their position as prescribed by the Salary
Standardization Law as a Career Service Officer.
The existing secretariat of the Board shall be under
the administrative control and supervision of the
Executive Director. It shall be composed of the
following divisions, namely: Policy Studies, Research
and Statistics; Preventive Education, Training and
Information; Legal Affairs; and the Administrative
and Financial Management.
Section 81. Powers and Duties of the Board. – The
Board shall:
(a) Formulate, develop and establish a
comprehensive, integrated, unified and
balanced national drug use prevention and
control strategy;
(b) Promulgate such rules and regulations as
may be necessary to carry out the purposes
of this Act, including the manner of
safekeeping,
disposition,
burning
or
condemnation of any dangerous drug and/or
controlled precursor and essential chemical
under its charge and custody, and prescribe
administrative remedies or sanctions for the
violations of such rules and regulations;
(c) Conduct policy studies, program
monitoring and evaluations and other
researches on drug prevention, control and
enforcement;
(d) Initiate, conduct and support scientific,
clinical, social, psychological, physical and
biological researches on dangerous drugs
and dangerous drugs prevention and control
measures;
(e) Develop an educational program and
information drive on the hazards and
prevention of illegal use of any dangerous
drug and/or controlled precursor and
essential chemical based on factual data,
and disseminate the same to the general
public, for which purpose the Board shall
endeavor to make the general public aware
of the hazards of any dangerous drugs
and/or controlled precursor and essential
chemical by providing among others,
literature, films, displays or advertisements
and by coordinating with all institutions of
learning as well as with all national and
local enforcement agencies in planning and
conducting its educational campaign
programs to be implemented by the
appropriate government agencies;
(f) Conduct continuing seminars for, and
consultations with, and provide information
materials to judges and prosecutors in
coordination with the Office of the Court
Administrator, in the case of judges, and
the DOJ, in the case of prosecutors, which
aim to provide them with the current
developments and programs of the Board
pertinent to its campaign against dangerous
drugs and its scientific researches on
dangerous drugs, its prevention and control
measures;
(g) Design special trainings in order to
provide law enforcement officers, members
of the judiciary, and prosecutors, school
authorities and personnel of centers with
knowledge and know-how in dangerous
drugs and/or controlled precursors and
essential chemicals control in coordination
with the Supreme Court to meet the
objectives of the national drug control
programs;
(h) Design and develop, in consultation and
coordination with the DOH, DSWD and other
agencies involved in drugs control,
treatment and rehabilitation, both public
and private, a national treatment and
rehabilitation program for drug dependents
including a standard aftercare and
community service program for recovering
drug dependents;
(i) Design and develop, jointly with the
DOLE and in consultation with labor and
employer groups as well as nongovernment
organizations a drug abuse prevention
program in the workplace that would
include a provision for employee assistance
programs
for
emotionally-stressed
employees;
(j)
Initiate
and
authorize
closure
proceedings against non-accredited and/or
substandard rehabilitation centers based on
verified reports of human rights violations,
subhuman conditions, inadequate medical
training and assistance and excessive fees
for implementation by the PDEA;
(k) Prescribe and promulgate rules and
regulations governing the establishment of
such centers, networks and laboratories as
deemed necessary after conducting a
feasibility study in coordination with the
DOH and other government agencies;
(l) Receive, gather, collect and evaluate all
information
on
the
importation,
exportation, production, manufacture, sale,
stocks, seizures of and the estimated need
for any dangerous drug and/or controlled
precursor and essential chemical, for which
purpose the Board may require from any
official, instrumentality or agency of the
government or any private person or
enterprise dealing in, or engaged in
activities having to do with any dangerous
drug and/or controlled precursors and
essential
chemicals
such
data
or
information as it may need to implement
this Act;
(m) Gather and prepare detailed statistics
on
the
importation,
exportation,
manufacture, stocks, seizures of and
estimates need for any dangerous drug
and/or controlled precursors and essential
chemicals and such other statistical data on
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said drugs as may be periodically required
by the United Nations Narcotics Drug
Commission, the World Health Organization
and other international organizations in
consonance with the country's international
commitments;
(n) Develop and maintain international
networking coordination with international
drug control agencies and organizations,
and
implement
the
provisions
of
international conventions and agreements
thereon which have been adopted and
approved by the Congress of the
Philippines;
(o) Require all government and private
hospitals, clinics, doctors, dentists and
other practitioners to submit a report to it,
in coordination with the PDEA, about all
dangerous
drugs
and/or
controlled
precursors and essential chemicals-related
cases to which they have attended for
statistics and research purposes;
(p) Receive in trust legacies, gifts and
donations of real and personal properties of
all kinds, to administer and dispose the
same when necessary for the benefit of
government and private rehabilitation
centers subject to limitations, directions
and instructions from the donors, if any;
(q) Issue guidelines as to the approval or
disapproval of applications for voluntary
treatment, rehabilitation or confinement,
wherein it shall issue the necessary
guidelines, rules and regulations pertaining
to the application and its enforcement;
(r) Formulate guidelines, in coordination
with other government agencies, the
importation,
distribution,
production,
manufacture, compounding, prescription,
dispensing and sale of, and other lawful
acts in connection with any dangerous drug,
controlled
precursors
and
essential
chemicals and other similar or analogous
substances of such kind and in such quantity
as it may deem necessary according to the
medical
and
research
needs
or
requirements of the country including diet
pills containing ephedrine and other
addictive chemicals and determine the
quantity and/or quality of dangerous drugs
and controlled precursors and essential
chemicals to be imported, manufactured
and held in stock at any given time by
authorized importer, manufacturer or
distributor of such drugs;
(s) Develop the utilization of a controlled
delivery scheme
in
addressing the
transshipment of dangerous drugs into and
out of the country to neutralize
transnational crime syndicates involved in
illegal trafficking of any dangerous drugs
and/or controlled precursors and essential
chemicals;
(t) Recommend the revocation of the
professional license of any practitioner who
is an owner, co-owner, lessee, or in the
employ of the drug establishment, or
manager of a partnership, corporation,
association, or any juridical entity owning
and/or controlling such drug establishment,
and who knowingly participates in, or
consents to, tolerates, or abets the
commission of the act of violations as
indicated in the preceding paragraph, all
without
prejudice
to
the
criminal
prosecution of the person responsible for
the said violation;
(u) Appoint such technical, administrative
and other personnel as may be necessary
for the effective implementation of this
Act, subject to the Civil Service Law and its
rules and regulations;
(v) Establish a regular and continuing
consultation with concerned government
agencies
and
medical
professional
organizations to determine if balance exists
in
policies,
procedures,
rules
and
regulations on dangerous drugs and to
provide recommendations on how the
lawful use of dangerous drugs can be
improved and facilitated; and
(w) Submit an annual and periodic reports
to the President, the Congress of the
Philippines and the Senate and House of
Representatives committees concerned as
may be required from time to time, and
perform such other functions as may be
authorized or required under existing laws
and as directed by the President
himself/herself or as recommended by the
congressional committees concerned.
Section 82. Creation of the Philippine Drug
Enforcement Agency (PDEA). – To carry out the
provisions of this Act, the PDEA, which serves as the
implementing arm of the Board, and shall be
responsible for the efficient and effective law
enforcement of all the provisions on any dangerous
drug and/or controlled precursor and essential
chemical as provided in this Act.
The PDEA shall be headed by a Director General with
the rank of Undersecretary, who shall be responsible
for the general administration and management of
the Agency. The Director General of the PDEA shall
be appointed by the President of the Philippines and
shall perform such other duties that may be assigned
to him/her. He/she must possess adequate
knowledge, training and experience in the field of
dangerous drugs, and in any of the following fields:
law enforcement, law, medicine, criminology,
psychology or social work.
The Director General of the PDEA shall be assisted in
the
performance
of
his/her
duties
and
responsibilities by two (2) deputies director general
with the rank of Assistant Secretary; one for
Operations and the other one for Administration.
The two (2) deputies director general shall likewise
be appointed by the President of the Philippines
upon recommendation of the Board. The two (2)
deputies director general shall possess the same
qualifications as those of the Director General of the
PDEA. The Director General and the two (2) deputies
director general shall receive the compensation and
salaries as prescribed by law.
CRIMINAL LAW REVIEWER
Section 83. Organization of the PDEA. – The present
Secretariat of the National Drug Law Enforcement
and Prevention Coordinating Center as created by
Executive Order No. 61 shall be accordingly modified
and absorbed by the PDEA.
The Director General of the PDEA shall be
responsible for the necessary changes in the
organizational set-up which shall be submitted to
the Board for approval.
For purposes of carrying out its duties and powers as
provided for in the succeeding Section of this Act,
the PDEA shall have the following Services, namely:
Intelligence
and
Investigation;
International
Cooperation and Foreign Affairs; Preventive
Education and Community Involvement; Plans and
Operations; Compliance; Legal and Prosecution;
Administrative and Human Resource; Financial
Management; Logistics Management; and Internal
Affairs.
The PDEA shall establish and maintain regional
offices in the different regions of the country which
shall be responsible for the implementation of this
Act and the policies, programs, and projects of said
agency in their respective regions.
Section 84. Powers and Duties of the PDEA. – The
PDEA shall:
(a) Implement or cause the efficient and
effective implementation of the national
drug control strategy formulated by the
Board thereby carrying out a national drug
campaign program which shall include drug
law enforcement, control and prevention
campaign with the assistance of concerned
government agencies;
(b) Undertake the enforcement of the
provisions of Article II of this Act relative to
the unlawful acts and penalties involving
any dangerous drug and/or controlled
precursor and essential chemical and
investigate all violators and other matters
involved in the commission of any crime
relative to the use, abuse or trafficking of
any dangerous drug and/or controlled
precursor and essential chemical as
provided for in this Act and the provisions
of Presidential Decree No. 1619;
(c) Administer oath, issue subpoena and
subpoena duces tecum relative to the
conduct of investigation involving the
violations of this Act;
(d) Arrest and apprehend as well as search
all violators and seize or confiscate, the
effects or proceeds of the crimes as
provided by law and take custody thereof,
for this purpose the prosecutors and
enforcement agents are authorized to
possess firearms, in accordance with
existing laws;
(e) Take charge and have custody of all
dangerous
drugs
and/or
controlled
precursors and essential chemicals seized,
confiscated or surrendered to any national,
provincial or local law enforcement agency,
if no longer needed for purposes of
evidence in court;
(f) Establish forensic laboratories in each
PNP office in every province and city in
order to facilitate action on seize or
confiscated drugs, thereby hastening its
destruction without delay;
(g) Recommend to the DOJ the forfeiture of
properties and other assets of persons
and/or corporations found to be violating
the provisions of this Act and in accordance
with the pertinent provisions of the AntiMoney-Laundering Act of 2001;
(h) Prepare for prosecution or cause the
filing of appropriate criminal and civil cases
for violation of all laws on dangerous drugs,
controlled
precursors
and
essential
chemicals, and other similar controlled
substances, and assist, support and
coordinate with other government agencies
for the proper and effective prosecution of
the same;
(i)
Monitor
and
if
warranted
by
circumstances, in coordination with the
Philippine Postal Office and the Bureau of
Customs, inspect all air cargo packages,
parcels and mails in the central post office,
which appear from the package and address
itself to be a possible importation of
dangerous
drugs
and/or
controlled
precursors and essential chemicals, through
on-line or cyber shops via the internet or
cyberspace;
(j) Conduct eradication programs to destroy
wild or illegal growth of plants from which
dangerous drugs may be extracted;
(k) Initiate and undertake the formation of
a nationwide organization which shall
coordinate and supervise all activities
against drug abuse in every province, city,
municipality and barangay with the active
and direct participation of all such local
government units and nongovernmental
organizations, including the citizenry,
subject to the provisions of previously
formulated programs of action against
dangerous drugs;
(l) Establish and maintain a national drug
intelligence system in cooperation with law
enforcement agencies, other government
agencies/offices and local government units
that will assist in its apprehension of bigtime drug lords;
(m)
Establish
and
maintain
close
coordination, cooperation and linkages with
international
drug
control
and
administration agencies and organizations,
and implement the applicable provisions of
international conventions and agreements
related to dangerous drugs to which the
Philippines is a signatory;
(n) Create and maintain an efficient special
enforcement
unit
to
conduct
an
investigation, file charges and transmit
evidence to the proper court, wherein
members of the said unit shall possess
suitable and adequate firearms for their
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protection
in
connection
with
the
performance of their duties: Provided, That
no previous special permit for such
possession shall be required;
(o) Require all government and private
hospitals, clinics, doctors, dentists and
other practitioners to submit a report to it,
in coordination with the Board, about all
dangerous
drugs
and/or
controlled
precursors and essential chemicals which
they have attended to for data and
information purposes;
(p) Coordinate with the Board for the
facilitation of the issuance of necessary
guidelines, rules and regulations for the
proper implementation of this Act;
(q) Initiate and undertake a national
campaign for drug prevention and drug
control programs, where it may enlist the
assistance of any department, bureau,
office, agency or instrumentality of the
government, including government-owned
and or –controlled corporations, in the antiillegal drugs drive, which may include the
use of their respective personnel, facilities,
and resources for a more resolute detection
and investigation of drug-related crimes and
prosecution of the drug traffickers; and
(r) Submit an annual and periodic reports to
the Board as may be required from time to
time, and perform such other functions as
may be authorized or required under
existing laws and as directed by the
President
himself/herself
or
as
recommended
by
the
congressional
committees concerned.
Section 85. The PDEA Academy. – Upon the approval
of the Board, the PDEA Academy shall be established
either in Baguio or Tagaytay City, and in such other
places as may be necessary. The PDEA Academy shall
be responsible in the recruitment and training of all
PDEA agents and personnel. The Board shall provide
for the qualifications and requirements of its recruits
who must be at least twenty-one (21) years old, of
proven integrity and honesty and a Baccalaureate
degree holder.
The graduates of the Academy shall later comprise
the operating units of the PDEA after the
termination of the transition period of five (5) years
during which all the intelligence network and
standard operating procedures of the PDEA has been
set up and operationalized.
The Academy shall be headed by a Superintendent,
with the rank of Director. He/she shall be appointed
by the PDEA Director General.
Section 86. Transfer, Absorption, and Integration of
All Operating Units on Illegal Drugs into the PDEA
and Transitory Provisions. – The Narcotics Group of
the PNP, the Narcotics Division of the NBI and the
Customs Narcotics Interdiction Unit are hereby
abolished; however they shall continue with the
performance of their task as detail service with the
PDEA, subject to screening, until such time that the
organizational structure of the Agency is fully
operational and the number of graduates of the
PDEA Academy is sufficient to do the task
themselves: Provided, That such personnel who are
affected shall have the option of either being
integrated into the PDEA or remain with their
original mother agencies and shall, thereafter, be
immediately reassigned to other units therein by the
head of such agencies. Such personnel who are
transferred, absorbed and integrated in the PDEA
shall be extended appointments to positions similar
in rank, salary, and other emoluments and privileges
granted to their respective positions in their original
mother agencies.
The transfer, absorption and integration of the
different offices and units provided for in this
Section shall take effect within eighteen (18) months
from the effectivity of this Act: Provided, That
personnel absorbed and on detail service shall be
given until five (5) years to finally decide to join the
PDEA.
Nothing in this Act shall mean a diminution of the
investigative powers of the NBI and the PNP on all
other crimes as provided for in their respective
organic laws: Provided, however, That when the
investigation being conducted by the NBI, PNP or any
ad hoc anti-drug task force is found to be a violation
of any of the provisions of this Act, the PDEA shall be
the lead agency. The NBI, PNP or any of the task
force shall immediately transfer the same to the
PDEA: Provided, further, That the NBI, PNP and the
Bureau of Customs shall maintain close coordination
with the PDEA on all drug related matters.
ARTICLE X
Appropriations, Management of Funds and Annual
Report
Section 87. Appropriations. – The amount necessary
for the operation of the Board and the PDEA shall be
charged against the current year's appropriations of
the Board, the National Drug Law Enforcement and
Prevention Coordinating Center, the Narcotics Group
of the PNP, the Narcotics Division of the NBI and
other drug abuse units of the different law
enforcement agencies integrated into the PDEA in
order to carry out the provisions of this Act.
Thereafter, such sums as may be necessary for the
continued implementation of this Act shall be
included in the annual General Appropriations Act.
All receipts derived from fines, fees and other
income authorized and imposed in this Act, including
ten percent (10%) of all unclaimed and forfeited
sweepstakes and lotto prizes but not less than
twelve million pesos (P12,000,000.00) per year from
the Philippine Charity Sweepstakes Office (PCSO),
are hereby constituted as a special account in the
general fund for the implementation of this Act:
Provided, That no amount shall be disbursed to
cover the operating expenses of the Board and other
concerned agencies: Provided, further, That at least
fifty percent (50%) of all the funds shall be reserved
for assistance to government-owned and/or
operated rehabilitation centers.
The fines shall be remitted to the Board by the court
imposing such fines within thirty (30) days from the
finality of its decisions or orders. The unclaimed and
forfeited prizes shall be turned over to the Board by
the PCSO within thirty (30) days after these are
collected and declared forfeited.
A portion of the funds generated by the Philippine
Amusement and Gaming Corporation (PAGCOR) in
the amount of Five million pesos (P5,000,000.00) a
CRIMINAL LAW REVIEWER
month shall be set aside for the purpose of
establishing adequate drug rehabilitation centers in
the country and also for the maintenance and
operations of such centers: Provided, That the said
amount shall be taken from the fifty percent (50%)
share of the National Government in the income of
PAGCOR: Provided, further, That the said amount
shall automatically be remitted by PAGCOR to the
Board. The amount shall, in turn, be disbursed by
the Dangerous Drugs Board, subject to the rules and
regulations of the Commission on Audit (COA).
The fund may be augmented by grants, donations,
and endowment from various sources, domestic or
foreign, for purposes related to their functions,
subject to the existing guidelines set by the
government.
Section 88. Management of Funds Under this Act;
Annual Report by the Board and the PDEA. – The
Board shall manage the funds as it may deem proper
for the attainment of the objectives of this Act. In
addition to the periodic reports as may be required
under this Act, the Chairman of the Board shall
submit to the President of the Philippines and to the
presiding officers of both houses of Congress, within
fifteen (15) days from the opening of the regular
session, an annual report on the dangerous drugs
situation in the country which shall include detailed
account of the programs and projects undertaken,
statistics on crimes related to dangerous drugs,
expenses incurred pursuant to the provisions of this
Act, recommended remedial legislation, if needed,
and such other relevant facts as it may deem proper
to cite.
Section 89. Auditing the Accounts and Expenses of
the Board and the PDEA. – All accounts and expenses
of the Board and the PDEA shall be audited by the
COA or its duly authorized representative.
ARTICLE XI
Jurisdiction Over Dangerous Drugs Cases
Section 90. Jurisdiction. – The Supreme Court shall
designate special courts from among the existing
Regional Trial Courts in each judicial region to
exclusively try and hear cases involving violations of
this Act. The number of courts designated in each
judicial region shall be based on the population and
the number of cases pending in their respective
jurisdiction.
The DOJ shall designate special prosecutors to
exclusively handle cases involving violations of this
Act.
The preliminary investigation of cases filed under
this Act shall be terminated within a period of thirty
(30) days from the date of their filing.
When the preliminary investigation is conducted by a
public prosecutor and a probable cause is
established, the corresponding information shall be
filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary
investigation is conducted by a judge and a probable
cause is found to exist, the corresponding
information shall be filed by the proper prosecutor
within forty-eight (48) hours from the date of
receipt of the records of the case.
Trial of the case under this Section shall be finished
by the court not later than sixty (60) days from the
date of the filing of the information. Decision on said
cases shall be rendered within a period of fifteen
(15) days from the date of submission of the case for
resolution.
Section 91. Responsibility and Liability of Law
Enforcement Agencies and other Government
Officials and Employees in Testifying as Prosecution
Witnesses in Dangerous Drugs Cases. – 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 in any
proceedings, involving violations of this Act, without
any valid reason, shall be punished with
imprisonment of not less than twelve (12) years and
one (1) day to twenty (20) years and a fine of not
less
than
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 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.
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. However, the concerned
member of the law enforcement agency or
government employee may be transferred or reassigned for compelling reasons: 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.
Prosecution and punishment under this Section shall
be without prejudice to any liability for violation of
any existing law.
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
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without prejudice to his/her prosecution under the
pertinent provisions of the Revised Penal Code.
Section 93. Reclassification, Addition or Removal of
Any Drug from the List of Dangerous Drugs. – The
Board shall have the power to reclassify, add to or
remove from the list of dangerous drugs.
Proceedings to reclassify, add, or remove a drug or
other substance may be initiated by the PDEA, the
DOH, or by petition from any interested party,
including the manufacturer of a drug, a medical
society or association, a pharmacy association, a
public interest group concerned with drug abuse, a
national or local government agency, or an
individual citizen. When a petition is received by the
Board, it shall immediately begin its own
investigation of the drug. The PDEA also may begin
an investigation of a drug at any time based upon
the information received from law enforcement
laboratories, national and local law enforcement and
regulatory agencies, or other sources of information.
The Board after notice and hearing shall consider the
following factors with respect to each substance
proposed to be reclassified, added or removed from
control:
(a) Its actual or relative potential for abuse;
(b)
Scientific
evidence
of
its
pharmacological effect if known;
(c) The state of current scientific
knowledge regarding the drug or other
substance;
(d) Its history and current pattern of abuse;
(e) The scope, duration, and significance of
abuse;
(f) Risk to public health; and
(g) Whether the substance is an immediate
precursor of a substance already controlled
under this Act.
The Board shall also take into accord the obligations
and commitments to international treaties,
conventions and agreements to which the Philippines
is a signatory.
The Dangerous Drugs Board shall give notice to the
general public of the public hearing of the
reclassification, addition to or removal from the list
of any drug by publishing such notice in any
newspaper of general circulation once a week for
two (2) weeks.
The effect of such reclassification, addition or
removal shall be as follows:
(a) In case a dangerous drug is reclassified
as precursors and essential chemicals, the
penalties for the violations of this Act
involving the two latter categories of drugs
shall, in case of conviction, be imposed in
all pending criminal prosecutions;
(b) In case a precursors and essential
chemicals is reclassified as dangerous drug,
the penalties for violations of the Act
involving precursors and essential chemicals
shall, in case of conviction, be imposed in
all pending criminal prosecutions;
(c) In case of the addition of a new drug to
the list of dangerous drugs and precursors
and essential chemicals, no criminal
liability involving the same under this Act
shall arise until after the lapse of fifteen
(15) days from the last publication of such
notice;
(d) In case of removal of a drug from the
list of dangerous drugs and precursors and
essential chemicals, all persons convicted
and/or detained for the use and/or
possession of such a drug shall be
automatically released and all pending
criminal prosecution involving such a drug
under this Act shall forthwith be dismissed;
and
(e) The Board shall, within five (5) days
from the date of its promulgation submit to
Congress
a
detailed
reclassification,
addition, or removal of any drug from the
list of dangerous drugs.
ARTICLE XII
Implementing Rules and Regulations
Section 94. Implementing Rules and Regulations. –
The present Board in consultation with the DOH,
DILG, DOJ, DepEd, DSWD, DOLE, PNP, NBI, PAGCOR
and the PCSO and all other concerned government
agencies shall promulgate within sixty (60) days the
Implementing Rules and Regulations that shall be
necessary to implement the provisions of this Act.
ARTICLE XIII
Final Provisions
Section 95. Congressional Oversight Committee. –
There is hereby created a Congressional Oversight
Committee composed of seven (7) Members from the
Senate and seven (7) Members from the House of
Representatives. The Members from the Senate shall
be appointed by the Senate President based on the
proportional representation of the parties or
coalitions therein with at least two (2) Senators
representing the Minority. The Members from the
House of Representatives shall be appointed by the
Speaker, also based on proportional representation
of the parties or coalitions therein with at least two
(2) Members representing the Minority.
The Committee shall be headed by the respective
Chairpersons of the Senate Committee on Public
Order and Illegal Drugs and the House of
Representatives Committee on Dangerous Drugs.
Section 96. Powers and Functions of the Oversight
Committee. – The Oversight Committee on
Dangerous Drugs shall, in aid of legislation, perform
the following functions, among others:
(a) To set the guidelines and overall
framework to monitor and ensure the
proper implementation of this Act;
(b) To ensure transparency and require the
submission of reports from government
agencies concerned on the conduct of
programs, projects and policies relating to
the implementation of this act;
(c) To approve the budget for the programs
of the Oversight Committee on Dangerous
Drugs and all disbursements therefrom,
including compensation of all personnel;
(d) To submit periodic reports to the
President of the Philippines and Congress on
the implementation of the provisions of this
Act;
(e) To determine inherent weaknesses in
the law and recommend the necessary
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remedial legislation or executive measures;
and
(f) To perform such other duties, functions
and responsibilities as may be necessary to
effectively attain the objectives of this Act.
Section 97. Adoption of Committee Rules and
Regulations, and Funding. – The Oversight
Committee on Dangerous Drugs shall adopt its
internal rules of procedure, conduct hearings and
receive testimonies, reports, and technical advice,
invite or summon by subpoena ad testificandum any
public official, private citizen, or any other person
to testify before it, or require any person by
subpoena duces tecum documents or other materials
as it may require consistent with the provisions of
this Act.
The Oversight Committee on Dangerous Drugs shall
be assisted by a secretariat to be composed by
personnel who may be seconded from the Senate
and the House of Representatives and may retain
consultants.
To carry out the powers and functions of the
Oversight Committee on Dangerous Drugs, the initial
sum of Twenty-five million pesos (P25,000,000.00)
shall be charged against the current appropriations
of the Senate. Thereafter, such amount necessary
for its continued operations shall be included in the
annual General Appropriations Act.
The Oversight Committee on Dangerous Drugs shall
exist for a period of ten (10) years from the
effectivity of this Act and may be extended by a
joint concurrent resolution.
Section 98. Limited Applicability of the Revised
Penal Code. – 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, except
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.
Section 99. Separability Clause. – If for any reason
any section or provision of this Act, or any portion
thereof, or the application of such section, provision
or portion thereof to any person, group or
circumstance is declared invalid or unconstitutional,
the remainder of this Act shall not be affected by
such declaration and shall remain in force and
effect.
Section 100. Repealing Clause. – Republic Act No.
6425, as amended, is hereby repealed and all other
laws, administrative orders, rules and regulations, or
parts thereof inconsistent with the provisions of this
Act, are hereby repealed or modified accordingly.
Section 101. Amending Clause. – Republic Act No.
7659 is hereby amended accordingly.
Section 102. Effectivity. – This Act shall take effect
fifteen (15) days upon its publication in at least two
(2) national newspapers of general circulation.
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