2014 BAR REVIEWER ON CRIMINAL LAW

UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA

Ordinarily there is a difference body, that accused was defending
between the act of drawing one’s gun and himself. It would have been different if the
the act of pointing one’s gun at a target. wounds inflicted were located in the front
The former cannot be said to be unlawful portion of the victim's body. Thus, the first
aggression on the part of the victim. For element of self-defense is not present
unlawful aggression to be attendant there (Belbis, Jr. vs. People, GR No. 181052,
must be a real danger to life or personal November 14, 2012, Justice Peralta).
safety. Unlawful aggression requires an
actual, sudden and unexpected attack, or Necessary means - The means
imminent danger thereof, and not merely a employed by a person claiming self-defense
threatening or intimidating attitude. Here, must be commensurate to the nature and
the act of the victim in drawing a gun from the extent of the attack sought to be
his waist cannot be categorized as unlawful averted, and must be rationally necessary
aggression. Such act did not put in real to prevent or repel an unlawful
peril the life or personal safety of appellant. aggression. In the present case, four stab
The facts surrounding the case must, wounds that are the product of direct
however, be differentiated from current thrusting of the bladed weapon are not
jurisprudence on unlawful aggression. necessary to prevent what the accused
Accused was justified in defending himself claim to be the continuous unlawful
considering that victim was a trained police aggression from the victim as the latter was
officer and an inebriated and disobedient already without any weapon. In connection
colleague. Even if the victim did not point therewith, having established that there
his firearm at accused, there would still be was no unlawful aggression on the part of
a finding of unlawful aggression on the part the victim when he was stabbed, accused
of the victim (Nacnac vs. People, G.R. cannot avail of the mitigating circumstance
No. 191913, March 21, 2012). of incomplete self-defense (Belbis, Jr. vs.
People, GR No. 181052, November 14,
In People vs. Fontanilla, G.R. No. 2012, Justice Peralta).
177743, January 25, 2012 - Indeed, had
victim really attacked accused, the latter Under doctrine of rationale
would have sustained some injury from the equivalence, plea of self-defense would
aggression. It remains, however, that no prosper if there is a rational equivalence
injury of any kind or gravity was found on between the means of attack by the
the person of accused when he presented unlawful aggressor and the means of
himself to the hospital. In contrast, the defense by the accused that would
physician who examined the cadaver of characterize the defense as reasonable. The
victim testified that he had been hit on the doctrine of rational equivalence
head more than once. The plea of self- presupposes the consideration not only of
defense was thus belied, for the weapons the nature and quality of the weapons used
used by accused and the location and by the defender and the assailant—but of
number of wounds he inflicted on victim the totality of circumstances surrounding
revealed his intent to kill, not merely an the defense vis-à-vis, the unlawful
effort to prevent or repel an attack from aggression. Clearly, this “continuous
victim. We consider to be significant that attack” by accused despite the fact that
the gravity of the wounds manifested the aggressor already was neutralized by the
determined effort of the accused to kill his blow constitutes force beyond what is
victim, not just to defend himself. reasonably required to repel the
aggression—and is therefore unjustified
Ceased aggression - The unlawful (Espinosa vs. People, G.R. No.
aggression on the part of the victim ceased 181071, March 15, 2010).
when accused Rodolfo was able to get hold
of the bladed weapon. Although there was BATTERED WOMAN SYNDROME:
still some struggle involved between the "Battered Woman Syndrome" refers to a
victim and accused, there is no doubt that scientifically defined pattern of
the latter, who was in possession of the psychological and behavioral symptoms
same weapon, already became the unlawful found in women living in battering
aggressor. Retaliation is not the same as relationships as a result of cumulative
self-defense. In retaliation, the aggression abuse (Section 3 of RA No. 9262). Each of
that was begun by the injured party already the phases of the cycle of violence must be
ceased when the accused attacked him, proven to have characterized “at least two
while in self-defense the aggression still battering episodes” between the accused
existed when the aggressor was injured by and her intimate partner and such final
the accused. Such an aggression can also episode produced in the battered person’s
be surmised on the four stab wounds mind an actual fear of an imminent harm
sustained by the victim on his back. It is from her batterer and an honest belief that
hard to believe based on the location of the she needed to use force in order to save
stab wounds, all at the back portion of the her life. (People vs. Genosa, G.R. No.

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
135981, January 15, 2004). The three unlawful action (People vs. Jacinto, G.R.
phases of the Battered Woman Syndrome No. 182239, March 16, 2011).
are: (1) the tension-building phase; (2) the
acute battering incident; and (3) the SUSPENSION OF SENTENCE -
tranquil, loving or non-violent phase While Section 38 of RA 9344 provides that
(People vs. Genosa, G.R. No. 135981, suspension of sentence can still be applied
January 15, 2004; Answer to the 2010 Bar even if the child in conflict with the law is
Examination Questions by UP Law already 18 years of age or more at the time
Complex). The essence of this defense of of the pronouncement of his/her guilt,
“Battered Woman Syndrome” as a defense Section 40 of the same law limits the said
is that battered woman, who suffers from suspension of sentence until the child
physical and psychological or emotional reaches the maximum age of 21. Hence, the
distress, is acting under an irresistible child in conflict with the law, who reached
impulse to defend herself although at the 21 years, cannot avail of privilege of
time of commission of the crime the suspension of sentence. However, the child
batterer-victim had not yet committed in conflict with the law may, after
unlawful aggression. In Genosa supra, it conviction and upon order of the court, be
was held that “it is crucial to the BWS made to serve his sentence, in lieu of
defense is the state of mind of the battered confinement in a regular penal institution,
woman at the time of the offense. She must in an agricultural camp and other training
have actually feared imminent harm from facilities (People vs. Mantalba, G.R. No.
her batterer and honestly believed in the 186227, July 20, 2011).
need to kill him in order to save her life.”
That is why even in the absence of “actual CREDIT OF THE PREVENTIVE
aggression” or any other element of self- IMPRISONMENT OF CHILD - Under
defense, a woman, who is found to be Article 29 of RPC, a convicted recidivist is
suffering from battered woman syndrome not entitled to a full or 4/5 credit of his
is not criminally liable for killing her preventive imprisonment. However, if the
husband. convict is a child, the applicable rule for
crediting the period of commitment and
IRRESISTABLE FORCE detention is not Article 29 of RPC but
Section 41, RA 9344. Under the said
A person who acts under the provision, the full time spent in actual
compulsion of an irresistible force, like one commitment and detention of juvenile
who acts under the impulse of an delinquent shall be credited in the services
uncontrollable fear of equal or greater of his sentence.
injury, is exempt from criminal liability
because he does not act with INSANITY
freedom. Actus me invite factus non est
meus actus. An act done by me against my Acts penalized by law are always
will is not my act. The force contemplated presumed to be voluntary, and it is
must be so formidable as to reduce the improper to conclude that a person acted
actor to a mere instrument who acts not unconsciously in order to relieve him of
only without will but against his will. The liability, unless his insanity is conclusively
duress, force, fear or intimidation must be proved (People vs. Pambid, GR No. 124453,
present, imminent and impending, and of March 15, 2000).Insanity is the exception
such nature as to induce a well-grounded rather than the rule in the human
apprehension of death or serious bodily condition. The presumption, under Article
harm if the act be done. A threat of future 800 of the Civil Code, is that every human
injury is not enough. The compulsion must is sane. Anyone who pleads the exempting
be of such a character as to leave no circumstance of insanity bears the burden
opportunity for the accused for escape or of proving it with clear and convincing
self-defense in equal combat (People vs. evidence. It is in the nature of confession
Dequina, G.R. No. 177570, January 19, and avoidance. An accused invoking
2011) insanity admits to have committed the
crime but claims that he or she is not guilty
MINORITY because of insanity (People vs. Tibon, G.R.
No. 188320, June 29, 2010).
To exempt a minor, who is 15 years
old or more, from criminal liability, it must Insanity as an exempting
be shown that he committed the criminal circumstance must relate to the time
act without discernment. Choosing an immediately preceding or coetaneous with
isolated and dark place to perpetrate the the commission of the offense with which
crime, to prevent detection and boxing the accused is charged (People vs. Tibon,
victim to weaken her defense” are indicative supra).
of accused’s mental capacity to fully
understand the consequences of his

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
COGNITION TEST AND VOLITION No criminal liability is incurred by
TEST - The case of Formigones established the stepfather who commits malicious
two distinguishable tests to determine the mischief against his stepson; by the
insane condition of the accused: stepmother who commits theft against her
stepson; by the stepfather who steals
(a) The test of cognition – whether something from his stepson; by the
there was a “complete deprivation of grandson who steals from his
intelligence in committing the criminal act” grandfather; by the accused who swindles
After satisfying his lust, accused threatened his sister-in-law living with him; and by the
the victim. This implies that accused knew son who steals a ring from his mother
what he was doing, that it was wrong, and (Intestate Estate of Gonzales vs. People,
wanted to keep it a secret. It also indicated G.R. No. 181409, February 11, 2010). The
that the crime was committed during one of absolutory cause applies to theft, swindling
his lucid intervals. Accused is not exempt and malicious mischief. It does not apply to
from liability for failure to pass the theft through falsification or estafa through
cognition test (People vs. Alipio, G.R. No. falsification (Intestate Estate of Gonzales vs.
185285, October 5, 2009) and People, G.R. No. 181409, February 11,
2010). There are two viewson whether the
Evidence tended to show that extinguishment of marriage by death of the
accused was not deprived of reason at all spouse dissolves the relationship by affinity
and can still distinguish right from wrong for purpose of absolutory cause. The first
when, after satisfying his lust, he holds that relationship by affinity
threatened victim. This single episode terminates with the dissolution of the
irresistibly implies, for one, that accused marriage, while the second maintains that
knew what he was doing, that it was wrong, relationship continues even after the death
and wanted to keep it a secret. And for of the deceased spouse. The principle of pro
another, it indicated that the crime was reocalls for the adoption of the continuing
committed during one of lucid intervals of affinity view because it is more favorable to
accused (People vs. Alipio, supra). the accused (Intestate estate of Gonzales vs.
People, G.R. No. 181409, February 11,
(b) The test of volition – whether 2010).
there was a “total deprivation of freedom of
the will.” In the Bonoan case, schizophrenic INSTIGATION AND ENTRAPMENT
accused, who acted under irresistible
homicidal impulse to kill (volition test), was “Instigation means luring the
acquitted due to insanity. This is not accused into a crime that he, otherwise,
anymore a good rule. Even if the mental had no intention to commit, in order to
condition of the accused had passed the prosecute him." It differs from entrapment
volition test, the plea of insanity will not which is the employment of ways and
prosper unless it also passed the cognition means in order to trap or capture a
test. The controlling test is cognition (People criminal. In instigation, the criminal intent
vs. Opuran, G.R. Nos. 147674-75, March to commit an offense originates from the
17, 2004). inducer and not from the accused who had
no intention to commit and would not have
In recent Supreme Court cases, the committed it were it not for the prodding of
plea of insanity of person, who is suffering the inducer. In entrapment, the criminal
from schizophrenia, was rejected because of intent or design originates from the accused
failure to pass the cognition test. In sum, a and the law enforcers merely facilitate the
schizophrenic accused must be deprived apprehension of the criminal by using ruses
completely of intelligence to be exempt from and schemes. Instigation results in the
criminal liability (See: People vs. Medina, acquittal of the accused, while entrapment
G.R. No. 113691, February 6, 1998; People may lead to prosecution and conviction.
vs. Pascual, G.R. No. 95029, March 24,
1993).If a person (such as sex maniac, Instigation means luring the
homicidal maniac or kleptomaniac)had accused into a crime that he, otherwise,
merely passed the volition test but not the had no intention to commit, in order to
cognition test, he will only be given the prosecute him. It differs from entrapment
benefit of mitigating circumstance of which is the employment of ways and
illness. Diminution of freedom of the will is means in order to trap or capture a
enough to mitigate the liability of the criminal. In instigation, the criminal intent
offender suffering from illness (See: People to commit an offense originates from the
vs. Rafanan, Jr. November 21, 1991, G.R. inducer and not from the accused who had
No. 54135, November 21, 1991). no intention to commit and would not have
committed it were it not for the prodding of
ABSOLUTORY CAUSE IN CRIME the inducer. In entrapment, the criminal
AGAINST PROPERTY intent or design originates from the accused
and the law enforcers merely facilitate the

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
apprehension of the criminal by using ruses result. He directly perpetrated the acts,
and schemes. Instigation results in the which constitute the crime. With or
acquittal of the accused, while entrapment without conspiracy, the chief actor is a
may lead to prosecution and conviction principal by direct participation.
(People vs. Espiritu, G.R. No. 180919,
January 9, 2013). Criminal participator - Criminal
participator is the offender who
In People vs. Espiritu et. Al., G.R. participated in committing a crime by
No. 180919, January 9, 2013 - Here, the indispensable or dispensable act. He
evidence clearly established that the police performed an act, which is not constitutive
operatives employed entrapment, not of felony but intended to give moral or
instigation, to capture appellant and her material aid to the chief actor.
cohorts in the act of selling shabu. It must
be recalled that it was only upon receipt of (1) With conspiracy - If there is
a report of the drug trafficking activities of conspiracy, the criminal participator or
Espiritu from the confidential informant cooperator is a principal by direct
that a buy-bust team was formed and participation. The act of the chief actor
negotiations for the sale of shabu were is considered the act of the criminal
made. Also, appellant testified that she participator.
agreed to the transaction of her own free
will when she saw the same as an (2) Without conspiracy - If there is no
opportunity to earn money. Notably too, conspiracy, criminal participator may
appellant was able to quickly produce a be held liable as principal by
sample. This confirms that she had a ready indispensable cooperation, accomplice
supply of the illegal drugs. Clearly, she was or accessory depending upon the nature
never forced, coerced or induced through and time of participation. A criminal
incessant entreaties to source the participator may participate in the
prohibited drug for Carla and PO3 Cariño commission of the crime by previous,
and this she even categorically admitted simultaneous and/or subsequent acts.
during her testimony.
(a) Previous or simultaneous acts
Moreover, a police officer’s act of – The criminal participator by
soliciting drugs from appellant during the previous or simultaneous acts is
buy-bust operation, or what is known as liable either as principal by
the "decoy solicitation," is not prohibited by indispensable cooperation or
law and does not invalidate the buy-bust accomplice. If the cooperation is
operation. in a prosecution for sale of illicit indispensable, the participator is a
drugs, any of the following will not principal by indispensable
exculpate the accused: "(1) that facilities for cooperation; if dispensable an
the commission of the crime were accomplice.
intentionally placed in his way; or (2) that
the criminal act was done at the solicitation (b) Subsequent acts – The
of the decoy or poseur-buyer seeking to criminal participator by subsequent
expose his criminal act; or (3) that the acts is liable as an accessory. An
police authorities feigning complicity in the accessory does not participate in the
act were present and apparently assisted in criminal design, nor cooperate in the
its commission." commission of the felony, but, with
knowledge of the commission of the
Hence, even assuming that the crime, he subsequently takes part
PAOCTF operatives repeatedly asked her to by any of the three modes under
sell them shabu, appellant’s defense of Article 19.
instigation will not prosper. This is
"especially true in that class of cases where The liability of accessory and
the offense is the kind that is habitually principal should also be considered as
committed, and the solicitation merely quasi-collective. It is quasi-collective in the
furnished evidence of a course of conduct. sense that the principal and the accessory
Mere deception by the police officer will not are liable for the felony committed but the
shield the perpetrator, if the offense was penalty for the latter is two degrees lower
committed by him free from the influence or than that for the former.
instigation of the police officer."
ACCOMPLICE AND CONSPIRATOR
PARTICIPATION - In People vs. PO1 Eusebio G.R. No.
182152, February 25, 2013 - It noted that
Chief actor - Criminal or chief actor victim had only three gunshot wounds
is the person who actually committed the despite the many shots fired at him. Since
crime. He is the one who committed or Bongon shot victim thrice at very close
omitted the act, which causes the criminal range, causing him to fall, it appears that it

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UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
was only Bongon who inflicted those relation between the acts done by the
wounds. And, considering that the principal and those attributed to the person
prosecution evidence did not show that the charged as accomplice (People vs. Gambao,
shots three other accused fired from their GR No. 172707, October 01, 2013).
guns made their marks, there is doubts
that the three agreed beforehand with Accused entered the room where the
Bongon to kill victim. It cannot rule out the victim was detained and conversed with
possibility that they fired their guns merely kidnappers regarding stories unrelated to
to scare off outside interference. the kidnapping. Accused should be held
liable as accomplice. The defenses raised by
Because witnesses are rarely accused are not sufficient to exonerate her
present when several accused come to an criminal liability. Assuming arguendo that
agreement or conspired to commit a crime, she just came to the resort thinking it was
such agreement is usually inferred from a swimming party, it was inevitable that
their "concerted actions" while committing she acquired knowledge of the criminal
it. On the other hand, accomplices are the design of the principals when she saw
persons who, not being principals, victim being guarded in the room. A
cooperate in the execution of the offense by rational person would have suspected
previous or simultaneous acts. something was wrong and would have
reported such incident to the police.
The line that separates a Accused, however, chose to keep quiet; and
conspirator by concerted action from an to add to that, she even spent the night at
accomplice by previous or simultaneous the cottage. It has been held before that
acts is indeed slight. Accomplices do not being present and giving moral support
decide whether the crime should be when a crime is being committed will make
committed; but they assent to the plan and a person responsible as an accomplice in
cooperate in its accomplishment. The the crime committed. It should be noted
solution in case of doubt is that such doubt that the accused-appellant’s presence and
should be resolved in favor of the accused. company were not indispensable and
It was held that when there is doubt as to essential to the perpetration of the
whether a guilty participant in a homicide kidnapping for ransom; hence, she is only
performed the role of principal or liable as an accomplice. Moreover, in case
accomplice, the Court should favor the of doubt, the participation of the offender
"milder form of responsibility." He should be will be considered as that of an accomplice
given the benefit of the doubt and can be rather than that of a principal (People vs.
regarded only as an accomplice. Hence, in Gambao, GR No. 172707, October 01,
the case at bar, the other three accused 2013).
should be granted the benefit of doubt and
should considered merely as accomplices. X and Y did not participate when
the victim was forcibly abducted. However,
It is immaterial whether accused they owned the safehouse, the basement of
acted as a principal or an accomplice. What their house, where the kidnapped victim
really matters is that the conspiracy was was detained. X assisted the kidnappers
proven and he took part in it. Without the when the victim the basement stairs of the
participation of accused, the offense would safehouse. Y brought foods to the
not have been committed. He was the one safehouse. Are X and Y liable as accomplice
who paved the way for victim to board the or principal by direct participation? They
vehicle and his closeness with the victim are liable as principals because of
led the latter to trust the former, thus, conspiracy. Their participations are of
accomplishing their devious plan of minor importance. These acts pertain to
kidnapping him. Consequently, the those committed by mere
conspirators shall be held equally liable for accomplices. However, their acts coincide
the crime, because in a conspiracy the act with their ownership of the safehouse. They
of one is the act of all (People vs. Cruz, Jr., provided the place where the victim is to be
GR No. 168446, September 18, 2009). detained, which is logically a primary
consideration in a conspiracy to commit the
ACCOMPLICE - In order that a crime of kidnapping for ransom. Ownership
person may be considered an accomplice, of the safehouse and their participations
namely, (1) that there be community of reasonably indicate that they were among
design; that is knowing the criminal design those who at the outset planned, and
of the principal by direct participation, he thereafter concurred with and participated
concurs with the latter in his purpose; (2) in the execution of the criminal design
that he cooperates in the execution by (People vs. Salvador, GR No. 201443, April
previous or simultaneous act, with the 10, 2013).
intention of supplying material or moral aid
in the execution of the crime in an RECLUSION PERPETUA AND LIFE
efficacious way; and (3) that there be a IMPRISONMENT

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
also be composed of single period. If the
If the law was amended to change penalty prescribed by law is arresto mayor
the penalty from life imprisonment to in its maximum period, the penalty next
reclusion perpetua, the amendatory law, lower in degree is arresto mayor in its
being more lenient to the accused than the medium period. If the penalty is composed
previous law, should be accorded of two periods, the graduated penalty must
retroactive application. The penalty of also be composed of two periods. If the
reclusion perpetua is a lighter penalty than penalty prescribed by law arresto mayor in
life imprisonment. (People vs. Pang, G.R. its maximum period to prision correctional
No. 176229, October 19, 2011). in its minimum period, the penalty next
lower in degree is arresto mayor in its
ISLAW minimum and medium periods. If the
penalty is composed of three periods, the
RA 9165 provides that illegal graduated penalty must also be composed
possession of less than five (5) grams of of three periods.
shabu is penalized with imprisonment of 12
years and 1 day to 20 years. The court First Exception: Fixed penalty
sentenced the accused to suffer a straight with period and penalty components – If
penalty of imprisonment of 12 years and 1 the fixed penalty is composed of period
day. Is the penalty imposed by the court component and penalty component, the
correct? No. The indeterminate Sentence graduated penalty must be composed of
Law mandates that, in case of a special law, three period components. Example: The
the accused shall be sentenced "to an penalty prescribed by law is “reclusion
indeterminate sentence, the maximum term temporal in its maximum period to reclusion
of which shall not exceed the maximum perpetua.” This penalty has a period
fixed by said law and the minimum shall component and a full penalty. Hence, one
not be less than the minimum term degree lower than this penalty must
prescribed by the same." (Asiatico vs. composed of three periods, and that is:
People, G.R. No. 195005, September 12, “Prision mayor in its maximum period to
2011) reclusion temporal in its medium period”

GRADUATION OF PENALTY SPECIAL MITIGATING

CIRCUMSTANCE: Under Article 64 (5), the
GRADUATING FACTORS - Under presence of two or more mitigating
these provisions, the fixed penalty shall be circumstances will graduate the “divisible
graduated by one or more degrees on the penalty prescribed by law” to one degree
basis of the following factors: lower. This is called special mitigating
circumstance. However, the appreciation
FACTORS
DEGREES
NUMBER OF of this circumstance is subject to two
Stage of Execution conditions: (1) the penalty prescribed by
Frustrated stage ---------------------------------------------------- 1
Attempted stage --------------------------------------------------- 2 law must be divisible; and (2) there must
Except: Frustrated homicide, parricide, murder ------ 1 or 2
Attempted homicide, parricide, murder -----1 or 2
be no aggravating circumstance. In People
Nature of Participation vs. Takbobo, G.R. No. No. 102984, June
Accomplice -------------------------------------------------------- 1
Accessory ---------------------------------------------------------- 2 30, 1993 - Accused was found guilty of
Privileged Mitigating Circumstance
Minority -----------------------------------------------------------------1
parricide punishable by the penalty of
Incomplete justification or exemption ---------------------------1 or 2 reclusion perpetua to death. Applying
(Except: Accident)
Article 63, when the penalty is composed
of two indivisible penalties, the penalty
The composition of a graduated cannot be lowered by one degree, no
penalty will depend on the composition of matter how many mitigating
the penalty fixed by law. circumstances are present. The rule on
special mitigating circumstance is found in
General Rule: Single Penalty - Article 64 (5) which provides the "rules for
Graduated penalty is generally a single the application of penalties which contain
penalty. Example – If the fixed penalty is three periods," meaning, divisible
death, the penalty next lower in degree is penalties. Article 64 (5) is inapplicable.
reclusion perpetua; if the fixed penalty is Thus, the rule applicable in said case is
reclusion perpetua, the penalty next lower found in Article 63, and not in Article 64.
in degree is reclusion temporal; if the fixed
penalty is reclusion perpetua to death, the If there are two mitigating
penalty next lower in degree is also circumstances, the penalty prescribed law
reclusion temporal. The graduated penalty shall graduated to one degree lower, and
of reclusion temporal is a single penalty. the graduated penalty shall be applied in it
medium period. If there are three mitigating
First exception: Fixed penalty in circumstances taken as special mitigating,
period – If the penalty is composed of the penalty prescribed law shall graduated
single period, the graduated penalty must to one degree lower, and the graduated

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
penalty shall be applied in it minimum meet the fine mentioned in paragraph 3 of
period. Reason: The two mitigating the next preceding article, he shall be
circumstances were taken to constitute subject to a subsidiary personal liability at
special mitigating circumstance; while the the rate of one day for each amount
remaining mitigating circumstance was equivalent to the highest minimum wage
used to apply the graduated penalty in its rate prevailing in the Philippines at the time
minimum period. of the rendition of judgment of conviction
by the trial court, subject to the following
GRADUATING DEATH PENALTY - rules:
For purposes of graduating penalty, the
penalty of death is still the penalty to be 1. If the principal penalty imposed
reckoned with. RA No. 9346, which be prision correctional or arresto and fine,
prohibits the imposition of death penalty, he shall remain under confinement until
does not exclude death penalty in the order his fine referred in the preceding paragraph
of graduation of penalties. In qualified rape, is satisfied, but his subsidiary
the penalty for accomplice is reclusion imprisonment shall not exceed one-third of
perpetua, the penalty next lower in degree the term of the sentence, and in no case
than death prescribed for the crime (See: shall it continue for more than one year,
People vs. Jacinto, G.R. No. 182239, March and no fraction or part of a day shall be
16, 2011). counted against the prisoner.

SUPPLETORY APPLICATION - A 2. When the principal penalty

special law prescribes the penalty of 10 imposed be only a fine, the subsidiary
years of imprisonment for violation thereof imprisonment shall not exceed six months,
while another law prescribes the penalty of if the culprit shall have been prosecuted for
arresto mayor. Can the rules on graduation a grave or less grave felony, and shall not
of penalties or application of penalty on its exceed fifteen days, if for a fight felony.
proper imposable period under RPC
applicable to violation of these special 3. When the principal penalty
laws?(a) Where the special law has not imposed is higher than prision correctional,
adopted the Spanish penalties (10 years of no subsidiary imprisonment shall be
imprisonment) under RPC, rules on imposed upon the culprit.
graduation of penalties or application of
penalty on its proper imposable period is 4. If the principal penalty imposed is
not applicable. Article 10 of RPC on not to be executed by confinement in a
suppletory effects of the Code cannot be penal institution, but such penalty is of
invoked where there is a legal or physical fixed duration, the convict, during the
impossibility of such supplementary period of time established in the preceding
application (People vs. Mantalba, G.R. No. rules, shall continue to suffer the same
186227, July 20, 2011). The penalty of 10 deprivations as those of which the principal
years of imprisonment can neither be penalty consists.
graduated by decrees nor divided into three
periods. (b) Where the special law has 5. The subsidiary personal liability
adopted the Spanish penalty (arresto which the convict may have suffered by
mayor) under RPC, rules on graduation of reason of his insolvency shall not relieve
penalties or application of penalty on its him from the fine in case his financial
proper imposable period are applicable. circumstances should improve.
Where the penalty under a special law is
actually taken from the Revised Penal Code Special law - In Escalante vs.
in its technical nomenclature, the penal People, G.R. No. 192727, January 9, 2013 -
system under the Code is necessarily The penalty for election offense is
applicable to this law (See: People vs. imprisonment of not less than one year but
Mantalba, supra). This adoption reveals the not more than six years. Under ISLAW, if
statutory intent to give the provisions on the offense is punished by special law, the
penalties for felonies under RPC the court shall sentence the accused to an
corresponding application to said special indeterminate sentence, the maximum term
law, in the absence of any express or of which shall not exceed the maximum
implicit proscription in these special laws fixed by said law and the minimum shall
(See: People vs. Simon, G.R. No. 93028, not be less than the minimum term
July 29, 1994). prescribed by the same. Applying the
ISLAW, the imposable penalty for violation
SUBSIDIARY PENALTY UNDER RA No. of the election gun ban should have a
10159 maximum period, which shall not exceed
six (6) years, and a minimum period which
Article 39 of the Revised Penal Code shall not be less than one (1) year.
as amended by RA No. 10159 provides: If
the convict has no property with which to

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 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA
Dangerous drugs law - Section 98 confession and privilege mitigating
of RA No. 9165 provided that, where the circumstance of minority cannot be given
offender is a minor, the penalty for acts suppletory effect (People vs. Simon, G.R.
punishable by life imprisonment to death No. 93028, July 29, 1994). Moreover,
provided in the same law shall be reclusion Section 98 of RA No. 9165 provides that the
perpetua to death. Basically, this means provisions of RPC shall not apply to the
that the penalty can now be graduated as it provisions of this Act, except in the case of
has adopted the technical nomenclature of minor offenders. Since there is no showing
penalties provided for in the Revised Penal that X is a minor, the circumstance of
Code. Since the privilege circumstance of confession and minority will not be
minority is present, the proper penalty appreciated in favor of X.
should be one degree lower than reclusion
perpetua, which is reclusion (b) Applying the second rule of the
temporal. Necessarily, also applying the ISLAW, the maximum indeterminate
Indeterminate Sentence Law (ISLAW), the penalty must not exceed 20 years and the
minimum penalty should be taken from the minimum penalty must not be less than 12
penalty next lower in degree which years and 1 day. If I am the judge, I will
is prision mayor and the maximum penalty sentence the accused to suffer 14 years of
shall be taken from the medium period imprisonment as minimum penalty to 18
of reclusion temporal, there being neither years as maximum penalty.
ordinary mitigating circumstance nor
aggravating circumstance (People vs. (c) Since X is a minor, the provisions
Udtojan GR No. 186227, July 20, 2011, of RPC including those on modifying
Justice Peralta). circumstances are applicable to crime
punishable under RA No. 9165. Hence,
X was in possession of marijuana mitigating circumstance of confession and
and shabu. Can the accused be convicted privilege mitigating circumstance of
of two counts of illegal possession of minority should be appreciated in favor of X
dangerous drugs? Absent any clear (People vs. Montalaba, G.R. No. 186227,
interpretation as to the application of the July 20, 2011, Justice Peralta);
penalties under RA No. 9165, the same
shall construe it in favor of the accused for (d) The penalty prescribed for the
the subject provision is penal in nature. It crime committed is 12 years and 1 day to
is a well-known rule of legal hermeneutics 20 years. This is equivalent to reclusion
that penal or criminal laws are strictly temporal. Since privilege mitigating
construed against the state and liberally in circumstance of minority and mitigating
favor of the accused. Thus, an accused circumstance of confession are present, the
may only be convicted of a single offense of penalty should be graduated to prision
possession of dangerous drugs if he or she mayor to be applied in its minimum period.
was caught in possession of different kinds The maximum penalty under the ISLAW
of dangerous drugs in a single occasion. If shall be taken from minimum period of
convicted, the higher penalty shall be prision mayor, which has a range from 6
imposed, which is still lighter if the accused years and 1 day to 8 years, while the
is convicted of two (2) offenses having two minimum penalty shall be fixed within the
(2) separate penalties. This interpretation duration of the penalty of prision
is more in keeping with the intention of the correccional, the penalty one degree lower
legislators as well as more favorable to the than that prescribed by law, which has a
accused (David vs. People, Gr No. 181861, ranged from 6 months and 1 day to 6 years.
October 17, 2011, Justice Peralta). If I am the judge, I will sentence the
accused to suffer 4 years of prision
X confessed to the crime of illegal correccional as minimum penalty to 7 years
possession of dangerous drugs where of prision mayor as maximum penalty.
Section 11 of RA No. 9165 prescribes the
penalty of 12 years and 1 day to 20 years. If THREE-FOLD AND 40 YEARS
you were the judge trying the case: (a) can LIMITATION RULE
you appreciate the mitigating circumstance
of confession? (b) What penalty would you Simultaneous service - When the
impose on X? (c) Would your answer be the culprit has to serve two or more penalties,
same regarding the appreciation of the he shall serve them simultaneously if the
modifying circumstance, if X is a minor? (d) nature of the penalties will so permit. Thus,
What penalty would you impose on X? convict could serve simultaneously arresto
mayor and fine, prision correccional and
Answer: (a) Since the penalties perpetual absolute disqualification, or
under RA No. 9165 are different from those reclusion perpetua and civil interdiction. In
under RPC, the rules for the application of sum, while lingering in prison, convict
penalties and other relevant provisions could pay fine, return the property
such as mitigating circumstance of confiscated, be disallowed to cast his vote

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