Judge Campanilla - Criminal 2021 Materials

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REVISED 2021 UPDATES ON CRIMINAL LAWS

WITH LEONEN CASES
BY JUDGE MARLO B. CAMPANILLA
Warning: This is the intellectual property of Judge Campanilla.

Copying any parts of this work in writing materials or book for
publication without proper attribution is prohibited by law.
Note: The dissenting opinions of Justice Leonen are included in

these materials since cases with his dissent may be a source of bar
examination questions. However, the dissenting opinions of Justice
Leonen are not controlling principles. For purpose of the bar exam,
the majority opinions should be followed.
TERRITORIALITY - For purpose of venue under the Rules of

Criminal Procedure and territoriality principle in Article 2 of the
Revised Penal Code, the place of commission of the criminal act and
the place of occurrence of the effect of such act, which is an element
of the offense, shall be considered. If one pulled the trigger of his gun
in Quezon City and hit the victim in City of Manila, who died as a
consequence, Quezon City and City of Manila, which are the places
of commission of the criminal act and the occurrence of the criminal
effect, are proper venues. If the psychological violence consisting of
marital infidelity punishable under RA No. 9262 is committed in
Singapore but the psychological effect occurred in the Philippines
since the wife of the respondent, who suffered mental anguish, is
residing in the Philippines, our court can assume jurisdiction (see:
AAA vs. BBB, G.R. no. 212448, January 11, 2018). However, if the
commission of the criminal act consummates the crime and the effect
thereof is not an element thereof, the place of occurrence of the effect
shall not be considered for purpose of venue and territoriality rule.
Bigamy committed in Singapore is beyond the jurisdiction of our
court although the offended spouse is residing in the Philippines
since the psychological effect of bigamy to her is not an element
thereof.
Convention of the law of the sea - Under the Convention on

the Law of the Sea, the flag state of a foreign merchant vessel passing
through the 12-mile territorial sea of another state has jurisdiction
over crimes committed therein. However, a coastal state such as the
Philippines can exercise jurisdiction over any crime committed on
board such ship in the following cases: (1) if its consequences extend
to the coastal State; (2) if it disturbs the peace of the country or the
good order of the territorial sea; (3) if the ship master or a diplomatic
or consular officer of the flag State requested assistance from the
local authorities; or (4) if it is for the suppression of traffic in narcotic
drugs or psychotropic substances. Murder or serious physical
injuries committed in a foreign vessel anchored in a Philippine port
against a passenger thereof is within the jurisdiction of the Philippine
court since this crime disturb the peace of the country.
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Regime of islands - Under the principle of territoriality, the

court has also jurisdiction over crime committed in Kalayaan Islands
or Scarboruogh Shoal because the Baseline Law (RA No. 9522)
declares that the Philippines exercise sovereignty and jurisdiction
over it.
200-mile exclusive economic zone - The Philippines has no

sovereignty over the 200-mile exclusive economic zone. Under the
convention of the law of the sea, the Philippines has sovereign right
to fish and to exploit the natural resources in the zone. This sovereign
right is not equivalent to sovereignty. Under the convention, foreign
states have the freedom of navigation and overflight over the
exclusive economic zone of the Philippines. Freedom of navigation
and overflight cannot be exercised in a place where a State has
sovereignty such as such its 12-mile territorial water. Under the
convention, the Philippines has limited jurisdiction over crimes
committed within the exclusive economic zone such as those
involving fiscal, custom, immigration, health and safety. A State has
absolute jurisdiction over crimes committed in a territory over which
it has sovereignty subject only to a few exceptions under
international laws. The recognition of freedom of navigation and
overflight and the limited jurisdiction over crimes committed in the
exclusive economic zone militate against the concept of sovereignty.
If a Chinese fishing vessel deliberately bumped a Filipino vessel

in the West Philippines Sea covered by the exclusive economic zone
of the Philippines, and as a consequence, several Filipino fishermen
died, the Philippines’s jurisdiction over the crime of murder cannot
be based on the theory that the Philippines has sovereignty over the
zone. Other principles must be used to justify its jurisdiction over
murder committed within the zone such as flag state rule or
universality principle.
PRESIDENTIAL IMMUNITY - Under Article 14 of the Civil Code,

penal laws shall be obligatory upon all who live or sojourn in the
Philippine territory. This is the generality principle. Hence, a person
regardless of his citizenship, religion, political position or any other
status can be criminally prosecuted and convicted as long as he is
living or sojourning in the territory of the Philippines.
Under the US Constitution, American citizen has the right to

bear firearms. Even though an American citizen is in possession of
US license to carry firearm, he can be prosecuted for illegal
possession of loose firearm if a failed to obtain permit from PNP to
carry it. RA No. 105911 on loose firearm is obligatory to him
regardless of his foreign characteristic. (People v. Galacgac, C.A., 54
O.G. 1027) The American constitutional provision on firearm is not
operative in the Philippines.
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However, penal laws shall not be obligatory upon a person, who

enjoys criminal immunity from suit. In October 21, 2015, a Chinese
diplomat and her husband killed two Chinese diplomats in Cebu. The
Philippines authorities did not prosecute the killers for murders
because of diplomatic immunity protected by the Vienna Convention
on Diplomatic Relations. The case was referred to China. They will be
prosecuted under Chinese Law.
Under the Section 7, Article VII of the 1973 Constitution, the

President shall be immune from suit during his tenure. However,
there is no provision on presidential immunity under the 1987
Constitution. But despite the present Constitution has not adopted
the rule on presidential immunity under the Marcos Constitution,
case law or jurisprudence recognizes this immunity. Because of this
immunity, penal laws are not obligatory to the President.
The President of the Philippines is entitled to immunity from

suit subject to the following conditions: (1) the immunity has been
asserted; (2) during the period of his incumbency and tenure; and (3)
the act constituting the crime is committed in the performance of his
duties. Presidential immunity will assure the exercise of presidential
duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that demands undivided
attention. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001)
In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court

further held that the immunity of the President from civil damages
covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones
where it held that the US President's immunity from suits for money
damages arising out of their official acts is inapplicable to unofficial
conduct. Thus, non-function related crimes such as rape, robbery,
and kidnapping are not covered by the immunity.
During the period of his incumbency and tenure, President

Aquino cannot be charged with reckless imprudence resulting in
multiple homicides in connection with the Mamasapano incident
where 44 SAF members were killed because of his presidential
immunity. His decisions concerning the handling of the police
operation leading to the tragic event are official acts. However, after
the tenure of the President, he can be criminally charged since the
presidential immunity is not anymore invocable. But, in Nacino v.
Office of the Ombudsman, G.R. Nos. 234789-91, October 16, 2019,
the Supreme Court found no probable cause to charge President
Aquino for reckless imprudence resulting in multiple homicides in
connection with the Mamasapano incident. It was held that Aquino
participated in the planning of Oplan Exodus to arrest Marwan and
Usman by approving the suggested alternative date of execution and
ordering the increase in the number of troops and coordination with
the AFP. However, these acts barely qualify Aquino as an active
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player in the entire scheme of the operations, more so point to any

criminal negligence on his part.
Vice-presidential immunity - It is submitted that a Vice

President is not immune from criminal prosecution. The job of the
Vice President, unlike the head of the executive department, does not
demand undivided attention. Hence, the circumstance, on which the
presidential immunity is based, is not obtaining if the position is vice-
presidential.
Pacifico Agabin, former dean of the University of the Philippines

College of Law and an expert on the Constitution said that the vice
president is not immune from suit. The Constitution does not
guarantee the vice president’s immunity, he said: “It’s only the
President who is immune [from suit] and that is based on tradition,
because he is busy handling affairs of the state. But that cannot be
said for the vice president.” Fr Joaquin Bernas SJ, one of the framers
of the 1987 Constitution, also categorically said that Binay is not
covered by executive immunity. “No, the vice president is not
immune…The Constitution doesn’t say he is immune”. (See: Rappler
article entitled Vice-president does not enjoy immunity published on
June 5, 2015)
Some experts are saying that criminally prosecuting a vice-

president will violate Section 2 of Article XI of the Constitution, which
mandates that the Vice President may be removed from office only
through an impeachment proceeding. It is submitted however that
there is no constitutional violation since in case of conviction, he can
function as Vice President while serving sentence in prison. However,
accessory penalty of disqualification, which involved removal from
office, is not implementable since the enforcement thereof will offend
the impeachment provision.
MALA IN SE AND MALA PROHIBITA - Criminal law has long

divided crimes into acts wrong in themselves called "acts mala in se,"
and acts which would not be wrong but for the fact that positive law
forbids them, called "acts mala prohibita." This distinction is
important with reference to the intent with which a wrongful act is
done. The rule on the subject is that in acts mala in se, the intent
governs, but in acts mala prohibita, the only inquiry is, has the law
been violated? When an act is illegal, the intent of the offender is
immaterial. (Estrella vs. People, G.R. No. 212942, June 17, 2020)
To classify a crime as malum in se or malum prohibitum, the

nature thereof and the law that punishes it must be considered.
1. Intentional felony — Intentional felony under the Revised

Penal Code is committed by means of dolo. Since dolo or criminal
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intent is an element of intentional felonies, they are mala in se.

However, there is an exception; technical malversation is an
intentional felony, and yet, the Supreme Court declared it as malum
prohibitum.
In Ysidoro v. People, G.R. No. 192330, November 14, 2012, the

mayor, who applied 10 boxes of food appropriated for feeding
program to the beneficiaries of shelter assistance program, is liable
for technical malversation. Mayor’s act, no matter how noble or
miniscule the amount diverted, constitutes the crime of technical
malversation. Criminal intent is not an element of technical
malversation. The law punishes the act of diverting public property
earmarked by law or ordinance for a particular public purpose to
another public purpose. The offense is malum prohibitum, meaning
that the prohibited act is not inherently immoral but becomes a
criminal offense because positive law forbids its commission based
on considerations of public policy, order, and convenience. It is the
commission of an act as defined by the law and not the character or
violated. Hence, malice or criminal intent is completely irrelevant.
Dura lex sed lex.
2. Offense under special law – If the offense punishable

under special law is not inherently wrong in nature, it shall be
classified as malum prohibitum. The following offenses under special
laws are mala prohibita for not being inherently evil in character:
violation of BP Blg. 22 (Amada vs. People, G.R. No. 177438,
September 24, 2012); Illegal recruitment (People vs. Sison, G.R. No.
187160, August 9, 2017); crimes involving dangerous drugs (Pang vs.
People, G.R. No. 176229, October 19, 2011); and possession of loose
firearms (People vs. Peralta, G.R. No. 221991, August 30, 2017).
If the offense punishable under special law is inherently evil,

there are two views on the standard in classifying a crime as malum
in se or malum prohibitum.
First view - The first view is that if the offense is punishable

under special law, it will be treated as malum prohibitum.
Fencing is a concept substantially similar to that of theft or

robbery committed by an accessory. Same as theft or robbery
committed by an accessory, fencing is wrong in character. However,
since fencing is punishable under special law, the Supreme Court in
Cahulugan vs. People, G.R. No. 225695, March 21, 2018 and Estrella
vs. People, G.R. No. 212942, June 17, 2020 declares it as malum
prohibitum.
Hazing where the victim died or was raped is for obvious

reason evil in nature. However, the congressional deliberation shows
that the legislators considered hazing as malum prohibitum. Because
of the legislative treatment of hazing as malum prohibitum, the
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Supreme Court in Villareal v. People, G.R. No. 151258, February 1,

2012 declared it as malum prohibitum.
Sexual harassment is wrong in nature. However, in Escandor

vs. People, G.R. No. 211962, July 06, 2020, the Supreme Court
through Justice Leonen declared sexual harassment as malum
prohibitum since RA No. 7877 is a special criminal statute. In this
case, the defense of respondent that he never intended to violate RA
No. 7877 was rejected. It was held that in prosecuting an offender for
sexual harassment, intent is immaterial. Mere commission is
sufficient to warrant a conviction. Even without intent, sexual
harassment is penalized. His attempt to kiss petitioner was a flagrant
disregard of a customary rule that had existed since time immemorial
— that intimate physical contact between individuals must be
consensual. Respondent's defiance of custom and lack of respect for
the opposite sex were more appalling because he was a married man.
Respondent's act showed a low regard for women and disrespect for
petitioner's honor and dignity.
Second view - The second view is that even although the

offense is punishable under special law, if the same is inherently evil
it will be treated as malum in se.
In Napoles vs. Sandiganbayan, G.R. No. 224162, November 7,

2017, the legislative declaration in RA No. 7659 that the crime of
plunder under RA No. 7080 is a heinous offense implies that it is a
malum in se. For when the acts punished are inherently immoral or
inherently wrong, they are mala in se and it does not matter that
such acts are punished in a special law, especially since in the case
of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of BP Blg. 22 or of an ordinance
against jaywalking, without regard to the inherent wrongness of the
acts. (Estrada vs. Sandiganbayan, G.R. No. 148965. February 26,
2002)
In Dungo v. People, G.R. No. 209464, July 1, 2015, a common

misconception is that all mala in se crimes are found in the Revised
Penal Code, while all mala prohibita crimes are provided by special
penal laws. In reality, however, there may be mala in se crimes under
special laws, such as plunder under R.A. No. 7080. Similarly, there
may be mala prohibita crimes defined in the Revised Penal Code,
such as technical malversation. The better approach to distinguish
between mala in se and mala prohibita crimes is the determination of
the inherent immorality or vileness of the penalized act. If the
punishable act or omission is immoral in itself, then it is a
crime malum in se; on the contrary, if it is not immoral in itself, but
there is a statute prohibiting its commission by reasons of public
policy, then it is malum prohibitum.
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Sexual abuse and child abuse are both punishable under RA

No. 7610, and yet, the Supreme Court classified them differently.
Sexual abuse under Section 5 (b) of RA No. 7610 is considered

by the Supreme Court as malum prohibitum simply because it is
punishable under special law. In sum, the first view was applied in
this case. (People vs. Udang, G.R. No. 210161, January 10, 2018,
Justice Leonen, People vs. Caoili, G.R. No. 196342, August 08,
2017; People vs. Caballo, G.R. No. 198732, June 10, 2013, Imbo vs.
People, G.R. No. 197712, April 20, 2015, and Malto vs. People, G.R.
No. 164733, September 21, 2007)
Child abuse under Section 10 of RA No. 7610 was considered

by the Supreme Court in People vs. Mabunot, G.R. No. 204659,
September 19, 2016 as malum in se. However, in Lucido vs. People,
G.R. No. 217764, August 7, 2017, the Supreme Court through
Justice Leonen declared child abuse as malum prohibitum. In the
latest case of Patulot vs. People, G.R. No. 235071, January 7, 2019,
the Supreme Court considered child abuse as malum in se.
Accordingly, when the acts complained of are inherently immoral,
they are deemed mala in se, even if they are punished by a special
law. Physical abuse of a child under RA No. 7610 is inherently wrong;
hence, criminal intent on the part of the offender must be clearly
established with the other elements of the crime. In sum, the second
view was applied.
For purpose of the bar exam, if the crime is sexual abuse under
Section 5 of RA No. 7610, fencing, hazing, or sexual harassment the
first view must be followed because the Supreme Court says so. Thus,
they are mala prohibita since they are punishable under special laws.
On the other hand, if the crime is child abuse under Section 10 of RA
No. 7610, plunder, carnapping, piracy or highway
robbery/brigandage under PD No. 532, trafficking in person or
terrorism, second view must be observed. Thus, they are mala in se
since they are wrong in nature.
Partakes the nature of malum prohibitum – Section 3 (g) of

RA No. 3019 punishes a public officer, who have entered, on behalf
of the government, into a contract or transaction manifestly and
grossly disadvantageous to the government. Violation of this
provision partakes of the nature of malum prohibitum. (Luciano vs.
Estrella, G.R. No. L-31622, August 31, 1970; Villa vs.
Sandiganbayan, G.R. No. 87186, April 24, 1992) Lack of benefits
from the contract is not a defense on the part of the public officer.
Private individuals, who benefitted from the contact, which is

grossly and manifestly disadvantageous to government, will be held
liable under Section 4(b) of RA No. 3019. In other words,
notwithstanding the allegation of conspiracy with public officer to
violate Section 3(g), the liability of these private individuals will be
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based on Section 4 (b), which punishes any person for knowingly

inducing or causing the public officers to commit Section 3(g). In
violation of Section 4 (b), criminal intent must necessarily be
proved. This is in clear recognition that Section 3(g), a malum
prohibitum specifically applies to public officers only. (Go vs. Fifth
Division, Sandiganbayan, G.R. NO. 172602, September 3, 2007) In
sum, violation of Section 4 (b) is malum in se.
Section 3 (d) of RA No. 3019 punishes a public officer or any

member of his family, who accept employment in a private enterprise
with whom such public officer has a pending official business with
during the pendency thereof or within one year from its termination
as it is considered a corrupt practice. In Villanueva vs. People, G.R.
No. 237864, July 8, 2020, Supreme court declared violation of
Section 3 (d) as malum prohibitum. It was held that mere acceptance
by wife of a TESDA officer, of employment with RACE, with pending
business with TESTA, renders them liable under the law.
In Luciano case, the Supreme Court declared violation of

Section 3 (g) of RA No. 3019 as crime which partakes of the nature of
malum prohibitum. On the other hand, in Villanueva case, it
considered violation of Section 3 (d) as malum prohibitum.
Settled in the rule that violation of RA No. 3019 partakes of the

nature of malum prohibitum. However, the offense under Section 3 (e)
of R.A. No. 3019 may be committed either by dolo, as when the
accused acted with evident bad faith or manifest partiality, or by
culpa, as when the accused committed gross inexcusable negligence.
(Plameras v. People, G.R. No. 187268, September 4, 2013) Since
malice, evident bad faith or manifest partiality is an element of
violation of Section 3 (e) of RA No. 3019, this crime also partakes the
character of malum in se.
Malversation and technical malversation - Malversation is

either an intentional felony (or malum in se) or a culpable felony. It
can be committed by means of dolo or culpa. Hence, public officers,
who commits malversation, can be held liable for violation of Section
3 (e) of RA No. 3019 for causing damage to the government through
evident bad faith or manifest partiality (dolo) or gross inexcusable
negligence (culpa). (Pajaro, G.R. Nos. 167860–65, June 17, 2008). On
the other hand, technical malversation is malum prohibitum (Ysidoro
v. People, G.R. No. 192330, November 14, 2012), which can be
committed without dolo and culpa. Manifest partiality and gross
inexcusable negligence are not elements of technical malversation.
Hence, public officers, who commits technical malversation, may not
be held liable for violation of Section 3 (e) of RA No. 3019 (Villarosa
vs. Hon. Ombudsman, G.R. No. 221418, January 23, 2019) unless
additional circumstance establishes manifest partiality, evident bad
faith and gross inexcusable negligence.
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In Villarosa vs. Hon. Ombudsman, supra, using tobacco fund

to finance the regular operations of the municipality, which are not
in accordance with the law creating such fund constitutes technical
malversation. However, it was held that the mere act of using
government money to fund a project which is different from what the
law states you have to spend it for does not fall under the definition
of manifest partiality nor gross inexcusable negligence. It must
always be remembered that manifest partiality and gross inexcusable
negligence are not elements in the crime of technical malversation.
ABERRATIO ICTUS – If the crimes committed against the target

victim and third person, who was hit by reason of aberratio ictus,
were produced by a single act, the accused is liable for a complex
crime. Thus, single act of throwing a grenade killing one and injuring
another constitutes a complex crime of murder and attempted
murder. (People v. Julio Guillen, G.R. No. L-1477, January 18, 1950;
People vs. Bendecio, G.R. No. 235016, September 08, 2020)
However, the accused is liable for separate crimes despite the
application of the aberratio ictus rule, and not a complex crime in the
following cases:
1. If the bullet that killed the target victim is different from the
bullet that killed the third person, who was hit by reason of aberratio
ictus (People v. Flora, G.R. No. 125909, June 23, 2000; People v.
Adriano, G.R. No. 205228, July 15, 2015; Cruz vs. People, G.R. No.
216642, September 8, 2020);
2. If the crime committed against the third person, who was hit
by reason of aberratio ictus, is merely a light felony such as slight
physical injuries (People v. Violin, G.R. Nos. 114003-06, January 14,
1997);
3. If the components of a complex crime are alleged in two

different information. (People v. Umawid, G.R. No. 208719, June 9,
2014);
4. If the crime committed against the third person, who was hit
by reason of aberratio ictus, is child abuse, which is an offense
punishable under special law (Patulot vs. People, G.R. No. 235071,
January 7, 2019) Components of complex crime must be felonies.
Accused consciously poured hot cooking oil from a casserole on

CCC, consequently injuring AAA (3 years old) and BBB (2 months
old) burning their skins and faces. Accused is liable for child abuse
involving infliction of physical injury although there is no intent to
degrade, debase or demean the intrinsic worth and dignity of AAA
and BBB as human beings. In fact, the intention of the accused is
merely to inflict injury on CCC but because of aberratio ictus or
mistake of blow, AAA and BBB were also injured. In sum, because of
Article 4 of RPC, accused is liable for the wrongful act done (child
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abuse against AAA and BBB) although it differs from the wrongful
act intended (physical injuries on CCC). This is not a complex crime.
Accused is convicted of two counts of child abuse. (See: Patulot vs.
People, G.R. No. 235071, January 7, 2019) He should also be held
liable for physical injuries.
CONSUMMATION OF THREAT - The crime of grave threat is

consummated as soon as the threats come to the knowledge of the
person threatened or as soon as the victim heard accused utter his
threatening remarks. (People vs. Bueza, G.R. No. 242513, November
18, 2020)
PASSION - There is no uniform rule on what constitutes a

considerable length of time. The provocation and the commission of
the crime should not be so far apart that a reasonable length of time
has passed during which the accused would have calmed down and
be able to reflect on the consequences of his or her actions. What is
important is that the accused has not yet "recovered his normal
equanimity" when he committed the crime. Passion and obfuscation
as a mitigating circumstance need not be felt only in the seconds
before the commission of the crime. It may build up and strengthen
over time until it can no longer be repressed and will ultimately
motivate the commission of the crime. (People vs. Oloverio, G.R. No.
211159, March 18, 2015, Justice Leonen)
SELF-DFENSE – Unlawful aggression is of two kinds: (a) actual

or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack
with physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury. Imminent
unlawful aggression means an attack that is impending or at the
point of happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must be offensive and
positively strong (like aiming a revolver at another with intent to
shoot or opening a knife and making a motion as if to attack).
Imminent unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand to his hip
where a revolver was holstered, accompanied by an angry
countenance, or like aiming to throw a pot. (Ganal, Jr. vs. People,
G.R. No. 248130, December 2, 2020)
INSANITY - The defense of insanity is in the nature of a

confession or avoidance because an accused invoking it admits to
have committed the crime but claims that he should not be criminally
liable therefor because of insanity, which is an exempting
circumstance. Consequently, the accused is tried on the issue of
sanity alone, and if found to be sane, a judgment of conviction is
rendered without any trial on the issue of guilt. An accused invoking
the exempting circumstance of insanity bears the burden of proving
it with clear and convincing evidence because every person is
10 | P a g e
presumed sane. For the defense of insanity to prosper, it must be

proven that the accused was completely deprived of intelligence,
which must relate to the time immediately preceding or simultaneous
to the commission of the offense with which he is charged. (People
vs. Mirana, G.R. No. 219113, April 25, 2018)
In order for the accused to be exempted from criminal liability

under a plea of insanity, he must successfully show that: (1) he
was completely deprived of intelligence; and (2) such complete
deprivation of intelligence must be manifest at the time or
immediately before the commission of the offense. The defense failed
to prove its plea of insanity under the requirements set by law.
Although accused underwent out-patient consultation for his
diagnosed condition of schizophrenia from August 2006 until 13
June 2009, this evidence of insanity may be accorded weight only if
there is also proof of abnormal psychological behavior immediately
before or simultaneous with the commission of the crime (on
November 9, 2009). The evidence on the alleged insanity must refer
to the time preceding the act under prosecution or to the very
moment of execution. (People vs. Dela Cruz, G.R. No. 227997,
October 16, 2019)
IMBECILITY AND MINORITY – Mental retardation includes (a)

idiot, whose mental age is two-year old; (b) imbecile, whose mental
age is seven-year old; (c) moron or feebleminded, whose mental age
is twelve-year old and (d) borderline intelligence. (People vs. Butiong,
G.R. No. 168932, October 19, 2011; People vs. Bayrante, G.R. No.
188978, June 13, 2012; People vs. Gilles, G.R. No. 229860, March
21, 2018) For purpose of statutory rape, there is no difference
between actual age and mental age.
Having sexual intercourse with the offended party, who is under

12 years of age, is statutory rape under Article 266-A (d) of RPC. The
word “age” in this provision includes chronological age and mental
age. Hence, having sexual intercourse with idiot, imbecile, or
feebleminded is statutory rape under Article 266-A (d) (People vs.
Daniega, G.R. No. 212201, June 28, 2017; People vs. Labordo, G.R.
No. 239033, February 13, 2019; People vs. XXX, G.R. No. 243988,
August 27, 2020). However, having sexual intercourse with a person
with borderline intelligence is not statutory rape under Article 266-A
(d) because his mental age is above 12 years.
Having sexual intercourse with the offended party, who is

deprived of reason, is rape under Article 266-A (b) of the Revised
Penal Code. Mental retardation is within the contemplation of
deprivation of reason. Hence, having sexual intercourse with idiot,
imbecile, feebleminded or person with borderline intelligence is rape
of a person deprived of reason under Article 266-A (b) (People vs.
Butiong, G.R. No. 168932, October 19, 2011; People vs. Bayrante,
G.R. No. 188978, June 13, 2012).
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The word “age” in the phrase “person below 18 years of age” in

Section 3 of RA No. 7610 is either chronological or mental. A person
who has a cognitive disability would be considered a child under RA
No. 7610 based on his or her mental age, not chronological age. For
purpose of Section 3 of RA No. 7610, there is no difference between
actual age and mental age. Thus, a mentally-retarded adult (24 years
of age), who had a mental age of an 8-year-old, is a child protected
by RA No. 7610. (Versoza vs. People, G.R. No. 184535, September 03,
2019) Since the concept of a child in RA No. 7610 is adopted by RA
No. 9208, a mentally-retarded adult is a child within the context of
qualified trafficking in person. (People vs. Ybanez, G.R. No. 220461,
August 24, 2016)
Under Section 5 (b) of RA No 7610, when the child subjected to

sexual abuse is under 12 years of age, the perpetrators shall be
prosecuted for rape and acts of lasciviousness under RPC. The word
“age” in the phrase “when the victim is under twelve (12) years of age”
in Section 5 (b) of RA No. 7610 is either chronological or mental. For
purpose of Section 5 (b) of RA No. 7610, there is no difference between
actual age and mental age. Hence, the victim whose actual age is 12
years old but her mental age is 9 years old, is considered as a victim
under 12 year of age within the contemplation of Section 5 (b). (People
vs. Pusing, G.R. No. 208009, July 11, 2016, Justice Leonen)
In exempting circumstance, there is a difference between

actual age and mental age. In exempting circumstance of imbecility,
what is important is the mental age of the accused. An idiot, whose
mental age is 2 years, and imbecile, whose mental age is 7 years old
(People vs. Butiong, G.R. No. 168932, October 19, 2011, Bersamin)
are exempt from criminal liability. A feebleminded, whose mental age
is 12 years old, is not exempt from criminal liability since he is not
an imbecile (People vs. Nunez, G.R. No. 112429-30, July 23, 1997)
but he is entitled to mitigating circumstance of mental illness (People
vs. Formigones, G.R. No. L-3246, November 29, 1950). In exempting
circumstance of minority under Section 6 of RA No. 9344, what is
important is the chronological or actual age of the accused.
If the actual age of the accused is 18 years old and mental age
is 9 years old, the exempting circumstance of minority and imbecility
shall not be appreciated because he is neither a minor nor an
imbecile (People vs. Roxas, G.R. No. 200793, June 04, 2014).
AGGRAVATING CIRCUMSTANCES - There are new guidelines

on how to allege aggravating or qualifying circumstance in the
Information. In cases where law uses a broad term to embrace
various situations in which may exist, such as but are not limited to
(1) treachery; (2) abuse of superior strength; (3) evident
premeditation; (4) cruelty, alleging in the information the name of the
modifying circumstance e.g. treachery is not enough. The
12 | P a g e
information must state the ultimate facts relative to such

circumstance e.g. alleging that the accused surreptitiously stabbed
the victim at his back to ensure that he cannot defend himself. In
case of failure to comply with the rule on allegation of ultimate facts,
the Information may be subject to a motion to quash or a motion for
a bill of particulars. Failure of the accused to avail any of the said
remedies constitutes a waiver of his right to question the defective
statement of the aggravating or qualifying circumstance in the
Information, and consequently, the same may be appreciated against
him if proven during trial. Alternatively, prosecutors may sufficiently
aver the ultimate facts relative to a qualifying or aggravating
circumstance by referencing the pertinent portions of the resolution
finding probable cause against the accused, which resolution should
be attached to the Information. (People vs. Solar, G.R. No. 225595,
August 6, 2019)
The Information for murder alleged that the killing of the victim
is qualified by the circumstances of treachery and abuse of superior
strength. This information is defective since the prosecution failed to
allege facts on which treachery and abuse of super strength are
based. (The prosecution to comply with Solar principle may allege
that accused to render the victim defenseless surreptitiously stabbed
in at his back) It was held that: Accused did not question the
supposed insufficiency of the Information filed against him through
either a motion to quash or motion for bill of particulars. He
voluntarily entered his plea during the arraignment and proceeded
with the trial. Thus, he is deemed to have waived any of the waivable
defects in the Information, including the supposed lack of
particularity in the description of the attendant circumstances.
(People vs. Solar, supra)
Justice Bersamin in his dissenting opinion said that the

accused had no duty or obligation to remind the State by motion to
quash (or motion for bill of particular) on what charge he should be
made to answer to. The information did not charge murder, but only
homicide. Justice Leonen joined the dissenting opinion of Justice
Bersamin. (People vs. Solar, supra)
PARTIAL RESTITUTION - The payment, indemnification, or

reimbursement of, or compromise on the amounts or funds
malversed or misappropriated, after the commission of the crime,
does not extinguish the accused's criminal liability or relieve the
accused from the penalty prescribed by the law. At best, such acts of
reimbursement may only affect the offender's civil liability, and may
be credited in his favor as a mitigating circumstance analogous to
voluntary surrender. Accused enjoys the mitigating circumstance of
voluntary surrender, due to his partial restitution of the amount
malversed (Valenzuela vs. People, G.R. No. 205693, February 14,
2018)
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CONSPIRACY – The fact that accused prevented preventing

Oliva from reporting the shooting incident to the police is not an
indication that he conspired with co-accused in killing the victim.
Mere knowledge, acquiescence, or approval of the act, without
cooperation or agreement to cooperate, is not enough to constitute
one a party to a conspiracy. There must be intentional participation
in the transaction with a view to the furtherance of the common
design and purpose. The shooting incident transpired during a
heated argument in a drinking spree. There was no showing that
accused actively participated in the furtherance of the common
design or purpose since the shooting transpired and was
consummated even without his cooperation or assistance. (De Los
Santos vs. People, G.R. No. 231765, August 24, 2020). However, he
could be held liable for obstruction of justice.
If there is conspiracy, the act of the public officer in violating RA

No. 3019 is imputable to the private individual although they are not
similarly situated in relation to the object of the crime. Moreover,
Section 9 of RA No. 3019 provides penalty for public officer or private
person for crime under Section 3. Hence, a private individual can be
prosecuted for violation of RA No. 3019 (Go vs. The Fifth Division,
Sandiganbayan, G.R. No. 172602, April 13, 2007). Even if the public
officer, with whom the private individual allegedly conspired, died,
the latter can still be prosecuted for violation of RA No. 3019. Death
extinguishes the criminal liability but not the crime. Hence, if there
is proof of the crime and conspiracy between the dead public officer
and private individual, the latter can still be convicted of violation of
RA No. 3019 (People vs. Go, GR No. 168539, March 25, 2014; Canlas
vs. People, G.R. Nos. 236308-09, February 17, 2020). However, if
the public officer with whom the private individual allegedly
conspired is acquitted, the latter should also be acquitted (Marcos vs.
Sandiganbayan, G.R. No. 126995, October 6, 1998).
While the primary offender in violation of RA No. 3019 and

plunder are public officers, private individuals may also be held liable
for the same if they are found to have conspired with said officers in
committing the same. This proceeds from the fundamental principle
that in cases of conspiracy, the act of one is the act of all. In this
case, Janet Napoles engaged in the illegal hemorrhaging of Senator
Enrile's PDAF. Thus, they are rightfully charged as a co-conspirator
for corruption and plunder. (Napoles vs. Carpio-Morales, G.R. Nos.
213542-43, March 15, 2016; Justice Leonen concurred)
Private persons acting in conspiracy with public officers may be

indicted and if found guilty, be held liable for the pertinent offenses
under Section 3 of Republic Act No. 3019. (Granada vs. People, G.R.
No. 184092, February 22, 2017, Justice Leonen) When a contract
that is grossly and manifestly disadvantageous to the government is
entered into, the persons involved—whether public officers or private
persons—may be charged for violating the Anti-Graft and Corrupt
14 | P a g e
Practices Act and suffer the same penalty if found guilty beyond
reasonable doubt. (Garcia-Diaz vs. Sandiganbayan, G.R. No. 193236,
September 17, 2018, Justice Leonen)
If a contract with the government involved an overprice

products or services, the public officers are liable for violation of
Section 3 (e) of RA No. 3019 for causing undue injury to the
government or giving undue advantage to the overpaid private
individual through manifest partiality and evident bad faith; or
violation of Section 3 (g) for entering into a contract, which is
manifestly and grossly disadvantageous to the government. The
overpaid private individual is also liable for violation of Section 3 (e)
or (g) of RA No. 3019 on the basis of conspiracy and Go vs. Fifth
Division of the Sandiganbayan. (Santillano vs. People, G.R. Nos.
175045-46, March 03, 2010; Uyboco vs. People, G.R. No. 211703,
December 10, 2014; Granada vs. People, supra, Justice Leonen) If
the overpaid private individual is a corporation, the responsible
officers are liable for violation of RA No. 3019. When the separate
juridical personality of a corporation is used to defeat public
convenience, justify wrong, protect fraud, or defend crime, the law
will regard the corporation as an association of persons. There is
sufficient basis to pierce the corporate veil, and responsible corporate
officers e.g. president should be held equally liable as her co-
conspirators. (Granada vs. People, supra, Justice Leonen)
A municipal mayor allegedly obstructed and stopped the

execution of the Municipal Trial Court's valid writs of execution and
demolition of the structure illegally constructed on the lot owned by
the wife of the complainant. The Sandiganbayan convicted the mayor
of violation of Section 3 (g) of RA No. 3019 by giving unwarranted
benefit to the defendant in that civil case. However, his criminal
liability was extinguished by reason of his death. The two accused,
municipal administrator and private secretary of the mayor, were
present when the mayor intervened in the demolition site. But there
is no evidence showing their participation in the intervention
committed by the mayor. Passive presence, knowledge or approval of
the crime, or companionship is not an evidence of conspiracy. (Dela
Cruz vs. People, G.R. No. 197153, October 9, 2019)
FENCING – Fencing is a malum prohibitum, and PD No. 1612

creates a prima facie presumption of Fencing from evidence of
possession by the accused of any good, article, item, object or
anything of value, which has been the subject of robbery or theft; and
prescribes a higher penalty based on the value of the property.
(Cahulugan vs. People, G.R. No. 225695, March 21, 2018)
Actual knowledge that the property is stolen is not required.

Fencing is committed if the accused should have known that the
property is stolen taken into consideration the attending
circumstances such as (1) the price of the property is so cheap; (2)
15 | P a g e
expensive jewelry is being offered for sale at midnight in a street; (3)

accused knew that the car he bought was not properly documented
(Dimat vs. People, supra); or (4) new tires are being peddled in the
streets by an unknown seller (Ong vs. People, supra). Furthermore,
mere possession of stolen property shall be prima facie evidence of
fencing (Section 6 of PD No. 1612).
The accused should have been forewarned that the soft drinks
came from an illegal source, as his transaction with the thief did not
have any accompanying delivery and official receipts, and that the
latter did not demand that such items be replaced with empty bottles,
contrary to common practice among dealers of soft drinks. He should
have known that the goods are stolen. He was convicted of fencing.
(Cahulugan vs. People, G.R. No. 225695, March 21, 2018)
If the information alleged that the accused “knows” that the

property is stolen, he cannot be convicted of fencing on the ground
that he “should have known” that the same was derived from the
proceeds of theft because of his constitutional right to be informed
(Lim vs. People, G.R. No. 211977, October 12, 2016).
In Lim vs. People, G.R. No. 211977, October 12, 2016, the
clearance stated in Section 6 of PD No. 1612 is only required if several
conditions, are met: first, that the person, store, establishment or
entity is in the business of buying and selling of any good, articles
item object, or anything of value; second, that such thing of value
was obtained from an unlicensed dealer or supplier thereof;
and third, that such thing of value is to be offered for sale to the
public. In the present case, the first and third requisites were not
met. Nowhere was it established that accused was engaged in the
business of buy and sell. Neither was the prosecution able to
establish that accused intended to sell or was actually selling the
subject grader to the public.
ROBBERY WITH HOMICDE - In robbery with homicide, all

other felonies such as rape, intentional mutilation, usurpation of
authority, or direct assault with attempted homicide are integrated
into this special complex crime. This special complex crime is
committed as long as death results by reason or on occasion or
robbery without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the
crime (People vs. De Leon, GR No. 179943, June 26, 2009; People vs.
Jugueta, G.R. No. 202124, April 05, 2016).
There is no special complex crime of robbery with homicide and

frustrated homicide. The offense should have been designated as
robbery with homicide alone, regardless of the number of homicides
or injuries committed. (People vs. Labuguen, G.R. No. 223103,
February 24, 2020)
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Homicide component – A special complex crime of robbery

with homicide takes place when a homicide is committed either by
reason, or on the occasion, of the robbery. To sustain a conviction for
robbery with homicide, the prosecution must prove the following
elements: (1) the taking of personal property belonging to another; (2)
with intent to gain; (3) with the use of violence or intimidation against
a person; and (4) on the occasion or by reason of the robbery, the
crime of homicide, as used in its generic sense, was committed. A
conviction requires certitude that the robbery is the main purpose,
and [the] objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking
of human life but the killing may occur before, during or after the
robbery. Homicide is said to have been committed by reason or on
occasion of robbery if, for instance, it was committed: (a) to facilitate
the robbery or the escape of the culprit; (b) to preserve the possession
by the culprit of the loot; (c) to prevent discovery of the commission
of the robbery; or (d) to eliminate witnesses in the commission of the
crime (People vs. Balute, G.R. No. 212932, January 21, 2015)
If the original design is to kill the victim (e.g., there is motive to

kill), and accused killed him, and took his property as an
afterthought, the crimes committed are homicide or murder and theft
(People v. Atanacio, No. L-11844, November 29, 1960) or robbery.
(People vs. Natindim, G.R. No. 201867, November 4, 2020)
In robbery with homicide, it is immaterial that the victim of

homicide is a bystander (People vs. Barut, G.R. No. L-42666 March
13, 1979), a responding policeman (People vs. Pelagio, G.R. No. L-
16177, May 24, 1967) or one of the robbers. (People vs. Casabuena,
G.R. No. 246580, June 23, 2020)
The victim was shot while accused was robbing the passengers of
a jeepney. Even if victim's bag was not taken, accused are liable for
special complex crime of robbery with homicide. In this special
complex crime, it is immaterial that the victim of homicide is other
than the victim of robbery, as long as homicide occurs by reason of
the robbery or on the occasion thereof. (People vs. Madrelejos, G.R.
No. 225328, March 21, 2018)
Collective responsibility – Case law establishes that whenever

homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also
be held guilty as principals of robbery with homicide although they
did not take part in the homicide, unless it appears that they sought
to prevent the killing. (People v. Dela Cruz, G.R. No. 168173, December
24, 2008; People v. Castro, G.R. No. 187073, March 14, 2012; People
vs. Labagala, G.R. No. 221427, July 30, 2018; People vs. Bongos,
G.R. No. 227698, January 31, 2018; People vs. Casabuena, G.R. No.
246580, June 23, 2020)
17 | P a g e
Once conspiracy is established between several accused in the

commission of the crime of robbery, they would all be equally liable
for the rape committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he endeavored to prevent
the others from committing rape. (People v. Suyu, G.R. No. 170191,
August 16, 2006; People v. De Leon, G.R. No. 179943, June 26, 2009;
People vs. Madrelejos, G.R. No. 225328, March 21, 2018; People vs.
Sanota, G.R. No. 233659, December 10, 2019)
However, in fine, the long line of jurisprudence on the special

complex crime of robbery with rape requires that the accused be
aware of the sexual act in order for him to have the opportunity to
attempt to prevent the same, without which he cannot be faulted for
his inaction. (People vs. Agaton, G.R. No. 251631, August 27, 2020)
If there is no evidence that the accused is aware of the commission
of rape, he could not have prevented the rape. Hence, the accused is
only liable for robbery and not robbery with rape. (People v.
Canturia, G.R. No. 108490, June 22, 1995)
Canturia principle where lack of awareness is a defense is

applicable to kidnapping with rape (People v. Anticamaray, G.R. No.
178771, June 8, 2011), kidnapping with homicide, robbery with
homicide (People v. Corbes, G.R. No. 113470, March 26, 1997) and
robbery with arson.
RAPE WITH HOMICIDE - The phrase “by reason of the

rape” obviously conveys the notion that the killing is due to the rape,
which is the crime the offender originally designed to commit. The
victim of the rape is also the victim of the killing. In contrast, the
phrase “on the occasion of the rape” as shown by Senate deliberations
refers to a killing that occurs immediately before or after,
or during the commission itself of the rape, where the victim of the
homicide may be a person other than the rape victim. (People vs.
Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R.
No. 178321, October 5, 2011)
For the crime of robbery with rape, the law does not distinguish
whether the rape was committed before, during, or after the robbery,
but only that it punishes robbery that was accompanied by rape.
(People vs. Salen, G.R. No. 231013, January 29, 2020, Justice
Leonen)
ARBITRARY DETENTION AND MURDER - If the victim dies or

is killed as a consequence of detention, the offender is liable for
special complex crime of kidnapping with homicide. If the victim dies
or is killed in the course of arbitrary detention, the offender is not
liable for special complex crime. Neither is he liable for complex
crime. These two crimes were not produced by a single act. Arbitrary
detention was not used as a necessary means to commit murder.
Hence, the offenders are liable for separate crimes of murder and
18 | P a g e
arbitrary detention even if they were indicted of a complex crime in

the Information. It was improper for the prosecutor to have charged
them of a complex crime as the offenses were separate and distinct
from each other and cannot be complexed. (People vs. Dongail, G.R.
No. 217972, February 17, 2020)
INCIDENTAL DEPRIVATION OF LIBERTY – Accused

committed robbery inside a factory. Before they could leave the
premises after the commission of the robbery, the police authorities
were already at the scene of the crime. Since they cannot escape, they
detained 21 victims. After 22 hours of captivity, the hostages were
rescued. Since the principal intention of the accused is to rob the
victims, and the deprivation of their liberty is just incidental to the
prevention of the responding police officers from arresting them, the
crime committed is robbery, which absorbed incidental kidnapping
and serious illegal detention. (People v. Astor, G.R. Nos. L-71765-66,
April 29, 1987)
AAA lived rent-free in a house owned by accused. Accused

intercepted AAA at the garage area and held a knife to her back and
dragged her to his room and raped her. Shortly after, police
authorities arrived; but accused refused to release her and detained
her for a period of time. Although the initial (forcible) abduction of
AAA may have been absorbed by the crime of rape, the continued
detention of AAA after the rape cannot be deemed absorbed in it.
Likewise, since the detention continued after the rape had been
completed, it cannot be deemed a necessary means for the crime of
rape. Hence, the accused is convicted of rape and slight illegal
detention (People vs. Concepcion, G.R. No. 214886, April 04, 2018,
Justice Leonen) or serious illegal detention with the qualifying
circumstance that the victim is a female.
The Astor case is not compatible with Concepcion case.

However, for purpose of the bar exam, Astor case should be applied
to robbery and detention while Concepcion case should be applied to
rape and detention. In sum, if the robbers held hostages the victims
to prevent the policemen form arresting them, the crime committed
is robbery, which absorbs illegal detention. On the other hand, if the
rapist held hostage the victim to prevent the policemen from arresting
him, the crimes committed are rape and serious illegal detention.
SPECIAL MITIGATING CIRCUMSTANCE – Under Article 64

(5), when there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law. This is called as special
mitigating circumstance. The title of Article 64 is rules for the
application of penalties which contain three periods. Penalties
containing three periods are called divisible penalties.
19 | P a g e
Under Article 63, par. 2 (3), when there are some mitigating
circumstances and there is no aggravating circumstance, the lesser
penalty (of reclusion perpetua) shall be applied. The title of Article 63
is rules for the application of indivisible penalties. Death and reclusion
perpetua are indivisible penalties. Article 63, par. 2 (3) is only
applicable cases in which the law prescribes a penalty composed of
two indivisible penalties. There is only one penalty composed to two
individual penalties, and that is, reclusion perpetua to death.
If the accused is convicted of parricide where the law prescribes

the penalty of reclusion perpetua to death, and there are two
mitigating circumstances (e.g. voluntary surrender and confession),
there are two views on which provision is applicable.
First view is case of People vs. Genosa, G.R. No. 135981,

January 15, 2004. The Supreme Court appreciated special mitigating
circumstance under Article 64. Hence, reclusion perpetua to death
was graduated to reclusion temporal.
Second view is the case of People v. Takbobo, G.R. No. 102984,

June 30, 1993. Article 64 (5) on special mitigating circumstance that
requires the graduation of penalty is only applicable if the penalty
contains three periods. Reclusion perpetua to death prescribed for
parricide is not a penalty containing three periods. The applicable
provision is Article 63 par. 2 (3) on the rule involving a penalty
composed of two indivisible penalties. Hence, the lesser penalty shall
be applied. Reclusion perpetua is lesser than death. Hence, the
accused shall be sentenced to suffer reclusion perpetua.
It is submitted that the correct view is the Takbobo case. In

People vs. Brusola, G.R. No. 210615, July 26, 2017, the court
convicted the accused of parricide, and found the mitigating
circumstances of passion and surrender. Accused citing Genosa case
argued that reclusion perpetua to death should be reduced to
reclusion temporal by reason of the special mitigating circumstance.
However, the Supreme Court through Justice Leonen refused to
apply the Genosa principle. It was held that considering that the
penalty for parricide consists of two indivisible penalties (reclusion
perpetua to death), Article 63, and not Article 64, is applicable. Thus,
the penalty of reclusion perpetua was properly imposed.
PENALTIES UNDER SPECIAL LAWS - When a special law

adopts the technical nomenclature of the penalties (e.g. prison
mayor) in RPC, the intention of the law is to adopt the provisions
under this Code on imposition of penalty (People v. Simon, G.R. No.
93028, July 29, 1994). Special aggravating circumstance of
organized/syndicated crime group (People v. Esparas, G.R. No.
120034, July 10, 1998); The privileged mitigating circumstance of
minority (People v. Montalaba, G.R. No. 186227, July 20, 2011; People
v. Musa, G.R. No. 199735, October 24, 2012); and special aggravating
20 | P a g e
circumstance of quasi-recidivism (People v. Salazar, G.R. No. 98060,

January 27, 1997) were appreciated in malum prohibitum crime
where the law punishing it adopts the technical nomenclature of the
penalty of RPC. The penalty for illegal possession of loose firearm
shall be applied in its minimum period because of the mitigating
circumstance of confession (Jacaban v. People, G.R. No. 184355,
March 23, 2015), and the penalty for sexual abuse (Malto v. People,
G.R. No. 164733, September 21, 2007), that for fencing (Cahulugan
vs. People, G.R. No. 225695, March 21, 2018) and that for violence
against woman (Melgar vs. People, G.R. No. 223477, February 14,
2018) shall be applied in its medium period in the absence of
modifying circumstance.
If the special law has not adopted the technical nomenclature of

penalties in the Revised Penal Code, the intention of the law is not to
adopt the provisions of this Code on imposition of penalties.
Moreover, modifying circumstances cannot be appreciated since the
penalty not borrowed from the Code has no periods. The crime has
no attempted or frustrated stage since this penalty cannot be
graduated one or two degrees lower.
For example, the accused confessed to an offense where the

special law prescribes the penalty of not more than 10 years of
imprisonment but not less than 5 years (American penalty). Under
Article 63 of the Revised Penal Code, if there is a mitigating
circumstance such as confession, the penalty shall be applied in its
minimum period. However, confession cannot be appreciated since
the penalty prescribed by law, which is not borrowed from the Code,
has no minimum period.
Penalty under RA No. 9165 - The Simon principle is not

applicable if the crime committed involved dangerous drugs because
R.A. No. 9165 has a special rule on the application of the provisions
of the Revised Penal Code. Under Section 98 of R.A. No. 9165,
notwithstanding any law, rule or regulation to the contrary, the
provisions of RPC shall not apply to the provisions of this Act, except
in the case of minor offenders.
R.A. No. 9165 has not adopted the technical nomenclature of the
penalties of RPC (e.g. the penalty for possession of dangerous drugs
involving shabu of less than 5 grams is imprisonment of 12 years and
1 day to 20 years). If the accused is a minor, the penal system of RPC
shall apply because Section 98 of R.A. No. 9165 say so. To apply the
penal provisions of the Code, the penalty for R.A. No. 9165 must be
converted into a Spanish penalty. For example, the penalty for sale
of dangerous drugs or importation of dangerous drugs is life
imprisonment to death. If the accused is a minor, this penalty shall
be converted into reclusion perpetua to death. Taking into
consideration the privileged mitigating circumstance of minority,
reclusion perpetua to death shall be reduced to reclusion temporal.
21 | P a g e
(People v. Montalaba, G.R. No. 186227, July 20, 2011; People v. Musa,
G.R. No. 199735, October 24, 2012).
However, even though Section 98 of RA No. 9165 mandates the

application of the provisions of RPC in a case where the offender is a
minor, if the penalty for a crime involving dangerous drugs cannot be
converted into a Spanish penalty, the penal provisions of RPC shall
not apply. For example, the penalty for use of dangerous drugs
committed by a first-time offender is rehabilitation. Even if the
offender is a minor, the privileged mitigating circumstance of
minority shall not be considered because this penalty of
rehabilitation cannot be converted into Spanish penalty, and thus, it
cannot be reduced one degree lower.
American penalty – Under the Indeterminate Sentence Law, for

offense punishable under special law the imposed minimum penalty
shall not be less than the minimum penalty prescribed by law while
the imposed maximum penalty shall not be more than the maximum
penalty prescribed by law.
Possession of shabu involving less than 5 grams, or marijuana

involving less than 300 grams is punishable by imprisonment of 12
years and 1 day to 20 years. Applying the ISLAW, the minimum
penalty shall not be less than 12 years and 1 day while the maximum
penalty shall not be more than 20 years. Thus, the court can
sentence the accused to suffer 12 years and one day of imprisonment
as minimum to 14 years as maximum. (Felomino vs. People, G.R. No.
245332, October 16, 2019)
Possession of shabu involving 5 grams or more but less than 10

grams, or marijuana involving 300 grams or more, but less than 500
grams is punishable by imprisonment of twenty (20) years and one
(1) day to life imprisonment.
Applying Section 1 of ISLAW, the minimum penalty shall not be

less than 20 years and 1 day. Under Section 2 thereof, the rule on
indeterminate sentence will not apply if the penalty is life
imprisonment. Hence, the maximum penalty must be less than life
imprisonment. (Concurring opinion by Justice Peralta, People vs.
Obias, G.R. No. 222187, March 25, 2019). A penalty of more than 40
years shall be considered as life imprisonment. Hence, the maximum
penalty must be 40 years of imprisonment or less such as 30 years.
Thus, the court can sentence the accused to suffer 20 years and one
day of imprisonment as minimum to 30 years as maximum. (People
vs. Pis-an, G.R. No. 242692, July 13, 2020)
The Obias case and Pis-an case departed from the case of People
vs. Badilla, G.R. No. 218578, August 31, 2016 where the Supreme
Court did not apply the ISLAW where the penalty is 20 years and 1
day to life imprisonment.
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GOOD CONDUCT ALLOWANCE – There are three benefits given

by the controversial RA No. 10592, to wit: (1) credit of preventive
imprisonment; (2) GCTA for preventive imprisonment; and (3) GCTA
for imprisonment.
1. Credit for preventive imprisonment - Credit of preventive

imprisonment is governed by Article 29 of RPCas amended by RA No.
10592. Under this provision, offenders who have undergone
preventive imprisonment shall be credited in the service of their
sentence except in the following cases: (1) when they are recidivists,
(2) when they have been convicted previously twice or more times of
any crime; and (3) when upon being summoned for the execution of
their sentence they have failed to surrender voluntarily.
2. GCTA for preventive imprisonment - GCTA for preventive

imprisonment is governed by Articles 29 and 97 of the Code as
amended by RA No. 10592. Under Article 29, whenever an accused
has undergone preventive imprisonment for a period equal to the
possible maximum imprisonment of the offense charged, he shall be
released immediately; for purposes of immediate release, the
computation of preventive imprisonment shall be the actual period of
detention with GCTA. However, the entitlement of GCTA for
preventive imprisonment is subject to a qualifying proviso, which is
quoted as follows: “Provided, finally, That recidivists, habitual
delinquents, escapees and persons charged with heinous crimes are
excluded from the coverage of this Act.”
3. GCTA for imprisonment – GCTA for imprisonment is

governed by Article 97 of the Code as amended by RA No. 10592.
Unlike Article 29 on GCTA for preventive imprisonment, Article 97 on
GCTA for imprisonment does not provide an exclusionary or
disqualification clause or qualifying proviso.
The last paragraph of Article 29 contains provisions on GCTA

for preventive imprisonment. The phrase subsequent to the words
“provided finally” in Article 29 is a proviso, which contains the
exceptions to the rule under the provision. Settled is the rule that a
proviso containing the exceptions will merely qualify the provision
containing the general rule that immediately preceded it.
In People vs. Tulugan, G.R. No. 227363, March 12, 2019, it was
held that the office of the proviso qualifies or modifies only the phrase
immediately preceding it or restrains of limits the generality of the
clause that it immediately follows. A proviso is to be construed with
reference to the immediately preceding part of the provisions, to
which it is attached, and not to the statute itself or the other sections
thereof.
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Applying the Tulugan principle, the proviso in Article 29 on “the

exclusion of heinous criminals, habitual delinquents, recidivists and
escapes from the coverage of RA No. 10592” merely qualifies the
provision in Article 29 on GCTA for preventive imprisonment. The
qualifying effect of the proviso under Article 29 cannot extend to the
provision under Article 97 on GCTA for imprisonment. Hence, the
author of this book humbly submit that heinous criminals, habitual
delinquents, recidivists and escapes are disqualified from the benefit
of GCTA for preventive imprisonment; but they are not disqualified
from the benefit of GCTA for imprisonment.
COMMUNITY SERVICE - RA No. 11362, which is approved on

August 8, 2019, has introduced a new provision on community
service, and that is, Article 88-a of Revised Penal Code. Community
service is not a penalty but a mode of serving the penalty of arresto
menor or arresto mayor. Article 88-a of the Code provides:
“Article 88a. Community Service. The court in its discretion may,

in lieu of service in jail, require the penalties of arresto menor and
arresto mayor be served by the defendant by rendering community
service in the place where the crime was committed, under such terms
as the court shall determine, taking into consideration the gravity of
the offense and the circumstances of the case, which shall be under
the supervision of a probation officer: Provided, That the court will
prepare an order imposing the community service, specifying the
number of hours to be worked and the period within which to complete
the service. The order is then referred to the assigned probation officer
who shall have responsibility of the defendant.
“The defendant shall likewise be required to undergo

rehabilitative counseling under the social welfare and development
officer of the city of municipality concerned with the assistance of the
Department of Social Welfare and Development. In requiring
community service, the court shall consider the welfare of the society
and the reasonable probability that the person sentenced shall not
violate the law while rendering the service.
“Community service shall consist of any actual physical activity

which inculcates civil consciousness, and is intended towards the
improvement of a public work or promotion of a public service.
“If the defendant violates the terms of the community service, the
court shall order his/her re-arrest and the defendant shall serve the
full term of the penalty, as the case may be, in jail, or in the house of
the defendant as provided under Article 88. However, if the defendant
has fully complied with the terms of the community service, the court
shall order the release of the defendant unless detained for some other
reason.
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The privilege of rendering community service in lieu of service in

jail shall availed of only once.”
PENALTY OF DISQUALIFICATION – There are two rules on

disqualification to be a candidate by reason on conviction of a crime:
1. The Omnibus Election Code; and 2. The law under which the
candidate was convicted. The disqualification under the election law
is a concept different and distinct from that of the penalty of
disqualification under criminal laws.
Omnibus Election Law
Under Section 12 of the Omnibus Election Code, any person

who has been sentenced by final judgment for any offense for which
he has been sentenced to a penalty of more than 18 months or for a
crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office.
Moral turpitude is considered as encompassing everything

which is done contrary to justice, honesty, or good morals. Whether
or not a crime involves moral turpitude is ultimately a question of
fact and frequently depends on all the circumstances surrounding
the violation of the statute. (Villaber vs. Comelec, G.R. No. 148326,
November 15, 2001)
Even if the crime is mala prohibita, it can be classified as a moral

turpitude. Mala prohibita is a crime, which is not wrong in nature.
For example, violation of the BP Blg. 22 for issuance of unfunded
check is mala prohibita. Despite violation of BP Blg. 22 is mala
prohibita, the Supreme Court in Villaber vs. Comelec treated it as
moral turpitude because of the circumstance of the case; and hence,
Villaber, who was convicted of this crime, was disqualified to run for
congressional seat because of Section 12 of the Omnibus Election
Code.
Even if the penalty for which the candidate is sentenced to

suffer is fine only, the subject crime can be classified as moral
turpitude. In People vs. Tuanda, A.M. No. 3360, January 30, 1990,
a lawyer was convicted of three counts of violation of BP Blg. 22 and
sentenced to suffer penalties of fine. Despite the penalties imposed
by the court in the criminal cases is fine, the Supreme Court in the
administrative case treated violation of BP Blg. 22 as moral turpitude,
and on the basis of such classification, suspended him from the
practice of law.
The disqualification under the Omnibus Election Code is a legal

consequence of the conviction of a crime involving moral turpitude;
but it is not a penalty, which requires to be expressly imposed or
written in the judgement of conviction. In Villaber vs. Comelec, the
trial court in criminal case for violation of BP Blg. 22 sentenced him
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to suffer the penalty of one year imprisonment. Despite the fact that
he was not sentenced by the trial court in criminal case to suffer
disqualification under the Omnibus Election Code, the Supreme
Court in the election case disqualified him to run an elective position.
Under Section 12 of the Omnibus Election Code, the

disqualification to be a candidate shall be deemed removed upon
after the expiration of a period of five (5) years from his service of
sentence. If the penalty for the crime involving moral turpitude is
fine, the sentence is deemed served upon payment thereof. Hence,
the five (5) year disqualification period will commence to run from the
payment of fine.
Revised Penal Code
If the candidate is convicted for a felony under the Revised Penal

Code (RPC), the disqualification under the Omnibus Election Code
and the penalty of disqualification under RPC must be considered.
The penalty of disqualification under RPC is imposable even

though the principal penalty for a felony does not exceed 18 months
of imprisonment and the felony does not involve moral turpitude. For
example, the accused is convicted of reckless imprudence resulting
in serious physical injuries and was sentenced to suffer 6 months
and 1 day of prision correccional. The accused is not disqualified to
be a candidate under the Omnibus Election Code because the penalty
is not more than 18 months and the crime does not involve moral
turpitude. However, he is disqualified to run for elective position for 6
months and 1 day because of the penalty of disqualification under
Article 43 of RPC in relation to Article 27, which is an accessory to
the principal penalty of prision correccional.
The penalty of disqualification under RPC is either a principal

penalty (e.g., perpetual special disqualification prescribed for
malversation under Article 217 of RPC) or accessory penalty (e.g.,
Article 43 of RPC).
On October 29, 2021, RA No. 11594 has amended Article 183 of the
Revised Penal Code by prescribing the graver penalty prisión mayor
in its minimum and medium periods for perjury. However, if the
offender is a public officer, the penalty of imprisonment shall be
applied in its maximum period, penalty of fine and additional penalty
of disqualification for elective and appointive position shall be
imposed. Under Article 42 of the Revised Penal Code, the penalty of
prisión mayor shall carry with it that of temporary absolute
disqualification and that of perpetual special disqualification from
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the right of suffrage. Since the penalty for perjury is prision mayor,
these accessory penalties of disqualification will apply.
In sum, a convicted perjurer will suffer elective disqualification,

which is a “principal” penalty for committing perjury, and another
elective disqualification, which is an accessory to the penalty of
prision mayor imposed for perjury.
The principal penalty of disqualification for perjury is imposable

if the perjurer is a public officer. In sum, the fact that the perjurer is
a public officer that will justify the imposition of the principal penalty
of disqualification is considered as a qualifying circumstance similar
to treachery in murder case.
To impose the penalty reclusion perpetua for murder instead of

reclusion temporal for homicide, the qualifying circumstance of
treachery must be alleged in the information and proven by evidence
beyond reasonable doubt. By the same token, to impose the
maximum penalty, the penalty of fine and principal penalty of
disqualification, the qualifying circumstance that the perjurer is a
public officer must be alleged in the information and proven beyond
reasonable doubt.
Same as the penalty for murder, the principal penalty of

disqualification for perjury must be expressly imposed and written in
the judgment of conviction by the Regional Trial Court in criminal
case. If the court through oversight failed to write the principal
penalty of disqualification in the decision, the Comelec in an election
case cannot implement this penalty.
On the other hand, the penalty of disqualifications, which is an

accessory for the penalty of prision mayor imposed for perjury, need
not be expressly imposed and written in the judgment of conviction
by the Regional Trial Court in a criminal case. Article 42 of the
Revised Penal Code adopts the basic rule that accessory follows the
principal. The imposition of prision mayor for perjury carries with it
the imposition of accessory penalty of disqualification although the
latter is not written in the judgement of conviction. Once the Regional
Trial Court sentences the accused to suffer prision mayor for perjury,
the Comelec in an election case can implement the “unwritten”
accessory penalty of disqualifications. (See: People vs. Silvallana,
G.R. No. 43120, July 27, 1935)
Special laws
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If the candidate is convicted for an offense under special law,

the disqualification under the Omnibus Election Code and the
penalty of disqualification under special law, if there is any, must be
considered.
The penalty of disqualification under special law is imposable

even though the principal penalty for the offense under this law does
not exceed 18 months of imprisonment and although the crime does
not involve moral turpitude.
Under RA No. 9165, a public officer, who is convicted of a crime

involving dangerous drugs, shall suffer principal penalty of
disqualification under Section 28 thereof and accessory penalty of
disqualification under 35 thereof.
Unlike the accessory penalty of disqualification under Section

35 of RA No. 9165, the principal penalty under Section 28 thereof
must be expressly imposed or written in the judgment of conviction
by the Dangerous Drug Court. That is the reason why the Supreme
Court in People vs. CA, G.R. No. 227899, July 10, 2019 expressly
imposed or wrote the penalty of perpetual disqualification under
Section 28 of RA No. 9165 in the Decision upon the accused for
violating this law.
If the Dangerous Drug Court through oversight failed to write

the principal penalty of disqualification under Section 28 of RA No.
9165, the Comelec can only implement of accessory penalty under
Section 35 thereof but not the principal penalty under Section 28.
Section 253 of the 1997 National Internal Revenue Code (or

under the 1977 NIRC) provides that if the offender, who violates this
Tax Law, is a public officer, maximum penalty prescribed for the
offense shall be imposed and, in addition, he shall be perpetually
disqualified to participate in any election. Unlike RA No. 9165, the
NIRC has no separate provisions on accessory penalties. It seems
that the penalty of disqualification under NIRC is principal. Thus,
this penalty must be expressly imposed in the judgement of
conviction by the court in order for the Comelec to implement it in an
election case.
IMMUTABILITY OF FINAL JUDGEMENT - Under the doctrine

of finality of judgment or immutability of judgment, a decision that
has acquired finality becomes immutable and unalterable, and may
no longer be modified in any respect, even if the modification is meant
to correct erroneous conclusions of fact and law, and whether it be
made by the court that rendered it or by the Highest Court of the
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land. Nonetheless, the immutability of final judgments is not a hard

and fast rule as the Court has the power and prerogative to relax the
same in order to serve the demands of substantial justice. (People vs.
Layag, G.R. No. 214875, October 17, 2016)
If the death of the accused happened prior to the finality of the

judgement convicting him of rape and acts of lasciviousness, but the
Supreme Court was belatedly informed of such death only after the
finality of such judgment, the case will be re-opened for purposes of
dismissing the case. (People vs. Layag, G.R. No. 214875, October 17,
2016) If the penalty imposed by the trial court is outside the range
prescribed by law, the Supreme Court can re-open a final and
immutable judgement to impose the correct penalty under the law.
(Bigler vs. People, G.R. No. 210972, March 19, 2016; Aguinaldo vs.
People, G.R. No. 226615, January 13, 2021) If the new law
prescribes a lesser penalty for the crime of which the accused was
previously convicted by final judgement, the Supreme Court can re-
open a final and immutable judgement judgment to impose the lesser
penalty under the new law. In sum, the new law shall be given a
retroactive effect. (Hernan vs. Honorable Sandiganbayan, G.R. No.
217874, December 5, 2017). Layag case, Bigler and Hernan case are
exceptions to the immutability of final judgment rule.
REVOCATION OF TRILLANES AMNESTY - Proclamation No.

75 issued by President Aquino on November 24, 2010 and concurred
in by Congress granted amnesty to the participants of July 27, 2003
Oakwood Mutiny, the February 2006 Marines Stand-Off and the
November 29, 2007 Manila Peninsula Incident. Under Section 2 of
Proclamation No. 75, they have to apply with the ad hoc committee
of the Department of National Defense (DND) to be entitled to the
benefit of the amnesty proclamation. In the case of Vera v. People,
G.R. No. L-18184, January 31, 1963, it was held that even though an
amnesty proclamation does not expressly impose this admission of
guilt as condition, it is still necessary for the accused to admit the
commission of the crime charged to be entitled to the benefits of
amnesty proclamation.
The DND through Secretary Voltaire Gazmin on January 21,

2011 issued certificate of amnesty in favor of Senator Trillanes.
President Duterte on August 31, 2018 issued Proclamation No.

572 declaring the granting of amnesty to Senator Trillianes as null
and void for failure to file application and as required in Section 2 of
Proclamation No. 75 and admit his guilt, which is an inherent
condition to avail of amnesty.
Validity of delegation of implementing authority - On

September 9, 2018, Chief Presidential Legal Counsel Salvador Panelo
said he believes that former defense secretary Voltaire Gazmin may
be held liable for usurpation of authority when he recommended and
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approved the amnesty granted to Senator Antonio Trillanes IV. On

September 7, 2018, President Duterte explained that the power to
grant amnesty is a presidential prerogative and cannot be delegated
to anybody else.
Legi
slative, executive and judicial powers belong to the people because
“sovereignty resides in the people and all government authority
emanates from them”. When the people ratified the 1987
Constitution, they delegated these powers to the three main branches
of government by vesting legislative power, executive power and
judicial power in Congress, the President and Supreme Court and
other lower courts, respectively. Since the people entrust these
powers to these organs of government, as a rule they may not re-
delegate it to others. Re-delegation of these powers is a betrayal of
the trust reposed to them by the people.
This principle of non-delegability of power is in conformity with

the Latin maxim of “Potestas delegata non potest delagari”, or
delegated authority cannot be delegated. The basis of this doctrine is
the ethical principle that such a delegated power constitutes not only
a right but a duty that the delegate must perform through his own
judgment without intervention from another.
However, the principle of non-delegability of power is not an

absolute rule. It is subject to several exceptions. Congress in passing
legislation is allowed to authorize an agency under the Executive
Branch to issue implementing rules and to determine the existence
of certain facts in connection with the implementation of the law. The
conferment of quasi-legislative power and quasi-judicial power to an
implementing executive agency by Congress is not a violation of
maxim of “potestas delegata non potest delagari.” Thus, Congress can
make a tax amnesty and require the Bureau of Internal Revenue to
determine whether a tax payer, who filed a tax amnesty application,
is entitled to the benefit of the law.
Under Amnesty Proclamation no. 8, dated September 7, 1946

issued by President Roxas and concurred by Congress, declares
amnesty in favor of persons, who committed felony in furtherance of
the resistance to the enemy during the Japanese occupation. The
proclamation tasked the Amnesty Commission to determine if the
crime is committed within the terms thereof. In Vera vs. Nanadiego,
G.R. No. L-26539, February 28, 1990, the Supreme Court recognized
the amnesty extended by the Commission to amnesty applicant.
It is submitted that the President Aquino may validly delegate

to the DND the authority to implement the Amnesty Proclamation No.
75. The standing of this writer is the same as that of the Court of
Appeals in People vs. Soriano and Trillanes, CA-G.R. SP No. 159217,
May 31, 2021. In that case, it was held that:
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“There was no undue delegation to the DND of the power of

the President to grant amnesty, with the concurrence of a
majority of all the members of the Congress. Instead, what was
delegated was the implementation of the grant of amnesty,
including the processing of the applications to determine whether
they complied with the conditions of the amnesty. It is clear that
Secretary Gazmin is not guilty of usurpation of official functions.
Considering that there was no undue delegation of the
presidential power to grant amnesty to the Committee, it thus
follows that Secretary Gazmin did not usurp the President's
official functions.”
Revocation of certificate of amnesty - Amnesty proclamation

issued by a former President under express authority of the
Constitution and concurred in by Congress has the nature, force,
effect, and operation of a law (People vs. Macadaeg, G.R. No. L-4316,
May 28, 1952). Hence, an incumbent president cannot unilaterally
revoke the bilateral acts of the former President and Congress in
making an amnesty proclamation. Same as a law, amnesty
proclamation can only revoke by concurrent actions of the President
and Congress. Moreover, amnesty extinguishes the criminal liability
of the amnesty beneficiary. Hence, revocation made after the criminal
extinction will not prejudice the amnesty beneficiary.
Some experts in social media are saying that President Duterte

cannot unilaterally revoked the Amnesty Proclamation No. 75 issued
by President Aquino and concurred in by Congress. With due respect
to their opinions, it is submitted that President Duterte through
Proclamation No. 572 did not revoke Amnesty Proclamation No. 75;
he merely declared as null and void the granting of amnesty in favor
of Trillanes for failure to apply as required in Section 2 of Amnesty
Proclamation No. 75, and for not admitting his guilt. In sum, the
President was actually nullifying the granting of the benefit of the
amnesty by DND through Secretary Gazmin to Senator Trillianes.
Proclamation No. 572 is an attack against the decision of DND
granting amnesty and not against the bilateral acts of President
Aquino and Congress in issuing Proclamation No. 75. By basing his
declaration of nullity of the granting of amnesty on failure to file an
application, the President is in effect invoking Section 2 of Amnesty
Proclamation No. 75; and by invoking Section 2 thereof, he is in
effect, validating this amnesty proclamation rather than revoking it.
The opinion of this writer is the same as the position of the Court of
Appeals in People vs. Soriano and Trillanes, CA-G.R. SP No. 159217,
May 31, 2021. It was held in this case that:
“The general grant of amnesty by Proclamation No. 75 was not

revoked or repealed by Proclamation No. 572. Only the
individualized grant to the petitioner was revoked.
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Presidential power to revoke conditional amnesty -

President Duterte can revoke the certificate of amnesty issued by
DND through Secretary Gazmin in favor of Trillanes for failure to file
application for amnesty as an express precondition to the granting of
the benefit under an amnesty proclamation and failure to admit his
guilt. The DND is under the control power of the President. Hence,
he can nullify its decision granting amnesty benefit for failure of the
beneficiary to comply with required conditions. This is also the legal
conclusion of the Court of Appeals in People vs. Soriano and
Trillanes, CA-G.R. SP No. 159217, May 31, 2021. In that case, it was
held that:
“The grant of conditional amnesty to the petitioner was

subject to, among others, the pre-conditions of application and
admission of guilt or criminal culpability in writing. If it is then
found and known that he indeed failed to fulfill these conditions
originally, then the grant of amnesty becomes susceptible to
revocation.
“The legal effects of non-compliance with the procedural

formalities required by a conditional amnesty law are akin to
the effects of that of a conditional pardon. When the grant of
pardon is made subject to conditions, compliance first with all
the basic requirements is a must. If the condition is violated or
not fulfilled, the State can recommit the pardonee.
“Since the power to ultimately grant an individualized

amnesty is lodged in the President, the authority to revoke a
conditional one can be logically ceded to that office in the
absence of any provision that
locates the authority to revoke in some other office.
“Proclamation No. 572 is a valid exercise by the President

of his Constitutional power of control over all executive
departments, bureaus, and offices.”
The granting of amnesty by the President is subject to

congressional concurrence, but the revocation of amnesty by reason
of non-compliance with required conditions is not subject to the
power of Congress to concur. In People vs. Soriano and Trillanes, CA-
G.R. SP No. 159217, May 31, 2021, the Court of Appeals ruled:
“To the idea that the authority to revoke must also be

concurred in by Congress, just as when the President exercises
the power to grant amnesty, the Court can only say, why not? To
be sure, however, the Constitution requires no such concurrence.
The absence of a concurrence from Congress cannot dilute,
diminish or dissolve an exercise of executive prerogative that is
sourced by necessary implication from a clear grant of power to
grant reprieves, pardon, parole and amnesty.”
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Double jeopardy - There is no double jeopardy where the

dismissal of the case was made with express conformity of the
accused. If the accused moved for the dismissal of the case due to
criminal extinction by reason of amnesty, reviving the case on the
ground of a valid revocation of the granting of amnesty does not
violate the rule on double jeopardy. In People vs. Soriano and
Trillanes, CA-G.R. SP No. 159217, May 31, 2021, it was held that:
“Private respondent and his co-accused, invoking the

amnesty conferred upon them, filed a Motion to Dismiss with the
RTC which it granted in an Order dated September 21, 2011.
Thus, the dismissal of the case was with the express consent of
private respondent. X x x Therefore, first jeopardy has not yet
attached upon the dismissal of the coup d'etat case, and the
continuation of the prosecution against private respondent does
not constitute double jeopardy.”
Judicial review - If an accused complied with the conditions

required to avail the benefits of Amnesty Proclamation, he has the
remedy of raising the issue of criminal extinction by reason of
amnesty in court (People vs. Macadaeg, G.R. No. L-4316, May 28,
1952). It devolves on the court to protect his right to be entitled to
the benefits of Amnesty Proclamation (Tolentino vs. Catoy, G.R. No.
L-2503, December 10, 1948).
The
President may revoke the amnesty granted to a beneficiary for failure
to comply with required conditions. However, if the court in a petition
questioning the said revocation of amnesty finds that amnesty
beneficiary made an application, admitted his guilt therein and
complied with other conditions, if there are any, and the DND
properly approved the application, it may reverse the presidential
revocation.
In People vs. Soriano and Trillanes, CA-G.R. SP No. 159217,

May 31, 2021, the Court of Appeals found that the petitioner utterly
failed to prove that Trillanes failed to comply with the conditions of
Proclamation No. 75. The evidence tends to show that Trillanes
complied with the said conditions by filing his application for
amnesty, and admitting his guilt for the crimes enumerated under
Proclamation No. 75. The Court declares that it cannot be said that
the grant of amnesty in favor of Trillanes was validly revoked. As a
result, the charges against Trillanes in connection with the offenses
“forgotten” or forgiven by the amnesty must be necessarily dropped.
In other, words, the RTC Order dismissing the coup d'etat case
against Trillanes on the ground of amnesty is valid.
CONSTRUCTIVE DISCOVERY - The 10-year prescriptive

period for falsification of document shall commence to run on the
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date of recording of the falsified deed of sale in the Registry of Deeds

because of the constructive notice rule under the Torren system
(People vs. Reyes, G.R. No. 74226, July 27, 1989).
The accused falsified a notarized Secretary's Certificate by

making it appear that a certain member of the board participated in
the meeting where in fact he is already dead. On the basis of this
Certificate, and Deed of Sale, the Registry of Deeds cancelled the title
of the corporation’s property and a new one was issued. Under RPC,
the period tor the prescription of offenses commences from the day
on which the crime is discovered by the offended party, the
authorities, or their agents. However, the offender party
constructively discovered the crime upon registration of the Secretary
Certificate with the Deed of Sale in the Registry of Deeds because of
the rule on constructive notice to the entire world; hence, the period
for prescription commences on the date of registration of the falsified
document. The case was dismissed since the 10-year period of
prescription for falsification lapsed because the information was filed
more than 10 years from the registration of the document. (Lim vs.
People, G.R. No. 226590, April 23, 2018)
The 15-year prescriptive period for bigamy shall commence to

run on the date of actual discovery of the bigamous marriage and not
from the registration of bigamous marriage in the Office of the Civil
Registrar. The law on Civil Registry and the Family Code, which
governed registration of marriage, do not provide a rule on
constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454,
June 14, 1994).
PRESCRIPTION FOR OFFENSE – As a general rule under Act

3326, prescription for offense punishable under special laws begins
to run from the date of the commission of the offense, if the date of
the commission of the violation is known. However, if the necessary
information, data, or records based on which the crime could be
discovered is readily available to the public, the State is to be
presumed to know that the crime has been committed. Hence,
prescription begins to run from the date of the commission of the
offense.
There is an exception. Prescription for offense punishable under

special laws begins to run from the date of discovery thereof, if the
date of the commission of the violation is not known. However, if the
necessary information, data, or records based on which the crime
could be discovered is not readily available to the public, there is no
way for the State to know that the crime has been committed. Hence,
prescription begins to run from the date of the discovery of the
offense. This is the blameless ignorance doctrine. Under this
principle, the State and private complainant should not be blame for
failure to institute the case immediately after the commission of the
34 | P a g e
crime if they are ignorant or has no reasonable means of knowing the

existence of a crime.
In sum, in determining whether it is the general rule or the

exception that should apply in a particular case, the availability or
suppression of the information relative to the crime should first be
determined. (People vs. Parba-Rural, G.R. No. 231884, June 27,
2018).
Under the law, SALNs are accessible to the public for copying
or inspection at reasonable hours. Under the circumstances, the
State is to be presumed to know of her omissions during the eight-
year period of prescription set in Act No. 3326. (People vs. Parba-
Rural, supra). Hence, the general rule applies; prescription begins to
run from the date the accused failed to file SALN.
Considering that during the Marcos regime, no person would

have dared to assail the legality of the transactions involving cronies
(such as behest loans or transaction involving the construction of
nuclear power plant, it would be unreasonable to expect that the
discovery of the unlawful transactions was possible prior to 1986.
(Disini v. Sandiganbayan, G.R. Nos. 169823-24 and 174764-65,
September 11, 2013) Hence, the prescriptive period for violation of
R.A. No. 3019 commenced from the date of its discovery in 1992 after
the Committee made an exhaustive investigation. (Presidential Ad hoc
Fact-finding Committee v. Hon. Desierto, G.R. No. 135715, April 13,
2011) To rule otherwise is to let the period of prescription run and
yet the State could not interrupt it prior to the EDSA revolution.
Necessary information, data, or records based on which the

crime committed by cronies during the Marcos regime are not readily
available to the public. The martial law prevented the filing of criminal
cases. The information about the violation was suppressed, possibly
through connivance. Thus, the exception applies and the period of
prescription shall be reckoned from the date of discovery
thereof. (People vs. Parba-Rural, supra)
INTERRUPTION OF PRESCRIPTION – Hypothetical problem:

Complaints for preliminary investigation for violation of ordinance,
violation of BP Blg. 22 and simple oral defamation are filed with the
prosecutor’s office. These cases are covered by the Rules on
Summary Procedure. Does the filing of these complaints interrupt
the running of period of prescription?
1. The filing of complaint involving violation of ordinance with

the prosecutor’s office does not interrupt the running of period of
prescription. The proceedings mentioned in Act No. 3326 are “judicial
proceedings.” Preliminary investigation, which is not a judicial
proceeding contemplated in Act 3326, will cause a prescriptive
interruption. (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992)
35 | P a g e
The provision in the Rules on Criminal Procedure regarding the

interruption of prescription by institution of criminal action is not
applicable to violation of ordinance because case involving this crime
is covered by the Rules on Summary Procedure. (Jadewell Parking
Systems Corp. vs. Lidua, Sr., G.R. No. 169588, October 7, 2013,
Justice Leonen)
2. The filing of complaint involving violation of BP Blg. 22 with

the prosecutor’s office interrupts the running of period of
prescription. Under Act No. 3326, the running of the prescription of
offense punishable under special law shall be interrupted when
“judicial proceedings for investigation and punishment” are instituted
against the guilty person. The proceeding is described as “judicial”
since when Act No. 3326 was passed on December 4, 1926,
preliminary investigation of criminal offenses was being conducted
by justices of the peace. Considering that preliminary investigation
in criminal case for purposes of prosecution has become the exclusive
function of the executive branch, the term “proceedings” should now
be understood either as executive or judicial in character: executive
when it involves the investigation phase and judicial when it refers to
the trial and judgment stage. Hence, institution of proceeding,
whether executive or judicial, interrupts the running of prescriptive
period. (Panaguiton v. Department of Justice, G.R. No. 167571,
November 25, 2008, People v. Pangilinan, G.R. No. 152662, June 13,
2012)
Note: The Jadewell case is not compatible with Panaguiton

case, which is affirmed in Pangilinan case, and other cases, because
the former expressly reaffirmed the Zaldivia principle while latter
expressly abandoned it. For purpose of the bar exam, the Jadewell
principle should be applied if the case involved violation of ordinance.
Jadewell should not be applied to offenses under special laws even
they are covered by the rules on summary procedure.
In People vs. Lee, G.R. No. 234618, September 16, 2019, the
Supreme Court said that Jadewell presents a different factual milieu
as the issue involved therein was the prescriptive period for violation
of a city ordinance, unlike in the Pangilinan and other related
cases, where the issue refers to prescription of actions pertaining to
violation of a special law. For sure, Jadewell did not abandon the
doctrine in Pangilinan as the former even acknowledged existing
jurisprudence which holds that the filing of complaint with the Office
of the City Prosecutor tolls the running of the prescriptive period.
3.
The filing of complaint involving simple oral defamation with the
prosecutor’s office interrupts the running of period of prescription.
Article 91 of the Revised Penal Code provides “the period of
prescription shall be interrupted by the filing of the complaint or
36 | P a g e
information.” The filling of compliant for preliminary investigation if

the fiscal’s office interrupts the running of prescription of simple
slander because Article 91 does not distinguish whether the
complaint is filed in the Office of the Prosecutor for preliminary
investigation or in court for action on the merits. (Francisco vs. CA,
G.R. No. L-45674, May 30, 1983)
Note: It should be noted that simple slander is covered by the

Rules on Summary Procedure. In People vs. Bautista, G.R. No.
168641, April 27, 2007, the Supreme Court applied the Francisco
principle to slight physical injuries, which is also covered by the
Rules on Summary Procedure.
Jadewell case cannot be applied to prescription of felonies

although they are covered by the Rules on Summary Procedure.
Jadewell is interpreting Act No. 3326, which governs violation of
ordinance while Francisco and Bautista are interpreting Article 91 of
the Revised Penal Code, which is rule on prescription of felonies such
as oral defamation and slight physical injuries.
For corruption under R.A. No. 3019 as amended by R.A. No.

10910, the prescriptive period is 20 years. For sexual harassment
under RA No. 7877, the prescriptive period is 3 years. Act No. 3326
does not apply to corruption and sexual harassment with regards to
the rules on period of prescription since R.A. No. 3019 and R.A. No.
7877 provide a special rule on the period of prescription. However,
Act No. 3326 on the rule of commencement and interruption of the
running of prescriptive period is still applicable to corruption under
R.A. No. 3019, and sexual harassment under RA No. 7877. Thus, the
period of prescription will be interrupted upon the filing of complaint
for preliminary investigation for violation of RA No. 3019 with the
Ombudsman (Disini v. Sandiganbayan, G.R. Nos. 169823-24 and
174764-65, September 11, 2013) for sexual harassment with the
prosecutor’s office. (People vs. Lee, G.R. No. 234618, September 16,
2019)
PROBATION - Accused is charged of sale of dangerous drugs.

Pursuant to a plea-bargaining agreement, he pleaded guilty to the
lesser offense of possession of drug paraphernalia, which is
punishable 6 months and 1 day to 4 years. Sale of dangerous drugs
is not probationable. However, in applying for probation, what is
essential is not the offense charged but the offense to which the
accused is ultimately found guilty of. In sum, in determining the
eligibility of the accused for probation, the court shall consider
possession of drug paraphernalia for which he pleaded guilty, and
not sale of dangerous drugs with which he is charged. Possession of
drug paraphernalia is probationable since the penalty prescribed for
it does not exceed 6 years of imprisonment. Under Section 24 of RA
No. 9165, any person convicted for drug trafficking or pushing
37 | P a g e
cannot avail of the privilege granted by the Probation Law. However,

possession of drug paraphernalia is not considered as drug
trafficking or pushing. Hence, the accused is eligible to apply for
probation. (Pascua vs. People, G.R. No. 250578, September 07,
2020)
Offense where the penalty is more than 6 years of imprisonment

is non-probationable. In Colinares vs. People, G.R. No. 182748,
December 13, 2011, the accused, who was convicted by the lower
court of a non-probationable offense of frustrated homicide, but on
appeal was found guilty of a probationable offense of attempted
homicide, may apply for probation. In Villareal vs. People, G.R. No.
151258, December 1, 2014, accused was convicted of homicide, a
non-probationable crime, by the trial court. However, the SC found
them liable for reckless imprudence resulting in homicide, which is
a probationable crime, because of lack of dolo. They can still apply
for probation. RA No. 10707 has amended Section 4 of PD 968 by
adopting the Colinares and Villareal. Under this provision, when a
judgment of conviction imposing a non-probationable penalty is
appealed or reviewed, and such judgment is modified through the
imposition of a probationable penalty, the defendant shall be allowed
to apply for probation based on the modified decision before such
decision becomes final. This notwithstanding, the accused shall lose
the benefit of probation should he seek a review of the modified
decision which already imposes a probationable penalty.
In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874,

December 5, 2017, accused was convicted of malversation and
sentenced to suffer a penalty of 11 years, 6 months and 21 days of
prision mayor, which is non-probationable. The judgment becomes
final prior to the effectivity of RA No. 10951. Under Article 217 of
RPCas amended by RA No. 10951, the penalty for malversation
involving an amount of not exceeding P40,000 is only prision
correccional in its medium and maximum periods. Despite the
immutability of a final judgment, the Supreme Court reduced the
penalty to 3 years, 6 months and 20 days of prision correccional in
accordance with RA No. 10951, which penalty is now probationable.
It was stated that because of RA No. 10951, not only must sentence
of the accused be modified respecting the settled rule on the
retroactive effectivity of favorable laws, she may even apply for
probation. In sum, applying Section 4 of P.D. No. 968, as amended
by R.A. No. 10707, since the judgment of conviction imposing a non-
probationable penalty is modified through the imposition of a
probationable penalty, she is now allowed to apply for probation
based on the modified decision before such decision becomes final.
(see: Aguinaldo vs. People, G.R. No. 226615, January 13, 2021)
PIRACY - Under Section 2(a) of PD 532, "Philippine waters" is

defined as bodies of water, such as but not limited to, seas, gulfs,
bays around, between and connecting each of the Islands of the
38 | P a g e
Philippine Archipelago, irrespective of its depth, breadth, length or

dimension, and all other waters belonging to the Philippines by
historic or legal title, including territorial sea, the sea-bed, the insular
shelves, and other submarine areas over which the Philippines has
sovereignty or jurisdiction. Thus, a river in a municipality is
considered as part of Philippine waters for purpose of piracy (People
vs. Dela Pena, G.R. No. 219581, January 31, 2018).
DIRECT ASSAULT – Simple assault (e.g., punching) upon an

agent of a person in authority (e.g., police officer) while engaged in the
performance of duty constitutes simple resistance and not direct
assault because there is no intent to defy the law and its
representative at all hazard, which is an element thereof (U.S. vs.
Tabiana, G.R. No. 11847, February 1, 1918; U.S. vs. Agustin, G.R.
No. 13083, December 11, 1917; People vs. Lapitan, G.R. No. 38226,
November 17, 1933). But serious assault upon agent of a person in
authority while engaged in the performance of duty constitutes direct
assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904; U.S. vs.
Samonte, G.R. No. 5649, September 6, 1910).
Simple assault (e.g., punching) upon a person in authority (e.g.,

mayor or chief of police) while engaged in the performance of duty
constitutes qualified direct assault. The law does not distinguish
between serious and simple “laying of hands” upon a person in
authority as a qualifying circumstance. Hence, a simple laying of
hands upon a person in authority constitutes qualified direct assault.
The Tabiana principle is only applicable if the victim is an agent of a
person in authority (U.S. vs. Gumban, G.R. No. 13658, November 9,
1918).
The accused, an America soldier, seized the complainant, a

police officer, by the throat, threw him to the ground, and struck him
several blows with the club which he succeeded in wresting from the
policeman. He was convicted of direct assault. (United States v. Cox,
supra) Police officers including the complainant rushed to stop the
fight between groups of women. However, accused, intoxicated,
shouted at them, "Wala kayo pakialam sa akin, hindi aka sasama sa
inyo." She then grabbed complainant by the collar, slapped his
cheek, and kicked his legs several times. Complainant suffered minor
injuries. The accused was convicted of simple resistance although he
was charged with direct assault. Simple resistance is necessary
included in the charge of direct assault (Mallari vs. People, G.R. No.
224679, February 12, 2020, Justice Leonen)
If the person in authority or his agent is engaged in the actual

performance of duties at the time of the assault, the motive for the
assault is immaterial. Direct assault is committed even if the motive
(such as non-payment of loan) was totally foreign to victim’s official
function (Sarcepuedes vs. People, G.R. No. L-3857, October 22,
1951).
39 | P a g e
The phrase "on occasion of such performance" used in Article

148 of RPC means "by reason of the past performance of official duty
because the purpose of the law is to allow them to discharge their
duties without fear of being assaulted by reason thereof (People vs.
Renegado, G.R. No. L-27031, May 31, 1974). Attacking a judge on
the street by reason of past performance of duty (such as citing the
accused in contempt) constitutes qualified direct assault (U.S. vs. vs.
Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired
judge by reason of past performance of duty is not direct assault
since he is not a person in authority at the time of the assault. Note:
The mandatory retirement age of a judge is 70 year.
The status of lawyer as persons in authority remains even the

assault is committed outside the court room as long as it is
perpetrated by reason of the performance of their professional duties
(Records of the Batasan, Volume Four, 1984-1985 of BP Blg. 873,
which amended Article 152 of RPC).
Attacking a third person who comes to the aid of a person in

authority, who is a victim of direct assault, is liable for direct assault
upon an agent of a person in authority. Attacking a third person who
comes to the aid of an agent of person in authority, who is a victim
of direct assault, is liable for indirect direct assault. Attacking a third
person who comes to the aid of an agent of person in authority, who
is a victim of simple resistance, is liable for physical injuries.
Slapping and pushing a public-school teacher, a person in

authority, against a wall divider, while engaged in the performance of
duty is direct assault. Accused initiated her tirades against the
teacher. The fact that the teacher retaliated by similar verbal
invectives against the accused, does not mean that she as a person
in authority already descended to the level of a private person. If the
victim suffered abortion, the offender is liable for complex crime of
direct assault with unintentional abortion since single act of
assaulting a person in authority constitutes two crimes. However, in
this case, the prosecution failed to prove that the proximate cause of
the abortion is the commission of direct assault since no doctor, who
examined her, was not presented as witness to testify on the causal
connection between the two (Gelig vs. People, G.R. No. 173150 July
28, 2010).
Killing a mayor or police officer while in the performance of his

duty constitute a complex crime of direct assault with murder (People
vs. Siega, G.R. No. 213273, June 27, 2018) or homicide. (People vs.
Pitulan, G.R. No. 226486, January 22, 2020, Justice Leonen)
BRIBERY - Plaintiff gave money to the judge, who in

consideration thereof subsequently rendered an unjust decision in
favor of the former. The judge is liable of direct bribery (Mangulabnan
40 | P a g e
vs. People, G.R. No. 236848, June 8, 2020) and rendering unjust
decision, while the plaintiff is liable of corruption of public officer.
But if the plaintiff gave money to the judge, who subsequently
rendered a decision against the former, the crime committed by the
judge is indirect bribery while the plaintiff is liable of corruption of
public officer. The judge is not liable of direct bribery since rendering
a decision against the corruptor indicates that the former did not
receive the money in consideration of rendering a decision in favor of
the latter. It seems that the plaintiff merely gave the money to the
judge by reason of his position as such.
MURDER - The killing of a child is characterized by

treachery even if the manner of the assault is not shown in the
Information, as the weakness of the victim due to his tender age
results in the absence of any danger to the accused. Hence, the
mere allegation of the victim's minority is sufficient to qualify the
crime to murder. (People vs. Enojo, G.R. No. 240231, November 27,
2019)
RAPE – There are two kinds of rape: (1) rape through sexual
intercourse; and (2) rape through sexual assault. However, the
Supreme Court in People vs. Tulugan, G.R. No. 227363, March 12,
2019 said that rape through sexual intercourse should be called as
“rape” while rape through sexual assault should be called as “sexual
assault.”
Rape, which is commonly denominated as “organ rape” or

“penile rape,” is committed by a man by having carnal knowledge
with a woman. This is a gender crime since the offender must be a
man while the victim must be a woman.
On the other hand, there are three kinds of sexual assault, to

wit: (1) instrument or object sexual assault, which is committed by
inserting an instrument or object into the genital or anal orifice of
another person; (2) sexual assault through oral intercourse, which is
committed by inserting his penis into another person’s mouth; and
(3) sexual assault through sodomy, which is committed by inserting
his penis into another person’s anal orifice. In sexual assault, the
gender of the offender and the victim is not material. That is why this
crime is called “gender-free sexual assault.” (see: People v. Soria, G.R.
No. 179031, November 14, 2012) However, the modes (e.g.,
intimidation) or circumstances (e.g., demented victim) in committing
the crime and the qualifying circumstances are the same whether the
crime is rape or sexual assault.
It is already a settled rule that a finger or tongue is an

instrument or object; hence inserting a finger or tongue into genital
orifice is sexual assault (People v. Chingh, G.R. No. 178323, March
16, 2011; (People vs. Bonaagua, GR No. 188897, June 6, 2011).
However, Justice Leonen in his dissenting opinion in People v.
41 | P a g e
Caoili, G.R. No. 196342, August 8, 2017 said that nonconsensual

insertion of a finger in another's genitals is rape by carnal knowledge;
the finger, when used in a sexual act, is not an instrument or an
object. It is as much a part of the human body as a penis; When
consensual, it can be used to give sexual pleasure. When forced, it
can be used to defile another's body; Equating the finger to a separate
instrument or object misunderstands the gravity of the offense.
Absorption rule - If the accused commits rape and acts of

lasciviousness, the latter is absorbed by the former (People vs. Dy,
G.R. Nos. 115236-37, January 29, 2002). But the doctrine of
absorption is not applicable to rape and sexual assault. Inserting
lighted cigarette into the genital orifice and anal orifice of the victim
and raping her constitutes two separate crimes of sexual assault and
rape (People vs. Crisostomo, GR No. 196435, January 29, 2014).
Inserting the penis into the mouth of the victim and into her genital
orifice constitutes separate crimes of sexual assault and rape (People
vs. Espera, G.R. No. 202868, October 2, 2013; People vs. Dereco,
G.R. No. 243625, December 2, 2020)
Withdrawal of consent - Where the woman consents, but then

withdraws her consent before penetration, and the act is
accomplished by force, it is rape. (People v. Butiong, G.R. No. 168932,
October 19, 2011) But if the woman tacitly consents to have sexual
intercourse with the accused, but then withdraws her consent in the
course of sexual intercourse because she felt pain, and the act is not
rape. It would be unfair to convict a man of rape committed against
a woman who, after giving him the impression thru her
unexplainable silence of her tacit consent and allowing him to have
sexual contact with her, changed her mind in the middle and charged
him with rape (People vs. Tionloc, G.R. No. 212193, February 15,
2017).
Stealthing - Where a woman offers to allow a man to have

intercourse with her on certain conditions and he refuses to comply
with the conditions, but accomplishes the act without her consent,
he is guilty of rape. (People v. Butiong, supra)
Stealthing is the removal of condom by the man during sex

without consent of the woman. In Germany, stealthing is a crime,
which is different and distinct from rape. In sum, stealthing under
German Law is not within the contemplation of the word “rape.”
In our country, there is no crime of stealthing in the book of

statutes. Moreover, stealthing is not equivalent to rape since lack of
consent as an element of this crime pertains to sex and not to the
removal of the condom. Nullum crimen, nulla poena sine lege.
However, if the woman expressly and categorically required the use
of condom as a condition to sex, and made it clear that she would
not give her consent to a sexual intercourse without a condom,
42 | P a g e
stealthing may constitute fraudulent machination, which is a mode

of committing rape. But absolute lack of consent must be shown to
make the man liable for rape through fraudulent machination. If the
woman failed to resist the continued sex, or register a strong
objection upon knowing that the man already removed the condom
from his penis, rape must be ruled out. Rape is a serious crime
punishable by reclusion perpetua. Hence, the acts committed by the
accused must be clearly within the contemplation of the statute on
rape; otherwise, he must be acquitted of rape based on the pro reo
principle.
Tenacious resistance - Among the amendments of the law on

rape introduced under RA No. 8353 is Section 266-D, which provides
“Any physical overt act manifesting resistance against the act of rape
in any degree from the offended party, or where the offended party is
so situated as to render her/him incapable of giving valid consent, may
be accepted as evidence in the prosecution rape” (People vs. Sabadlab,
G.R. No. 175924, March 14, 2012). The legislators agreed that Article
266-D is intended to soften the jurisprudence on tenacious
resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002).
Indeed, failure to offer tenacious resistance does not make the
submission by the victim to the criminal acts of the accused
voluntary. What is necessary is that the force employed against her
be sufficient to consummate the purpose which he has in mind
(People vs. Olesco, G.R. No. 174861 April 11, 2011; People vs.
Nachor, G.R. No. 177779, December 14, 2010). It is not necessary for
the victim to sustain physical injuries. She need not kick, bite, hit or
scratch the offender with her fingernails to prove that she had been
defensive (People vs. Torres, G.R. No. 134766, January 16, 2004).
Well-settled is the rule that where the victim is threatened with bodily
injury, as when the rapist is armed with a deadly weapon, such as a
pistol, knife, ice pick or bolo, such constitutes intimidation sufficient
to bring the victim to submission to the lustful desires of the rapist
(G.R. No. 176740 June 22, 2011, People v. Dumadag).
Resistance against sexual advance may establish lack of

consent. Hence, rape is committed. On the other hand, lack of
resistance may sometimes imply consent. However, that is not always
the case. While it may imply consent, there are circumstances that
may render a person unable to express her resistance to another's
sexual advances. Thus, when a person has carnal knowledge with
another person who does not show any resistance, it does not always
mean that that person consented to such act. Lack of resistance does
not negate rape. (People vs. Ibanez, G.R. No. 231984, July 6, 2020)
Intimidated person and retarded person - If the information

alleged force, threat, or intimidation without averment of any mental
disability on the part of the victim, the accused can still be convicted
provided that sexual congress and mental incapacity, i.e. the
incapacity to give consent, are proven by clear and convincing
43 | P a g e
evidence (People vs. Quintos, G.R. No. 199402, November 12, 2014;
Justice Leonen; People vs. Gilles, G.R. No. 229860, March 21,
2018). Having sexual intercourse with a mentally retarded person is
equivalent to having sexual intercourse with a person through
intimidation. If the Information alleged intimidation as a mode of
raping the victim, but the evidence merely proves her mental
retardation, the accused can be convicted of rape through
intimidation. (People v. Balatazo, G.R. No. 118027, January 29,
2004)
Person deprived of reason and demented person - There are

two victims in rape with mentally disability, to wit: (1) persons
deprived of reason; and (2) demented person. The concept of the
terms “deprived of reason” is comprehensive since it includes
demented or insane person and mentally retarded person. On the
other hand, the term "demented" is confined to insane person. If the
victim is insane, the accused can be charged with rape of person
deprived of reason or demented person. If the victim is mentally
retarded, the accused should be charged with rape of a person
deprived of reason (People vs. Eleuterio, G.R. No. 219957, April 4,
2018) or statutory rape of a person under 12 years of age (People v.
Daniega, G.R. No. 212201, June 28, 2017).
Retarded person and demented person - Describing a

mentally retarded person in the information as demented is
improper. A mentally retarded person is not insane or demented.
However, describing the victim in the information as a "mentally
defective woman” (People vs. Martinez, G.R. No. 226394, March 7,
2018), or “a demented person whose mental age is below 7 years old”
(People v. Caoile, G.R. No. 203041, June 5, 2013) is sufficient
compliance with the constitutional mandate that an accused be
informed of the nature of the charge against him.
If the Information alleged the victim of rape is demented, but

the evidence merely proves her mental retardation, the accused
cannot be convicted of rape unless the accused failed to raise the
mistake in the Information as an objection (People v. Ventura, Sr.,
G.R. No. 205230, March 12, 2014; People vs. Eleuterio, G.R. No.
219957, April 04, 2018)
Deaf-mute - Information alleged that accused had sexual

intercourse with the complainant, who suffered physical defect
(hearing impaired) against her will. The Information does not validly
charge the crime of rape or any offense at all. Surely, being a deaf-
mute does not necessarily take the place of the element of force or
intimidation or having been deprived of reason, unconscious, or
demented. (People vs. Cubay, G.R. No. 224597, July 29, 2019)
Qualifying circumstance - If the relationship between the

accused and the victim of rape is uncle and niece, the Information
44 | P a g e
must allege that the offender is “a relative by consanguinity or affinity

within the third civil degree” because there are niece-uncle
relationships which are beyond the third civil degree. However, a
sister-brother relationship is obviously in the second civil
degree. Consequently, it is not necessary that the Information
should specifically state that the accused is a relative by
consanguinity within the third civil degree of the victim (People vs.
Ceredon, G.R. No. 167179, January 28, 2008).
Assuming that accused and victim had a romantic relation,

carnal knowledge with victim, even if consensual, would amount to
rape due to her mental disability. Knowledge victim's mental
retardation is not an element for the charge of rape. However,
knowledge of her mental condition is important for purposes of
qualifying the charge of rape. (People vs. Martinez, G.R. No. 226394,
March 7, 2018)
Knowledge of the mental disability of the victim is not an

element of rape (People vs. Caoile, GR No. 203041, June 5, 2013) but
it is an ingredient of the qualifying circumstance of mental disability,
which must be alleged in the information (People vs. Obogne, GR No.
199740, March 24, 2014; People vs. Lascano, G.R. No. 192180,
March 21, 2012; People v. Madeo, G.R. No. 176070 October 2, 2009)
Relationship or minority alone is not enough to qualify rape. In

qualified rape, there must be a concurrence of relationship and
minority. Relationship includes the third civil degree of
consanguinity or affinity in order to qualify rape. In this case, the
accused is the cousin of the victim's father. Their relationship is fifth
degree. Hence, the crime is only simple rape. (People vs. XXX, G.R.
No. 232308, October 7, 2020)
In qualifying circumstances of minority and relationship in rape

and special aggravating circumstance in sexual abuse under RA No.
7610, the guardian must be a person who has legal relationship with
his ward. He must be legally appointed was first (People vs. Flores
G.R. No. 188315, August 25, 2010).
The accused and victim have step-relationship if the former and

mother of the latter is married; without marriage, their relationship
is common-law. If the information alleged that the accused is the
step-father of the victim, but the evidence shows he is the common
law husband of her mother there being no marriage certificate
presented, the qualifying circumstance of relationship and minority
cannot be appreciated in rape. (People vs. Tuyor, G.R. No. 241780,
October 12, 2020; People vs. XXX, G.R. No. 240441, December 04,
2019)
Marital rape - Husband can be held liable for marital rape.

Article 266-A of RPC uses the term “man” in defining rape without
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regard to the rapist’s legal relationship with his victim. Under Article
266-C of RPC, in case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action. RA No. 8353 has eradicated the
archaic notion that marital rape cannot exist because a husband has
absolute proprietary rights over his wife’s body and thus her consent
to every act of sexual intimacy with him is always obligatory or at
least, presumed (People vs. Jumawan, G.R. No. 187495, April 21,
2014).
Maria Clara rule - The Maria Clara or women’s honor doctrine

is a standard used by the court in assessing the credibility of a rape
victim. Under this principle, women of decent repute, especially
Filipinos, would not publicly admit that she has been sexually
abused, unless that is the truth, for it is her natural instinct to
protect her honor. However, the factual setting in 1960 when the
“women’s honor” doctrine surfaced in our jurisprudence is that it is
natural for a woman to be reluctant in disclosing a sexual assault.
However, the women today have over the years transformed into a
strong and confidently intelligent and beautiful person, willing to fight
for her rights. Thus, in assessing the credibility of a rape victim, the
Maria Clara standard should not be used. The testimony of the victim
must be evaluated without gender bias or cultural misconception. It
is important to weed out the Maria Clara notions because an accused
may be convicted solely on the testimony of the victim. (People v.
Amarela, G.R. Nos. 225642-43, January 17, 2018)
In People vs. Perez, G.R. No. 201414, April 18, 2018, and People
vs. ZZZ, G.R. No. 229209, February 12, 2020, the Supreme Court
through Justice Leonen affirmed the Amarela principle, which
abandoned the Maria Clara principle. Justice Leonen also cited the
Amarela principle in People vs. Tulugan. For purpose of the 2021 Bar
Exam, it is advisable that the Amarela principle should be followed.
Non-decriminalization of acts of lasciviousness - Under

Article 336 of the Revised Penal Code, acts of lasciviousness is
committed by any person upon other persons of either sex, under
any of the circumstances mentioned in the preceding article. The
words “preceding article” in Article 336 pertains to Article 335 on old
version of rape. According to Justice Leonen, Section 4 of RA No.
8353 (the Anti-Rape Law) expressly repealed Article 335 of the
Revised Code on rape. Since the circumstances under which acts of
lasciviousness is committed, are sourced from a repealed Article 335
of the Code, Article 336 of the Code on acts of lasciviousness has
been rendered incomplete and ineffective by RA No. 8353.
The opinion of Justice Leonen is not a controlling rule. Several

cases rendered by the Supreme Court affirmed the conviction of the
accused for acts of lasciviousness. In other words, RA No. 8353 did
not decriminalize acts of lasciviousness on the basis of prevailing
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jurisprudence. According to the Supreme Court in People vs.

Tulugan, G.R. No. 227363, March 12, 2019, it is erroneous to claim
that acts of lasciviousness can no longer be prosecuted under the
Revised Penal Code. The decriminalization of acts of lasciviousness,
as per Justice Leonen's theory, would not sufficiently be supplanted
by RA No. 7610 and RA No. 9262. Section 4 of RA No. 8353 did not
expressly repeal Article 336 of the Code; it only states that Article 336
of the Code inconsistent with or contrary to the provisions thereof are
deemed amended, modified or repealed, accordingly. There is nothing
inconsistent between the provisions of Article 336 of the Code, and
RA No. 8353, except some acts of lasciviousness (e.g. sodomy) are
now punishable as sexual assault. Article 336 of the Code is still a
good law despite the enactment of RA No. 8353 for there is no
irreconcilable inconsistency between their provisions. When the
lascivious act does not constitute rape or sexual assault under RA
No. 8353, then Article 336 of the Code on acts of lasciviousness is
applicable.
Variance rule - If the crime charged is rape, but the crime

proven is acts of lasciviousness, the accused will be convicted of the
latter because of the variance rule. Acts of lasciviousness is a lesser
crime, which is necessarily included in the charge of rape.
If the crime charged is rape, but the crime proven is sexual

assault, the accused cannot be convicted of the latter. The variance
rule is not applicable since sexual assault is not necessarily included
in the charge of rape. The elements of these two crimes are materially
and substantially different. (People vs. Dereco, G.R. No. 243625,
December 02, 2020) In such case, the accused will be convicted of
acts of lasciviousness (People vs. Pareja, GR No. 202122, January 15,
2014; People vs. Caoili, G.R. No. 196342, August 08, 2017); or acts
of lasciviousness under RPC in relation to RA No. 7610 (People vs.
Dagsa, G.R. No. 219889, January 29, 2018); or lascivious conduct
under RA No. 7610 (People vs. ZZZ, G.R. No. 224584, September 04,
2019). Acts of lasciviousness or lascivious conduct is necessarily
included in the charge of rape.
If the crime charged is acts of lasciviousness, but the crime

proven is sexual assault, he will be convicted of the lesser crime of
acts of lasciviousness. Sexual assault is a crime undoubtedly greater
than acts of lasciviousness. While it is true that the crime of acts of
lasciviousness is necessarily included in the crime of sexual assault,
the crime of sexual assault however is not subsumed in the crime of
acts of lasciviousness. (People vs. Jagdon, Jr., G.R. No. 242882,
September 09, 2020)
If the information alleged the elements of both sexual assault

and rape, and the crime proven is sexual assault, the accused can be
convicted of sexual assault. In People vs. Fruelda, G.R. No. 242690,
September 3, 2020, AAA testified that while accused was moving his
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finger in and out of her private part through the opening of her pants'
zipper, he took out his penis and massaged the same. Shortly
thereafter, AAA lost consciousness. When she woke up, she was
seated on the floor with her underwear and pants pulled down to her
knees. Based on the foregoing, the crime committed by accused is
sexual assault. Although it is possible that accused had carnal
knowledge of AAA while the latter was unconscious, he cannot be
convicted of the crime of rape by carnal knowledge based on a mere
possibility. Note: In this case, the information alleged the elements of
sexual assault and rape.
Double jeopardy - The Regional Trial Court convicted the

accused of attempted rape. Finding that there is no intent to have
sex, the Court of Appeals modified the decision of the lower court and
downgraded the conviction to acts of lasciviousness. By convicting
the accused of acts of lasciviousness, the Court of Appeals technically
acquitted the accused of attempted rape, which is already final and
unappealable. Thus, double jeopardy has already set in and Solicitor
General is already barred from assailing his acquittal of attempted
rape. (People vs. Arcega, G.R. No. 237489, August 27, 2020) In sum,
the Supreme Court cannot upgrade the conviction from acts of
lasciviousness to attempted rape if the petition for review was filed
by the people through the Office of the Solicitor General.
The Regional Trial Court convicted the accused of sexual

assault with the qualifying circumstance that the victim is under 7
years old. Finding lack of insertion of the finger of the accused into
the vagina of the victim, the Court of Appeals downgraded the
conviction to attempted qualified sexual assault, and sentenced him
to suffer a maximum penalty of 4 years and 2 months of prision
correccional. Finding lack of intent to insert his finger into her vagina,
the Supreme Court convicted the accused of acts of lasciviousness
under RA No. 7610 and sentenced the accused to suffer a maximum
penalty of 15 years, 6 months and 20 days of reclusion temporal
(Lutap vs. People, G.R. No. 204061, February 5, 2018) Since the
penalty for acts of lasciviousness under RA No. 7610 is higher than
that for attempted qualified sexual assault, the Supreme Court in
effect upgraded the conviction of the accused. In sum, the Supreme
Court can upgrade the conviction if the petition for review was filed
by the accused.
Accused should not appeal for the shake of appealing. If the

accused through his counsel appealed his case or filed a petition for
review, he is waiving his right against double jeopardy and exposing
himself to a possible upgrading of his conviction. In the case of Lutap,
the Supreme Court increases the penalty from a probationable
penalty of prision correccional to a non-probationable penalty
of reclusion temporal.
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DEPRIVATION OF LIBERTY - Failure to judicially charge

within the prescribed period renders the public officer effecting the
arrest liable for the crime of delay in the delivery of detained persons
under Article 125 of the Revised Penal Code. If the warrantless arrest
was without any legal ground, the arresting officers become liable
for arbitrary detention under Article 124. However, if the arresting
officers are not among those whose official duty gives them the
authority to arrest, they become liable for illegal detention under
Article 267 or 268. If the arrest is for the purpose of delivering the
person arrested to the proper authorities, but it is done without any
reasonable ground or any of the circumstances for a valid
warrantless arrest, the arresting persons become liable for unlawful
arrest under Article 269. (Duropan vs. People, G.R. No. 230825, June
10, 2020, Justice Leonen)
Offender in arbitrary detention and illegal detention -

Arbitrary detention is committed by a public officer, who has the
authority to arrest and detain a person. Thus, a police officer, judge
or mayor can commit arbitrary detention. On the other hand, illegal
detention is committed by private individual. A public officer (e.g.,
stenographer) who has no authority to arrest or detain a person, is a
private individual for purpose of illegal detention since he committed
the act in his private capacity. (Duropan vs. People, G.R. No. 230825,
June 10, 2020, Justice Leonen) But although a public officer (e.g.,
police officer) has the authority to arrest and detain a person, he can
be considered as a private individual for purpose of illegal detention
if the crime is committed in his private capacity. (People v. Santiano,
G.R. No. 123979, December 3, 1998)
The accused can be held liable for arbitrary detention if the

following circumstances concur (1) he is a public officer, who has the
authority to arrest or detain a person; (2) he committed the act in his
official capacity; (3) the mind of the accused police officer is to
investigate or prosecute the victim for being a criminal suspect; and
(4) the arrest was made without legal grounds in violation of the
constitutional right of the suspect against unreasonable seizure. If
the mind of the police officer is to kill or kidnap the criminal suspect
for ransom, he is not liable for arbitrary detention. Detention will be
treated has having been committed in his private capacity.
The element of “in pursuit of his duty to arrest” in arbitrary

detention is present if the purpose of the arrest is: (1) To deliver the
suspect to judicial authority (U.S. v. Gellada, G.R. No. L-5151,
January 31, 1910); (2)To conduct criminal investigation (U.S. v.
Agravante, G.R. No. 3947, January 28, 1908); or (3) To determine if
the victim committed a crime. (U.S. v. Hawchaw, G.R. No. L-6909,
February 20, 1912)
Thus, a police officers, who detained a suspected drug trafficker

and demanded ransom payment, committed the criminal act in their
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private capacity. (People v. Gonzalez, Jr., G.R. No. 192233, February

17, 2016) Detaining any private person for the purpose of extorting
any amount of money could not, in any way, be construed as within
their official functions of police officers. Their badges or shields do
not give them immunity for any criminal act. (People vs. Popionco,
G.R. No. 200512, June 07, 2017, Justice Leonen) Hence, they are
liable for kidnapping for ransom and not arbitrary detention. Even
the subsequent prosecution of the kidnapped victim for sale of
dangerous drugs does not negate the criminal liability of the accused
for the crime the latter committed against the former. (People vs.
Borja, G.R. No. 199710, August 02, 2017, Justice Leonen)
In People v. PO1 Trestiza, G.R. No. 193833, November 16, 2011,

the public prosecutor filed a motion to withdraw information for
kidnapping before the trial court and filed a new one for robbery.
According to the public prosecutor, the accused, a police officer,
cannot be charged with kidnapping because the crime may only be
committed by private individuals. The trial court denied the motion
to withdraw. It examined the Pre Operation/Coordination Sheet
presented by the defense and found that it was neither authenticated
nor its signatories presented in court. The defense failed to show
proof of a "legitimate police operation" and, based on Santiano, the
accused were deemed to have acted in a private capacity in detaining
the victims. The Supreme Court affirmed the conviction of the police
officers for kidnapping.
In People v. Santiano, G.R. No. 123979, December 3, 1998, it

was held that the fact that they are police officers would not exempt
them from the criminal liability for kidnapping instead of arbitrary
detention. Taking the prisoner to a secluded place for purposes of
detaining and maltreating him constitutes kidnapping and serious
illegal detention qualified by the circumstance of serious physical
injuries. Arbitrary detention is not committed since the accused did
not commit the act in furtherance of official function or in the pursuit
of authority vested in them. In sum, they committed the act in their
purely private capacity.
In Osorio v. Navera, G.R. No. 223272, February 26, 2018

(Justice Leonen), it was held that it is not impossible for a public
officer to be charged with and be convicted of kidnapping as Santiano
and Trestiza illustrated. Thus, a soldier, who abducted a UP student
and detained her at military camps, barangay hall and a resort or
safehouse, can be charged with kidnapping and serious illegal
detention. The civil court and not military court has jurisdiction over
the case since this crime is not service connected. Kidnapping should
never be part of the functions of a soldier. It cannot be done in a
soldier's official capacity.
Other view: In People vs. Dongail, G.R. No. 217972, February

17, 2020, accused, policemen taken the victims, who were the
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subject of surveillance for alleged involvement in the illegal drug

trade. The victims were brought of various motels and interrogated
them before finishing them off. It was held: The victims were detained
for fifteen days before getting killed. Hence, when the three were
abducted and placed in the custody of accused, the felony of arbitrary
detention had already been consummated. The elements of arbitrary
detention were present because accused were police officers who
deprived the three victims of liberty on a mere surveillance and
without legal grounds. Thereafter, when they were boxed, kicked,
pistol-whipped and ultimately shot at a close range, while being
handcuffed and without means to defend themselves, another
separate crime of murder was committed. Therefore, a conviction for
the separate crimes of arbitrary detention and murder was in order.
Dongail case is not compatible with Trestiza case, Santiano case,

Osorio case. If the principle in Trestiza, Santiano, and Osorio was
followed in the Dongail case, the accused should have been charged
and convicted of special complex crime of kidnapping with murder.
ARREST – Arrest is the taking of a person into custody in order

that he may be bound to answer for the commission of an offense. It
is "an actual restraint of a person to be arrested, or by his submission
to the custody of the person making the arrest. There need not be an
actual restraint for curtailment of liberty to be characterized as an
"arrest. Although denominated as requests, invitations from high-
ranking officials to a hearing in a military camp were deemed arrests.
(Duropan vs. People, supra, Justice Leonen)
Arrest and invitation - Although denominated as requests,

invitations from high-ranking officials to a hearing in a military camp
were deemed arrests. This Court characterized them as authoritative
commands which may not be reasonably expected to be defied.
(Sanchez vs. Demetriou, G.R. Nos. 111771-77 November 9, 1993)
When the accused is in an environment made hostile by the

presence and actuations of law enforcers where it can be reasonably
inferred that they had no choice except to willingly go with them, then
there is an arrest. The subjective view of the accused will be
relevant—which includes among others—their station in life and
degree of education. (Duropan vs. People, supra, Justice Leonen)
In People v. Milado, G.R. No. 147677, December 1, 2003,

accused was carrying bricks of marijuana in his backpack aboard a
jeepney. Acting upon an information that there was a person
transporting marijuana in the jeepney, the police officers set up a
checkpoint. In the checkpoint, the police identified accused and told
him to stay inside the jeepney. They subsequently brought him to the
police station, where they ordered him to open his bag where the
marijuana was kept. Although no "formal arrest" had yet been made,
it is clear that appellant had already been deprived of his liberty and
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taken into custody after the policemen told him to stay inside the
jeepney and instructed the driver to drive them to the police station.
The term "invited" may have been used by the police, but it was
obviously a command coming from three law enforcers who appellant
could hardly be expected to defy.
An arrest although described as a mere invitation to the police

station, can be a source of unlawful arrest or arbitrary detention.
Arrest with legal grounds - If a person arrested another person

with legal ground, he is not committing a crime since the
apprehension is made in accordance with Section 5, Rule 113 of the
Rules of Criminal Procedure.
Arrest without legal grounds - Intent to deliver a person to

judicial authority is established if the offender brought him to the
police station for investigation. In other words, arresting a person or
arresting in the form of invitation is an evidence that the offender has
the intention to make a judicial delivery of the arrestee. If the
offender, arrested a person without legal grounds, the crime of illegal
detention should be ruled out. The act of conducting the
apprehended persons to the proper authorities takes the offense out
of the crime of illegal detention. (Duropan vs. People, G.R. No.
230825, June 10, 2020, Justice Leonen) However, the person, who
arrested the suspect without legal grounds, is liable for arbitrary
detention or unlawful arrest.
If the offender is a public officer with authority to arrest and

detain a person, the crime committed is arbitrary detention. (U.S. v.
Gellada, G.R. No. L-5151, January 31, 1910; U.S. v. Agravante, G.R.
No. 3947, January 28, 1908) If the offender is a private individual or
a public officer without authority to arrest and detain a person, the
crime committed is unlawful arrest.
In US vs. Fontanilla, G.R. No. 4580, September 7, 1908,

accused found complainant, and several laborers tilling his land. One
of the complainants insisted that the land was his brother's. A fight
ensued, which ended when accused captured and tied complainants
with a rope. He then brought them to the municipal jail. It was held
that the fact that the accused, after he had apprehended the
complainants, immediately conducted them to the municipal jail,
and thus turned them over to the authorities, takes the offense out
of that provision on illegal detention and brings it within the purview
of provision on unlawful arrest.
In Duropan vs. People, supra, (Justice Leonen), Accused were

barangay kagawad and barangay tanod. Complainants are members
of Alimango cooperative, which is authorized to develop, utilize, and
protect a mangrove-nipa area. Its members cut, gather, and weave
nipa palms. Accused saw complainants harvesting nipa palm and
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asked them who gave authority to harvest. Pacis, one of the

complainants, replied that they were Alimango members. The
accused arrested them and brought them to Police Station. They are
liable for unlawful arrest. Barangay kagawad and barangay tanod are
person in authority and agent of a person in authority, respectively.
They are not the public officers whose official duty is to arrest or detain
persons. They arrested complainants without legal grounds. Upon
hearing a reasonable explanation as to why Pacis was harvesting the
nipa leaves, accused had no reason to suspect any wrongdoing.
Accused knew Pacis and are familiar with ALIMANGO. Since it was
easy to verify if he was indeed a member of the group, prudence
dictated that they first investigate. Had it turned out that he was not
a member, a warrant of arrest could have been obtained as they
witnessed the commission of the crime.
FALSIFICATION – Commercial documents such as promissory

note and check are, in general, documents or instruments which are
"used by merchants or businessmen to promote or facilitate trade or
credit transactions (Tanenggee vs. People, G.R. No. 179448 June 26,
2013).
Falsification of a public document is consummated upon the

execution of the false document. What is punished in falsification of
public document is principally the undermining of the public faith
and the destruction of truth as solemnly proclaimed therein. The fact
that accused did not benefit from, or that the public was not
prejudiced by the falsified resolution is not a defense (Goma vs. CA,
G.R. No. 168437, January 08, 2009).
Making it to appear - In Constantino vs. People, G.R. No.

225696, April 08, 2019, Justice Leonen accused, a notary public,
was charged of falsification of document by making it appear that Dr.
Asuncion participated in execution of the acknowledgement of the
will and testament by signing it as a witness, where in fact he did not
sign it. However, it was established that DR. Asuncion at the urging
of Ferrer, his son-in-law, signed the acknowledgement after the
notarization. Therefore, it was not accused who made it appear that
Dr. Asuncion participated in the execution of the Joint
Acknowledgment, but Ferrer and Dr. Asuncion himself. Accused is
not liable for falsification of document. However, accused should be
administratively sanctioned for failure to cross out Dr. Asuncion's
name when he notarized the Joint Acknowledgment, which has
allowed Dr. Asuncion to still sign the document despite not having
participated in its due execution.
Untruthful statement - Accused, a public officer, issued

Temporary Operating Permit to his own son, and made an untruthful
statement on the birthday of his son to make it appear that his son
is of legal age. Accused insists on his plea that he had no malicious
or wrongful intent to injure a third person. He was convicted of
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falsification of public document. Intent to gain or intent to injure is

not an element of the crime of falsification of public document. Thus,
lack of intent to gain or injure is not a valid defense. (Liwanag vs.
People, G.R. No. 205260, July 29, 2019)
Prosecution need not identify a specific law under which the

accused has the obligation to disclose the truth. To convict the
accused for falsification of document involving making an untruthful
statement, what is important is that he has a legal obligation to
disclose the truth. In Manansala vs. People, G.R. No. 215424,
December 9, 2015, the accused made an untruthful statement in
petty cash replenishment report of a private corporation. The accused
was convicted of falsification of private document because he has a
legal obligation to disclose the truth in a report.
Notary public - The element that “the notary public takes

advantage of his official position” is presumed when the falsity
allegedly committed by him pertains to the notarization, since only
notaries public have the duty and authority to notarize documents.
(Constantino vs. People, G.R. No. 225696, April 08, 2019, Justice
Leonen)
Bank officer - If the accused is an employee or officer of the

bank other than the president, e.g., bank manager, and he made a
fictitious loan by falsifying loan application, check and other
commercial document, he is liable for complex crime of estafa by
means of false pretense through falsification of commercial
documents. (Tanenggee v. People, G.R. No. 179448, June 26, 2013)
If the accused is a president of the bank, and he made a

fictitious loan by falsifying loan applications and other commercial
documents, he could be held liable either for (1) complex crime of
estafa by means of false pretense through falsification of commercial
documents; or (2) complex crime of estafa by misappropriation
through falsification of commercial documents.
In Soriano vs. People, G.R. No. 240458, January 8, 2020, the

bank president made fictitious loans by falsifying loan applications
and other commercial documents. The accused used the proceeds
thereof for his personal benefit. He falsified commercial documents
by making it appear that a fictitious borrower is securing loan from
the bank. He used these falsified documents to defraud the bank to
release the money. He is liable for complex crime of estafa by means
of false pretense through falsification of commercial documents.
In People v. Go, G.R. No. 191015, August 6, 2014, the bank

president made fictitious loans by falsifying loan applications and
other commercial documents. The accused used the proceeds thereof
for his personal benefit. The bank president has obligation to
administer the bank fund in a fiduciary capacity. The bank is still the
54 | P a g e
owner of the money despite the transfer thereof to the accused. By

using the money to pay his creditors, he committed estafa through
misappropriation. Since falsification of commercial documents is a
necessary means to misappropriate the money, he was convicted of
a complex crime of estafa by misappropriation through falsification
of commercial documents.
Estafa through falsification of document - When the offender

commits on a public, official or commercial document any of the acts
of falsification enumerated in Article 171 as a necessary means to
commit another crime like estafa, theft or malversation, the two
crimes form a complex crime proper (Tanenggee vs. People, G.R. No.
179448 June 26, 2013; Arias vs. People, G.R. Nos. 237106-07, June
10, 2019)
Assistant Director of the Bureau of Equipment of DPWH,

falsified official documents to defraud the DPWH into paying the
claims for fictitious emergency repairs or purchase of spare parts.
Malversation is not committed since the accused is not an
accountable officer. Falsification of document is a necessary means
to commit estafa through false pretense since the accused used the
falsified official documents to defraud DPWH. Accused is liable for
complex crime of estafa through falsification of public document.
(Arias vs. People, G.R. Nos. 237106-07, June 10, 2019)
The falsification of a public, official, or commercial document

may be a means of committing estafa, because before the falsified
document is actually utilized to defraud another, the crime of
falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of
public, official or commercial document. In other words, the crime of
falsification has already existed. Actually, utilizing that falsified
public, official or commercial document to defraud another is estafa.
But the damage is caused by the commission of estafa, not by the
falsification of the document. Therefore, the falsification of the public,
official or commercial document is only a necessary means to commit
estafa (Tanenggee vs. People, G.R. No. 179448 June 26, 2013; People
v. Go, G.R. No. 191015, August 6, 2014; Dela Cruz vs. People, G.R.
No. 236807, January 12, 2021)
In complex crime of estafa through falsification of a commercial,

public or official document, before the falsified document is actually
used to defraud the victim, the crime of falsification has already been
consummated since damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial
document. In other words, the crime of falsification has already
existed. Using that falsified public, official or commercial document
to defraud another is estafa. But the damage is caused by the
commission of estafa, not by the falsification of the document.
(Desmoparan vs. People, GR. No. 233598, March 27, 2019)
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FALSIFICATION AND OTHER CRIMES – If the offender

committed falsification of document and other crimes, the following
rules should be observed:
1. Complex crime - When falsification of public, official or

commercial document is a necessary means to commit malversation
(People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin
vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate
Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010;
Ambito vs. People, G.R. No. 127327, February 13, 2009, Tanenggee
vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs.
Salonga, G.R. No. 131131, June 21, 2001), offender is liable for a
complex crime under Article 48 of RPC.
2. Separate crimes – When falsification of public, official or

commercial document is not a necessary means to commit other
crimes, this is not a complex crime. Thus, when falsification of public,
official or commercial document is a merely a means to conceal
malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54,
January 20, 1978; People vs. Villanueva, G.R. No. 39047, October 31,
1933), estafa (People vs. Monteverde, G.R. No. 139610, August 12,
2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft,
the crimes are separate.
3. Common element doctrine – Under the common element

doctrine, the use of damage as an element of falsification of private
document precludes the re-use thereof to complete the elements of
estafa, and vice versa.
Damage is an element of estafa; damage is also an element of

falsification of private document; hence, the comment element
principle is applicable since damage is a common element of both
crimes. Damage is an element of estafa; however, damage is not an
element of falsification of public, official or commercial document;
hence, the comment element principle is not applicable since damage
is not a common element of both crimes. Damage is an element of
falsification of private document; however, damage is not an element
of malversation; hence, the comment element principle is not
appliable since damage is not a common element of both crimes. In
sum, common element doctrine is only applicable if the crimes
committed are falsification of private document and estafa.
In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015,

the Governor caused the falsification of private letter requesting for
financial assistance. He was able to use this falsified private
document to release public funds to a fictitious beneficiary. Applying
Article 48, since falsification of private document is a necessary
means to commit malversation, he is liable for complex crime of
malversation through falsification of private document. Note: The
56 | P a g e
Supreme Court did not apply common element doctrine since

damage is not an element of malversation.
If the common element principle is applicable, the accused is

liable for falsification of private document or estafa. When
falsification of private document is a necessary means to commit
estafa, the crime committed is falsification. When falsification of
private document is not a means to commit estafa, the crime
committed is estafa. (People vs. Co, G.R. No. 233015, October 16,
2019)
If the falsification of a private document (demand letter, letter of

guarantee, payroll of private company or billing statement) is
committed as a means to commit estafa, the crime committed is
falsification only. Under the common element doctrine, the use of
damage as an element in falsification of private document precludes
the re-use thereof to complete the elements of estafa. Hence, estafa
is not committed because the element of damage is not present. There
is no complex crime of estafa through falsification of private
document. (Batulanon vs. People, G.R. No. 139857, September 15,
2006; U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People
vs. Reyes, G.R. No. L-34516, November 10, 1931; People vs. Co, G.R.
No. 233015, October 16, 2019)
If a person commits falsification of private document (e.g.,

unofficial receipt) to conceal estafa, the crime is estafa only. Under
the common element doctrine, the use of damage as an element in
estafa precludes the re-use thereof to complete the elements of
falsification. Hence, estafa is not committed because the element of
damage is not present (See: People vs. Beng, 40 O.G. 1913).
USE OF FALSIFIED DOCUMENT - The crime of use of falsified

document, the person who used the forged document is different from
the one who falsified it. If the one who used the falsified document is
the same person who falsified it, the crime is only falsification and
the use of the same is not a separate crime. Falsification of a public
document and use of false document by the same person who
falsified it constitute but a single crime of falsification. (Jayme vs.
People, G.R. No. 248827, August 27, 2020)
MALVERSATION - For purpose of malversation, national officer

shall be considered as an accountable officer if he has custody or
control of public property by reason of the duties of his office
(Government Auditing Code of the Philippines). The Local
Government Code expanded the concept of accountable local officer.
Local officer shall be considered as an accountable officer if he has
possession or custody of local government funds because of the
nature of their functions such a treasure or has participated in the
57 | P a g e
use or application of thereof. All public officials whose signatures

were necessary for disbursement of funds are accountable officers.
The signatures of Vice-Governor and Provincial Accountant are

needed to disburse funds of local government. Hence, they are
accountable officers. (Zoleta vs. Sandiganbayan, G.R. No. 185224,
July 29, 2015) The management and audit analyst of the province
certified that the supporting documents were complete, the provincial
treasurer certified the availability of funds and approved the
disbursement, and the Governor signed them before a check could be
approved for disbursement. Hence, they are accountable officers.
(Escobar vs. People, G.R. No. 205576, November 20, 2017, Justice
Leonen) A mayor, whose signature is needed to disburse municipal
funds, is an accountable officer. (Manuel vs. Hon. Sandiganbayan,
G.R. No. 158413, February 08, 2012)
Under Government Auditing Code of the Philippines, a

management and audit analyst of the province, whose duty is to
certify that the supporting documents for the disbursement of funds
are complete is not an accountable officer because he has no custody
or control of the provincial fund. However, under the Local
Government Code, he is an accountable officer because he will
participate in the use or application of this fund.
In Escobar vs. People, G.R. No. 205576, November 20, 2017

(Justice Leonen), the governor, treasurer, management and audit
analyst, administrator, board member and executive assistant are
charged with malversation through falsification of documents
(disbursement voucher and supporting documents e.g. request for
financial assistance). The governor, treasurer and management and
audit analyst are accountable officers since they participated in the
disbursement of public funds. On the other hand, administrator,
board member and executive assistant are not accountable officers.
If there is conspiracy between the accountable officers and non-
accountable officers, they are liable for complex crime of malversation
through falsification of documents. However, in this case there is no
conspiracy. The accountable officers (governor, treasurer,
management and audit analyst) were not aware that the beneficiary
of financial assistance is fictitious. Hence, they are liable for
malversation through negligence since they participated in
disbursement of funds without verifying the authenticity of the
documents despite the fact that the payee in the voucher is different
from the one who requested financial assistance. They are not liable
for falsification of documents since they are not aware that the
supporting documents are falsified. The administrator, board
member and executive assistant are not liable for malversation since
they are not accountable officers. However, they are liable for
complex crime of estafa through falsification of documents. They
falsified documents (request letter and project proposal) in support
of the disbursement of funds as a necessary means to defraud the
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Province. Although they are charged with malversation through

falsification of documents, they can be convicted of estafa through
falsification of document because the latter is necessarily included in
the former.
Malversation is committed either intentionally or by negligence.

The dolo or the culpa is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is still committed. (Mesina vs. People,
G.R. No. 162489, June 17, 2015) A possible exception would be when
the mode of commission alleged in the particulars of the indictment
is so far removed from the ultimate categorization of the crime that it
may be said that due process was denied by deluding the accused
into an erroneous comprehension of the charge against him or her.
Here, the said exception is not present. Accused was not prejudiced
nor does it appear that she failed to comprehend the crime charged
against her. Thus, accused was not deprived of due process. (Corpuz
vs. People, G.R. No. 241383, June 08, 2020)
TUMULTUOUS AFFRAY - Physical injuries inflicted in a

tumultuous affray is committed by person or persons identified as
responsible for using violence upon a participant of a tumultuous
affray, who suffered serious or less serious physical injuries
committed by an unidentified person in the course thereof. (Article
252 of RPC)
The provision on physical injuries inflicted in tumultuous affray

is an evidentiary measure designed to remedy a situation where the
participant thereof, who inflicted serious or less serious physical
injuries upon the victim, was not identified because of the confusion.
Since there is uncertainty on whether the one, who employed violence
against the victim, committed serious or less serious physical injuries
or merely slight physical injuries, the former will be punished for
physical injuries inflicted in a tumultuous affray with a penalty lesser
than that for serious or less serious physical injuries.
Failure to identify the offender who inflicted less serious physical

injury upon victim is an important element of physical injuries
inflicted in a tumultuous affray. If the accused is positively identified
as a person, who inflict the injuries on the victim, the former is not
entitled to the lesser penalty prescribed for physical injuries inflicted
in a tumultuous affray. In such a case, there is no confusion, which
is the essence of tumultuous affray. Hence, accused is liable for the
graver crime of less serious physical injuries (Lacson vs. People, G.R.
No. 243805, September 16, 2020)
ESTAFA – The return by the accused of money belonging to the

private complainant will not reverse a consummated act of Estafa.
Quite the contrary, such action may even uphold a conviction.
Section 27, Rule 130 of the Rules of Court states that in criminal
59 | P a g e
cases, except those involving quasi-offenses or criminal negligence or

those allowed by law to be compromised, an offer of compromise by
the accused may be received in evidence as an implied admission of
guilt. In this case, Arriola's initial attempts to reimburse Del Rosario
through checks, coupled with the actual return of the latter's money
after the RTC issued its judgment of conviction, may all be considered
as unequivocal gestures to compromise and which can be measured
against Arriola as his implied admission of guilt. (Arriola vs. People,
G.R. No. 199975, February 24, 2020)
OTHER DECEIT - For one to be liable for “other deceits” under

Article 318, it is required that the prosecution must prove the
following essential elements: (a) false pretense, fraudulent act or
pretense other than those enumerated in Articles 315, 316, and 317;
(b) such false pretense, fraudulent act or pretense must be made or
executed prior to or simultaneously with the commission of the
fraud; and (c) as a result, the offended party suffered damage or
prejudice. It is essential that such false statement or fraudulent
representation constitutes the very cause or the only motive for the
private complainant to part with her property. (Guinhawa v. People,
G.R. No. 162822, August 25, 2005)
Article 318 includes any kind of conceivable deceit other than

those enumerated in Articles 315 to 317 of the Revised Penal Code.
It is intended as the catchall provision for that purpose with its broad
scope and intendment. (Guinhawa v. People, ibid.) In estafa under
Article 315, the false representation is committed by using fictitious
name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits. Following the
principle of ejusdem generis, other deceit as a means to commit estafa
must be similar to pretending to possess power, imaginary
transaction etc. If the deceit is not similar to pretending to possess
power or imaginary transaction, the crime committed is other deceit
under Article 318.
In Guinhawa v. People, supra, fraudulent representation of the

seller that the van to be sold is brand new constitutes other deceit
under Article 318. On the other hand, in People v. Rubaton, C.A., 65
O.G. 5048, issue of May 19, 1969, false representation that accused
has a palay by reason of which the victim parted his money in
consideration of the palay constitutes estafa under Article 315.
Unlike in the Guinhawa case, the transaction in Rubaton case is
imaginary.
In Osorio vs. People, G.R. No. 207711, July 02, 2018 (Justice
Leonen), Accused as an agent of Philam Life was authorized to solicit
money for investment purposes. However, he misrepresented to
private complainant that the latter's money would be invested in
Philam Life Fund Management and that its proceeds may be utilized
60 | P a g e
to pay for private complainant's insurance premiums. Private

complainant parted with her funds because of the representation
that her investment's earnings would be conveniently channeled to
the payment of her insurance premiums. The false representations
committed by accused is not within the contemplation of the words
“other similar deceits" in Article 315 of RPC on estafa. Same as the
case of Guinhawa, the misrepresentation is not similar to imaginary
transaction. However, he is criminally liable for the crime of other
deceit under Article 318 of RPC. Article 318 is broad in scope
intended to cover all other kinds of deceit not falling under Articles
315, 316, and 317.
Hypothetically, if the accused is not an agent of Philam Life, but

he falsely represented himself as agent, he is liable for estafa since
the investment transaction is imaginary.
THEFT – A tenant is entitled to the products of the land he or

she cultivates. The landowner's share in the produce depends on the
agreement between the parties. Hence, the harvesting done by the
tenant is with the landowner's consent. The existence of the DARAB
Decision adjudicating the issue of tenancy between accused and
complainant negates the existence of the element that the taking was
done without the owner's consent. The DARAB Decision implies that
accused had legitimate authority to harvest the abaca. The
prosecution, therefore, failed to establish all the elements of theft.
(Ligtas vs. People, G.R. No. 200751, August 17, 2015, Justice
Leonen)
Value of the stolen property - The value of jewelry is not a

matter of public knowledge nor is it capable of unquestionable
demonstration and in the absence of receipts or any other competent
evidence besides the self-serving valuation (P1 million) made by the
complainant, the courts may either apply the lowest penalty under
Article 309 or fix the value of the property taken based on the
attendant circumstances of the case. In this case, the court imposed
the lowest penalty (People vs. Mejares, G.R. No. 225735, January 10,
2018, Justice Leonen).
Domestic servant - The rationale for the imposition of a higher

penalty against a domestic servant is the fact that in the commission
of the crime, the helper will essentially gravely abuse the trust and
confidence reposed upon her by her employer. After accepting and
allowing the helper to be a member of the household, thus entrusting
upon such person the protection and safekeeping of the employer's
loved ones and properties, a subsequent betrayal of that trust is so
repulsive as to warrant the necessity of imposing a higher penalty to
deter the commission of such wrongful acts. (People vs. Mejares, G.R.
No. 225735, January 10, 2018, Justice Leonen)
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THEFT AND ROBBERY - Snatching of the shoulder bag without

violence or intimidation constitutes the crime of theft, not robbery.
For the requisite of violence to obtain in cases of simple robbery, the
victim must have sustained less serious physical injuries or slight
physical injuries in the occasion of the robbery. The fact that the
necklace was "grabbed" did not automatically mean that force
attended the taking. (Del Rosario vs. People, G.R. No. 235739, July
22, 2019)
THEFT AND ESTAFA THROUGH MISAPPROPRIATION –

Misappropriation of property may constitute theft or estafa
depending upon the character of the possession.
Physical possession - If the accused received the property with

the consent of the owner but he merely acquired physical possession
in doing so, misappropriation shall be considered as taking without
consent; hence, the crime committed is theft (U.S. v. De Vera, G.R.
No. L-16961, September 19, 1921) or qualified theft (People v.
Tanchanco, G.R. No. 177761 April 18, 2012).
A franchise holder must personally operate the motor vehicle.

That is the reason why government regulation prohibits operator of
motor vehicle from leasing it. In the eye of the law the driver of taxi
or passenger jeepney under boundary arrangement was only an
employee of the owner rather than a lessee. For being an employee,
his possession of the jeepney is physical (People v. Isaac G.R. No. L-
7561, April 30, 1955), and thus, misappropriation thereof is
carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004).
Legal possession - If the accused received the property with the

consent of the owner and he acquired legal possession in doing so by
virtue of trust, commission, administration or obligation involving
the duty to make delivery or return such as lease, deposit,
commodatum, or quasi-contract, misappropriation shall be
considered as estafa through conversion or misappropriation (Chua-
Burce vs. CA, G.R. No. 109595, April 27, 2000; D’Aigle vs. People,
G.R. No. 174181, June 27, 2012).
Employee - As a rule, the possession of the employee such as

bank teller, collector or cash custodian is only physical. Hence,
misappropriation of property is qualified theft. Abuse of confidence is
present since the property is accessible to the employee (Chua-Burce
vs. CA, G.R. No. 109595, April 27, 2000; People vs. Tanchanco, G.R.
No. 177761 April 18, 2012; People vs. Santos, G.R. No. 237982,
October 14, 2020). However, if the employee is an officer of the
company with discretion on how to use property or fund of the
company to further its interest, his possession is juridical; hence,
misappropriation thereof is estafa. Thus, the following officers are
liable for estafa for misappropriating company property: a. A bank
president who held the money in trust or administration for the bank
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in his fiduciary capacity with discretion on how to administer such fund

(People vs. Go, G.R. No. 191015, August 6, 2014); b. A corporate
treasurer who received the money for safe-keeping and
administration (U.S. vs. Sevilla, G.R. No. 18056, March 16, 1922; c.
A corporate officer with discretion option on how to use bending
machine without the participation of the corporation (D’Aigle vs.
People, G.R. No. 174181, June 27, 2012). However, in Remo vs.
Devanadera, G.R. No. 192925, December 9, 2016, the Supreme
Court ruled that the directors of a corporation have no juridical
possession over the corporate funds.
Partner - Misappropriation by the industrial partner of the

share of the capitalist partner (People vs. Clemente, CA, 65 OG 6892)
or the partnership fund to be used in buying and selling mango
(People vs. Dela Cruz, G.R. No. 21732, September 3, 1924) is estafa.
Theft is not committed (US vs. Reyes, G.R. No. 2867, September 11,
1906) because possession of the industrial partner over the same is
juridical (People vs. Tan Tay Cuan, CA, 57 OG 6964).
In US vs. Clarin, G.R. No. 5840, September 17, 1910, four

individuals entered into a contract of partnership for the business
of buying and selling mangoes. When one of the partners demanded
from the other three the return of his monetary contribution, the
Supreme Court ruled that "the action that lies with the capitalist
partner for the recovery of his money is not a criminal action
for estafa, but a civil one arising from the partnership contract for a
liquidation of the partnership and a levy on its assets, if there should
be any. Simply put, if a partner demands his money back, the duty
to return the contribution does not devolve on the other partners; the
duty now belongs to the partnership itself as a separate and distinct
personality.
In 1997, a case with circumstances similar to the Clarin case

was decided differently. In Liwanag v. Court of Appeals, G.R. No.
114398 October 24, 1997, three individuals entered into a contract
of partnership for the business of buying and selling cigarettes. They
agreed that one would contribute money to buy the cigarettes while
the other two would act as agents in selling. When the capitalist
partner demanded from the industrial partners her monetary
contribution because they stopped informing her of business
updates, this time, this Court held the industrial partners liable
for estafa.
In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the
Supreme Court ruled that said the OCP erred gravely when it
dismissed the case based on the Clarin case, which has already been
superseded by Liwanag case. Liwanag applies to
the partnership agreement executed between petitioner and
respondent. Petitioner's initial contributions were all for specific
purposes: for the buying and selling of garments and for the salaries
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of the factory workers, respectively. When respondent failed to

account for these amounts or to return these amounts to petitioner
upon demand, there is probable cause to hold that respondent
misappropriated the amounts and had not used them for their
intended purposes. The Information for estafa should thus proceed.
Even assuming that a contract of partnership was indeed entered
into by and between the parties, when money or property had been
received by a partner for a specific purpose and he later
misappropriated it, such partner is guilty of estafa.
Ownership - If the accused received the property with the

consent of the owner and he acquired ownership in doing so by virtue
of a contract such as sale, mutuum or loan, failure to perform
obligation under such contract is neither theft nor estafa since the
same is purely civil in character (People vs. Montemayor, G.R. No. L-
17449, August 30, 1962).
In Ibanez vs. People, G.R. No. 198932, October 09, 2019, With
the transaction entered into by the parties being a sale, the accused
as the vendee did not receive the property subject of the sale in trust
or under an obligation to return. The parties' agreement to transfer
the title upon payment of the purchase price rather placed the
accused in the position of an owner and made him liable to the
transferor as a debtor for the agreed price; he was not merely an
agent who must account for the proceeds of a resale. The failure on
the part of the accused to pay the consideration in full only resulted
to the complainants being unpaid vendors. The former did not
thereby incur criminal liability for estafa, for the right of the
complainants as unpaid vendors was only to demand the fulfilment
or the cancellation of the obligation.
Seller failed to return advance payment to the buyer after

having incurred delay in the performance of obligation under a
contract of sale. The seller cannot be held liable for estafa through
misappropriation. In estafa through misappropriation, the offender
must have the obligation to return the very property that he received.
The seller acquired ownership over the money received as advance
payment. In case of failure to perform obligation under a sale contact,
the seller has no obligation to return to the buyer the very moneys
with the same serial numbers received as advance payment. In
returning the advance payment, the seller can use moneys with
different serial numbers. Hence, his obligation to return the advance
payment is merely civil in character. (People vs. Salazar, G.R. No.
149472, August 18, 2004) The Salazar case involved estafa through
misappropriation. Hence, the accused cannot use the Salazar
principle in a case involving estafa through false pretense. In this
case, accused misrepresented that he is authorized to sell a land
owned by Candelaria (a third person) to the complainant, where in
fact he is not authorized. He was convicted of estafa through false
pretense. (Arriola vs. People, G.R. No. 199975, February 24, 2020)
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Variance rule - In Chua-Burce vs. CA, G.R. No. 109595, April

27, 2000, Reside vs. People, G.R. No. 210318, July 28, 2020, and
Linunao vs. People, G.R. No. 194359, September 02, 2020, accused
are charged in the information with estafa through misappropriation.
However, the crime proven by evidence is qualified theft since the
accused in these three cases are employee, whose possession over
the money of his employer is merely physical. Thus, the accused
cannot be held liable for estafa through misappropriation because
juridical possession, which is an indispensable element thereof, is
lacking.
The facts in these three cases are the same. In these cases, the
Supreme Court acquitted the accused of estafa. But their treatments
on convicting the accused for theft are different. In Chua-Burce case,
the accused was not held liable for qualified theft. In sum, the Court
did not apply the variance rule. However, in Reside case, the
Supreme Court applied the variance rule and convicted the accused
of qualified theft. It was held it is proper to hold accused guilty of
qualified theft because the latter crime was necessarily included in
the crime charged in the information. Qualifying circumstance of
abuse of confidence, which is alleged in the information, was
appreciated. In Linunao case, the accused was convicted of simple
theft since the Information filed against her sufficiently alleged all the
elements of theft. Qualifying circumstance of abuse of confidence was
not appreciated since the same was not alleged in the information.
In my submission, the Chua-Burce case is the correct principle.

In these three cases, their respective informations do not allege
“taking without consent of the owner,” which is an indispensable
element of theft. Hence, it is improper to convict the accused of theft,
simple or qualified. Moreover, People vs. Balerta, G.R. No. 205144,
November 26, 2014, and People vs. Benabaye, G.R. No. 203466,
February 25, 2015, the Supreme Court re-affirmed the Chua-Burce
principle. Since in Reside case and Linunao case, the Supreme Court
is not sitting En Banc, it cannot abandon the Chua-Burce case,
Balerta case and Benabaye case.
However, for purpose of the 2021 Bar Examination, since

Reside case and Linunao case are recent Supreme Court decisions, it
is advisable to follow these cases.
CATTLE RUSTLING - Not all of the elements of cattle-rustling

were proven by the prosecution. The carabao transported by accused
was not sufficiently proven to be the same carabao owned by
complainants. Complainant’s description of the carabao is too
generic. He did not mention any distinguishing mark on the carabao
that accused allegedly stole. In other cases involving cattle-rustling,
the identity of the stolen cattle was proven with certainty because of
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distinguishing marks on the cattle. (Lopez vs. People, G.R. No.

212186, June 29, 2016, Justice Leonen)
SYNDICATED ESTAFA - The elements of syndicated estafa under

P.D. No. 1689 are: 1. Estafa or other forms of swindling under Articles
315 to 318 of RPCis committed; 2. It is committed by a syndicate of five
or more persons; and 3. Defraudation results in the misappropriation
of moneys contributed by stockholders, or members of rural banks,
cooperative, “samahang nayon,” or farmers’ associations, or of funds
solicited by corporations/associations from the general public. (People
v. Tibayan, G.R. Nos. 209655-60, January 14, 2015)
Syndicate - A syndicate is defined as consisting of five or more

persons formed with the intention of carrying out the unlawful or
illegal act, transaction, enterprise or scheme. In illegal recruitment,
trafficking in person and child pornography, a syndicate is only
composed of at least three offenders. In syndicated/organized crime
group, a syndicate is composed of at least two offenders.
In order for any group to be considered a syndicate under P.D.

No. 1689, the perpetrators of an estafa must not only be comprised
of at least five individuals but must have also used the association
that they formed or managed to defraud its own stockholders,
members or depositors. (Home Development Mutual Fund vs. Sagun,
G.R. No. 205698, July 31, 2018)
The swindling syndicate used the association that they manage

to defraud the general public of funds contributed to the association.
Indeed, PD No. 1689 speaks of a syndicate formed with the intention
of carrying out the unlawful scheme for the misappropriation of the
money contributed by the members of the association. In other
words, only those who formed or manage associations that receive
contributions from the general public who misappropriated the
contributions can commit syndicated estafa. (Home Development
Mutual Fund vs. Sagun, supra)
There are three requisites to consider a group of swindlers as a

syndicate under PD No. 1689: 1. They must be at least five in number;
2. They must have formed or managed a rural bank, cooperative,
"samahang nayon," farmer's association or any other corporation or
association that solicits funds from the general public; 3. They formed
or managed such association with the intention of carrying out an
unlawful or illegal act, transaction, enterprise or scheme i.e., they used
the very association that they formed or managed as the means to
defraud its own stockholders, members and depositors. (Home
Development Mutual Fund vs. Sagun, supra)
In Home Development Mutual Fund vs. Sagun, supra, there are

only four officers of Globe Asiatique charged for syndicated estafa.
The fifth respondent, which will complete the requirement of at least
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five swindlers in syndicated estafa, is Atty. Alvarez. However, Atty.

Alvarez was officer of HDMF whose only connection with Globe
Asiatique was by reason of his having rendered notarial services for
the latter. Since Atty. Alvarez was not related to Globe Asiatique
either by employment or by ownership, he could not be considered
as part of the syndicate supposedly formed or managed to defraud
its stockholders, members, depositors or the public. Hence,
respondents should not have been charged with syndicated estafa.
Justice Leonen dissented to the view of the majority.
Funds Solicited from the General Public - The fact that the
entity involved was not a rural bank, cooperative, samahang nayon
or farmers’ association does not take the case out of the coverage of
P.D. No. 1689. The law applies to other corporations or associations
operating on funds solicited from the general public. (People v.
Balasa, G.R. No. 106357, September 3, 1998) Thus, the entity can be
a commercial bank. (Galvez v. Hon. CA, G.R. No. 187919, February
20, 2013)
If the money misappropriated is not solicited from the general

public, the crime committed is simple estafa under the Revised Penal
Code. (Hao v. People, supra)
There are three parties involved in syndicated estafa, to wit: (1)

the corporation or association; (2) general public such as
stockholders and members of the association; they are the victims
and (3) the owners and members of the association, who used such
association to defraud the general public; they are the offenders. The
association or corporation can neither be a victim nor the offender in
syndicated estafa. The association is just an instrument used by the
offenders to defraud the victim. A bank cannot charge its employees
with syndicated estafa for misappropriating its money. (Galvez v.
Hon. CA, supra) The crime committed by a bank employee or officer
is estafa or theft depending upon the nature of their position.
In Home Development Mutual Fund vs. Sagun, G.R. No.

205698, July 31, 2018, based on evidence, GLOBE ASIATIQUE (GA)
allegedly recruited "special buyers," who are not members of Pag-ibig.
For a fee, these “special buyers” would apply membership in Pag-ibig,
and then, they would obtain housing loans from Pag-Ibig but they
will not occupy the housing units involved. Then GA will sell the units
to real buyers, who would assume the balance on the loan of the
"special buyer." Because of this complex scheme involving fraudulent
buyers, a huge amount of money was transferred from the coffers of
the Pag-ibig fund by HDMF, and released to the GA. Officers of GA
including Delfin Lee were charged of syndicated estafa. In this crime,
it must be established that GA solicited funds from the general public
and at least five swindlers used GA to defraud its members or
stockholders. However, in this case, GA did not solicit funds from the
general public. The HDMF, the complainant, was not itself a
67 | P a g e
stockholder or member of GA. It was the HDMF itself, not GA, that
had solicited (Pag-ibig) funds from its members. The funds
supposedly misappropriated did not belong to GA's stockholders or
members, or to the general public, but to the HDMF. Thus,
respondents did commit syndicated estafa. However, they should be
charged with simple estafa.
Swindling may fall within the ambit of P.D. No. 1689 if it is

committed through an association. On the other hand, estafa is
committed regardless of the number of the accused when: (a) the
entity soliciting funds from the general public is the victim and not
the means through which the estafa is committed, or (b) the
offenders are not owners or employees who used the association to
perpetrate the crime. (Home Development Mutual Fund vs. Sagun,
supra)
MALICIOUS MISCHIEF - Assuming that accused owned the

property in controversy, he and his co-accused were not justified in
summarily destroying the improvements built thereon by
complainant. They unlawfully took the law into their own hands
when they surreptitiously entered complainant's enclosed lot and
destroyed its fence and foundation. Evidently, accuseds' actions were
made out of hatred, revenge or evil motive. They were convicted of
malicious mischief (Grana vs. People, G.R. No. 202111, November 25,
2019)
ARSON – Destructive arson is characterized as heinous crime;

while simple arson under PD No. 1613 is a crime manifesting a lesser
degree of perversity. Simple arson contemplates the malicious
burning of property not included in Article 320 of the RPC (People vs.
Macabando, GR No. 188708, July 31, 2013). Burning of inhabited
house or dwelling or personal property is simple arson under Section
3 of P.D. No. 1613 because it is not included in Article 320 of RPC.
Intent to kill - If the main objective is to kill the victim in a

building, and fire is resorted to as the means to accomplish such
goal, the crime committed is murder only. Murder qualified by means
of fire absorbs arson since the latter is an inherent means to commit
the former (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No.
168050, September 19, 2008; People vs. Mercado, G.R. No. 218702,
October 17, 2018)
One has deliberately set fire to a building is presumed to have

intended to burn the building (People vs. De Leon, G. R. No. 180762,
March 4, 2009). Since intent to burn is presumed, intent to kill must
be established beyond reasonable doubt. Failure to show intent to
kill, the accused shall be convicted of arson with qualifying
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circumstance of resulting death and not murder (People vs.

Baluntong, G.R. No. 182061, March 15, 2010).
Intent to burn - If the main objective is to burn the building,

but death results by reason or on the occasion of arson, the crime is
arson with qualifying circumstance of resulting death (People vs.
Enriquez, G.R. No. 248372, August 27, 2020). The resulting
homicide is absorbed (People vs. Villacorta, G.R. No. 172468, October
15, 2008) since it will be considered as a modificatory circumstance.
In People v. Villacorta, G.R. No. 172468, October 15, 2008 and

People v. Jugueta, G.R. No. 202124, April 5, 2016, the Supreme Court
described arson with the qualifying circumstance of resulting death
as special complex crime of arson with homicide. However, People vs.
Dolendo, G.R. No. 223098, June 3, 2019, the Supreme Court said
that the Court of Appeals correctly modified appellant's conviction
from arson with homicide to simple arson conformably with
prevailing jurisprudence.
For purpose of the bar examination, if the accused burned

burning the building without intent to kill, and as a consequence,
death results, the crime should be designated as simple arson under
PD No. 1613 (Dolendo case) or destructive arson under the Revised
Penal Code with the qualifying circumstance of resulting death
(Abayon case)
Intent to conceal - If the objective is to kill, and in fact the

offender has already done so, and arson is resorted to as a means to
cover up the killing, the offender may be convicted of two separate
crimes of either homicide or murder, and arson (People vs. Cedenio,
G.R. No. 93485, June 27, 1994).
BIGAMY – The parties are not required to obtain a judicial

declaration of nullity of a void ab initio first and subsequent
marriages in order to raise it as a defense in a bigamy case. The same
rule now applies to marriages celebrated under the Civil Code and
the Family Code. Article 40 of the Family Code did not amend Article
349 of the RPC, and thus, did not deny the accused the right to
collaterally attack the validity of a void ab initio marriage in the
criminal prosecution for bigamy. (Pulido vs. People, G.R. No. 220149,
July 27, 2021, En Banc)
According to the Supreme Court, En Banc in People vs. Pulido,

it is time to abandon the earlier precedents and adopt a more liberal
view that a void ab initio marriage can be used as a defense in bigamy
even without a separate judicial declaration of absolute nullity. The
accused may present testimonial or documentary evidence such as
the judicial declaration of absolute nullity of first and/or subsequent
void ab initio marriages in the criminal prosecution for bigamy. The
said view is more in accord with the retroactive effects of a void ab
69 | P a g e
initio marriages, the purpose of and legislative intent behind Article

40 of the Family Code, and the rule on statutory construction of penal
laws.
In People vs. Pulido, the accused was acquitted for bigamy since
he was able to obtain judicial declaration of absolute nullity of his
first marriage for lack of marriage license although the first marriage
was judicially declared as void after the celebration of the second
marriage.
X contracted three marriages. His first wife is already dead when

X contracted his third marriage. X is liable for bigamy involving the
second marriage on the basis of his first marriage because the first
was still subsisting when he contracted the second. X is not liable for
bigamy involving the third marriage on the basis of the first marriage
since the first has already been extinguished by reason of death of
the first wife when he contracted the third. X is not liable for bigamy
involving the third marriage on the basis of the second marriage,
latter is void for being bigamous. Applying the Pulido principle, X
need not obtain judicial declaration of nullity of the second marriage
for being bigamous before entering into a third marriage for purpose
of raising the voidness of the former as a defense in bigamy.
If the first marriage is merely voidable, the accused cannot
interpose an annulment decree as a defense in the criminal
prosecution for bigamy since the voidable first marriage is considered
and subsisting when the second marriage was contracted. The crime
of bigamy, therefore, is consummated when the second marriage was
celebrated during the subsistence of the voidable first marriage. The
same rule applies if the second marriage is merely considered as
voidable. (Pulido vs. People, supra) However, if the voidable second
marriage was annulled in a civil action due to force or intimidation
committed against the accused in bigamy to obtain his consent in
entering such marriage, he should be acquitted. A subsequent
marriage contracted by the accused involuntarily cannot be the basis
for conviction for the crime of bigamy. (Landicho v. Relova, G.R. No.
L-22579, February 23, 1968) In sum, the acquittal for bigamy is not
based on the voidability of the second marriage but on
involuntariness or lack of criminal intent on the part of the accused.
In Sarto vs. People, G.R. No. 206284, February 28, 2018, in a

bigamy case, accused alleged that complainant, his wife, acquired
Canadian citizenship, obtained a divorce, and thereafter, remarried.
By raising divorce, it is incumbent upon the accused to show that it
was validly obtained in accordance with complainant's national law
(e.g. Canadian law) prior to the celebration of the second marriage.
In this case, accused presented a certificate of divorce allegedly
issued by the registrar of the Supreme Court of British Columbia.
The defense was rejected. First, the divorce decree required to prove
70 | P a g e
the fact of divorce is the judgment itself as rendered by the foreign

court and not a mere certification. Second, assuming the certificate
of divorce may be considered as the divorce decree, it was not
accompanied by a certification issued by the proper Philippine
diplomatic or consular officer stationed in Canada, as required under
Section 24 of Rule 132. Lastly, no copy of the alleged Canadian law
was presented by the defense. Thus, it could not be reasonably
determined whether the subject divorce decree was in accord with
complainant's national law. Accused was convicted of bigamy.
Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him/her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (par. 2
of Article 26 of the Family Code) This rule includes cases involving
parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. (Republic
v. Orbecido III, G.R. No. 154380, October 5, 2005) However, Orbecido
case will not apply if there is no competent evidence concerning
naturalization of the alien spouse and the divorce decree, which
capacitated the alien spouse to remarry. (Sarto vs. People, supra)
ILLEGAL MARRIAGE – A priest, who performed a marriage

ceremony despite knowledge that the couple had no marriage license,
is liable for illegal marriage. The law sets the minimum requirements
constituting a marriage ceremony: first, there should be the personal
appearance of the contracting parties before a solemnizing officer;
and second, their declaration in the presence of not less than two
witnesses that they take each other as husband and wife (Ronulo vs.
People, G.R. No. 182438, July 02, 2014).
LIBEL - In Manila Bulletin Publishing Corporation vs. Domingo,

G.R. No. 170341, July 5, 2017, the accused published an article
where he stated that these national employees should be commended
for bringing into the open this garbage that has piled up in their own
backyard. To Joe Con's successor, the chopping board is ready. All you
need is a Muslim kris! Palakulin mo, Pare ko!. This is not libelous. On
the first statement, accused is merely commending the DTI
employees who brought into the open their complaints against the
private complainant in this case, a DTI officer. This is a fair remark.
The last three sentences merely meant that heads should roll at the
DTI office, which does not ascribe something deprecating against
complainant. Moreover, the statement does not refer to an
ascertained or ascertainable person.
In Belen vs. People, G.R. No. 211120, February 13, 2017,

accused filed a motion for reconsideration of resolution dismissing a
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complaint for estafa with irrelevant and defamatory statement

against the investigating prosecutor was filed with the OCP of San
Pablo City and copy furnished to the respondent in the estafa
complaint, and the Office of the Secretary of Justice. Despite the fact
that the motion was contained in sealed envelopes, it is not
unreasonable to expect that persons other than the one defamed
would be able to read the defamatory statements in it. Hence, the
element of publicity in libel is present.
In Belen vs. People, G.R. No. 211120, February 13, 2017,

accused filed a motion for reconsideration of resolution dismissing a
complaint for estafa. The accused alleged in the said motion the
public prosecutor who dismissed the case is corrupt, stupid,
imbecile, mentally dishonest and bereft of intellectual ability. This is
not covered by the absolute privilege communication rule since the
defamatory allegations in the motion are not relevant to the issue of
whether or not the motion for reconsideration should be granted
because there is probable cause to charge the respondent in the
preliminary investigation for estafa. In his dissenting opinion,
Justice Leonen expressed his view that libel ought to be
decriminalized; it is inconsistent with the constitutionally protected
right to freedom of speech; there is no state interest served in
criminalizing libel; civil actions for defamation are sufficient to
address grievances without threatening the public's fundamental
right to free speech.
Before Article 360 of RPC was amended, the rule was that a
criminal action for libel may be instituted in any jurisdiction where
the libelous article was published or circulated, irrespective of where
it was written or printed. Experience had shown that under that old
rule the offended party could harass the accused in a libel case by
laying the venue of the criminal action in a remote or distant place.
To forestall such harassment, RA No. 4363, which amended RPC,
lays down specific rules as to the venue of the criminal action so as
to prevent harassment arising from out-of-town libel suits. (People
vs. Macasaet, G.R. No. 196094, March 5, 2018) As a general rule,
venue for libel is either province or city where the libelous article is
printed and first published or where any of the offended parties
actually resided at the time of the commission of the offense.
However, if the offended party is a public officer, there is a third
optional venue, and that is, province, city or Manila where he held
office at the time of the commission of the offense. In all cases, the
criminal action shall be filed in the Regional Trial Court.
Information alleged that publisher and writer of Malaya with

address at Port Area, Manila City defamed private complainant by
writing and publishing a defamatory article in the Malaya. The Port
Area, Manila is the editorial and business offices of Malaya. This is a
compliance with the rule requiring allegation in the information of
the place where the alleged defamatory article was printed and first
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published. The Information need not parrot the provisions of Article

360 of the RPC and expressly use the phrase "printed and first
published." If there is no dispute that the place of publication
indicated in the Information is the place where the alleged defamatory
article was "printed and first published," then the law is substantially
complied with. After all, the filing of the Information before an RTC of
Manila would forestall any inclination to harass the accused. (People
vs. Macasaet, G.R. No. 196094, March 5, 2018)
In De Leon v. People, G.R. No. 212623, January 11, 2016,

complainant, a policeman, pointed his gun at his jogging buddy, the
accused. During the hearing on administrative case, the accused
stated “walang hiya, mangongotong na pulis, yabang mo.” The
statement is defamatory since it imputes to complainant the crime of
robbery. However, since the statement was made a mere product of
an emotional outburst because of the gun-pointing incident, the
crime is only classified as simple slander. In his dissenting opinion,
Justice Leonen said the accused's words could not be considered as
having been driven by the intent to ridicule or humiliate, but were a
mere expression of his disappointment over complainant’s actions as
a police officer.
RECKLESS IMPRUDENCE – Two (2) prosecution witnesses

testified that they heard a thud, felt the jeepney tilt, and saw a man
lying flat on the ground; thus, they concluded that the jeepney
petitioner was driving hit the man. Another prosecution witness
testified to hearing a loud thud and then hearing some passengers
inside a jeepney shout that someone got hit. The same witness also
testified that he saw a man lying on the ground near the jeepney. No
one testified as to the manner by which petitioner was driving before
he supposedly hit Jaquilmo, or of personally witnessing the jeepney
hit Jaquilmo. The prosecution was able to prove that Jaquilmo died
on the bridge, but it failed to prove beyond reasonable doubt that
petitioner's imprudence in driving the jeepney was the proximate
cause of his death. (Valencia vs. People, G.R. No. 235573, November
09, 2020)
BP BLG. 22 – It is of no moment that the subject checks were

issued as a guarantee and upon the insistence of private
complainant. What is significant is that the accused had deliberately
issued the checks in question to cover accounts and those same
checks were dishonored upon presentment, regardless of the purpose
for such issuance. The legislative intent behind the enactment of B.P.
22, as may be gathered from the statement of the bill's sponsor when
then Cabinet Bill No. 9 was introduced before the Batasan
Pambansa, is to discourage the issuance of bouncing checks, to
prevent checks from becoming "useless scraps of paper" and to
restore respectability to checks, all without distinction as to the
purpose of the issuance of the checks. Said legislative intent is made
all the more certain when it is considered that while the original text
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of the bill had contained a proviso excluding from the law's coverage
a check issued as a mere guarantee, the final version of the bill as
approved and enacted deleted the aforementioned qualifying proviso
deliberately to make the enforcement of the act more effective. It is,
therefore, clear that the real intention of the framers of B.P. 22 is to
make the mere act of issuing a worthless check malum
prohibitum and, thus, punishable under such law. (Ongkingco vs.
Sugiyama and People, G.R. No. 217787, September 18, 2019)
What sets apart the crime of estafa from the other offense of this
nature (i.e., Batas Pambansa Bilang 22) is the element of deceit. To
constitute estafa, deceit must be the efficient cause of the
defraudation, such that the issuance of the check should be the
means to obtain money or property from the payer resulting to the
latter's damage. In other words, the issuance of the check must have
been the inducement for the surrender by the party deceived of his
money or property. (Abalos vs. People, G.R. No. 221836, August 14,
2019)
There is no showing whatsoever that accused had knowledge of

the insufficiency of funds of the check he endorsed to private
complainant. Admittedly, the checks received by private complainant
were checks issued and paid to accused by a certain Ham. Upon
notice that the subject checks were dishonored, accused immediately
searched for Ham but the same proved to be futile considering that
the latter already left the country. The business relationship between
private complainant and accused is already 16-year, and the former
had the practice of accepting the checks of clients of the latter, even
if he did not personally know them. Thus, there is no need for the
accused to assure the complainant that the subject checks would be
sufficiently funded upon maturity before accepting the same. Clearly,
private complainant was not deceived to accept the subject checks
but did so out of a standard procedure which he and accused
developed over the years. (Juaquico vs. People, G.R. No. 223998,
March 05, 2018)
CHILD ABUSE – As a general rule, in a case where the victim is

a minor, accused should not be charged with a felony such as grave
threat or robbery with rape in relation to RA No. 7610. If the
information charged the accused with a felony in relation to RA No.
7610, the court must delete the correlation. (People vs. Bueza, G.R.
No. 242513, November 18, 2020) Felonies and crimes under RA No.
7610 are different and independent from each other. However, there
are occasions where a felony defined under Revised Penal Code is
punishable by a penalty prescribed by RA No. 7610. Section 5 and
10 of RA No. 7610 prescribe penalties for: (1) acts of lasciviousness
committed against a child exploited in prostitution or other sexual
abuse, who is under 12 years of age, and (2) homicide, other
intentional mutilation and serious physical injuries committed
74 | P a g e
against a child under 12 years of age. In such a case, correlation of

RPC to RA No. 7610 in charging the accused is allowed.
In Cruz vs. People, G.R. No. 216642, September 08, 2020, the
accused was convicted of homicide committed against a 9-year-old
child. He was sentenced to suffer a maximum penalty of 12 years and
1 day of reclusion temporal. With due respect to the Supreme Court,
under Section 10 of RA No. 7610, the penalty for homicide where the
victim is under 12-years of age is reclusion perpetua.
Section 10 (a) of RA No. 7610 is a "catch-all" provision which

penalizes other acts of child abuse not specifically addressed by other
provisions of RA No. 7610 and the Revised Penal Code. (Talocod vs.
People, G.R. No. 250671, October 07, 2020) This provision punishes
four distinct acts, to wit: (a) child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for conditions prejudicial to the
child's development. Accused can be convicted under Section 10 (a)
if he commits any of the four acts therein. The prosecution need not
prove that the acts of child abuse, child cruelty and child exploitation
have resulted in the prejudice of the child because an act prejudicial
to the development of the child is different from the former acts.
(Patulot vs. People, G.R. No. 235071, January 7, 2019)
Physical injury – Child abuse (Section 10 of RA No. 7610)

includes maltreatment, whether habitual or not, of the child.
Maltreatment includes psychological and physical abuse (Section 3)
or infliction of physical injury such as lacerations, fractured
bones, burns, internal injuries, severe injury or serious bodily harm
suffered by a child (Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases) such as banging the heads of the
minor students by their teacher (De Ocampo v. The Hon. Secretary
of Justice, G.R. No. 147932, January 25, 2006)
Child abuse includes disciplinary acts by the mother such as

belting, pinching, and strangulating his 8-year-old child, which
caused her to limp (Lucido vs. People, G.R. No. 217764, August 7,
2017, Justice Leonen) or by teacher such as slamming him on the
floor which caused him to lost consciousness (Rosaldes v. People,
G.R. No. 173988, October 8, 2014). Intent to discipline student is not
a defense since Article 233 of the Family Code prohibits the infliction
of corporal punishment by teacher. (Rosaldes v. People, supra)
Degrading the dignity of the child – In Bongalon v. People,

G.R. No. 169533, March 20, 2013, accused saw the victim and his
companions hurting his minor daughters. Angered, accused struck
minor-victim at the back with his hand and slapped his face. Since
the accused committed the act at the spur of the moment, they are
perpetrated without intent to degrade the dignity of the victim.
Without such intent, the crime committed is not child abuse under
R.A. No. 7610 but merely slight physical injuries.
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In Jabalde v. People, G.R. No. 195224, June 15, 2016, the

accused was informed that her daughter's head was punctured, and
whom she thought was already dead. The accused slapped, struck,
and choked a minor as a result of the former's emotional rage.
Absence of any intention to debase, degrade or demean the dignity of
the child victim, the accused's act was merely slight physical injuries.
In Escolano vs. People, G.R. No. 226991, December 10, 2018,

complainants, who are minors, threw ketchup sachets against the
daughter of the accused. But it was the accused, who was hit by the
sachets twice. Accused exclaimed, "Putang ina ninyo, gago kayo, wala
kayong pinag-aralan, wala kayong utak, subukan ninyong bumaba
dito, pakakawalan ko ang aso ko, pakakagat ko kayo sa aso ko."
Uttering “putang ina” to the minors in the heat of anger is not

child abuse. The expression "putang ina mo" is a common enough
utterance in the dialect that is often employed, not really to slander
but rather to express anger or displeasure. In fact, more often, it is
just an expletive that punctuates one’s expression of profanity.
Threatening to release her dog to chase and bite the minors

made in the heat of anger is not child abuse. Accused merely
intended that they stop their rude behavior. Absence of any intention
to degrade the dignity of minors, accused is only liable for other light
threats.
The statement "putang ina mo" and making hacking gestures

with a bolo, which are directed against the mother of two children,
are not constitutive of child abuse involving degrading the dignity of
a child. Since the threatening acts are not directed against the
children, intent to degrade, debase or demean their dignity is not
established.
In Talocod vs. People, G.R. No. 250671, October 07, 2020, as

his playmates were bothering passing motorists by throwing sand
and gravel on the road, AAA (11-years of age) berated and told them
to stop. Upset by AAA's reprimand, one of the children, reported the
incident to her mother, the accused. The accused immediately
confronted AAA about his behavior, and while pointing a finger at the
latter, furiously shouted: "Huwag mong pansinin yan. At putang ina
yan. Mga walang kwenta yan. Mana-mana lang yan!" Accused is not
criminally liable for child abuse. There is no showing that the
utterance was specifically intended to debase, degrade, or demean
AAA's intrinsic worth and dignity as a human being. To the contrary,
it appears that accused's harsh utterances were brought about by
the spur of the moment, particularly, out of her anger and annoyance
at AAA's reprimand of her child.
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In Bongalon case and Jabalde case, accused were convicted of

slight physical injuries instead of child abuse. In Escolano case,
accused was convicted of other light threat instead of child abuse. In
Talocod case, accused was not held liable for child abuse or any other
crime.
In People vs. Javarez, G.R. No. 248729, September 03, 2020,

accused, a teacher, was not shown to have intended to debase,
degrade, or demean BBB's intrinsic worth and dignity as a human
being. For while hitting BBB with a broomstick is reprehensible,
accused did so only to stop BBB and another classmate from fighting
over pop rice. Thus, he is liable for slight physical injuries, and not
child abuse. As for AAA, records show that in his effort to stop his
two (2) other students from fighting over food during his afternoon
class, accused got to push AAA, one of the onlookers, as a result of
which, AAA fell on the floor with his face down. Surely, accused did
not intend to maltreat nor debase AAA's dignity as a human being.
He was in all honesty simply trying to stop his students from fighting.
He cannot therefore be held liable of child abuse. Neither is he liable
for slight physical injuries. Accused as a teacher was merely trying
to stop two of his students from fighting over food during the class.
AAA, a mere onlooker, was not involved in the fight. There was no
evidence showing accused ever intended to harm him in any way. It
was possible though that as an onlooker, AAA stood too close to the
protagonists such that when accused stepped in to disengage the
protagonists, necessarily AAA was also pushed back, and as result,
fell to the ground.
The Bongalon principle is inapplicable if the accused did not

assault a child in the heat of anger or as spontaneous reaction to his
misbehavior. In Delos Santos vs. People, G.R. No. 227581, January
15, 2020, AAA, a minor and Daluro were on their way to her house
when accused and his group confronted them. Bob, brother of the
accused, said "nag-iinit na ako," as he wanted to punch Daluro. Bob
attempted to hit Daluro with a rock, but AAA apologized to prevent a
commotion. Accused attempted to punch Daluro, but he dodged it
and AAA was hit on the right cheek instead. Bob punched AAA on
the chest causing her to hit a wall. AAA asked companions of accused
to call her mother for help, but Bob interrupted and said "tama lang
yan sa inyo pagtripan dahil dinemanda n'yo kami." Accused hurled
invectives at AAA, who was calling her mother on her way to her
house with Daluro. The Supreme Court finds the Bongalon case
inapplicable and convicted the accused of child abuse. The accosting
and laying of hands are deliberately intended by accused and his
group. The word "pagtripan" signified an intention to debase or
degrade that did not result from an unexpected event. The acts of
accused were offshoots of an intent to take revenge arising from the
conflict existing between his mother and AAA's mother. Accused did
not lose his self-control and the acts were not done at the spur of the
moment.
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In Torres vs. People, G.R. No. 206627, January 18, 2017

(Justice Leonen), in the middle of argument in a barangay
conciliation proceeding, AAA suddenly interjected that accused
damaged his uncle’s multicab and accused him of stealing his uncle’s
fish nets. Accused told AAA not to pry in the affairs of adults. He
warned AAA that he would whip him if he did not stop. However, AAA
refused to keep silent and continued his accusation. Infuriated with
AAA’s meddling, accused whipped AAA on the neck using a wet t-
shirt. Accused continued to hit AAA causing the latter to fall down
from the stairs. Whipping AAA on the neck with a wet t-shirt is an
act that debases, degrades, and demeans the intrinsic worth and
dignity of a child. It is a form of cruelty. Being smacked several times
in a public place is a humiliating and traumatizing experience for all
persons regardless of age. Accused, as an adult, should have
exercised restraint and self-control rather than retaliate against a 14-
year-old child.
The Bongalon principle is inapplicable if the accused inflicted

serious physical injuries on a child. In Patulot vs. People, G.R. No.
235071, January 7, 2019, throwing boiling cooking oil, which
directed against the mother of a baby and 3-year-old child, which
consequently burned the faces and skin of the minors, is not
constitutive of child abuse involving degrading the dignity of a child.
Since throwing boiling oil is not directed against the children, intent
to degrade, debase or demean their dignity is not established.
However, the accused is still liable of child abuse involving infliction
of serious physical injury.
Vasectomy – Doctor performed vasectomy on Larry, a

mentally-retarded, whose mental age is 8 years, with consent of his
guardian. Complaint for child abuse involving cruelty was filed
against the doctor and the consenting guardian since Larry for being
a mentally retarded is not capable of giving consent to vasectomy.
Since the case was dismissed on technical ground, the Supreme
Court in Versoza vs. People, G.R. No. 184535, September 03, 2019
did not tackle the issue on whether conducting vasectomy on a
mentally retarded is a violation of RA No. 7610. However, individual
Justices presented their views on the matter.
According to Justice Leonen, the vasectomy on someone with

cognitive disability, without his' or her consent, is both an act of
cruelty and an act prejudicial to the person's' development. Larry's
legal guardians, instead of acting only for his best interests,
substituted his consent with their own under the guise of
"protection." There were other options for Larry who, in time, could
have children of his own. But this was taken away from him by the
people who should have acted in Larry's best interest. To deprive him
of all the options his life had to offer is an act of cruelty. It was an act
borne out of selfishness, not love. It was not for them to conclude
78 | P a g e
that Larry cannot become a parent or care for someone other than
himself.
However, Justice Coaguio opined that there is no shred of

evidence offered to show that the guardians and doctor were impelled
by any ill-motive in facilitating the vasectomy procedure. No specific
intent to debase, degrade or demean intrinsic worth Larry as a
human being had been convincingly shown, thereby negating
respondents' criminal liability under Section 10(a) of RA 7610.
Justice Peralta agreed with this view. According to Justice Jardeleza,
RA 7610 does not criminalize vasectomy. Justice Reyes stated that
Larry's guardians have the right to decide what is best for the child
they took in and raised as their own; and such decision is clothed
with the presumption of good faith. The right of parents or guardians
to provide consent for medical procedures on behalf of intellectually
disabled persons who are unable to provide such consent is part and
parcel of their parental authority over their children or wards.
Child abuse includes neglect. Neglect may be typified as: (1)

physical; (2) educational; (3) emotional; and (4) medical. Physical
neglect refers to the failure to provide a child's basic needs, which
consists of food, clothing, and shelter. Educational neglect consists
in the failure to ensure that the child receives proper and adequate
education. Emotional neglect is the failure to nurture by, among
others, ignoring or isolating the child. Medical neglect pertains to the
failure to provide proper healthcare to a child, as when, for instance,
one ignores medical recommendations.
Neglect has also been expanded to recognize environmental

neglect and supervisory neglect. Environmental neglect pertains to a
situation where a child is left in a hazardous or unclean location.
Supervisory neglect refers to a situation where a child is abandoned
or left under the custody of an inappropriate substitute. (Opinion of
Justice Leonen; Versoza vs. People, G.R. No. 184535, September 03,
2019)
SEXUAL ABUSE – Children in EPSOSA are those exploited in

prostitution or subject to other sexual abuse. (Concurring opinion of
Justice Leonen in People vs. Tulugan, G.R. No. 227363, March 12,
2019)
Having sexual intercourse or lascivious conduct with a child

constitutes child prostitution if committed for money, profit, or any
other consideration (People vs. Jalosjos, G.R. Nos. 132875-
76, November 16, 2001); or sexual abuse is committed under
coercion or influence of any adult, syndicate or group. In child
prostitution, the victim is called child exploited in prostitution while
in sexual abuse the victim is called child subjected to other abuse
(Section 5 of RA No 7610). Coercion is either physical or
psychological. Taking advantage of ascendency as a swimming
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instructor over student is psychological coercion (People vs. Larin,

G.R. No. 128777, October, 7 1998).
Child vs. child - Accused (15 years of age) inserting his finger
into vagina of complainant (11 years old). The crime committed is
sexual assault under the RPC. Section 5 of RA No. 7610 prescribes
the penalty of reclusion temporal in its medium period if the
lascivious conduct is committed against a child subject to sexual
abuse, who is under 12 years of age. RA No. 7610 is not applicable
since the accused is also a minor. RA 7610 was enacted in order to
protect children from abuse, exploitation, and discrimination by
adults and not by persons who are also children themselves. Section
5 of RA 7610 expressly states that a child is deemed to be sexually
abused when coerced or influenced by an adult, syndicate, or group.
(BBB vs. People, G.R. No. 249307, August 27, 2020)
Third person in sexual abuse – In coercion or influence as an

element of sexual abuse is exerted against child is clearly exerted
NOT by the offender who is liable for sexual abuse or child
prostitution under Section 5 (b) of RA No. 7610, but by the adult
(syndicate, or group), who is liable for promoting, facilitating or
inducing child prostitution under Section 5 (a) thereof. (People vs.
Tulugan, G.R. No. 227363, March 12, 2019) This view in the Tulugan
case is not controlling. Several cases affirmed the convictions for
sexual abuses of the accused, who themselves employed coercion or
influence in order for the minor victims to submit themselves to
lascivious conduct. (See: Rarang vs. People, G.R. No. 226760, August
14, 2019, Satur vs. People, G.R. No. 245375, June 19, 2019, People
vs. Veron, G.R. No. 239028, April 10, 2019; People vs. LCU, G.R. No.
234319, April 10, 2019, and De Joan vs. People, G.R. No. 232957,
September 25, 2019)
In Quimvel vs. People, G.R. No. 214497, April 18, 2017,

participation of a third person is not essential in sexual abuse. It is
immaterial whether or not the accused himself employed the coercion
or influence to subdue the will of the child for the latter to submit to
his sexual advances for him to be convicted of sexual abuse. Sexual
abuse can be committed by "any adult, syndicate or group" without
qualification.
Sex with a child per se is not a crime – There are several cases
where sex with a child constitutes crime. Sexual intercourse with a
child under 12 years of age is statutory rape. Influencing the child in
having sex constitutes sexual abuse. In Caballo v. People, G.R. No.
198732, June 10, 2013, the assurance of love, guarantee that she
would not get pregnant by using the withdrawal method and the
promise of marriage were classified as psychological coercion and
influence within the purview of Section 5 of R.A. No. 7610 used by
the accused to convince his minor girlfriend to have sex with him.
Hence, accused is guilty of sexual abuse.
80 | P a g e
However, sex with a child per se is not a crime. What is

punishable under R.A. No. 7610 is sexual abuse with a child. Sexual
abuse is more than a mere sexual intercourse or lascivious conduct
with a child. (see: People v. Hon. Court of Appeals, G.R. No. 171863,
August 20, 2008)
Consent is immaterial in cases involving sexual abuse under

R.A. No. 7610 where the offended party is below 12 years of age.
However, consent is material when the offended party is a child, who
is 12 years old or above. In such a case, consent of the child is a
defense in cases involving sexual abuse. Consent as a defense is
either express or implied. Consent is implied if the prosecution failed
to prove that the child had sex with accused due to money, profit or
consideration, or coercion or influence. (People vs. Tulugan, G.R. No.
227363, March 12, 2019)
Under the Civil Code, all individuals under 18 years of age have
no capacity to act or the power to do acts with legal effects. The law
limits, to varying degrees, the capacity of an individual to give
consent. While in general, under the civil law concept of consent, in
relation to capacity to act, the same concept cannot be applied to
consent within the context of sexual predation. Under civil law, the
concept of "capacity to act" under civil law limits the capacity to give
a valid consent which generally refers to the meeting of the offer and
the acceptance upon the thing and the case which are to constitute
the contract. Capacity to act under civil law cannot be equated to
capacity to give sexual consent for individuals between 12 years old
and below 18 years old. Sexual consent does not involve any
obligation within the context of civil law and instead refers to a
private act or sexual activity that may be covered by the Revised Penal
Code and R.A. 7610. (People vs. Tulugan, supra)
The age of sexual consent in the Philippines is 12 years

old. According to United Nations International Children's Emergency
Fund, this is "one of the lowest globally and the lowest in the Asia-
Pacific region." The average age of consent is 16 years old. The age of
majority, however, is 18 years old. Minors, or those below 18, have
no capacity to enter into any contracts or marriage. Yet, strictly
reading the provisions of the Revised Penal Code, any minor above
12 years old may validly consent to sexual intercourse and lascivious
conduct with an adult. (Concurring opinion of Justice Leonen in
People vs. Tulugan, supra)
In Bangayan vs. People, G.R. No. 235610, September 16,

2020, it is now clear that consent is a material factor in determining
the guilt of accused, who is charged with sexual abuse against a child
whose age is 12 years and one month. In Monroy (G.R. No. 235799,
July 29, 2019), then 28-year-old accused was charged with violation
of Section 5 (b) of R.A. 7610 for inserting his penis into the vagina of
81 | P a g e
a 14-year-old. The Court acquitted the accused on reasonable doubt,

finding that the sexual intercourse that transpired between the
accused and the 14-year-old was consensual and that the case
against the accused is based merely on trumped-up allegations
meant as retaliation. In Monroy, the accused was 14 years older than
victim yet the Court found that she was not subjected to other sexual
abuse due to the coercion of an adult as they were in a relationship.
Similarly, in the present case, the accused was more or less 15 years
older than AAA. While difference in age may be an indication of
coercion and intimidation and negates the presence of sexual
consent, this should not be blindly applied to all instances of alleged
sexual abuse cases. In this case, there are special circumstances
that reveal the presence consent of AAA. The sexual congress
between accused and AAA was not limited to just one incident. They
were in a relationship even after the incident alleged in the
Information and had even produced two (2) children. It is clear that
AAA, who is capable to discern good from evil, give consent to the
sexual act. Accused was acquitted. Justice Leonen in his dissenting
opinion stated with the greatest respect, I cannot accept that our laws
can be interpreted so that a 12-year-old girl, barely in the sixth grade,
can give her mature consent to sexual intercourse. Sexual
intercourse is a complex act which is not only physical or sensual.
New designation of sexual abuse - Since time immemorial the

Supreme Court is using the title of a penal provision, and not a word
in the body to describe a crime. For example, the crime under Article
249 of the Revised Penal Code is called homicide since the title of this
provision is homicide. Although the word “kill” is found in the body
of this provision, there is no occasion where the crime under Article
249 is described as “killing.”
The title of Article 5 of RA No. 7610 is “child prostitution and

other sexual abuse.” However, the word “lascivious conduct” is found
in the body of Section 5 (b) of RA No. 7610. In People vs. Larin, G.R.
No. 128777, October, 7 1998 and other cases, the Supreme Court
described the crime involving lascivious conduct under Section 5 (b)
of RA No. 7610 as sexual abuse. It is submitted that this is the correct
name of the crime. However, in the case of the Tulugan case, proper
nomenclature of the offense involving lascivious conduct under
Section 5 (b) is now “lascivious conduct” under RA No. 7610. (People
vs. Molejon, G.R. No. 208091, April 23, 2018; ZZZ vs. People, G.R.
No. 243467, April 08, 2019; De Joan vs. People, G.R. No. 232957,
September 25, 2019; People Vergara, G.R. No. 242477, September 2,
2019) For purpose of the bar examination, the Tulugan case should
be followed.
SEXUAL ABUSE AND FELONY - If the acts constitute sexual

abuse, and rape, sexual assault, or acts of lasciviousness, the
offender shall be prosecuted either under RPC or R.A. No. 7610
(People vs. Abay, G.R. No. 177752, February 24, 2009), whichever
82 | P a g e
prescribes a graver penalty. (Dimakuta v. People, G.R. No. 206513,

October 20, 2015; Justice Leonen concurred; People vs. Tulugan,
G.R. No. 227363, March 12, 2019) The higher penalty under either
law must be applied for the minor victim’s benefit. Imposing a lower
penalty for the offender is undeniably unfair to the child victim.
(People v. Pusing, G.R. No. 208009, July 11, 2016).
1. Sexual abuse and rape - If the acts constitute sexual abuse

under RA No. 7610, and rape, the perpetrator shall be prosecuted
under RPC. The penalty under RPC for rape is graver than that
prescribes by RA No. 7610. Rape is severely penalized because it may
lead to unwanted procreation; or to paraphrase the words of the
legislators, it will put an outsider into the woman who would bear a
child, or to the family, if she is married. (People vs. Tulugan, supra)
Where a minor is raped, RPC ought to prevail over RA 7610. (People
vs. Ejercito, supra) Moreover, RA No. 8353, which amended RPC on
rape, is the more recent and special penal legislation and this law
strengthens the policies of RA No. 7610. (People vs. Briones, G.R. No.
240217, June 23, 2020)
If the acts constitute sexual abuse under RA No. 7610, and

special complex crime of sexual assault with homicide, the
perpetrator shall be prosecuted under RPC. The penalty under RPC
for sexual assault with rape is graver than that prescribes by RA No.
7610.
2. Sexual abuse (now lascivious conduct), and sexual assault

or acts of lasciviousness – If the acts constitute sexual abuse (now
lascivious conduct) under RA No. 7610, and sexual assault or acts of
lasciviousness, the perpetrator shall be prosecuted under RA No.
7610. The penalty for sexual abuse (now lascivious conduct) under
RA No. 7610 is graver than that for acts of lasciviousness or sexual
assault under RPC.
3. Special rules if the child is under 12 years of age - There

are special rules under Section 5 (b) of RA No. 7610 if the child
exploited in prostitution or sexual abuse is under 12 years of age. A
demented person (idiot, imbecile, and feebleminded), whose metal age
is under 12 years, is covered by these rules. (People v. Pusing, supra;
People vs. Tulugan, supra) If the acts constitute sexual abuse under
RA No. 7610, and rape or acts of lasciviousness, the perpetrator shall
be prosecuted for statutory rape under RPC, or acts of lasciviousness
under RPC in relation to RA No. 7610.
a. rape - Under Section 5 (b) of RA No. 7610, that when the child
exploited in prostitution or sexual abuse is under 12 years of age (or
demented), the perpetrators shall be prosecuted for statutory rape.
Sexual abuse under RA No. 7610 is separate and distinct from

statutory rape under RPC. Aside from being dissimilar in the sense
83 | P a g e
that the former is an offense under special law, while the latter is a
felony under the Code, they also have different elements.
Nevertheless, sexual intercourse with a victim who is under 12 years
of age or is demented is always statutory rape, as Section 5(b) of R.A.
No. 7610 expressly states that the perpetrator will be prosecuted
under Code. (People vs. Tulugan, supra)
Even if the girl who is below twelve (12) years old or is demented
consents to the sexual intercourse, it is always a crime of statutory
rape under the Revised Penal Code, and the offender should no longer
be held liable under R.A. No. 7610. For example, a nine (9)-year-old
girl was sold by a pimp to a customer, the crime committed by the
latter if he commits sexual intercourse with the girl is still statutory
rape (and not child prostitution), because even if the girl consented
or is demented, the law presumes that she is incapable of giving a
rational consent. (People vs. Tulugan, supra)
b. Acts of lasciviousness – Under Section 5 (b) of RA No. 7610,

that when the child exploited in prostitution or sexual abuse is under
12 years of age (or demented), the perpetrator shall be prosecuted for
acts of lasciviousness with the penalty of reclusion temporal in its
medium period. In sum, he shall be prosecuted under the Revised
Penal Code but the imposable penalty is that prescribed under RA
no. 7610. Thus, the proper nomenclature of this crime is acts of
lasciviousness under RPC in relation to RA No. 7610. (People vs.
Tulugan, supra)
If the accused committed acts of lasciviousness against a child

exploited in prostitution or sexual abuse, who is under 12 years of
age or demented, the former shall be prosecuted for acts of
lasciviousness under RPC with the penalty of reclusion temporal in
its medium period under RA No. 7610. (People vs. Molejon, G.R. No.
208091, April 23, 2018; Granton vs. People, G.R. No. 226045,
October 10, 2018; Francisco vs. People, G.R. No. 241452, March 25,
2019; People vs. ZZZ, G.R. No. 232500, July 28, 2020)
To apply the penalty of reclusion temporal in its medium period

pursuant to the second proviso, the requisites of acts of
lasciviousness must be met in addition to the requisites for sexual
abuse or child prostitution. (Quimvel v. People, supra; Ramilo vs.
People, G.R. No. 234841, June 3, 2019; People vs. Basa, G.R. No.
237349, February 27, 2019)
The accused is charged of acts of lasciviousness against an

under-12-year-old child. The information alleged “force and
intimidation,” which is an element of acts of lasciviousness under RPC
but it does not aver "coercion or influence,” which is an element of
sexual abuse under RA No. 7610. But it was ruled that the term
"coercion and influence" is broad enough to cover "force and
intimidation” as alleged in the information. Committing lascivious
84 | P a g e
conduct against an under-12-year-old child is statutory acts of

lasciviousness. Committing lascivious conduct against a child under
coercion or influence is sexual abuse. Since the elements of acts of
lasciviousness and those of sexual abuse are proven, the accused is
convicted of acts of lasciviousness under RPC in relation to RA No.
7610. (Quimvel v. People, supra)
c. Simple sexual assault – If the accused committed sexual

assault against a child exploited in prostitution or sexual abuse, who
is under 12 years of age or demented, will the court impose the
penalty of prision mayor for sexual assault under RPC as amended
by RA No. 8353, or reclusion temporal in its medium under Section 5
(b) of RA No. 7610? In this situation, the court in convicting the
accused for sexual assault must impose the graver penalty under RA
No. 7610 on the following reasons:
1. To impose the lighter penalty under RPC is unfair to the

victim. To prevent unfairness, the court must impose graver penalty
under R.A. No. 7610. (People v. Chingh, G.R. No. 178323, March 16,
2011)
2. R.A. No. 7610 is a special law which should clearly prevail

over R.A. 8353, which is a mere general law amending the Revised
Penal Code. (Granton vs. People, G.R. No. 226045, October 10, 2018;
Ricalde v. People, G.R. No. 211002, January 21, 2015, Justice
Leonen, and People vs. Adajar, G.R. No. 231306, June 17, 2019;
Miranda vs. People, G.R. No. 232192, June 22, 2020, Justice
Leonen; People vs. Sumayod, G.R. No. 230626, March 09, 2020,
Justice Leonen)
In this situation, the crime should be called as “sexual assault”

under RPC in relation to RA No. 7610. (People vs. Tulugan, supra;
Ramilo vs. People, G.R. No. 234841, June 3, 2019; People vs. XXX,
G.R. No. 230981, July 15, 2020)
In People v. Chingh, G.R. No. 178323, March 16, 2011- the

accused the force inserted his finger into the genital orifice of a child,
who is 10 years old. The victim is a child exploited in sexual abuse
since the element of coercion is present. Since the victim is under 12
years of age, the crime committed is statutory sexual assault. The
penalty for sexual assault under RPC is prision mayor. On the other
hand, the penalty for lascivious conduct under second proviso of
Section 5 (b) RA No. 7610 is reclusion temporal in its medium period.
To impose the lighter penalty under RPC is unfair to the victim. To
prevent unfairness, the Supreme Court imposed the graver penalty
under R.A. No. 7610. In sum, the accused is convicted of simple
sexual assault under RPC in relation of RA No. 7610.
d. Qualified sexual assault – The crime is qualified sexual

assault if qualifying circumstance such as relationship and minority
85 | P a g e
is present. If the accused committed qualified sexual assault against

a child exploited in prostitution or sexual abuse, who is under 12
years of age or demented, will the court impose the penalty of
reclusion temporal for sexual assault under RPC as amended by RA
No. 8353, or reclusion temporal in its medium under Section 5 (b) of
RA No. 7610? In this situation, the court in convicting the accused
for qualified sexual assault must impose the graver penalty under
RPC. Since rationale of unfairness to the child victim that Chingh
case wanted to correct is absent because RPC already prescribes the
high penalty, there is no need to apply the penalty under RA No.
7610. (People v. Bonaagua, G.R. No. 188897, June 6, 2011)
Accused inserted his penis into the mouth of his foster child,
whose actual age is above 12 years old, but her mental age is 9 years
old. The crime committed is statutory sexual assault. The qualifying
circumstances of minority and guardianship, and mental disability
are present. Since the mental age of the victim is under 12 years, first
proviso Section 5 (b) of RA No. 7610 is applicable. Under this
provision, if the perpetrator had lascivious conduct with a child
exploited in sexual abuse, who is under 12 years old, the former shall
be prosecuted for rape under RPC, which includes qualified sexual
assault. (People v. Pusing, G.R. No. 208009, July 11, 2016, Justice
Leonen)
Summary - If the victim of sexual offense is a child in EPSOSA

(exploited in prostitution or subject to other sexual abuse), the
following rules should be observed.
1. Rape - If the act constitutes rape under RPC and sexual

abuse RA No. 7610, the accused shall be prosecuted under RPC,
since this law prescribes a higher penalty. If the act constitutes
statutory rape and sexual abuse, the accused shall be prosecuted
under RPC, since Section 5 (b) of RA No. 7610 says so.
2. Acts of lasciviousness - If the act constitutes acts of

lasciviousness under RPC and sexual abuse under RA No. 7610
committed against a child, who is 12 years of age or above, the
accused shall be prosecuted under RA No. 7610, since this law
prescribes a higher penalty. The crime will be designated as
lascivious conduct.
If the act constitutes acts of lasciviousness under RPC and

sexual abuse under RA No. 7610 committed against a child, who is
under 12 years of age, the accused shall be prosecuted for acts of
lasciviousness under RPC but the penalty of reclusion temporal in its
medium period under RA No. 7610 shall be imposed. The crime will
be designated as acts of lasciviousness under RPC in relation to RA
No. 7610.
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3. Sexual assault - If the act constitutes sexual assault under

RPC and sexual abuse under RA No. 7610 committed against a child,
who is 12 years of age or above, the accused shall be prosecuted
under RA No. 7610, since this law prescribes a higher penalty. The
crime will be designated as lascivious conduct.
If the act constitutes sexual assault under RPC and sexual

abuse under RA No. 7610 committed against a child, who is under
12 years of age, the accused shall be prosecuted for sexual assault
under RPC but the penalty of reclusion temporal in its medium period
under RA No. 7610 shall be imposed. It is not the intention of RA No.
8353, which introduces sexual assault in RPC, to disallow the
penalty under RA No. 7610. To impose the lesser penalty of prison
mayor under RA No. 8353 for sexual assault is unfair to the child.
The crime will be designate as sexual assault under RPC in relation to
RA No. 7610.
If the act constitutes qualified sexual assault under RPC and

sexual abuse under RA No. 7610 committed against a child, who is
under 12 years of age, the accused shall be prosecuted for qualified
sexual assault with the penalty of reclusion temporal under RPC. The
penalty of reclusion temporal in its medium period under RA No.
7610 shall not be imposed. In sum, the Chingh principle will not
apply since RPC already prescribes a graver penalty. The
circumstance of unfairness, which the Chingh case sought to correct,
is not present in this case. The crime will be designate as qualified
sexual assault.
Coercion and influence - The term "coercion and influence"

is broad enough to cover "force and intimidation”. In fact, as these
terms are almost used synonymously, it is then of no moment that
the terminologies employed by RA 7610 and by the Information are
different. (Quimvel v. People, G.R. No. 214497, April 18, 2017; People
vs. Ejercito, G.R. No. 229861, July 2, 2018; People vs. Tulugan, G.R.
No. 227363, March 12, 2019)
The accused is charged of acts of lasciviousness. The

information alleged “force and intimidation,” which is an element of
acts of lasciviousness under RPC but it does not aver "coercion or
influence,” which is an element of lascivious conduct under RA No.
7610. The accused may be convicted of the graver crime of lascivious
conduct under RA No. 7610. (People vs. Molejon, G.R. No. 208091,
April 23, 2018)
Double jeopardy - If the acts constitute sexual abuse (or child

prostitution), and rape or acts of lasciviousness, the offender cannot
be prosecuted for both crimes because of the rule on double jeopardy.
The essence of sexual abuse and rape or acts of lasciviousness is

having sexual intercourse or lascivious conduct with a victim without
87 | P a g e
her consent, or capacity to give consent. Since these crimes are

identical, the Supreme Court in People vs. Abay, G.R. No. 177752,
February 24, 2009 ruled that the accused cannot be held liable of
both crimes because his right against double jeopardy will be
prejudiced.
Other view: In People vs. Udang, G.R. No. 210161, January 10,
2018, the Supreme Court, Third Division, through Justice Leonen
ruled that offender can be liable for rape and sexual abuse because
they are separate crimes with distinct elements. It seems that Udang
case is a stray decision. The Abay principle is controlling since it was
affirmed by the Supreme Court in several cases such as People vs.
Dahilig, G.R. No. 187083, June 13, 2011; People vs. Matias, G.R. No.
186469, June 18, 2012; Alberto vs. Hon. Court of Appeals, G.R. No.
182130, June 19, 2013; People vs. Ejercito, G.R. No. 229861, July
02, 2018; People vs. Jaime, G.R. No. 225332, July 23, 2018; People
vs. Mabalo, G.R. No. 238839, February 27, 2019 and People vs.
Tulugan, supra.
Sexual abuse and child abuse – Section 5 (b) of RA 7610

specifically applies in cases of sexual abuse committed against
children, which includes lascivious conduct; whereas, Section 10
(a) thereof punishes other forms of child abuse not covered by
particular provisions of RA 7610. Evidently, the offense will not fall
within the purview of Section 10 (a) of RA 7610 if the same is
specifically penalized by a particular provision, such as Section 5 (b).
(Encinares vs. People, G.R. No. 252267, January 11, 2021)
The petitioner's acts of putting AAA's penis inside his mouth

and playing with it for ten (10) minutes constitute lascivious
conduct under Section 5 (b) of RA 7610. As such, it was an error for
the courts a quo to have convicted him under Section 10 (a) of the
same Act. True, the Information filed against petitioner charged him
under Section 10 (a) of RA 7610. However, it is a well-settled rule that
the facts alleged in the body of the information, not the technical
name given by the prosecutor appearing in the title of the
information, determine the character of the crime. (Encinares vs.
People, supra)
SEXUAL HARASSMENT - The elements of the crime of sexual

harassment in a work-related or employment environment under RA
No. 7877 are:
1. The offender has authority, influence or moral ascendancy over

victim; and
2. The authority, influence or moral ascendancy exists in a work

environment;
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3. (a) The sexual favor is made as a condition in the employment

or continued employment of victim or in granting her favorable terms
or privileges; or
(b) The refusal to grant the sexual favor results in her

discrimination or impairment of her rights or privileges; or
(c) the demand for sexual favor would result in an intimidating,

hostile, or offensive environment for the employee.
The elements of the crime of sexual harassment in a education or

training environment under RA No. 7877 are:
1. The offender has authority, influence or moral ascendancy over

victim; and
2. The authority, influence or moral ascendancy exists in a

education or training environment;
3. (a) The sexual favor is made a condition to the giving of a

passing grade, or the granting privileges; or
(b) when the sexual advances result in an intimidating, hostile or

offensive environment for the student, trainee or apprentice.
Authority or Ascendency - The key elements which

distinguish sexual harassment, as penalized by Republic Act 7877,
from other chastity-related and vexatious offenses are: first, its
setting; and second, the person who may commit it. As to its setting,
the offense may only be committed in a work-related, training-
related, or education-related environment. As to the perpetrator, it
may be committed by a person who exercises authority, influence, or
moral ascendancy over another. (Escandor vs. People, G.R. No.
211962, July 06, 2020, Justice Leonen)
The gravamen of the offense in sexual harassment is not the

violation of the employee's sexuality but the abuse of power by the
employer. (LBC vs. Palco, G.R. No. 217101, February 12, 2020,
Justice Leonen)
Sexual harassment is not a trivial offense. Its essence lies not

in the- simple violation of a victim's sexuality, but in a superior's
undue exertion of power over the victim. Inherent in this predatory
act is the assailant's perverted use of power to dominate his or her
subordinate for sexual favors. Sexual harassment in the workplace
is not about a person taking advantage of another person by reason
of sexual desire; it is about power being exercised by a superior officer
over his or her subordinates. The power emanates from the fact that
the superior can remove the subordinate from his or her workplace
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if the latter would refuse his or her amorous advances. (Talens-

Dabon vs. Arceo, A.M. No. RTJ-96-1336, June 02, 2020, Concurring
Opinion by Justice Leonen; Philippine Aeolus Automotive United
Corp. v. NLRC, G.R. No. 124617, April 28, 2000) Alegria v. Duque, A.M.
No. RTJ-06-2019, April 4, 2007)
Sexual harassment can be committed by an employer, employee,

manager, supervisor, agent of the employer, teacher, instructor,
professor, coach, trainer or any other person, who has authority,
influence or moral ascendancy over victim. It can also be committed
against one who is under the care, custody or supervision of the
offender or against one whose education, training, apprenticeship or
tutorship is entrusted to the offender. (Section 3 of R.A. No. 7877)
Moral ascendancy as an element of sexual harassment is present if
the respondent recommended complainant to her present position.
(Alegria v. Duque, A.M. No. RTJ-06-2019, April 4, 2007)
A process server cannot commit the crime of sexual harassment

against a janitress of a private company assigned in the Hall of
Justice since the former has no moral ascendency over the latter.
However, he can be held administrative liability for committing an
immoral act. (Lamsis v. Sales, A.M. No. P-17-3772, January 10,
2018) Moreover, the process server can be held criminally liable for
gender-based sexual harassment under RA No. 11313 (Safe-space
Act). Under RA No. 11313, the crime of gender-based sexual
harassment may also be committed between peers and those
committed to a superior officer by a subordinate, or to a teacher by a
student, or to a trainer by a trainee.
The Safe Spaces Act does not undo or abandon the definition of
sexual harassment under the Anti-Sexual Harassment Law of 1995.
The gravamen of the offenses punished under the Safe Spaces Act is
the act of sexually harassing a person on the basis of the his/her
sexual orientation, gender identity and/or expression, while that of
the offense punished under the Anti-Sexual Harassment Act of 1995
is abuse of one's authority, influence or moral ascendancy so as to
enable the sexual harassment of a subordinate. (Escandor vs. People,
G.R. No. 211962, July 06, 2020, Justice Leonen)
Work or Training, or Education Environment - Sexual

harassment under RA No. 7877 can only be committed in a work,
training, or education environment. If an offender sexually harassed
his neighbor in a street, the crime committed is not sexual
harassment under RA No. 7877 but gender based sexual harassment
under RA No. 11313 (Safe-space Act), acts of lasciviousness, sexual
abuse or any other crime.
Gender-based sexual harassment under RA No. 11313 is

committed in a public space (e.g. schools, churches, restaurants or
streets) or through on-line. (Section 3 and 4 of RA No. 11312) Sexual
90 | P a g e
harassment in a private place is not punishable under RA No. 11313.

For example, Pedro inside his house uttered to Maria, his cousin,
“Palaki ng palaki wetpu mo, papisil naman.” Since a private house is
not within the contemplation of the word “public spaces” under RA
No. 11313, the crime committed is unjust vexation, and not gender-
based sexual harassment.
Demand, Request or Require Sexual Favor - In sexual

harassment, the offender demands, requests or otherwise requires
any sexual favor from the victim. Sexual harassment is committed
regardless of whether or not the demand, request or requirement for
sexual submission is accepted by the victim. Hence, sweetheart
defense cannot be upheld in favor of offender in sexual harassment
case.
In Jacutin v. People, G.R. No. 140604, March 6, 2002,

complainant was seeking employment in the city health office headed
by the accused. While the appointing authority is the mayor, the
recommendation of the accused has a good weight. Accused
demanded from complainant that she should expose her body and
allow her private parts to be mashed and stimulated by him as a
condition for her employment. He was convicted of sexual
harassment.
1. Implied Demand – R.A. No. 7877 calls for a “demand,

request or requirement of a sexual favor.” But it is not necessary that
the demand, request, or requirement of a sexual favor be articulated
in a categorical oral or written statement. It may be discerned, with
equal certitude, from the acts of the offender. (Bacsin v. Wahiman,
G.R. No. 146053, April 30, 2008; Domingo v. Rayala, supra; Escandor
vs. People, G.R. No. 211962, July 06, 2020, Justice Leonen)
In Bacsin v. Wahiman, supra, even without an express

demand from respondent, a school teacher, his act of mashing the
breast of his student was sufficient to constitute sexual harassment.
Accused committed several acts of harassment such as

grabbing hand of complainant, kissing, engaging in improper
conversations, touching her thigh, giving her gifts, telling her that
"she was the kind of girl he really wants," asking her out on
dates, and sending her text and Winpop messages telling her that he
missed her, that she looked beautiful, and that he loved her. These
acts undoubtedly amount to a request for sexual favors. (Escandor
vs. People, supra, Justice Leonen)
If the offender has moral ascendency over the victim and the
former committed sexual advances on the latter, implied request or
demand for sexual favor is present. Hence, sexual harassment is
committed.
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In Narvasa v. Sanchez, G.R. No. 169449, March 26, 2010,

during a field trip, respondent, a municipal assessor, pulled
complainant, a bookkeeper, towards him and attempted to kiss her.
Complainant resisted and was able to escape the clutches of
respondent. His act of grabbing complainant and attempting to kiss
her without her consent was an unmistakable manifestation of his
intention to violate R.A. No. 7877 that specifically prohibited sexual
harassment in the work environment.
In Gonzales v. Serrano, G.R. No. 175433, March 11, 2015,

Atty. Jacinto Gonzales, direct superior of the complainant, forcibly
kissed her lips in the restaurant in front of her officemates and other
customers. She tried to ward off Atty. Gonzales by pulling her head
away from him, but he persisted on kissing her against her will. After
releasing her, Atty. Gonzales said: “Ang sarap pala ng labi ni Maila.”
Atty. Gonzales violated R.A. No. 7877.
In Aquino v. Acosta, A.M. No. CTA-01-1, April 2, 2002, the case

for sexual harassment against a judge was dismissed for failure to
show that he demanded, requested or required any sexual favor from
complainant in exchange for favorable compensation, terms,
conditions, promotion or privileges. Thus, it appears that sexual
demand, request or requirement is an essential element of sexual
harassment. However, Domingo vs. Rayala, G.R. No. 155831,
February 18, 2008, the Supreme Court ruled that it is not essential
that the demand, request or requirement be made as a condition for
continued employment or for promotion to a higher position. It is
enough that the respondent’s acts result in creating an intimidating,
hostile or offensive environment for the employee. In this case, the
intimidating and hostile environment for complainant is clearly
shown by the fact that she reported the matter to an officemate and,
after the last incident, filed for a leave of absence and requested
transfer to another unit. Respondent found to have committed
sexual harassment.
2. Friendly Kiss – In Aquino v. Acosta, A.M. No. CTA-01-1, April

2, 2002, Atty. Susan M. Aquino, personnel of Court of Tax Appeals
(CTA), charged CTA Judge Ernesto Acosta with sexual harassment
under R.A. 7877. In one occasion, respondent kissed her on her
cheek after greeting her. In another occasion, respondent shook her
hand and greeted her, “Merry Christmas” and then, he embraced her
and kissed her. When the Senate approved the bill on expanded
jurisdiction of the CTA and while complainant and her companions
were congratulating and kissing each other, respondent suddenly
placed his arms around her shoulders and kissed her. According to
the Supreme Court, the conducts of respondent in kissing the
complainant are casual gestures of friendship and camaraderie,
nothing more, nothing less. There is no indication that respondent
was motivated by malice or lewd design. Evidently, she
misunderstood his actuations and construed them as work-related
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sexual harassment under R.A. No. 7877. (Cited in the case of

Escandor vs. People, Justice Leonen)
A mere casual buss on the cheek of the complainant during

festive or special occasions in front of several persons is not a sexual
advance within the purview of sexual harassment under R.A. No.
7877. (Aquino v. Acosta, supra) But a kiss on her lips of the
complainants (Atty. Mona Lisa Buencamino v. Judge Armando De
Asa, Adm. Matter No. MTJ-98-1144, July 22, 1998; Narvasa v.
Sanchez, supra) even in a public place (Gonzales v. Serrano, supra);
or holding and squeezing complainant’s shoulders, running his
fingers across her neck and tickling her ear, and the inappropriate
comments made in privacy (Domingo v. Rayala, supra) constitute
sexual harassment within the contemplation of R.A. No. 7877.
The case of Aquino is different from Domingo. While in Aquino, the

Court interpreted the acts (of Judge Acosta) as casual gestures of
friendship and camaraderie, done during festive or special occasions
and with other people present, in Domingo, Rayala’s acts of holding
and squeezing Domingo’s shoulders, running his fingers across her
neck and tickling her ear, and the inappropriate comments, were all
made in the confines of Rayala’s office when no other members of his
staff were around. More importantly, and a circumstance absent
in Aquino, Rayala’s acts produced a hostile work environment for
Domingo, as shown by her having reported the matter to an
officemate and, after the last incident, filing for a leave of absence
and requesting transfer to another unit.
RA No. 7877 does not require that the victim had acceded to the
sexual desires of the abuser. (Anonymous complaint against Atty.
Unitian, A.C. No. 5900, April 10, 2019) Mere demand or request for
sexual favor consummates the crime of sexual harassment. Actual
commission of sexual advances is not required for the consummation
of this crime. However, if the offender, who has ascendancy over the
victim, already performed sexual acts upon her, he shall be exposed
to criminal liability for a grave crime such sexual abuse under R.A.
No. 7610, acts of lasciviousness, or rape by means of grave abuse of
authority. In People v. Larin, G.R. No. 128777, October, 7 1998, a
swimming instructor was convicted for sexual abuse under R.A. No.
7610 for performing cunnilingus on her, licking her breast, touching
her genitalia, and forcing her to hold his sexual organ.
Discrimination or impairment of her rights - Transferring

a subordinate to place without telephone for refusal to submit herself
to the sexual desire of her superior, which impaired her privilege as
an employee, constitutes sexual harassment (Philippine Aeolus
Automotive United Corp. v. NLRC, G.R. No. 124617, April 28, 2000)
Intimidating, hostile or offensive environment - It is not

essential that the demand, request or requirement be made as a
93 | P a g e
condition for continued employment or for promotion to a higher

position. It is enough that the respondent’s acts result in creating an
intimidating, hostile or offensive environment for the employee.
(Domingo v. Rayala, supra) In sum, creating an intimidating, hostile
or offensive environment is an element of sexual harassment, which
is an alternative to sexual demand, request or requirement.
In 1964, in the United States, the Civil Rights Act prohibited

acts of discrimination on the basis of sex, among others. American
jurisprudence subsequently recognized two (2) categories of sexual
harassment: first, quid pro quo; and second, hostile environment
sexual harassment. Quid pro quo harassment conditions employment
or job benefits on sexual favors; while hostile environment sexual
harassment results from sexual advances which make the working
environment hostile or abusive to the employee. The two types of
sexual harassment recognized in American jurisprudence are akin to
sexual harassment as defined under RA no. 7877. Section
3(a)(l) similarly recognizes that sexual harassment is committed
when a sexual favor is made a condition for employment or for the
grant of certain benefits. Likewise, Section 3(a)(3) recognizes sexual
harassment as committed when the offender's advances result in an
intimidating, hostile, or offensive environment for the employee.
(Escandor vs. People, Justice Leonen)
In Domingo v. Rayala, supra, intimidating and hostile

environment for complainant is clearly shown by the fact that she
reported the matter to an officemate and, after the last incident, filed
for a leave of absence and requested transfer to another unit.
In Bacsin v. Wahiman, supra, complainant testified that she felt

fear at the time respondent touched her. The act of respondent of
fondling one of his students is against R.A. No. 7877 since such
sexual advances result in an intimidating, hostile or offensive
environment to her. Dal recounted that in one of her recitations
during respondent's class, she clarified a question propounded to her
saying "Sir, come again?" Respondent retorted "What? You want me
to come again? I have not come the first time and don't you know
that it took me five minutes to come, and you want me to come
again?" She later learned that respondent would narrate the said
incident to almost all of his classes. Dal felt offended that she was
subjected to such sexually charged language and the fact that her
embarrassment was retold in other classes.
Respondent's conduct towards his student created a hostile and

offensive environment which has no place in a learning
institution. Respondent's statement to complainant during her
recitation in class cannot be categorized as an innocent joke only
meant to lighten the mood of the class. It is readily apparent that the
remark is tasteless, vulgar and crude and has no place in any
94 | P a g e
academic setting. It is not a clever word play or a mere statement

with sexual innuendos as its intended meaning is obviously
discernable. Respondent's attempt at humor miserably fails as his
words clearly refer to him needing five minutes to ejaculate again.
Respondent's statements made Dal uncomfortable and embarrassed
in front of her classmates as it went beyond an innocent joke and
was instead a gross, graphic and an insensitive remark. (Anonymous
complaint against Atty. Unitian, A.C. No. 5900, April 10, 2019)
Prescription - Acts of sexual harassment by the

accused persisted up to the time that complainant’s employment
ended. By the time she filed her Complaint-Affidavit, only about nine
(9) months had lapsed. This is well-within the three (3) years
permitted by Section 7 of RA No. 7877 within which an action under
the same statute may be pursued. (Escandor vs. People, Justice
Leonen)
Civil liability – Criminal liability for sexual harassment

notwithstanding, the offended party may pursue a separate civil
action. Section 6 of RA No. 7877 provides that nothing in this Act shall
preclude the victim of work, education, or training-related sexual
harassment from instituting a separate and independent action for
damages and other affirmative relief. Being independent from
criminal action, the conviction or acquittal of the accused is not a bar
to an independent suit for damages in a civil action. In fact, an
independent action for damages against the accused is allowed
despite the existence of an ongoing criminal case. (Escandor vs.
People, Justice Leonen)
Under Section 5 of RA No. 7877, the employer is only solidarity

liable for damages with the perpetrator in case an act of sexual
harassment was reported and it did not take immediate action on the
matter. This provision thus illustrates that the employer must first
be informed of the acts of the erring managerial officer before it can
be held liable for the latter's acts. Conversely, if the employer has
been informed of the acts of its managerial staff, and does not contest
or question it, it is deemed to have authorized or be complicit to the
acts of its erring employee. (LBC vs. Palco, G.R. No. 217101, February
TERRORISM - Before terrorism is punishable under RA No.

9372 or the Human Security Law. However, Section 56 of RA No.
11479 expressly repeals RA No. 9372. Terrorism is now punishable
under RA No. 11479.
Under Section 4 of RA No. 11479, terrorism is committed by any

person who, within or outside the Philippines, regardless of the stage
of execution:
(a) Engages in acts intended to cause death or serious bodily
injury to any person, or endangers a person's life;
95 | P a g e
(b) Engages in acts intended to cause extensive damage or

destruction to a government or public facility, public place or private
property;
(c) Engages in acts intended to cause extensive interference
with, damage or destruction to critical infrastructure;
(d) Develops, manufactures, possesses, acquires, transports,
supplies or uses weapons, explosives or of biological, nuclear,
radiological or chemical weapons; and
(e) Release of dangerous substances, or causing fire, floods or
explosions
when the purpose of such act, by its nature and context, is to

intimidate the general public or a segment thereof, create an
atmosphere or spread a message of fear, to provoke or influence by
intimidation the government or any international organization, or
seriously destabilize or destroy the fundamental political, economic,
or social structures of the country, or create a public emergency or
seriously undermine public safety.
Composition of terrorism - Terrorism is composed of criminal

act and criminal intention (or purpose). For example, engaging in acts
intended to cause death person is the criminal act while intimidating
the general public is the criminal intention.
Intent to intimidate the general public - Pedro out of jealousy

threw hand grenade at her wife and paramour at Luneta. As a
consequence, the victims died. Several persons at Luneta were
terrified. This is not terrorism but a complex crime of parricide and
murder. The reason behind the killings is personal. There is no
intention to intimidate the general public, create an atmosphere or
spread a message of fear, or provoke or influence by intimidation the
government.
Pedro detonated a time bomb in LRT, and caused death and

serious bodily injury to several persons, endangers the life of others,
and causes extensive damage a critical infrastructure. By its nature
and context, the bombing intimidated the general public and created
an atmosphere or spread a message of fear. This is terrorism. Direct
evidence that the purpose of Pedro is to intimidate the general public
is not required. The phrase “by its nature and context” means that
the court can determine that the purpose of the offender in
detonating a bomb is to intimidate the general public by taking into
consideration nature and context of criminal act.
In terrorism under RA No. 9372, a predicate crime such as

murder must create a condition of widespread and extraordinary fear
and panic among the populace. However, under RA No. 11479,
widespread fear to the populace is not an element of terrorism since
this crime can be committed although the intention of the terrorists
is merely to intimidate “segment” of the general public.
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Intimidate the government or international government -

The word “government” in RA No. 11479 which the terrorists intend
to provoke or influence by intimidation includes foreign government.
The law uses the word “government” without making a distinction
between Philippine government and foreign government. It is a well
known maxim in statutory construction that where the law does not
distinguish, we should not distinguish.
The word “international organization” in RA No. 11479 which the

terrorists intend to provoke or influence by intimidation refers to an
organization established by a treaty or other instrument governed by
international law and possessing its own international legal
personality. United Nation and World Health Organization are
international organizations.
Pedro, a member of Al-Qaeda, detonated a time bomb in US

Embassy, Manila, and caused death and serious bodily injury to
several persons, endangers the life of others, and causes extensive
damage to an US government facility. Al-Qaeda claimed
responsibility and demanded that the U.S. government should not to
interfere with the affairs of the Muslim. This is terrorism since the
purpose of Pedro is to influence the US government by intimidation.
To constitute terrorism under RA No. 9372, murder must create

a condition of fear and panic among the populace in order to coerce
the government to give in to an unlawful demand. In terrorism under
the old law, creating fear to the general public by committing murder,
and intent to coerce the government must concur. However, under
RA No. 11479, the intention of the terrorist is either to intimidate the
general public, or to influence the government through intimidation.
The concurrence of intent to intimidate the public and intent to
influence the government is not required in terrorism under the new
law.
Pedro detonated a time bomb in LRT, and caused death and

serious bodily injury to several persons, endangers the life of others,
and causes extensive damage a critical infrastructure. This is not
terrorism under RA No. 9372 because there is no showing that Pedro
detonated the bomb in order to coerce the government to give in to
an unlawful demand such secession of Mindanao from the
Philippines. However, this is terrorism under RA No. 11479 since by
its nature and context, the bombing intimidated the general public
and created an atmosphere or spread a message of fear.
Destroying fundamental political, economic, or social

structures - Committing a criminal act described in Section 4 of RA
No. 11479 such as acts intended to cause death to person for purpose
of seriously destabilize or destroy the fundamental political,
economic, or social structures of the country is terrorism.
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Members of the CPP-NPA wage a civil war to overthrow the

government, and replace it with communist government. Since there
is public and armed uprising to remove the territory of the Philippines
allegiance of the Filipino people to present government and its laws,
they are liable for rebellion. If members of the CPP-NPA detonated
time bomb in LRT for purpose of destroying the political and economic
structure of the country from democratic and capitalist government
to dictatorial and communist government, they are liable for
terrorism.
Creating a public emergency or seriously undermine public

safety - Release of dangerous substances such a biological weapon
that creates a public emergency or seriously undermine public safety
is terrorism.
Terrorism is committed regardless of stage of execution -

Pedro, a member of Al-Qaeda, set a time bomb in US Embassy,
Manila, to explode after two hours. However, the authorities
discovered the bomb and defused it. Even though the stage of
executing the criminal design to bomb the US Embassy is merely
attempted, the crime committed is terrorism.
Non-mutually exclusive crimes - In Lagman vs. Medeldea,

G.R. No. 231658, July 04, 2017, the Supreme Court stated that there
is nothing in Article 134 of RPC and RA No. 9372 (now RA No. 11479)
which states that rebellion and terrorism are mutually exclusive of
each other or that they cannot co-exist together. RA No. 9372 (now
RA No. 11479) does not expressly or impliedly repeal Article 134 of
the Code. And while rebellion is one of the predicate crimes of
terrorism, one cannot absorb the other as they have different
elements.
Unconstitutionality - Under last paragraph of Section 4 of RA

No. 11470, terrorism shall not include advocacy, protest, dissent,
stoppage of work, industrial or mass action, and other similar
exercises of civil and political rights, which are not intended to cause
death or serious physical harm to a person, to endanger a person's
life, or to create a serious risk to public safety.
Applying this rule in reverse, terrorism includes exercise of civil

and political rights (such as protest, advocacy), which is intended to
cause death or serious physical harm to a person, to endanger a
person's life, or to create a serious risk to public safety.
According to those who are seeking the invalidation of RA No.

11479, an oppressive administration may use this provision as way
to suppress freedom expression by simply claiming that protesters,
dissenters or oppositions have the intention to create a serious risk
to public safety in order to arrest and prosecute them for the non-
98 | P a g e
bailable crime of terrorism. Thus, the Supreme Court declared the

qualifier in the last paragraph of Section 4 of RA No. 11479 as
unconstitutional for being overbroad and violative of freedom of
expression. With the invalidation of the qualifier, last paragraph of
Section 4 of RA No. 11479 must now be read as follows: “Terrorism
shall not include advocacy, protest, dissent, stoppage of work,
industrial or mass action, and other similar exercises of civil and
political rights.”
Under Sections 25 and 26 RA No. 11479, an organization may

be proscribed or designated as a terrorist organization. In social
media, they call designation or proscription of terrorist organization
as “red-tagging.” The purpose of proscription is to make membership
or recruitment in a proscribed terrorist organization as a crime, while
the purpose of designation is to freeze the assets of a designated
terrorist organization. Proscription is being declared by the Court of
Appeals on the basis of proof beyond reasonable doubt after a full-
blown hearing. On the other hand, designation is being made by the
Anti-terrorism Council on the basis of probable cause. However, the
Anti-Terrorism Council will automatically designate as terrorist
organizations those which are in the Consolidated List of terrorist
organizations (e.g Al Qaeda) issued by the UN Security Council.
Under Section 25 of RA No. 11479, request for designation by

other jurisdictions of supranational jurisdictions may be adopted by
the ATC after determination that the proposed designee meets the
criteria for designation of UNSCR No. 1373. The Supreme Court
declares this provision on request for designation as
unconstitutional.
Other portions of the terrorism law are constitutional. Thus, the

provisions on inciting to commit terrorism, proposal or conspiracy to
commit terrorism, planning, training preparing or facilitating to
commit terrorism, recruitment or membership in a proscribed
terrorist organization is constitutional.
As a rule, the period within which a person detained for

terrorism or conspiracy to commit terrorism under RA No. 11479
must be delivered to judicial authorities is 36 hours in accordance
with Article 125 of the Revised Penal Code since the penalty of life
imprisonment prescribed for it is equivalent to an afflictive penalty.
Judicial delivery means the filing information in court. The
mandatory period to make a judicial delivery under the law is design
to protect criminal suspect since the court, to which he is delivered,
may release him if there is no probable cause that he committed a
crime.
If the apprehending police or law enforcement officers fail to

deliver the suspected terrorist within the period of 36 hours, they are
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liable for the crime of delay in the delivery of detained persons under
Article 125 of RPC.
However, the Anti-Terrorism Council may authorize in writing

any law enforcement agent or military personnel to take custody of a
person suspected of terrorism or any crime punishable under Section
5 to 12 such as conspiracy, proposal and inciting to commit
terrorism. With this written authority, the law enforcement agent or
military personnel may arrest the suspected terrorist, take into
custody and detain him for a period of more than 36 hours without
incurring any criminal liability for delay in the delivery of detained
persons notwithstanding Article 125 of the Revised Penal Code to the
contrary. However, the apprehending agents must judicially deliver
the terrorist suspects or suspected violator of R.A No. 11479 within
a period of fourteen (14) calendar days counted from the moment he
has been apprehended or arrested, detained, and taken into custody.
The 14-day period can be extended to a maximum period of ten (10)
days by the Anti-Terrorism Council. In sum, a terrorist suspect even
without formal charge in court can be detained for 24 days. The
detainee for terrorism or violation of R.A. No. 11479 has the right not
to be detained beyond the period of 14/24 day. The apprehending
agents must either judicially charge him in court within the period,
or release him after the expiration of the period. Detaining the
suspect beyond the 14/24-day period without formal criminal charge
in court constitutes the crime of violation of the right of the detainee
under Section 31 of R.A. No. 11479.
Several experts find this provision on detaining a terrorist

suspect for 24 days as unconstitutional for being a violation of
Section 2, Article III of the Constitution, which provides that the right
of the people to be secure in their persons against unreasonable
seizures shall inviolable, and no warrant of arrest shall issue except
upon probable cause to be determined personally by the judge.
According to them, only a judge and not Anti-Terrorism Commission
can issue a warrant of arrest. However, the Supreme Court has
sustained the constitutionality of this provision.
TRAFFICKING IN PERSON – The elements of trafficking in

person are as follows:
1. The act of: (a) offering, recruitment, or obtaining; (b)

transportation, transfer or receipt; or (b) harboring, providing or
maintaining of persons with or without the victim's consent or
knowledge, within or across national borders;
2. The means used which include "threat or use of force, or

other forms of coercion, abduction, fraud, deception or abuse of
power or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to achieve
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the consent of a person having control over another; this means as

an element can be dispensed with when the victim is a minor; and
3. The purpose of trafficking is exploitation which includes

"exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs.
1. Acts of trafficking – a. Maintaning - If the accused is

regularly offering the sexual service of the child in exchange for
money, the crime committed is not anymore child prostitution.
Maintaining or hiring the child as purpose of prostitution constitutes
qualified trafficking in person because the former took advantage of
vulnerability of the latter as a child and as one who need money.
Minority is qualifying circumstance (People vs. Casio, G.R. No.
211465, December 03, 2014, Justice Leonen; People vs. Hirang,
G.R. No. 223528, January 11, 2017).
b. Transporting - Accompanying a child and offering her sexual

services in exchange for money constitutes child prostitution. The
accused who offered the victim to the one who raped her is not liable
for rape as principal indispensable cooperation since bringing the
victim to the rapist is not indispensable to the commission of the
crime of rape (People vs. Dulay, GR No. 193854, September 24,
2012). It is submitted that the accused in Dulay case, can be
prosecuted for trafficking in person instead of child prostitution.
Recruiting and transporting a child for sexual service for money

constitutes qualified trafficking in person. In People v. Aguirre, G.R.
No. 219952, November 20, 2017, accused lured several minors into
prostitution to have sex with foreigners with the promise of financial
benefit, the chance to use shabu and to travel abroad. The girls were
brought at an apartment and were instructed to primp themselves to
look good for the foreigners. Accused was convicted of qualified
trafficking in persons since the accused recruited and transported
the minors for purposes of prostitution. The victim’s consent is not a
defense in qualified trafficking in person.
Accused recruited AAA, a minor, and transported to Saigon

Disco for the purpose of engaging her to perform illicit work, i.e., as
a GRO and perform lewd acts thereat and with customers even
outside the establishment. She is liable for qualified trafficking in
person. (People vs. Garcia, G.R. No. 240692, July 15, 2020)
c. Recruitment - In Young vs. People, G.R. No. 213910,

February 03, 2016, petitioners allegedly recruited and hired the AAA
Group and, consequently, maintained them under their employ in
Jaguar for the purpose of engaging in prostitution. Accused can be
properly charged with trafficking in person.
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Recruiting without license a person, child or adult, to work as a

prostitute abroad constitutes the crime of trafficking in person and
illegal recruitment. Syndicate is qualifying circumstance in both
crimes. Even if the accused is less than three, but the allegation and
evidence show that there are at least three traffickers and recruiters,
syndicated can be appreciated as qualifying circumstance (People vs.
Lalli, G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R.
No. 194255, June 13, 2012).
2. By means of trafficking – a. Fraud and deception - The

accused deceived victim by saying that her work in Malaysia would
be as restaurant entertainer, when in fact, she would be working as
a prostitute. This is trafficking in person. Fraud and deception are
means to commit trafficking in person. (People vs. Lalli, G.R. No.
195419, October 12, 2011)
b. Taking advantage of vulnerability - It is apparent from this

case that no threat, force or coercion was employed by accused in the
trafficking of the victims. However, they took advantage of the
vulnerability of the victims to secure the consent of their parents.
They are vulnerable in the sense that they are underprivileged and it
is apparent that they needed to earn money. Considering that the
victims came from poverty-stricken families, it renders the victims
vulnerable to trafficking. Trafficking in persons can still be committed
even if the victim gives consent. (People vs. Leocadio, G.R. No.
237697, July 15, 2020)
c. Minor victim - Acts of trafficking committed for exploitive

purpose against a child, or when the adoption is induced by any form
of consideration, shall also be considered as ‘trafficking in persons’
even if they do not involve any of the means to commit trafficking.
Since the victims are minor, means to commit trafficking such

as threat or use of force, coercion, or fraud need not be established by
evidence. Even without the use of coercive, abusive, or deceptive
means, a minor’s consent is not recognized by law, (People v. Aguirre,
G.R. No. 219952, November 20, 2017) or shall not be considered as
having been given out of his or her own free will. (People vs. Ramirez,
G.R. No. 217978, January 30, 2019, Justice Leonen)
3. Exploitive Purpose - The act of trafficking is committed for

any of the following purposes: (a) Sexual exploitation such as
prostitution or pornography; (b) Labor exploitation such forced labor
or services, slavery, servitude; and (c) Organ exploitation such as
removal or sale of organs.
Section 3 of RA No. 9208 in defining trafficking in person used

the phrase “for the purpose of exploitation.” Hence, the third element
of this crime is exploitive purpose. Recruiting, hiring or transferring
the victim through the required means such as taking advantage of
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her vulnerability for purpose of exploitation such as prostitution

consummates the crime of trafficking in person. Actual exploitation
is not necessary for purpose of consummation thereof.
Accused approached PO1 Nemenzo and offered him the sexual

services of four girls, two of whom were minors, for P2,400.00. The
police operation had been the result of previous surveillance. Both
minor victims testified that this incident was not the first time that
accused pimped them out to customers. It was held that the crime of
trafficking in person involving prostitution is considered
consummated even if no sexual intercourse (or no actual sexual
exploitation) had taken place since the mere transaction
consummates the crime. (People vs. Ramirez, G.R. No. 217978,
January 30, 2019, Justice Leonen)
The fact that there were no actual indecent shows that were
performed by the victims, except for BBB, is immaterial. It is not
necessary that the victims have performed or are performing the act
of prostitution or sexual exploitation at the time when the
perpetrators were apprehended. The material fact in the crime
charged is that the purpose of the perpetrators is to engage the
victims in the said act of prostitution or sexual exploitation. (People
vs. Leocadio, G.R. No. 237697, July 15, 2020)
Labor exploitation - Accused deceived 5 complainants, who

were mostly minors, for they are made to believe that they will be
working as house helpers in Cagayan De Oro City with an enticing
salary of P1,500.00 per month. She told them that they would be
allowed to go home once a week. However, the complainants were
transported to Marawi City. The complainants would not have agreed
or would not have been allowed by their parents if accused would
directly offer them work at Marawi City. The accused deliberately
fabricated a story to delude her victims and their parents. When
complainant asked for their salary, they were told that it had already
been given to accused. This is slavery. Accused was convicted of
trafficking in person qualified by the circumstance of minority and
large scale. (People vs. Nangcas, G.R. No. 218806, June 13, 2018)
Accused and his minor son invited the latter's three (3)
schoolmates who were also minors, namely AAA, BBB, and CCC, to
their house. It was then revealed that the purpose of the meeting was
to discuss plans of accused to commit robberies with the help of AAA,
BBB, and CCC. Upon learning about this, CCC expressed his desire
to leave but accused got angry and punched him; thus, he was forced
to join the group. The children subsequently committed series of
robberies against various people. Accused was also the driver of their
getaway tricycle. Accused is liable for qualified trafficking in person.
He recruited minors by taking advantage of their vulnerability as
minors, particularly through enticement, violence, and use of force
and coercion for purpose of forced labor, or involuntary servitude.
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Forced labor and slavery is defined as the extraction of work or

services from any person by means of enticement, violence,
intimidation or threat, use of force or coercion. (Arambullo vs. People,
G.R. No. 241834, July 24, 2019)
Not valid defenses – The following are not valid defenses in

trafficking in person:
1. Trafficking in person can be committed with or without the

victim’s consent or knowledge. Thus, consent of the victims, who are
minors, to engage in prostitution is not a defense in trafficking in
persons involving recruitment and transportation of trafficked
victims. (People v. Aguirre, G.R. No. 219952, November 20, 2017)
Victim's consent is rendered meaningless due to the coercive,

abusive, or deceptive means employed by perpetrators of human
trafficking. Even without the use of coercive, abusive, or deceptive
means, a minor's consent is not given out of his or her own free will.
(People vs. Bandojo, G.R. No. 234161, October 17, 2018)
2. The fact that there was no person to whom accused endorsed

or recruited his victims is of no moments. Neither the presence of the
trafficker's clients is required to support a finding of trafficking. To
be sure, the gravamen of the crime of trafficking is the act of
recruiting or using a fellow human being for sexual exploitation.
(People vs. Estonilo, G.R. No. 248694, October 14, 2020)
3. Sexual intercourse with the victims is not required to support

a finding of trafficking. To be sure, the gravamen of the crime of
trafficking is the act of recruiting or using a fellow human being for
sexual exploitation. (People vs. Estonilo, G.R. No. 248694, October
14, 2020)
4. The accused had already been involved in the illegal

trafficking of women even prior to the entrapment operation and
arrest. The accused was not forced or induced to commit the crime.
In fact, accused readily agreed to procure girls for the poseur-buyers
and in his active recruitment of the victims. Thus, his defense of
instigation has no merit. This is a valid entrapment. (People vs.
Amurao, G.R. No. 229514, July 28, 2020)
Qualifying circumstance of syndicate or large scale -

Qualified trafficking in person is committed when the crime is
committed by a syndicate, or in large scale. Trafficking is deemed
committed by a syndicate if carried out by a group of 3 or more
persons conspiring or confederating with one another. It is deemed
committed in large scale if committed against 3 or more persons,
individually or as a group (People vs. Kelley, G.R. No. 243653, June
22, 2020)
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There are as many crimes of trafficking in person as there are

victims of trafficking. In People vs. XXX, G.R. No. 235652, July 09,
2018, XXX and YYY were convicted of three counts of qualified
trafficking in persons for making their three biological children
(minors) perform acts of cybersex in pornographic websites for
different foreigner customers in exchange of money or ordering them
to dance naked in front of the computer with internet connectivity
while facilitating the webcam sessions and chatting with a certain
customer. XXX is convicted of another count of qualified trafficking
in person for transporting and providing her own minor biological
child to a foreigner in Makati City for the purpose of prostitution.
It is submitted however, that if the accused is charged with

trafficking in person with the qualifying circumstance of large scale
involving three trafficking victims, he should be held liable of one
count of qualified trafficking in person.
Qualifying circumstance of minority – Minority cannot be

appreciated as a qualifying circumstance in trafficking in person if
not alleged in the information. (People v. Aguirre, G.R. No. 219952,
November 20, 2017)
To appreciate the qualifying circumstance of minority of the

victim in trafficking in person, knowledge of the accused with regard
to her minority is inconsequential (People vs. Bandojo, G.R. No.
234161, October 17, 2018)
Promoting trafficking in person – The person, who knowingly

leases or subleases, uses or allows to be used any house, building or
establishment for the purpose of promoting trafficking in persons is
liable for promoting trafficking in person (Section 5 of RA No. 9208).
The pimp is liable for trafficking in person (Section 4). The customer
of the trafficked prostitute is liable for use of trafficked victim (Section
11). The trafficked prostitute is exempt from criminal liability for the
crime of prostitution (Sections 17 and 32)
In People vs. Saxo, G.R. No. 227704, April 10, 2019, accused
owned a house where its room was offered for lease for every paying
customer of the complainants, who engaged in sex for a fee. Accused
is aware of these prostitution activities since he cleaned the room
after the complainant and her customer finished using it. Moreover,
he sold condoms to complainant's male customers before using the
room. The trial court trial court convicted him of qualified trafficking
in person for knowingly leasing his house for the purpose of
promoting trafficking in persons under Section 5 of RA No. 9208. The
Supreme Court said that the trial court committed a serious error.
The crime under Section 5 of RA 9208 must be properly denominated
as “acts that promote trafficking in persons,” and not qualified
trafficking in person.
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The qualifying circumstance of minority under Section 6 of RA

No. 9208 can be appreciated if the crime is trafficking in person
under Section 4. The circumstance of minority cannot qualify
promoting trafficking in person under Section 5. (People vs. Sayo,
supra)
ILLEGAL RECRUITMENT - An employee may be held liable with

his employer, if the former actively and consciously participated in
illegal recruitment. The employee cannot escape liability by claiming
that she was not aware that before working for her employer in the
recruitment agency, she should first be registered with the POEA.
Illegal recruitment in large scale is malum prohibitum, not malum in
se. Good faith is not a defense (People vs. Valenciano, G.R. No.
180926, December 10, 2008).
The fact that no receipt was issued by appellant is not fatal to

the prosecution's cause, more so in this case where the respective
testimonies of private complainants clearly narrated appellant's
involvement in illegal recruitment activities. (People vs. Imperio, G.R.
No. 232623, October 05, 2020)
Illegal recruitment involving failure to deploy is different from

illegal recruitment involving failure to reimburse. An officers of
licensed recruitment agency cannot be held liable for failure to deploy
complainants in the absence independent evidence from the
Department of Labor and Employment (DOLE) to establish the reason
for non-deployment, such as the absence of a proper job order.
However, they can still be held liable for failure to make
reimbursement. Section 6(m) of RA 8042 criminalizes the failure to
reimburse documentation and processing expenses incurred by the
applicant in case of non-deployment, and not the failure to deploy,
which is covered by a different provision. The law thus makes it
incumbent upon recruitment agencies, under pain of criminal
sanction, to promptly reimburse applicants when they are not
deployed without their fault. (People vs. Espiritu, G.R. No. 226140,
February 26, 2020)
DANGEROUS DRUGS – The sheer volume of the seized drugs

consisting of almost eight (8) kilograms renders the defense of frame-
up difficult to believe; the large quantity of drugs seized reduces, if
not eradicates, the possibility of planting or tampering of evidence.
(People vs. Wai Tang, G.R. No. 238517, November 27, 2019)
Transportation - Since the crime of transportation of

dangerous drugs is malum prohibitum, it is inconsequential to prove
that the illegal drugs were delivered or transported to another person.
The only thing that had to be proven was the movement of the illegal
drugs from one place to another. (People vs. Amago, G.R. No. 227739,
January 15, 2020)
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Under RA No. 9165, transportation of dangerous drugs can be

committed regardless of the quantity. However, if the quantity of the
drugs is not considerable or commercial, the offender, who is
transporting drugs, can be charged and convicted of possession of
dangerous drugs. In Asuncion v. CA, G.R. No. 125959, February 1,
1999, the accused was driving a car with 0.1216 gram of shabu. In
Sales v. People, G.R. No. 191023, February 6, 2013, the accused was
caught in possession of 0.23 gram of dried Marijuana at the
departure area of NAIA. In De Villa vs. People, G.R. No. 224039,
September 11, 2019, the accused was driving a motorcycle with 0.12
gram of shabu. The quantities of drugs in Asuncion case, Sales case
and De Villa case are not considerable or commercial, which indicate
that they possessed the same for consumption purpose. Hence, they
were charged with and convicted of possession of dangerous drug
and not the graver crime of transportation of dangerous drugs.
Importation - Accused were caught by police authorities on

board a speedboat carrying shabu. Since it was not proven that the
drugs came from China or foreign country they were convicted of
possession of dangerous drugs, which is necessarily included in the
charge of importation (People vs. Chan Liu, G.R. No. 189272,
January 21, 2015). The accused can also be held liable of
transportation of dangerous drugs since the place of origin is
inconsequential in this crime.
Sale - Even if the police transacted for the sale of shabu, the
fact that the seized drugs are ephedrine, will not warrant a reversal
of the finding of guilt of the accused. In any case, the charge in the
information was clearly for violation of Section 5 of R.A. No. 9165. It
is immaterial whether the allegation was
for shabu or ephedrine, since both are dangerous drugs. Further, the
purpose of the laboratory examination is to confirm that the seized
items are indeed dangerous drugs. The police officers cannot be
expected to conclude with certainty whether the suspected
dangerous drugs are shabu or ephedrine just by visual inspection.
What matters is that the prosecution was able to prove that the seized
items are indeed dangerous drugs and are the ones presented in
court. (People vs. Ming Tat, G.R. No. 246577, July 13, 2020)
Attempted sale or transportation - Poseur-buyer showed

shabu for sale to poseur buyer. The sale was aborted when the police
officers immediately placed accused under arrest. The crime
committed is attempted sale (People vs. Figueroa, G.R. No. 186141,
April 11, 2012).
Accused intended to transport dangerous drugs to Malaysia

through the use of drug couriers in the person of the confidential
informant and IO2 Alarde. Confidential informant and IO2 Alarde
were summoned to be given instructions regarding the transportation
of certain luggage to Malaysia. The confidential informant and IO2
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Alarde were brought by accused to a Hostel, where the prohibit drugs

were discovered. At that point, the crime of transportation of
prohibited drugs is already at its attempted stage. Even in the
absence of actual conveyance, an attempt to transport prohibited
drugs is meted the same penalty prescribed for the commission
thereof under Section 26 of R.A. 9165. (People vs. Runana, G.R. No.
229055, July 15, 2020)
The accused cannot be convicted of attempted transportation of

dangerous drugs where he was caught in possession thereon inside
his car, which is not in transit. The theory of the prosecution that
there is clear intent to transport the drug is speculative. (San Juan v.
People, G.R. No. 177191, May 30, 2011) But intent to transport illegal
drugs is presumed whenever a huge volume thereof is found in the
possession of the accused until the contrary is proved. Here, five
hundred fifty-two (552) grams or half kilo of shabu is by no means a
minuscule amount indicating as well intent of the accused to deliver
and transport them in violation of Section 5, Article II of RA 9165.
(People vs. Macaspac, G.R. No. 246165, November 28, 2019)
In People v. Burton, G.R. No. 114396, February 19, 1997, the

accused came from a hotel in Parañaque, where he stayed before he
checked in at the NAIA and was bound for Sydney, Australia. At the
departure area of the airport, authorities discovered dangerous drugs
in the two pieces of luggage of the accused. It was held that it is
apparent that he wanted to bring the prohibited drug from Parañaque
to Sydney. However, because he was not able to pursue his trip, he
should be considered only to have attempted to transport the
prohibited drug to Sydney.
In People v. Dimaano, G.R. No. 174481, February 10, 2016,

Justice Leonen, the accused, who was caught in possession of
dangerous drugs at the departure area of Manila Domestic Airport
was also convicted of attempted transportation of dangerous drug.
However, in People v. Jones, G.R. No. 115581, August 29, 1997, the
accused was also caught in possession of dangerous drugs at the
departure area of NAIA, and yet, he was convicted of consummated
transportation of dangerous drugs. At any rate, the penalty
prescribed for transportation of dangerous drugs is the same as that
for attempted transportation of dangerous drugs.
Drug den - Before a person may be convicted of visiting drug

den, it must be shown that he or she knew that the place visited was
a drug den, and still visited the place despite this knowledge. True,
the drug test results sufficiently proved that accused had used drugs
some time before their arrest. However, the positive result of the drug
test cannot be used as a basis to assume that accused used drugs at
the drug den or that they were aware of the nature of the suspected
drug den before visiting it. Accused were not in possession of drugs.
Nobody was found in the act of using, selling or buying illegal drugs,
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nor packaging nor hiding nor transporting the same. There is no

evidence, which would tend to show that the accused were familiar
with the nature of the place as a drug den. Accused were acquitted.
(Coronel vs. People, G.R. No. 214536, March 13, 2017, Justice
Leonen)
Protector or coddler – P/Supt. Borromeo's participation was

not limited to merely protecting the violators nor facilitating their
escape. His co-conspirators regularly reported to and updated him of
the operations in the shabu laboratory. He monitored all the illegal
activities through Dante, who acted under his control and carried out
specific instructions coming from him. These acts sufficiently
established his pivotal role in the conspiracy. Thus, there was no
logical reason for the CA to downgrade his liability from that of a co-
conspirator to a mere coddler or protector. Although the prosecution,
at the time of the filing of the Information, used the words "protector"
or "coddler" to specify Borromeo's participation in the conspiracy, the
terminology is immaterial there being a clear finding of conspiracy.
The use of the words "protector" or "coddler" should not be taken to
mean that his liability as co-conspirator is automatically negated or
reduced. (People vs. CA, G.R. No. 227899, July 10, 2019)
Possession of drugs – Possession of different kinds of

dangerous drugs in a single occasion constitutes a single offense of
possession of dangerous drugs (David vs. People, G.R. No. 181861,
October 17, 2011).
Section 13 of RA 9165 prescribes a higher penalty if a person is

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. To qualify the crime, the law does not require that
possession is intended for the purpose of using illegal drugs or that
the accused is having a pot session with two persons. In fact, under
Implementing Rules and Regulations (IRR) of RA 9165, the phrase
"company of at least 2 persons" was defined to "mean the accused
plus at least two (2) others, who may or may not be in possession of
any dangerous drug." (Plan, Jr. vs. People, G.R. No. 247589, August
24, 2020)
The purpose of Section 13 is to deter the proliferation of

prohibited drugs to other persons. Possession of dangerous drugs is
a crime in itself; but when the possessor is found in a situation where
there is a tendency or opportunity to proliferate drugs to other
persons, either through direct peddling or even some indirect
influence, the gravity of the crime is exacerbated. In addition, when
one possesses dangerous drugs, there is always a chance that the
possessor uses and consequently, becomes "under the influence."
Thus, in the circumstances stated in Section 13, the possessor does
not only become an imminent threat to his own safety and well-being,
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but also to other people within his close proximity; hence, the stiffer
penalties. (Plan, Jr. vs. People, G.R. No. 247589, August 24, 2020)
Use of dangerous drugs – Use of dangerous drugs is committed

by a person apprehended or arrested, who is found to be positive for
use of any dangerous drug, after a confirmatory test. Where the
person tested is also found to have in his possession, he shall be
charged of possession of dangerous drugs and not use of dangerous
drugs (Section 15 of RA No. 9165).
Where residue of dangerous drugs is found and there is a

positive confirmatory test result, the accused should be charged with
use rather than possession of dangerous drugs. This would be in
keeping with the intent of the law to rehabilitate first time offenders
of drug use and provide them with an opportunity to recover for a
second chance at life (People vs. Matinez, G.R. No. 191366, December
13, 2010).
To be held liable for use of dangerous drugs, two distinct drug

tests are required: a screening test and a confirmatory test. A positive
screening test must be confirmed for it to be valid in a court of law.
The test conducted on the urine specimen of the accused was a Thin
Layer Chromatography or TLC - a screening test. When the urine
sample recovered from accused yielded a positive result, the
specimen should have been subjected to a second test - the
confirmatory test. It is the second or further analytical procedure to
more accurately determine the presence of dangerous drugs in the
specimen. The records are silent on any reference to a second, more
specific, examination on the urine sample. Accused was acquitted.
(People vs. Lopez, G.R. No. 247974, July 13, 2020)
Positive confirmatory test is an element of use of dangerous

drugs. However, the absence of such test cannot be raised as an issue
for the first time on appeal (Ambre vs. People, G.R. No.
191532. August 15, 2012).
Coordination with PDEA - Section 86 of RA No. 9165, which

declares PDEA shall be the "lead agency" in the investigations and
prosecutions of drug-related cases, is more of an administrative
provision. It is silent as to the consequences of failure on the part of
the law enforcers to seek the authority of the PDEA prior to
conducting a buy-bust operation (People vs. Berdadero, G.R. No.
179710 June 29, 2010). Lack of coordination with the PDEA will not
invalidate a buy-bust operation. Such coordination is not an
indispensable requirement in buy-bust operations (People vs.
Mendosa, G.R. No. 189327, February 29, 2012).
Chain of custody - The chain of custody refers to recorded

authorized movements and custody of confiscated dangerous drugs.
It involves testimony on every link in the chain - from the confiscation
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of the illegal drugs to its receipt in the forensic laboratory up to its

presentation in court. It is necessary that every person who touched
the seized item describe how and from whom he or she received it;
where and what happened to it while in the witness’ possession; its
condition when received and at the time it was delivered to the next
link in the chain. Generally, there are four links in said chain of
custody: 1) the seizure and marking, if practicable, of the illegal drug
confiscated from the accused by the apprehending officer; 2) the
turnover of the seized drug by the apprehending officer to the
investigating officer; 3) the turnover by the investigating officer of said
item to the forensic chemist for examination; and, 4) the turnover
and submission thereof from forensic chemist to the court (People vs.
Gajo, G.R. No. 217026, January 22, 2018).
Inventory and photography – Under Section 21 of RA No.

9165, 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.
Under Section 21 of RA No. 9165 as amended by RA No. 10640,

the inventory and photography of the seized items must be made in
the presence of “at least three persons”, to wit: (1) the accused or the
person from whom such items were confiscated or his representative
or counsel; (2) any elected public official, and (3) the media or
representatives of National Prosecution Service. RA No. 9165 as
amended uses the disjunctive “or” in the phrase “the National
Prosecution elected public official Service or the media.” Thus, a
representative from the media and a representative from the National
Prosecution Service are now alternatives to each other (People vs.
Que, G.R. No. 212994, January 31, 2018; People vs. Baluyot, G.R.
No. 243390, October 05, 2020)
The original version of Section 21 of RA No. 9165 did not provide

the effect of non-compliance of the rule on inventory and photography
of the confiscated item. Section 21 of RA No. 9165 as amended by
Republic Act No. 10640, now includes a proviso that sanctions
noncompliance under "justifiable grounds": Provided, finally, That
noncompliance of these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures and custody over said items (People vs.
Que, G.R. No. 212994, January 31, 2018). The justifiable ground for
non-compliance must be proven as a fact, because the Court cannot
presume what these grounds are or that they even exist. Moreover,
for the above-saving clause to apply, the prosecution must explain
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the reasons behind the procedural lapses, and that the integrity and
evidentiary value of the seized evidence had nonetheless been
preserved (People vs. Paz, G.R. No. 229512, January 31, 2018).
The following are justifiable grounds for failure to comply with

the three-witnesses rule:
1. The attendance of elective official and media or NPS

representative was impossible because the place of arrest was a
remote area;
2. The safety of these required witnesses during the inventory

and photograph of the seized drugs was threatened by an immediate
retaliatory action of the accused or any person acting for and in his
behalf;
3. The elected official themselves were involved in the

punishable acts sought to be apprehended;
4. The time constraints and urgency of the anti-drug operations,

which often rely on tips of confidential assets, prevented the law
enforcers from obtaining the presence of the required witnesses even
before the offenders could escape; or
5. Earnest efforts to secure the presence of these required

witnesses within the period required under Article 125 of RPC prove
futile through no fault of the arresting officers, who face the threat of
being charged with arbitrary detention. (People vs. Lim, G.R. No.
231989, September 4, 2018)
The police were able to explain the failure to conduct an

inventory and take photographs of the seized items. This is because
of the intervening fact that one Illuminado Acosta was shot at the
time of the buy-bust operation (People vs. Flor, G.R. No. 216017,
January 19, 2018).
In People vs. Lim, supra, an agent testified that no members of

the media and barangay officials arrived at the crime scene because
it was late at night and it was raining, making it unsafe for them to
wait at the house of the accused. Another agent similarly declared
that the inventory was made in the PDEA office considering that it
was late in the evening and there were no available media
representative and barangay officials despite their effort to contact
them. He admitted that there are times when they do not inform the
barangay officials prior to their operation as they might leak the
confidential information. These justifications are unacceptable as
there was no genuine and sufficient attempt to comply with the law.
The prosecution likewise failed to explain why they did not secure the
presence of a representative from the DOJ. Accused was acquitted.
Justice Leonen concurred with the acquittal of the accused.
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In People v. Lim, supra, the Supreme Court, En Banc, expressly

required that the police officers must in the sworn statements state
their compliance with the requirements of Section 21 of R.A. No. 9165
or the justification for non-compliance thereof and steps taken to
preserve the integrity of the confiscated dangerous drugs; otherwise,
the investigating fiscal must not immediately file the case before the
court. Instead, he must refer the case for further preliminary
investigation. If the investigating fiscal filed the case despite such
absence, the court may exercise its discretion to either refuse to issue
a commitment order or warrant of arrest or dismiss the case outright
for lack of probable cause.
The policeman failed to comply with the rule on three-witnesses

and did not offer justifiable grounds for such non-compliance.
However, the issue of non–compliance with Section 21 of R.A. No.
9165 cannot be raised for the first time on appeal. Hence, the defense
of the accused should be rejected (People v. Badilla, G.R. No. 218578,
August 31, 2016)
When the quantity of the confiscated substance is miniscule

(e.g. 0.03 grams of shabu), the requirements of Section 21 of Republic
Act No. 9165, otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, must be strictly complied with. (People vs.
Saragena, G.R. No. 210677, August 23, 2017, Justice Leonen)
Place where inventory and photography shall be conducted

- Section 21 of RA No. 9165 as amended by RA No. 10640 includes a
specification of locations where the physical inventory and taking of
photographs must be conducted. The amended section uses the
mandatory verb "shall." If there is a search warrant, the physical
inventory and photograph shall be conducted at the place where the
warrant is served. In case of warrantless seizures, the physical
inventory and photograph shall be conducted at the nearest police
station or at the nearest office of the apprehending officer/team,
whichever is practicable (People vs. Que, G.R. No. 212994, January
31, 2018).
Plea bargaining – Plea bargaining in criminal cases is a process

whereby the accused and the prosecution work out a mutually
satisfactory disposition of the case subject to court approval. It
usually involves the defendant's pleading guilty to a lesser offense or
to only one or some of the counts of a multi-count indictment in
return for a lighter sentence than that for the graver charge. The
basic requisites of plea bargaining are: (1) consent of the offended
party; (2) consent of the prosecutor; (3) plea of guilty to a lesser
offense which is necessarily included in the offense charged; and (4)
approval of the court. (Fernandez vs. People, G.R. No. 224708,
October 02, 2019)
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Section 23 of RA No. 9165, any person charged under any crime

involving dangerous drugs regardless of the imposable penalty shall
not be allowed to avail of the provision on plea-bargaining. However,
this provision was declared as unconstitutional for contrary to the
rule making authority of the Supreme Court (Estipona, Jr. vs.
Lobrigo, G.R. No. 226679, August 15, 2017). Following this
pronouncement, the Supreme Court issued A.M. No. 18-03-16-SC
providing for a plea-bargaining framework in drugs cases, while the
Secretary of Justice issued DOJ Circular No. 27 on plea bargaining.
The Supreme Court guidelines on acceptable plea bargaining are
different from those provided by the DOJ.
Department of Justice Circular No. 27 does not violate the rule-

making power of this Court. A.M. No. 18-03-16-SC and Office of the
Court Administrator Circular No. 90-2018 are not part of the Rules
of Court. They are, like Department of Justice Circular No.
27, internal guidelines for plea bargaining in drug offenses. Mere
conflicting provisions among these issuances will not necessarily
render the executive issuance unconstitutional. A prosecutor's duty
is to prosecute the proper offense based on the sufficiency of the
evidence. Consent to a plea of guilty to a lower offense is solely within
prosecutorial discretion. Courts do not have the discretion to
mandate what offense the prosecution should prosecute. (Concurring
opinion of Justice Leonen in Sayre vs. Xenos, G.R. Nos. 244413 &
244415-16, February 18, 2020)
Plea bargaining is also called as a plea-bargaining agreement

because it is actually an agreement between the accused, the
offended party, and the public prosecutor where the former will be
allowed to enter a plea to a lesser offense. In a victimless crime or
where the offended party failed to appear despite notice, plea
bargaining agreement can be entered into between the accused and
the public prosecutor.
The court is not a party to a plea-bargaining agreement. Same

as in a compromise agreement in a civil case, the function of the court
is to approve or to reject a plea-bargaining agreement. Without
conformity of the public prosecutor to a plea bargaining involving a
victimless crime such as sale of dangerous drugs, there is technically
no plea-bargaining agreement that the court can approve. The court
cannot approve a unilateral plea bargaining, or one made by the
accused without consent of the fiscal. The word “bargaining”
presupposes that there are at least two persons negotiating on the
terms of a transaction. Obviously, a single person cannot bargain or
negotiate with himself. In fact, Section 2, Rule 116 of the Rules of
Criminal Procedure requires the conformity of the public prosecutor
to a plea bargaining.
In People vs. Reafor, G.R. No. 247575, November 16, 2020, the
Supreme Court ruled: The RTC gravely abused its discretion in
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granting respondent's motion to plea bargain notwithstanding the

prosecution's opposition to the same which is grounded on DOJ
Circular No. 27. Effectively, respondent's plea of guilty to a lesser
offense to which he was convicted of was made without the consent
of the prosecution. Since respondent's plea of guilt and subsequent
conviction for a lesser offense clearly lack one of the requisites of a
valid plea bargain, the plea bargaining is void. Resultantly, the
judgment rendered by the RTC which was based on a void plea
bargaining is also void ab initio and cannot be considered to have
attained finality for the simple reason that a void judgment has no
legality from its inception.
RA No. 3019 – Corruption is an independent crime. Section 3

of R.A. No. 3019 reads: “In addition to acts or omissions of public
officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer.” It is clear then that
one may be charged with v3019iolation of R.A. No. 3019 in addition
to a felony under RPC for the same act. (Ramiscal, Jr. v.
Sandiganbayan, G.R. Nos. 169727–28, August 18, 2006) Thus, the
offender in addition to violation of Section 3 of R.A. No. 3019 can be
held liable for falsification of document by public official (Suero v.
People, G.R. No. 156408, January 31, 2005); or malversation through
falsification of document (People vs. Pajaro, G.R. Nos. 167860–65,
June 17, 2008) or failure to render an accounting. (Lumauig v. People,
G.R. No. 166680, July 7, 2014); or plunder (See: Senator Revilla vs.
Office of the Ombudsman, G.R. Nos. 212427-28, December 6, 2016)
SECTION 3 (C) - Section 3(c) of R.A. No. 3019 is committed

by a public officer who shall directly or indirectly request or receive
any gift, present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in any
manner or capacity, has secured or obtained, or will secure or obtain,
any Government permit or license, in consideration for the help given
or to be given.
Under the last paragraph of Section 3, the person giving the gift,
present, share, percentage or benefit in Section 3(c) shall, together
with the offending public officer, be punished.
In Lucman vs. People, G.R. No. 238815, March 18, 2019, DENR
officer demanded P2,500,000.00 and actually received
P1,500,000.00 from private complainants in consideration of the
grant of their applications for free patents is liable under Section 3
(c).
SECTION 3 (D) – For one to be found guilty under Section 3 (d)

of RA No. 3019, the following elements must be present: (a) the
accused is a public officer; (b) he or she accepted or has a member of
his or her family who accepted employment in a private enterprise;
and (c) such private enterprise has a pending official business with
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the public officer during the pendency of official business or within

one year from its termination.
Wife of accused, a TESDA officer, accepted employment in

RACE, Inc., a private enterprise, which has a pending official
business with TESDA. Accused in his official capacity approved
TESDA accreditation of RACE. Accused in conspiracy with his wife,
is liable for corruption under Section 3 (d) of RA No. 3019. Because
of conspiracy, his wife is also liable. Moreover, under Section 9 (a),
private person committing any of the unlawful acts under this law
shall also be punished. (Villanueva vs. People, G.R. No. 237864, July
08, 2020)
The fact that RACE is a non-stock and non-profit educational

association is immaterial. Regardless if the enterprise is for profit or
not, stock or non-stock, the law does not distinguish. It is an
elementary rule in statutory construction that: where the law does
not distinguish, the courts should not distinguish. (Villanueva vs.
People, supra)
Violation of Section 3 (d) of RA 3019 is considered malum

prohibitum. Mere acceptance by co-accused, a family member, of
employment with RACE renders accused liable under the law.
(Villanueva vs. People, supra)
SECTION 3 (E) - The following are the essential elements for

violation of Section 3 (e) of RA 3019: (1) The accused must be a public
officer discharging administrative, judicial or official functions; (2) He
must have acted with manifest partiality, evident bad faith or
inexcusable negligence; and (3) That his action caused any undue
injury to any party, including the government, or giving any private
party unwarranted benefits, advantage or preference in the discharge
of his functions. (Office of the Ombudsman vs. Prudente, G.R. No.
201830, November 10, 2015; PCGG vs. Gutierrez, G.R. No. 194159,
October 21, 2015)
Public bidding - A mayor, who purchased medical supplies,

without public bidding, is liable for violation of Section 3 (e) of RA No.
3019 for giving unwarranted preference and benefit to the seller.
(Cabrera vs. People, G.R. Nos. 191611-14, July 29, 2019; People vs.
Austria, G.R. 243897, June 08, 2020)
Permit to construct - Accused, an Administrator of Intramuros

Administration, acted with gross inexcusable negligence when he
knowingly allowed OCDC to commence construction on the
Intramuros Walls without the required permits or clearances. By his
actions, he gave unwarranted benefits to a private party, i.e., OCDC,
to the detriment of the public insofar as the preservation and
development plans for Intramuros are concerned. He is liable for
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violation of Section 3 (e) of RA No. 3019 (Ferrer vs. People, G.R. No.
240209, June 10, 2019)
Notice to proceed - Accused gave unwarranted benefits and

advantage to several contractors by allowing them to deploy their
equipment ahead of the scheduled public bidding. Under law, a
public contract shall be awarded to the lowest prequalified bidder.
The successful bidder may be allowed to commence work only upon
receipt of a Notice to Proceed. They are liable for violation of Section
3 (e) of RA No. 3019. (Abubakar vs. People, G.R. No. 202408, June
Disbursement of fund for unauthorized travel - Accused, a

Mayor of Municipality of Taal, travelled to Manila, without securing
permission from Governor prior to his departure. As Mayor, he
approved disbursement of funds representing reimbursement for
travel expenses. When audit was conducted, he obtained travel
approval from the Governor. A travel is unauthorized because the
accused did not obtain a written permission from the governor prior
to his departure as required by law. Subsequent approval of the travel
by the Governor will not validate the travel. Unauthorized travel is
not a violation of Section 3 (e) of RA No. 3019. But approving
disbursement of public fund for reimbursement of expenses for
unauthorized travel violates this provision since it caused undue
injury to Municipality of Taal through bad faith. (Cabrera vs. People,
G.R. Nos. 191611-14, July 29, 2019)
Donating in good faith - It cannot be denied that the transfer

of the vehicles to SFWD was made to ensure the success of the
implementation of the waterworks projects in the province. The Deed
of Donation expressly provided that the subject vehicles shall be used
for the said purpose. There is no showing that the accused acted in
bad faith in donating the vehicles. Accused was acquitted of violation
of RA No. 3019 (Bustillo vs. People, G.R. No. 160718 May 12, 2010).
Erroneous interpretation of the law - Five percent (5%) of the

total PhilHealth honoraria was allocated to the non - health
professionals OR staff of the PCB Provider. As to who these non-
health or professionals mentioned, they were not specifically
identified. The rule does not expressly indicate whether they need be
part of the official roll of employees of the Municipal Health Office.
Non-health professionals include the rank and file employees or
administrative staff of the Municipal Health Office who are not among
the front liners providing access to health care. It also covers
volunteers and community members of health teams. This led
accused to honestly believed, albeit mistakenly, that the office of the
municipal mayor which exercises control and supervision over the
Municipal Health Office and its personnel, may likewise be covered
by the term "non-health professional." Consequently, he acted in
good faith when he received the P17,512.50 honorarium, anchored
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as it was on the honest belief that he was legally entitled to the

benefit. Otherwise stated, accused did not act in bad faith when he
mistakenly interpreted Section V (G) of PhilHealth Circular No. 010
s. 2012. Erroneous interpretation of a provision of law, absent any
showing of some dishonest or wrongful purpose, does not constitute
and does not necessarily amount to bad faith. (People vs. Bacaltos,
G.R. No. 248701, July 28, 2020)
Under Section 138 of Local Government Code, permit to extract

sand, gravel and other quarry resources shall be issued exclusively
by the provincial governor. However, under Section 444 of the same,
a municipal mayor has a general authority to issue licenses and
permits. Believing that applicability of Section 444, the accused, a
municipal mayor issued extraction permits. He was charged of
violation of Section 3 (e) of RA No. 3019. According to Justice Leonen
in his Dissenting Opinion, the brazen act of granting permits without
any basis in law gives rise to a presumption of bad faith. However,
the Supreme Court acquitted the accused. From the tenor of his letter
to provincial officers, accused was very emphatic in his belief and
reasoning, albeit mistakenly, that, under the Local Government
Code, he as municipal mayor has authority to issue the permits.
Although he committed a mistake in interpreting the law, such
mistake is not tantamount to evident bad faith, manifest partiality or
gross inexcusable negligence under Section 3(e) of RA 3019.
(Villarosa vs. People, G.R. Nos. 233155-63, June 23, 2020)
Demolition without due process of law - In Cuerpo vs. People,

G.R. No. 203382, September 18, 2019, members of Samahan
occupied lands in Quezon City as squatters. In an ejectment case,
they agreed to voluntarily vacate the properties. They planned to
relocate in Rodriguez, Rizal, but the accused, municipal mayor,
refused to allow squatters to relocate therein. Samahan bought a
property therein but Office of the Municipal Engineer refuse to
process the application for building permit. Because of the writ of
demolition issued by the Court of Quezon City, members of the
Samahan were forced moved to their purchased lot and built
temporary shelters made of lumber and tarpaulin despite the lack of
building. Accused caused the demolition the makeshift homes and
took away lumber, tarpaulin, plywood, and appliances. Accused is
liable for violation of Section 3 (e) of RA No. 3019 for causing undue
injury to the members of Samahan through manifest partiality and
evidence bad faith.
Under the Constitution, urban or rural poor dwellers shall not

be evicted nor their dwellings demolished, except in accordance with
law and a just and humane manner. Members of Samahan are urban
poor dwellers, and yet, they were evicted in disregard of the law.
Under RA No. 7279, summary eviction and demolition are also

allowed in cases pertaining to identified professional squatters,
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squatting syndicates and new squatter families. "Professional

squatters'" refer to individuals or groups who occupy lands without
the express consent of the landowner and who have sufficient income
for legitimate housing. They are persons who have previously been
awarded homelots or housing units by the Government but who sold,
leased or transferred the same to settle illegally in the same place or
in another urban area, and non-bona fide occupants and intruders
of lands reserved for socialized housing. The term shall not apply to
individuals or groups who simply rent land and housing from
professional squatters or squatting syndicates. "Squatting
syndicates", on the other hand, refers to groups of persons engaged
in the business of squatter housing for profit or gain. While "new
squatter" refers to individual groups who occupy land without the
express consent of the landowner after March 28, 1992. Members of
Samahan are not squatters because the construction of makeshift
homes was made on their own property.
Under RA No. 7279, eviction or demolition, however, may be

allowed under the following situations: (a) When persons or entities
occupy danger areas such as esteros, railroad tracks, and other
public places such as sidewalks, and parks; (b) When government
infrastructure projects with available funding are about to be
implemented; or (c) When there is a court order for eviction and
demolition. None of these circumstances is obtaining in this case.
Granting that the shanties of members of Samahan were

constructed without the necessary building or development permits,
this fact does not automatically necessitate the summary demolition.
Property rights are involved, thereby needing notices and opportunity
to be heard as provided for in the constitutionally guaranteed right
of due process. Without compliance with the laws allowing for
eviction and demolition, accused was not justified in employing
procedural sidesteps in displacing them from their property by a
mere Memorandum ordering for summary demolition issued by
accused. Accused should have undergone the appropriate proceeding
as set out in the law.
Gross inexcusable negligence - In Reyes vs. People, G.R. No.

237172, September 18, 2019 (Justice Leonen), accused, a governor,
was charged of violation of Section 3 (e) of RA No. 3019 for renewing
the small-scale mine permit of Olympic Mines. Since the renewal of
permit was not exclusively granted to Olympic Mines, manifest
partiality as an element of this crime is not present. There is no
evident bad faith since the law existing at the time did not expressly
prohibit the renewal of small-scale mining permits before their
expiration. However, accused committed gross inexcusable
negligence when he approved the permit considering that Olympic
Mines violated the terms and conditions of old permit. Accused, as
the local chief executive, had the duty to act within the best interests
of his constituents and to safeguard the environment's natural
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resources. Olympic Mines disregard the dry metric ton threshold set
by the law. This law ensures that small scale mining activities will
not result in environmental damage. His gross inexcusable
negligence, thus, caused undue injury to Palawan, as it exposed the
province to various environmental threats resulting from
irresponsible mining.
Arias principle -In Arias v. Sandiganbayan, G.R. Nos. 81563

and 82512, December 19, 1989, the property bought by the City is
overpriced. When the accused was appointed as treasurer, the sale
of the property had already been consummated. Accused was
charged with violation of Section 3(e) of R.A. No. 3019 for causing
damage to the government through manifest partiality and evident
bad faith. The only evidence presented by the prosecution is his
signature on the voucher. He was acquitted. Heads of offices can rely
to a reasonable extent on their subordinates on preparation of bids,
purchase of supplies, or negotiations. Any executive head agencies
or commissions can attest to the volume of papers that must be
signed. Thus, executive head cannot be convicted on the sole basis
of signature or approval appearing on a voucher. To sustain a
conspiracy charge and conviction, evidence must be presented other
than her signature on the voucher.
The principle in the Arias case is not applicable in the following

cases:
a. If other than the accused’s signature on the voucher,

circumstances show evident bad faith, or manifest partiality such as:
(a) Where the accused has foreknowledge of existing anomaly – e.g.,
mayor signed the inspection report and the disbursement voucher
despite the fact that he had foreknowledge that the materials
delivered by Guadines have already been confiscated by the DENR
(Escara v. People, G.R. No. 164921, July 8, 2005); or (b) where accused
approved the voucher without indication of the retention money
required by law, and he even inspected the construction site of
hospital boat being constructed, in which he should have noticed the
financial weakness of the contractor and the defective works (Rivera
v. People, G.R. No. 156577, December 3, 2014);
b. If other than the accused’s signature on the voucher,

circumstances show gross inexcusable negligence such as where
there is deviation from ordinary procedure, which necessitate further
investigation – e.g., mayor issued and encashed municipal checks
despite the facts that the disbursement vouchers were in the name
of Kelly Lumber but the checks were payable to another person and
not to Kelly Lumber (Cruz v. The Hon. Sandiganbayan, G.R. No.
134493, August 16, 2005);
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In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013, the
accused in his capacity as Chairman of the Inspection and
Acceptance Committee, signed the 16 certificates of acceptance,
inventory, and delivery of articles despite its incompleteness or lack
of material dates, while co-accused certified to the correctness of the
Inspection Report Forms even if no such deliveries were made. Since
there are reasons for the heads of offices to further examine the
documents in question, accused cannot seek refuge by invoking the
Arias doctrine.
The Arias doctrine cannot exonerate accused from criminal

liability because there were circumstances that should have
prompted them to make further inquiries on the transactions subject
of this case e.g. the irregular mobilization of contractors prior to the
scheduled public bidding, and contract which contains a patently
illegal stipulation and advance payment without appropriate
documents such as purchase orders and delivery receipts to support
this disbursement. (Abubakar vs. People, G.R. No. 202408, June 27,
2018, Justice Leonen)
c. If the public officer acting in his capacity as head of office has

not relied on his subordinates but on officers of equal rank such as
heads of the Office of the City Treasurer and, the Office of the City
Accountant in approving the cash advances in the amount of P18
million to paymaster despite of the failure to liquidate previous cash
advances (Jaca v. People, G.R. No. 166967, January 28, 2013); and
d. If the documents involving the release of funds are not so

voluminous so as to preclude him from studying each one carefully.
(Santillano v. People, G.R. Nos. 175045–46, March 3, 2010)
Malversation can be committed intentionally or through dolo.

Hence, the Arias principle cannot be applied as a defense in a case
involving malversation if there is evidence of negligence on the part
of the accountable officer.
Where there are circumstances that should have alerted heads

of offices to exercise more diligence in the performance of their duties,
they cannot escape liability by claiming that they relied on good faith
on the submissions of their subordinates. There were discrepancies
in the voucher and the check, which should have prodded. The
governor, treasurer, management and audit analyst to examine the
supporting documents for the fund disbursement. Thus, Arias is not
applicable. They are liable of malversation through negligence.
Escobar vs. People, G.R. No. 205576, November 20, 2017, Justice
Leonen
Actual damage - In causing undue injury to the government or

any party under Section 3 (e) of RA No. 3019, offended party must
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sustain actual loss or damage, which must exist as a fact and cannot
be based on speculations or conjectures. The loss or damage need
not be proven with actual certainty. However, there must be some
reasonable basis by which the court, can measure it. Aside from this,
the loss or damage must be substantial. It must be more than
necessary, excessive, improper or illegal. In giving unwarranted
benefits, advantage, or preference to a private party, proof of the
extent or quantum of damage is not thus essential. It is sufficient
that the accused has given unjustified favor or benefit to another.
(Cabrera vs. People, G.R. Nos. 191611-14, July 29, 2019)
SECTION 3 (G) - The elements of violation of Section 3 (g) are:

(a) that the accused is a public officer; (b) that he entered into a
contract or transaction on behalf of the government; and (c) that such
contract or transaction is grossly and manifestly disadvantageous to
the government. (PCGG vs. Gutierrez, G.R. No. 194159, October 21,
2015)
Unlike Section 3 (e) of RA No. 3019, Section 3 (g) does not

require the giving of unwarranted benefits, advantages or preferences
to private parties who conspire with public officers, its core element
being the engagement in a transaction or contract that is grossly and
manifestly disadvantageous to the government. (PCGG vs. Office of
the Ombudsman, G.R. No. 193176, February 24, 2016)
Behest loan – Granting of behest loan by government bank or

entity to private individual violates Section 3 (g) of RA No. 3019 by
entering into a contract or transaction on behalf of the government,
which is grossly and manifestly disadvantageous to the government;
or Section 3 (e) by giving unwarranted benefits, advantage or
preference to private party.
The following criteria may be utilized as a frame of reference in

determining a behest loan: (1) it is under-collateralized; (2) the
borrower corporation is undercapitalized; (3) direct or indirect
endorsement by high government officials like presence of marginal
notes; (4) stockholders, officers or agents of the borrower corporation
are identified as cronies (of high government officials); (5) deviation of
use of loan proceeds from the purpose intended; (6) Use of corporate
layering; (7) non-feasibility of the project for which financing is being
sought; and (8) extraordinary speed in which the loan release was
made. (See: PCGG vs. Desierto, G.R. No. 139296, November 23, 2007)
The amount and number of loans (P16 million) obtained from

the government bank by the private company despite being
undercapitalized (P7 million capital stock) and absence of any action
by the bank to collect full payment are showing that the contract,
which is manifestly disadvantageous on the part of the government,
violates Section 3 (g) of RA No. 3019. The private individual, who
obtained that loan, and the responsible bank officers are liable for
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the crime of corruption. Private persons may likewise be charged

with violation of Section 3(g) of RA 3019 if they conspired with the
public officer in consonance with the avowed policy of this law, which
is to repress certain acts of public officers and private persons
(Singian, Jr. vs. Sandiganbayan, G.R. Nos. 195011-19 September 30,
2013).
SECTION 3 (H) - Violation of Section 3 (h) of RA No. 3019 is

committed by a public officer, who directly or indirectly have financial
or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution or by any
law from having any interest.
In People vs. Hon. Sandiganbayan, G.R. Nos. 233280-92,

September 18, 2019, the accused is a TESDA director. The Bids and
Award Committee members recommended the award to supplies
materials to CDZ Enterprises owned by the sister of the accused.
TESDA had several purchase orders from this company. Accused was
acquitted of the crime of violation of Section 3 (h) of RA No. 3019.
In this case, the prosecution merely assumed the pecuniary

interest of the accused when her sister's company, CDZ Enterprises,
was able to submit the lowest price quotations for the contracts due
to the accused's intervention. The existence of relationship per
se does not automatically translate to having direct or indirect
financial interest in the subject contracts. The prosecution was not
able to present evidence that the accused received any financial
benefit from these transactions. Mere allegation that the parties are
related to each other is not conclusive proof of such pecuniary
interest.
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In his dissenting opinion, Justice Leonen argued that accused,

a TESDA director, has the burden to contradict the presumption that
she indirectly benefitted financially from the transaction of her sister
with TESDA. When a person assists her sibling in obtaining an
award, that person will indirectly benefit financially following the
ordinary course of life in the Filipino family. Article 291 of the Civil
Code provides for the obligation of brothers and sisters to render
support to each other.
Majority of the justices disagreed with Justice Leonen. Indirect

pecuniary benefit cannot be presumed from the mere fact of
assistance being rendered by accused to her sister in obtaining the
award at TESDA. Article 291 of the Civil Code cannot be made to
apply in this case, since the record is bereft of proof that accused was
obliged to financially support or that she was, in fact, providing
financial support to her sister or that the latter was financially
dependent on the former. Since her sister is the registered owner of
CDZ Enterprises, it is presumed that she is financially independent
from accused.
In his dissenting opinion, Justice Leonen argued that the

accused should have be convicted based on the case of Republic vs.
Tuvera, G.R. No. 48246, February 16, 2007, where it was expressly
found that a relationship, in and of itself, can establish the indirect
pecuniary interest of someone charged with violation of Section 3 (h)
of RA No. 3019.
Majority of the Justices disagreed with Justice Leonen. In the

Tuvera case, the respondent, who is the Presidential Executive
Assistant of President Marcos, is the father of the principal
stockholder of Twin Peaks. Acting on the request of Twin Peaks,
President Marcos granted Timber License Agreement in favor of the
company. There was no public bidding. They failed to comply with
the requisites for the grant of such agreement by negotiation. Twin
Peaks was not legally capacitated to be granted such agreement
because it has insufficient logging equipment to engage in the logging
business. According to the Supreme Court in Tuvera case, certainly,
the circumstances presented by the evidence of the prosecution are
sufficient to shift the burden of evidence to respondent in
establishing that he did not violate the provisions of RA No. 3019 in
relation to the Twin Peaks' request. The burden was shifted to
respondent because he waived his right to present evidence to
disprove that he violated the allegations against him.
None of the foregoing circumstances in Tuvera case were

present in the case of People vs. Hon. Sandiganbayan. Unlike in
the Tuvera case where the totality of the prosecution evidence created
a presumption of indirect pecuniary benefit against the accused, the
prosecution in People vs. Hon. Sandiganbayan failed to show the
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connection of Zurbano to CDZ Enterprises or how Zurbano's

intervention led to her acquisition of any financial interest or benefit.
The assistance rendered to a sibling maybe by reason of love or some
other concept of familial duty, without not necessarily contemplating
any monetary gain.
INORDINATE DELAY DOCTRINE – Inordinate delay in

resolving a criminal complaint is violative of the constitutionally
guaranteed right to due process and to the speedy disposition of
cases, which warrants the dismissal of the criminal case. Delay
prejudices the accused or respondent and the State just the same.
Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to
prevent oppressive pre-trial incarceration; to minimize anxiety and
concerns of the accused to trial; and to limit the possibility that his
defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. There is also prejudice if the
defense witnesses are unable to recall accurately the events of the
distant past.
In Coscolluela, the fact that it took the Ombudsman eight years

to resolve a case under preliminary investigation was considered
violative of the right to speedy disposition of cases. In Cervantes, it
took the OSP six years from the filing of the initiatory complaint
before deciding to file an information; this was struck down as well.
In Tatad v. Sandiganbayan, a three-year delay in the termination of
the preliminary investigation by the Tanodbayan was considered
violative of the right. In Lopez, Jr. v. Office of the Ombudsman, the
preliminary investigation was resolved close to four years from the
time all the counter- and reply-affidavits were submitted to the
Ombudsman, and this was similarly struck down. In People v.
Sandiganbayan, the fact-finding investigation and preliminary
investigation by the Ombudsman lasted nearly five years and five
months, which the Court considered an inordinate delay. The same
is true in Angchangco, Jr., and Roque v. Office of the
Ombudsman, where the delay involved a period of six years, more or
less. In Licaros, the failure of the Sandiganbayan to decide the case
even after the lapse of more than 10 years after it was submitted for
decision was declared to involve "more than just a mere
procrastination in the proceedings. In this case, the preliminary
investigation proceedings in said case took more than 11 long years
to resolve. Thus, the case against petitioner should be dismissed
(Almeda vs. Office of the Ombudsman, G.R. No. 204267, July 25,
2016; Magbaet vs. Sandiganbayan, G.R. Nos. 230869-70, September
16, 2020) The prosecution's sheer inaction means that it has failed
to diligently and timely pursue its case. Such failure amounts to a
violation of an accused's constitutional rights, warranting the
"radical relief' of putting an end to the proceedings. Concurring
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opinion by Justice Leonen in People vs. Pagal, G.R. No. 241257,

September 29, 2020).
RA No. 6713 - In order to sustain a conviction for violation of

Section 7 (d) of RA 6713 (Code of Conduct and Ethical Standard for
Public Officials), the following elements must be proved with moral
certainty: (a) that the accused is a public official or employee; (b) that
the accused solicited or accepted any loan or anything of monetary
value from any person; and (c) that the said act was done in the
course of the accused's official duties or in connection with any
operation being regulated by, or any transaction which may be
affected by the functions of his office.
In this case, the prosecution was able to establish all the

foregoing elements, considering that: (a) at the time the subject loans
were obtained, accused was a public official; (b) she solicited and
accepted the subject loans from CABMPCI, which was a cooperative
that was being regulated by her office; and (c) the subject loans were
obtained from CABMPCI, the transactions and operations of which
are regulated by the functions of the office of the accused. The
Cooperative Code makes membership in cooperatives available to all
individuals regardless of their social, political, racial or religious
background or beliefs. However, this law does not accord accused, by
virtue of the functions of her office, complete freedom in any of her
personal transactions with any cooperative despite her membership
therein. The limitation of CDA officials and employees to obtain loans
from cooperatives is but a necessary consequence of the privilege of
holding their public office. (Villanueva vs. People, G.R. No. 237738,
June 10, 2019)
Receiving gift – Receiving gift by public officer (e.g policeman)

per se is not a crime.
Under Section 3 (d) of RA No.6713, "receiving any gift" includes

the act of accepting directly or indirectly, a gift from a person other
than a member of his family or relative as defined in this Act, even
on the occasion of a family celebration or national festivity like
Christmas, if the value of the gift is neither nominal nor insignificant,
or the gift is given in anticipation of, or in exchange for, a favor.
If the value of the gift is nominal or insignificant, or the gift is

not given in anticipation of, or in exchange for, a favor, the police
officer, who received such gift, is not liable under Section 7 (d) of RA
No. 6713.
In Mabini vs. Raga, A.M. No. P-06-2150, June 21, 2006,

complainant presented a letter signed by Branch 28 employees,
including respondent, thanking Governor Roño for his “donation” of
P1,500.00. However, there is no proof whatsoever that a solicitation
took place. The cash gift of P1,500.00 was received not by
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respondent Lilia alone, but together with eleven other employees of

Branch 28, to purchase lechon for their Christmas party; hence, the
individual benefit of the employees may be considered nominal.
Neither does it appear from the evidence that the nominal gift was
given in anticipation of, or in exchange for, a favor. Thus, respondent
Lilia cannot be held liable under Republic Act No. 6713 because the
governor’s gift, aside from being unsolicited, was also nominal or
insignificant in value; and not given in anticipation of, or in exchange
for, a favor. The receipt of the gift does not fall within the ambit of
Section 7 (d) of RA No. 6713, in relation to Sections 3 (c) and (d).
Section 14 of RA No. 3019 recognizes as lawful receipt of

unsolicited gift of insignificant value of a gift given as a token of
gratitude. This provision provides: Unsolicited gifts or presents of
small or insignificant value offered or given as a mere ordinary token
of gratitude or friendship according to local customs or usage, shall be
excepted from the provisions of this Act.
PLUNDER - Plunder is committed by any public officer who shall

amass, accumulate or acquire ill-gotten wealth through a
combination or series of overt or criminal acts (predicate crimes) in
the aggregate amount or total value of at least P50,000,000.00 by
himself or in connivance with other persons.
Predicate crimes - The predicates of plunder are as follows:
1. Misappropriation, conversion, misuse, or malversation of

public funds or raids on the public treasury;
2. Receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the public
officer;
3. Illegal or fraudulent conveyance or disposition of assets
belonging to government;
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business
enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees
and orders intended to benefit particular persons or special interests;
or
6. By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino people
and the Republic of the Philippines.
The concept of malversation as a predicate crime of plunder is

the same as that of malversation under Article 217 of the Revised
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Penal Code. (Gloria Macapagal Arroyo v. People, G.R. No. 220598, July
19, 2016)
The plunderer must be benefitted from the raid on public treasury

to consider this predicate crime of plunder as present. The
interpretation of the term “raid on a public treasury” should be made
in association with the words that immediately preceded it, and that
are “misappropriation, conversion, misuse or malversation of public
funds.” All of these predicate crimes presuppose that the plunderer
benefitted from them. (See: Gloria Macapagal Arroyo v. People, supra)
Justice Leonen in his dissenting opinion said that persona benefit
is not an element of plunder.
In Valencia vs. Sandiganbayan, G.R. No. 220398, June 10,

2019, the information for plunder alleged that the
accused diverted the funds and converted the same,
withdrew and received and unlawfully transferred the proceeds into
their possession and control, and that they took advantage of their
respective positions to enrich themselves. The defense filed a motion
to quash because accused only allegedly amassed the amount of
P13.3 million which was way below the P50 million threshold for
plunder. Sandiganbayan denied the motion to quash since there was
sufficient evidence to convict him of malversation, which is predicate
crime of plunder. The denial was elevated to the Supreme Court. It
was held that in averring the predicate act of malversation, the State
did not sufficiently allege the aforementioned essential elements of
malversation in the information. The omission from the information
of factual details (e.g. the accused is an accountable officer)
descriptive of the aforementioned elements of malversation
highlighted the insufficiency of the allegations. Consequently, the
position of the Sandiganbayan is entirely unfounded.
Note: Valencia principle is not be applied where the elements

of malversation as a predicate crime of plunder are sufficiently
alleged in the information.
Identification of the main plunderer - If there are several

accused in plunder case, who acted under a single conspiracy, or
wheel conspiracy, or chain conspiracy, the main plunderer must be
identified. The law on plunder requires that a particular public officer
must be identified as the one who amassed, acquired or accumulated
ill-gotten wealth in the amount of at least P50 million. Surely, the law
requires in the criminal charge for plunder against several
individuals that there must be a main plunderer and her co-
conspirators. (See: Arroyo vs. People, G.R. No. 220598, April 18,
2017)
In Arroyo vs. People, supra, a case for plunder involving the

misappropriation of PCSO funds amounting to P360 million was filed
against ten (10) accused including President Arroyo. However, the
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information did not identify President Arroyo or any other accused as

the principal plunderer. Hence, the case was dismissed. It was held
that because plunder is a crime that only a public official can commit
by amassing, accumulating, or acquiring ill-gotten wealth in the
aggregate amount or total value of at least ₱50,000,000.00, the
identification in the information of such public official as the main
plunderer among the several individuals thus charged is logically
necessary under the law itself. The individuals charged therein were
10 public officials; hence, it was only proper to identify the main
plunderer or plunderers among the 10 accused who herself or himself
had amassed, accumulated, or acquired ill-gotten wealth with the
total value of at least ₱50,000,000.00.
With due respect to the Supreme Court, it is submitted that

identification of main plunderers among the accused is not
indispensable in the prosecution for plunder since all accused can be
the plunders. If 3, 5 or 9 accused out of 10 can be the main plunders,
it follows that 10 out of 10 or all accused can be the plunderers. The
information in the Arroyo case alleged that accused are all public
officers conspiring with one another amass, accumulate and
acquirePHP365,997,915.00 through any or a combination or a series
of overt or criminal acts. Thus, the information identified them all as
main plunderers. In fact, Justice Leonen and Justice Serena
dissented. But for purpose of the bar examination, the majority ruling
in Arroyo case should be followed.
Single plunderer - Plunder can be committed by the public

officer acting alone (Ejercito v. Sandiganbayan, G.R. Nos. 157294-95,
November 30, 2006, Concurring opinion of Justice Panganiban)
Conspiracy in Plunder - Plunder can be committed by the

public officer in connivance with other persons. If the public officer
committed plunder in connivance with other persons, the “other
persons” or the participants (secondary offenders) are also liable on
the basis of conspiracy. Moreover, the participants, with whom the
public officer connived in committing plunder, are liable under R.A.
No. 7080. Under Section 2 of this law, any person who participated
with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for
such offense.
Where the public officer connives with other persons in

committing plunder, their liabilities are subject to single conspiracy
or multiple conspiracies. There are two structures of multiple
conspiracies, namely: wheel or circle conspiracy and chain
conspiracy.
Single Conspiracy - In single conspiracy, the public officer

conspired with a single individual or group in committing plunder.
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The main plunderer in this case must be a public officer. But the
participants in this case can be public officers or private individuals.
Hypothetical problem: A Senator conspired with private

individual, Maria, in acquiring ill-gotten wealth through a series of
misappropriation of his pork barrel amounting to P80 million. They
agreed to equally divide the money. On the basis of conspiracy, the
total amount of ill-gotten wealth acquired by the conspirators shall
be considered for purposes of determining if P50-million threshold
amount had been reached. In this case, since total amount of ill-
gotten wealth acquired by Senator and Maria is P80 million, they are
liable for plunder. Although the Senator merely acquired ill-gotten
wealth in the amount of P40 million, the act of Maria in acquiring ill-
gotten wealth amounting to P40 million shall be treated as the act of
the Senator due to conspiracy. Because of the collective responsibility
rule, the ill-gotten wealth acquired by the Senator shall be considered
as P80 million, although in reality he merely acquired P40 million.
Since the Senator is liable for plunder, Maria, with whom the Senator
connived, is also liable for plunder although she is a private
individual. In Juan Ponce Enrile v. People, G.R. No. 213455, August
11, 2015, in the crime of plunder, the amount of ill-gotten wealth
acquired by each accused in a conspiracy is immaterial for as long
as the total amount amassed, acquired or accumulated is at least
P50 million.
In single conspiracy involving plunder, the main plunderer must

be identified. (see: Gloria Macapagal Arroyo v. People, supra) In the
above-stated hypothetical problem, the principal plunder is the
Senator.
Hypothetically, if in the case Gloria Macapagal Arroyo v. People

information properly alleged, and evidence established that single
conspiracy among the ten accused existed, and that President Arroyo
is the main plunderer while the nine accused are secondary
offenders, they could be held liable for plunder even without showing
the particular amount of ill-gotten wealth acquired by each accused
out of the P360 million. Because of conspiracy, the collective acts of
all of the ten accused in acquiring P360 million shall be considered
as the acts of President Arroyo although she merely acquired certain
portion of this amount.
Wheel Conspiracy - Under the wheel or circle conspiracy,

there is a single person or group (the hub) dealing individually with
two or more other persons or groups (the spokes). (Fernan, Jr. v.
People, G.R. No. 145927, August 24, 2007) In wheel conspiracy
involving plunder, the public officer (main plunderer or the hub)
amasses, accumulates and acquires ill-gotten wealth in connivance
with others (the spokes). The rim that enclosed the spokes was the
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common goal in the overall conspiracy, i.e., the amassing,

accumulation and acquisition of ill-gotten wealth.
Hypothetical problem: Pedro, the President of the Philippines,

conspired with A, private individual, in connection with his shares
on the jueteng collections in the amount of P40 million; and with B,
private individual, in connection with his P40 million commission
pertaining to transaction where GSIS and SSS bought the share of
belly corporation on his order. A and B received P20 million each out
of these transactions. This is not a single conspiracy because the
conspiracy of the President with A in connection with jueteng
collections is different from his conspiracy with B in connection with
his commission. This is a wheel conspiracy since the President is
dealing with A and B individually. The President is the hub while A
and B are spokes. Since there is wheel conspiracy in this case, the
total amount of P80 million acquired by the President, A and B shall
be considered for purposes of determining if P50-million threshold
amount had been reached. Since the total amount of ill-gotten wealth
acquired by President, A and B is P80 million, they are liable for
plunder. Although the President merely acquired ill-gotten wealth in
the total amount of P40 million, the act of A in acquiring P20 million
and the act of B in acquiring P20 million shall be treated as acts of
the President. Because of the collective responsibility rule due to
wheel conspiracy, the ill-gotten wealth acquired by the President
shall be considered as P80 million although in reality he merely
acquired P40 million. Since the President is liable for plunder, A and
B, with whom the President connived, are also liable for plunder
although they are private individuals.
In wheel conspiracy involving plunder, the main plunderer must

be identified. (see: Gloria Macapagal Arroyo v. People, supra) In the
above-stated hypothetical problem, the principal plunder is the
President.
USE OF INFORMATION TECHNOLOGY - Use of information and

communications technologies in committing felony or offense under
special law is a qualifying circumstance under Section 6 of RA No.
10175.
Under Section 6 of RA No. 10175, the penalty for crimes

punishable under special laws committed through and with the use
of information and communication technologies shall be one degree
higher than that provided the law. However, this provision requires
the application of the rules on graduation of penalties under the
Revised Penal Code. Hence, Section 6 finds application only if special
law involved has adopted the technical nomenclature of the penalties
of Revised Penal Code.
CYBEL LIBEL - Content-related offenses includes cyber libel,

cybersex and cyber child pornography. A prosecution for cybercrime
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offenses shall be without prejudice to any liability for violation of any

provision of RPC or special laws (Section 7). Despite of Section 7, the
offender cannot be prosecuted for cyber libel or cyber child
pornography under RA No. 10175 in addition to libel under RPC or
child pornography under RA No. 9775 since this will offend the
constitutional rule on double jeopardy (Disini vs. Secretary of
Justice, G.R. No. 203335, February 11, 2014).
Libel is not a constitutionally protected speech and that the

government has an obligation to protect private individuals from
defamation. Indeed, cyber libel is actually not a new crime since
Article 353, in relation to Article 355 of the Revised Penal Code,
already punishes it. Online defamation constitutes “similar means”
for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335,
February 18. 2014).
Prescription for cyber libel - One of the cybercrimes defined

under Section 4 of R.A. No. 10175 is cyber libel. Section 8 of R.A. No.
10175 prescribes penalties for all cybercrimes under Section 4
except cyber libel. It seems that through oversight Congress failed to
provide a penalty for cyber libel. Hence, an offender, who committed
libel through the internet, cannot be prosecuted for cyber libel under
Section 4 of R.A. No. 10175 simply because there is no penalty under
Section 8 for committing it.
However, libel through the internet is still punishable under

Article 355 of the Revised Penal Code. Section 6 of R.A. No. 10175,
using information or communication technology in committing a
crime will upgrade the penalty for it by one degree. In sum, one, who
committed libel through the internet shall be prosecuted for libel
under RPC with the qualifying circumstance under R.A. No. 10175.
He cannot be prosecuted for libel under Section 6 of R.A. No. 10176
since this provision does not define a crime but merely provides a
modifying circumstance that will adjust the penalty one degree
higher for a crime punishable under the Revised Penal Code.
Since an offender in committing internet libel can only be

prosecuted for libel qualified by the circumstance of using
information or communication technology under RPC in relation to
RA No. 10175, Article 90 of the Code on prescription applies.
By the same token, the period of prescriptive for homicide with

the special aggravating circumstance of use of loose firearm under
Section 29 of RA No. 10883 is still governed by Article 90 of the
Revised Penal Code, and not by Act 3326.
In Tolentino vs. People, G.R. No. 240310, August 06, 2018, the
Supreme Court apply Article 90 of RPC to cyber libel.
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Under Article 90 of the Revised Penal Code, the crime of libel shall
prescribe in one year while crime punishable by prision mayor shall
prescribe in 15 years. In my submission, the one-year prescriptive
period for libel under Article 90 shall apply. However, the Supreme
Court in Tolentino vs. People, supra, applied the 15 years rule. In the
said case, the Supreme Court ruled:
“Anent petitioner's claim that the action has prescribed,

although Republic Act (RA) No. 10175, or the Cybercrime Prevention
Act of 2012, does not categorically state the prescriptive period for such
action, the new prescriptive period for the crime of libel in relation to
RA No. 10175 can be derived from the penalty imposed on the said
crime. Section 6 of RA No. 10175 provides that the "penalty to be
imposed shall be one (1) degree higher than that provided for by
RPC(RPC), as amended, and special laws, as the case may be." As
such, the former penalty of prision correccional in it its minimum and
medium periods is increased to prision corrreccional in its maximum
period to prision mayor in its minimum period. The new penalty,
therefore, becomes afflictive, following Section 25 of the RPC.
Corrolarily, following Article 90 of the RPC, the crime of libel in relation
to RA 10175 now prescribes in fifteen (15) years. Thus, respondent
Eva Rose Pua's filing of the complaint on August 8, 2017 against
petitioner's Facebook post dated April 29, 2015 was well within the
prescriptive period for libel in relation to RA 10175.”
HAZING - Hazing refers to any act that results in physical or

psychological suffering, harm, or injury inflicted on a recruit,
neophyte, applicant, or member as part of an initiation rite or
practice made as a prerequisite for admission or a requirement
for continuing membership in a fraternity, sorority, or organization.
Hazing includes paddling, whipping, beating, branding, forced
calisthenics, exposure to the weather, forced consumption of any
food, liquor, beverage, drug or other substance, or any other brutal
treatment or forced physical activity which is likely to adversely affect
the physical and psychological health of such recruit, neophyte,
applicant, or member. Hazing shall also include any activity,
intentionally made or otherwise, by one person alone or acting
with others, that tends to humiliate or embarrass, degrade, abuse,
or endanger, by requiring a recruit, neophyte, applicant, or
member to do menial, silly, or foolish tasks. (Section 2 of RA No.
8049 as amended by RA No. 11053)
The elements of the crime of hazing are: (1) That there is

initiation rite or practice made as a prerequisite for admission or
a requirement for continuing membership in a fraternity, sorority,
or organization; (2) That during the initiation rite or practice, physical
or psychological suffering, harm, or injury is inflicted on a recruit,
neophyte, applicant, or member of the fraternity, sorority or
organization; and (3) as a consequence of the hazing, death, rape,
sodomy, or mutilation results.
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Initiation or initiation rites refer to ceremonies, practices,

rituals, or other acts, whether formal or informal, that a person must
perform or take part in order to be accepted into a fraternity,
sorority, or organization as a full-fledged member. It includes
ceremonies, practices, rituals, and other acts in all stages of
membership in a fraternity, sorority, or organization. (Section 2 of
RA No. 8049 as amended by RA No. 11053)
Organization refers to an organized body of people which

includes, but is not limited to, any club, association, group,
fraternity, and sorority. This term shall include the Armed
Forces of the Philippines (AFP), the Philippine National Police
(PNP), the Philippine Military Academy (PMA), the Philippine
National Police Academy (PNPA), and other similar uniformed
service-learning institutions. (Section 2 of RA No. 8049 as amended
by RA No. 11053) The Philippine Merchant Marine Academy is
included in the term organization within the meaning of the law.
People v. Bayabos, G.R. No. 171222, February 18, 2015) Company or
private corporation is covered by the hazing law. Under RA No. 8049,
in no case shall hazing be made a requirement for employment in
any business or corporation.
Failure to allege that the physical or psychological harm were

employed as prerequisite for admission (or a requirement for
continuing membership) would prevent the successful prosecution
of the criminal responsibility of the accused, either as principal or as
accomplice, for the crime of hazing. Plain reference to a technical
term “hazing” is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and thus a mere
conclusion of law. (People v. Bayabos, supra) However, in Villarba vs.
CA, G.R. No. 227777, June 15, 2020, the Supreme Court through
Justice Leonen did not follow the Bayabos principle. It was held that
the lack of the phrase "prerequisite to admission" does not make the
Information invalid. Even with its absence, the alleged facts, which
include the controlling words 'fraternity,' 'initiation,' 'hazing,' and
'recruit, ' would have reasonably informed accused of the nature and
cause of the accusation against him.
Prior to RA No. 11053, the crime of hazing is confined to a

situation where the infliction of physical or psychological harm is a
prerequisite for admission in a fraternity, sorority, or organization.
However, there are occasions where the organization will first admit
the neophyte as member, and then, hazing will be made as post-
requisite for admission. Thus, RA No. 11053 expanded the concept
of hazing by covering initiation rite or practice made not only as a
prerequisite for admission but also as a requirement for continuing
membership in a fraternity, sorority, or organization.
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Prior to RA No. 11053, the hazing is punishable under RA No.

8049 if as a consequence of hazing, death, rape, sodomy, mutilation
or serious, less serious or slight physical injuries results. RA No.
8049 does not prescribe penalty for mere infliction of psychological
harm. RA No. 8049 as amended by RA No. 11053, declares all forms
of hazing shall be prohibited in fraternities, sororities, and
organizations. Section 14 thereof prescribes for penalties for all
forms of hazing. However, the penalty is higher where death,
rape, sodomy, mutilation results from hazing.
a. Malum Prohibitum - Prior to R.A. No. 8049, good faith is a

defense in homicide where the victim is killed during hazing. The
consent of the victim and lack of intent to kill of the accused would
negate dolo, which is an important element of homicide. Hence, the
crime committed is only reckless imprudence resulting in homicide.
(Villareal v. People, G.R. No. 151258, February 1, 2012) Now, the
participants of the hazing with or without dolo are liable for violation
of R.A. No. 8049 if the neophyte died as a consequence thereof.
Instead of amending RPC which penalizes mala in se, where

good faith is a defense, the Congress created a special law on hazing,
founded upon the principle of mala prohibita where good faith is not
a defense.
The deliberation of the Senate shows that what is important is

not the intention to kill the neophyte during the hazing but the result
of the act of hazing. Recognizing the malum prohibitum characteristic
of hazing, RA No. 8049 as amended, provides that any person
charged with the said crime shall not be entitled to the mitigating
circumstance that there was no intention to commit so grave a wrong.
Also, the framers of the law intended that the consent of the
victim to be injured shall not be a defense in hazing. The very act of
inflicting physical or psychological pain is a punishable act. Death is
just an aggravating circumstance (Dungo v. People, G.R. No. 209464,
July 1, 2015) Section 12 of RA No. 11053 provides that the defense
that the recruit, neophyte, or applicant consented to being
subjected to hazing shall not be available to persons prosecuted for
hazing. Any form of approval, consent, or agreement, whether
written or otherwise, or of an express waiver of the right to object to
the initiation rite or proceeding, which consists of hazing, made
by a recruit, neophyte, or applicant prior to an initiation rite that
involves inflicting physical or psychological suffering, harm, or injury,
shall be void and without any binding effect on the parties.
b. Presence - Generally, mere presence at the scene of the

crime does not in itself amount to conspiracy. (Dungo v. People, supra)
However, under RA No. 8049 as amended by RA No. 11053, mere
presence can be a source of criminal liability. Section 14 punishes all
persons who are present in the conduct of the hazing. However,
135 | P a g e
the penalty is higher if the persons, who are present during the
hazing, are (1) officers of the fraternity, sorority, or organization;
(2) former officers, nonresident members, or alumni thereof; and (3)
members thereof who are intoxicated or under the influence of
alcohol or illegal drugs.
c. Actual participation - The penalty for hazing is also higher

if the person actually participated in the conduct of the hazing.
The actual participants are liable for hazing even if they are not
members of the fraternity, sorority, or organization.
R.A. No. 8049 as amended by RA No. 11053 presents a novel

provision that introduces a disputable presumption of actual
participation; and which modifies the concept of conspiracy. Section
14 thereof provides that the presence of any person, even if such
person is not a member of the fraternity, sorority, or organization,
during the hazing is prima facie evidence of participation therein as
a principal unless such person or persons prevented the commission
of the acts punishable herein or promptly reported the same to the
law enforcement authorities if they can do so without peril to their
person or their family.
This provision is unique because a disputable presumption

arises from the mere presence of the offender during the hazing,
which can be rebutted by proving that the accused took steps to
prevent the commission of the hazing or promptly reports the same
to the authorities.
Generally, mere presence at the scene of the crime does not in

itself amount to conspiracy. Exceptionally, under R.A. No. 8049, the
participation of the offenders in the criminal conspiracy can be
proven by the prima facie evidence due to their presence during the
hazing, unless they prevented the commission of the acts therein or
reported the matter to the authorities. (Dungo v. People, supra; 2018
Bar Exam)
d. Planning – The law punishes all persons, who actually

planned the conduct of the hazing. The original version of RA No.
8049 merely punished officers, former officers, or alumni of the
fraternity, sorority or organization, who actually planned the hazing.
Under this law as amended by RA No. 11053, any person including
a non-member is criminally liable for planning the conduct of hazing.
Even though these planners were not present when the acts
constituting hazing were committed, they shall still be liable as
principals.
e. Adviser – The law also punishes the adviser of a fraternity,

sorority, or organization who is present when the acts
constituting the hazing were committed and failed to take action
to prevent the same from occurring or failed to promptly report
136 | P a g e
the same to the law enforcement authorities if such adviser or

advisers can do so without peril to their person or their family.
The liability of the adviser arises, not only from his mere presence in
the hazing, but also his failure to prevent the same. (Dungo v. People,
supra)
f. Inducement – Officers or members of a fraternity,

sorority, or organization, who knowingly cooperated in carrying out
the hazing by inducing the victim to be present thereat, are liable
for hazing. These officers or members are penalized, not because of
their direct participation in the infliction of harm, but due to their
indispensable cooperation in the crime by inducing the victim to
attend the hazing (Dungo v. People, supra; 2018 Bar Exam). However,
this rule is only applicable if the inducer is an officer, or member
of a fraternity, sorority, or organization.
The accused claim that the information avers a criminal charge

of hazing by actual participation, but the only offense proved during
the trial was hazing by inducement. The information alleged that the
accused during a planned initiation rite and being then officers of APO
fraternity used personal violence upon a neophyte resulting to his
death. The “planned initiation rite” as stated in the information
included the act of inducing victim to attend it. Accused not only
induced victim to be present at the resort, but they actually brought
him there. The hazing would not have been accomplished were it not
for the acts of the petitioners that induced the victim to be present.
Hence, they are liable for hazing. (Dungo v. People, supra)
g. Incumbent officers - The incumbent officers of the

fraternity, sorority, or organization concerned shall be jointly liable
with those members who actually participated in the hazing.
h. Owner or lessee – The law punishes the owner or lessee of

the place where hazing is conducted as principal for hazing, when he
has actual knowledge of the hazing conducted therein but failed to
take any action to prevent the same from occurring or failed to
promptly report the same to the law enforcement authorities if they
can do so without peril to their person or their family. (2018 Bar
Exam)
Under the old version of RA No. 8048, only owner of the place
of hazing is liable. However, under this law as amended by RA No.
11053, a lessee can be held also be held liable for hazing. Under
the old rule, such owner is only liable as an accomplice. Now, he
is responsible as principal. Moreover, under the new rule, promptly
reporting the matter to the authorities is an additional defense for
such owner.
i. Parents – Under the law, if the hazing is held in the home

of one of the officers or members of the fraternity, sorority, or
organization, the parents shall be held liable as principals for
137 | P a g e
hazing when they have actual knowledge of the hazing conducted

therein but failed to take any action to prevent the same from
occurring or failed to promptly report the same to the law
enforcement authorities if such parents can do so without peril to
their person or their family.
Under the old version of RA No. 8048, parent is only liable as

an accomplice. Under this law as amended by RA No. 11053, he is
responsible as principal. Moreover, under the new rule, promptly
reporting the matter to the authorities is an additional defense for
such parent.
j. School authorities - School authorities including faculty

members as well as barangay, municipal, or city officials shall be
liable as an accomplice for hazing conducted by fraternities,
sororities, and other organizations, if it can be shown that: (1) the
school or barangay, municipal, or city officials allowed or
consented to the conduct of hazing; or (2) where there is actual
knowledge of hazing, but such officials failed to take any action to
prevent the same from occurring or failed to promptly report to the
law enforcement authorities if the same can be done without peril
to their person or their family.
Even though school authorities and faculty members have had

no direct participation in hazing, they may nonetheless be charged
as accomplices if it is shown that (1) hazing occurred; (2) the accused
are school authorities or faculty members; and (3) they consented to
or failed to take preventive action against hazing in spite actual
knowledge thereof (People v. Bayabos, supra) or to report the matter
to the authorities.
The corresponding responsibilities of the principal, accomplice,

and accessory are distinct from each other. As long as the
commission of the offense (hazing) can be duly established in
evidence, the determination of the liability of the accomplice can
proceed independently of that of the principal. (People v. Bayabos,
supra)
Under Section 7 of RA No. 8049 as amended by RA No.

11053, the faculty adviser or advisers, who accepted his role
after being selected by an accredited fraternity, sorority, or
organization, shall be responsible for monitoring the activities
of the fraternity, sorority, or organization. In case of violation of
any of the provisions of this Act, it is presumed that the faculty
adviser has knowledge and consented to the commission of any of
the unlawful acts stated therein.
Under Section 4, 5, 10 and 11 of RA No. 8049 as amended

by RA No. 11053, initiation rites are allowed the fraternity,
sorority or organization obtained approvable from school
138 | P a g e
authority, or punong barangay, or city or municipal mayor,

authorities upon written application undertaking that no harm
of any kind shall be committed. During approved initiation rites,
at least two school or barangay, city or municipal representatives
must be present. If hazing is still committed despite their presence,
no liability shall attach to them unless it is proven that they failed to
perform an overt act to prevent or stop the commission thereof.
Failure to provide school representatives during the approved

initiation rites is also punishable.
Res inter alios rule - Res inter alios acta provides that a party's
rights generally cannot be prejudiced by another's act, declaration,
or omission. However, in a conspiracy, the act of one is the act of all,
rendering all conspirators as co-principals "regardless of the extent
and character of their participation. Under Rule 130, Section 30 of
the Rules of Court, an exception to the res inter alios acta rule is an
admission by a conspirator relating to the conspiracy. Hazing often
involves a conspiracy among those involved, be it in the planning
stage, the inducement of the victim, or in the participation in the
actual initiation rites. The rule on res inter alios acta, then, does not
apply. (Fuertes vs. Senate of the Philippines, G.R. No. 208162,
January 07, 2020, Justice Leonen)
Constitutionality of presumption of innocence - Under the

Constitution, the accused in a criminal case shall be presumed
innocent until the contrary is proved. Since an accused is presumed
to be innocent, the evidentiary standard to convict him of the crime
charged is high. Under the Rules on Evidence, the prosecution must
establish by evidence the guilt of the accused beyond reasonable
doubt. If there is doubt on whether the accused is guilty or innocent,
the court must acquit him.
The constitutional rule on presumption of innocence does not

however prohibits Congress from enacting a law on presumption of
guilt. However, in crafting a provision on presumption of guilt,
Congress must identify facts to be proven by the prosecution on
which the presumption will be based. For example, Section 5 of P.D.
No. 1612 provides that mere possession of stolen properties shall be
prima facie evidence of fencing. This is a rule on presumption of guilt.
The fact to be proven by the prosecution is possession of the stolen
property by the accused. From this fact, the accused will be
presumed to have committed the crime of fencing. In other words,
the accused is presumed to be guilty of fencing once the prosecution
establishes that he is in possession of the stolen property. If the
accused cannot present clear and convincing evidence to overcome
or rebut the presumption of guilt, he will be convicted.
Ordinarily, the prosecution to cause the conviction of the

accused must prove his guilt beyond reasonable doubt. However, if
139 | P a g e
the law provides a presumption of guilt, the prosecution will only

prove beyond reasonable doubt the facts on which the presumption
will be based. While the burden of proof and evidence lies on the
prosecution, once the facts on which accused will be presumed to be
guilty are proven, the burden of evidence is shifted to the accused.
To avoid conviction, he must present clear and convincing evidence
that he is innocent.
Presumptions of guilt under the law are constitutional. The

constitutional presumption of innocence is not violated when there
is a logical connection between the fact proved and the ultimate fact
presumed. When such prima facie evidence is unexplained or not
contradicted by the accused, the conviction founded on such
evidence will be valid. (Fuertes vs. Senate of the Philippines, G.R. No.
208162, January 7, 2020, Justice Leonen)
In Dizon-Pamintuan, G.R. No. 111426, July 11, 1994, the

Supreme Court affirmed the constitutionality of Section 5 of P.D. No.
1612, which provides presumption of guilt in the crime of fencing. It
is constitutional because there is a logical connection between the
fact proved (possession of stolen property) and the ultimate fact
presumed (commission of fencing).
Presumption of guilt under the law is not offensive to the

presumption of innocence under the Constitution. These two
presumptions are compatible since they will be applied successively,
and not simultaneously. In a criminal prosecution, the accused is
initially presumed to be innocent. The Constitution cannot be
disregarded. Presumption of innocence is always the general rule.
However, this presumption is not conclusive. It can be overcome or
rebutted. Hence, the prosecution may present evidence to establish
beyond reasonable doubt the fact of accused’s guilt or the fact on
which the accused will be presumed to be guilty under the law. If the
prosecution establishes the factual basis of the legislative
presumption, the presumption of innocence will be procedurally
replaced by presumption of guilt.
Presence at the scene of the crime can be a basis of presumption

of guilt under the law. Section 14 RA No. 8049 as amended by RA No.
11053 provides that the presence of any person, even if such person
is not a member of the fraternity, sorority, or organization, during the
hazing is prima facie evidence of participation therein as a principal
unless such person or persons prevented the commission of the acts
punishable herein or promptly reported the same to the law
enforcement authorities if they can do so without peril to their person
or their family.
Section 14 of RA No. 8049 provides a presumption guilt. If the

prosecution proves beyond reasonable doubt that the accused is
140 | P a g e
present during the hazing, it will be presumed that he participated in

the hazing as principal. In sum, he is presumed to be guilty of hazing.
As a general rule, mere passive presence of a person at the scene

of the crime does not make him a co-conspirator. (People v. Silvestre
and Atienza, G.R. No. L-35748, December 14, 1931). However,
Section 14 of RA No. 8049 provides exceptions. First, this law
punishes a person who is present during hazing. Second, the law
provides a presumption of participation on the basis of presence of
the accused during the hazing. The penalty for participating in hazing
is higher than that for being presence during the hazing.
In Fuertes vs. Senate of the Philippines, supra, Justice Leonen,

the Supreme Court affirmed the constitutionality of Section 14 of RA
No. 8049 on presumption of guilt because the accused fails to show
that there is no logical relation between the fact proved (presence of
a person during the hazing) and the ultimate fact presumed (their
participation in the hazing as a principal). Neither has it been shown
how Section 14 of the Anti-Hazing Law does away with the
requirement that the prosecution must prove the participation of the
accused in the hazing beyond reasonable doubt.
Constitutionally, Congress can amend RA No. 9165 (Dangerous

Drugs Law) to include provisions on presumption of guilt.
VIOLENCE AGAINST WOMEN - Psychological violence is an

indispensable element of violation of Section 5(i) of R.A. No.
9262. Equally essential is the element of emotional anguish and
mental suffering, which are personal to the
complainant. Psychological violence is the means employed by the
perpetrator, while emotional anguish or mental suffering are the
effects caused to or the damage sustained by the offended party. The
law does not require proof that the victim became psychologically ill
due to the psychological violence done by her abuser. Rather, the law
only requires emotional anguish and mental suffering to be proven.
To establish emotional anguish or mental suffering, jurisprudence
only requires that the testimony of the victim to be presented in
court, as such experiences are personal to this party. (Araza vs.
People, G.R. No. 247429, September 8, 2020; XXX vs. People, G.R.
No. 243049, October 05, 2020)
Section 5 (i) of RA No. 9262 on psychological violence against

woman is a catch-all provision.
Physical violence and psychological violence -Physical

violence against woman is punishable under Section 5 (a). However,
if physical violence caused mental or emotional anguish to the
victim, the offender may be prosecuted for psychological violence
against woman under Section 5 (i). Physical violence will be
considered as an element of psychological violence.
141 | P a g e
In Dinamling v. People, G.R. No. 199522, June 22, 2015,

accused’s acts of publicly punching, kicking and stripping the victim
of her pants and underwear, although obvious acts of physical
violence, are also instances of psychological violence since it was
alleged and proven that they resulted in her public ridicule and
humiliation and mental or emotional distress. Accused was convicted
of the psychological violence against woman. Physical violence was
treated as a mere element of the graver crime of psychological
violence against woman.
Economic violence and psychological violence -Deprivation

of financial support is punishable as economic violence against
woman under Section 5 (e). (Melgar vs. People, G.R. No. 223477,
February 14, 2018) However, if the deprivation of financial support
caused mental or emotional anguish to the offended woman, the
offender may be prosecuted for both psychological violence against
woman under Section 5 (i) and economic violence against woman
under Section 5 (e) (Reyes vs. People, G.R. No. 232678, July 03,
2019)
In Melgar vs. People, G.R. No. 223477, February 14, 2018,

accused has a dating and sexual relationship with AAA resulting in
BBB's birth. He failed to provide BBB support ever since the latter
was just a year old. Accused is charged with psychological violence
against woman under Section 5 (i) of RA No. 9262 for failure to give
support which "caused mental or emotional anguish, public ridicule
or humiliation to AAA and BBB. No evidence was presented to show
that deprivation of support caused either AAA or BBB any mental or
emotional anguish. However, the accused can be convicted of
economic violence against woman under Section 5 (e), which is
necessarily included in the charge of psychological violence against
woman under Section 5 (i) of RA No. 9262. Deprivation or denial of
support, by itself and even without the additional element of
psychological violence, is already specifically penalized therein as
economic violence.
Felony and psychological violence - Concubinage and bigamy

are punishable under the Revised Penal Code. However, if
concubinage or bigamy caused mental or emotional anguish to the
offended wife, the offending husband may be prosecuted for
psychological violence against woman.
In AAA v. BBB, G.R. No. 212448, January 11, 2018, the accused
was prosecuted for psychological violence against woman under
Section 5 (i) for having an illicit affair with a Singaporean that causes
mental or emotional anguish to his wife.
In Araza vs. People, G.R. No. 247429, September 8, 2020,

accused left his wife and decided to stay in Zamboanga City where
142 | P a g e
he maintained an illicit affair. He intentionally left his wife groping in

the dark. Without any explanation or mature conversation with his
wife, he simply left his wife causing the latter emotional and
psychological distress. Accused committed the crime of psychological
violence, through his acts of marital infidelity, which caused mental
or emotional suffering on the part of his wife.
143 | P a g e

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For LECTURES by Judge CAMPANILLA, kindly text 09327988549, 09998843644, 09564080514

REVISED 2021 UPDATES ON CRIMINAL LAWS

Warning: This is the intellectual property of Judge Campanilla.

Note: The dissenting opinions of Justice Leonen are included in

TERRITORIALITY - For purpose of venue under the Rules of

Convention of the law of the sea - Under the Convention on

Regime of islands - Under the principle of territoriality, the

200-mile exclusive economic zone - The Philippines has no

If a Chinese fishing vessel deliberately bumped a Filipino vessel

PRESIDENTIAL IMMUNITY - Under Article 14 of the Civil Code,

Under the US Constitution, American citizen has the right to

However, penal laws shall not be obligatory upon a person, who

Under the Section 7, Article VII of the 1973 Constitution, the

The President of the Philippines is entitled to immunity from

In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court

During the period of his incumbency and tenure, President

player in the entire scheme of the operations, more so point to any

Vice-presidential immunity - It is submitted that a Vice

Pacifico Agabin, former dean of the University of the Philippines

Some experts are saying that criminally prosecuting a vice-

MALA IN SE AND MALA PROHIBITA - Criminal law has long

To classify a crime as malum in se or malum prohibitum, the

1. Intentional felony — Intentional felony under the Revised

intent is an element of intentional felonies, they are mala in se.

In Ysidoro v. People, G.R. No. 192330, November 14, 2012, the

2. Offense under special law – If the offense punishable

If the offense punishable under special law is inherently evil,

First view - The first view is that if the offense is punishable

Fencing is a concept substantially similar to that of theft or

Hazing where the victim died or was raped is for obvious

Supreme Court in Villareal v. People, G.R. No. 151258, February 1,

Sexual harassment is wrong in nature. However, in Escandor

Second view - The second view is that even although the

In Napoles vs. Sandiganbayan, G.R. No. 224162, November 7,

In Dungo v. People, G.R. No. 209464, July 1, 2015, a common

Sexual abuse and child abuse are both punishable under RA

Sexual abuse under Section 5 (b) of RA No. 7610 is considered

Child abuse under Section 10 of RA No. 7610 was considered

Partakes the nature of malum prohibitum – Section 3 (g) of

Private individuals, who benefitted from the contact, which is

based on Section 4 (b), which punishes any person for knowingly

Section 3 (d) of RA No. 3019 punishes a public officer or any

In Luciano case, the Supreme Court declared violation of

Settled in the rule that violation of RA No. 3019 partakes of the

Malversation and technical malversation - Malversation is

In Villarosa vs. Hon. Ombudsman, supra, using tobacco fund

ABERRATIO ICTUS – If the crimes committed against the target

3. If the components of a complex crime are alleged in two

Accused consciously poured hot cooking oil from a casserole on

CONSUMMATION OF THREAT - The crime of grave threat is

PASSION - There is no uniform rule on what constitutes a

SELF-DFENSE – Unlawful aggression is of two kinds: (a) actual

INSANITY - The defense of insanity is in the nature of a

presumed sane. For the defense of insanity to prosper, it must be

In order for the accused to be exempted from criminal liability

IMBECILITY AND MINORITY – Mental retardation includes (a)

Having sexual intercourse with the offended party, who is under

Having sexual intercourse with the offended party, who is

The word “age” in the phrase “person below 18 years of age” in

Under Section 5 (b) of RA No 7610, when the child subjected to