Criminal Law | Mica Janine B.

Regalado 2015

MITIGATING CIRCUMSTANCE

Those which, if present in the commission

of the crime, do not entirely free the
actor from criminal liability, but serve
only to reduce the penalty

BASIS

Diminution of either freedom of action,

intelligence, or intent, or on the lesser
perversity of the offender

CLASSES OF MITIGATING
CIRCUMSTANCES:
1. Ordinary
2. Privileged

ORDINARY MITIGATING

13(1-10)
o 13(1) ordinary mitigating if 69 not
applicable

PRIVILEGED MITIGATING

68: penalty to be imposed upon a

person under 18 years of age: JJWA rules
shall be observed
o <18 w/o discernment: EXEMPT
o (15-18) w/ discernment: penalty
next lower next lower than that
prescribed (but always in the
proper period; as amended by
RA 9344)
69: penalty when the crime committed is
not wholly excusable
o Penalty lower by one or two
degrees
o deed not wholly excusable by
reason of the lack of some of the
conditions required to justify the
same or to exempt from criminal
liability
o PROVIDED majority of such
conditions be present
64: rules for the application of penalties
which contain three periods
o 2 or more MC, no AC: penalty
next lower to that prescribed, in

period deemed applicable,

according to the number and
nature of such circumstances
Applicable only to particular crimes
o 268(3): one degree lower:
voluntary release of the person
illegally detained within 3 days
w/o the offender attaining his
purpose and before the
institution of the criminal action
o 333(3): one degree lower:
abandonment w/o justification
of the spouse who committed
adultery
ORDINARY
Can be offset by
AC
If not offset by AC
penalty in minimum
in case of divisible
penalty

PRIVILEGED
Cannot be offset
by AC
Lower by 1 or 2
degrees than that
provided by law

NOTE: MCs can only reduce the penalty,

they do not change the nature of the crime

ART 13. MITIGATING CIRCUMSTANCES

The following are mitigating circumstances:
1. Those mentioned in the preceding
chapter, when all the requisites
necessary to justify the act or to
exempt from criminal liability in the
respective cases are not attendant.
2. That the offender is under 18 years of
age, or over 70 years. In the case of
the minor, he shall be proceeded
against in accordance with the
provisions of Art, 80 (Note: impliedly
repealed by RA9344)
3. That the offender had no intention to
commit so grave a wrong as that
committed
4. That sufficient provocation or threat
on the part of the offended party
immediately preceded the act
5. That the act was committed in the
immediate vindication of a grave
offense to the one committing the

Criminal Law | Mica Janine B. Regalado 2015

6.

7.

8.

9.

10.

felony (delito), his spouse,

ascendants, descendant, legitimate,
natural or adopted brothers or sisters,
or relatives by affinity within the
same degrees.
That of having acted upon an
impulse so powerful as naturally to
have produced passion or
obfuscation.
That the offender had voluntarily
surrendered himself to a person in
authority or his agents, or that he
had voluntarily confessed his guilt
before the court prior to the
presentation of the evidence for the
prosecution.
That the offender is deaf and dumb,
blind or otherwise suffering some
physical defect which thus restricts
his means of action, defense, or
communication with his fellow
beings
Such illness of the offender as would
diminish the exercise of the willpower of the offender without
however depriving him of
consciousness of his acts.
And, finally, any other circumstances
of a similar nature and analogous to
those above-mentioned.

Note:

INCOMPLETE SELF-DEFENSE

ART 11 (1-6)
o Self-defense [1]
o Defense of relatives [2]
o Defense of stranger [3]
o State of necessity [4]
o Performance of duty [5]
o Obedience to order of superior
[6]
ART 12 (minority, 4, 6)
o Minority above 15 but below 18
o Causing injury by mere accident
o Uncontrollable fear

In the 3 classes of defense, unlawful

aggression must always be present
(indispensable requisite)
13(1) applicable only when unlawful
aggression is present but the other two
requisites are not in 11(1-3)
2/3 requisites: not ordinary/generic
mitigating but rather a privileged
mitigating in Art 69

INCOMPLETE JC OF AVOIDANCE OF
GREATER EVIL OR INJURY [11(4)]

[1] All 11,12 requisites not attendant

12(1-2) cannot give place to mitigation

because the mental condition of a
person is indivisible
o There is no middle ground
between sanity and insanity,
between presence and absence
of mitigation

MC if any of the last two requisites is

missing
o 11(4) REQUISITES
1. Evil sought to be avoided
actually exists
2. Injury to be feared be
greater than that done to
avoid it
3. No other practical and
less harmful means of
preventing it

INCOMPLETE JC OF PERFORMANCE
OF DUTY [11(5)]

11(5) REQUISITES
1. Accused acted in performance
of a duty or in the lawful exercise
of a right or office
2. Injury cause/offense committed
be the necessary consequence
of the due performance of such
duty or the lawful exercise of
such right

Criminal Law | Mica Janine B. Regalado 2015

INCOMPLETE EC OF MINORITY (15-18)

RA 9344
o (15,18)
o Does not act with discernment =
EC; with discernment = MC

INCOMPLETE EC OF ACCIDENT

EC accident requisites
1. Performing a lawful act
2. With due care
3. Causes injury to another by mere
accident
4. Without fault or intention of
causing it
2, 4.1 absent = Art 365 (Imprudence and
negligence)
1. In effect, MC because penalty is
lower than intentional felony
1, 4.2 absent, 2 and 3 will not be present
either so its not MC

INCOMPLETE EC OF
UNCONTROLLABLE FEAR

EC uncontrollable fear requisites

o Threat which caused the fear was
of an evil that which he was
required to commit
o It promised an evil of such gravity
and imminence that an ordinary
person would have succumbed
to it (uncontrollable)
If only one present, MC

[2] MINORITY, >70

BASIS: diminution of intelligence

Impliedly repealed by RA 9344
(15,18) EC, unless acted with
discernment (MC)
o w/ discernment = diversion
program
Diversion Program
o Program that the CICL is required
to undergo after found
responsible for an offense
without resorting to formal court
proceedings

CICL shall undergo diversion programs

without undergoing court proceedings
subject to the following conditions:
o Penalty 6 years:
Law enforcement
office/Punong Barangay
with assistance of local
social welfare and
development officer or
other members of the
Local Councils for the
Protection of Children
(LCPC)
Mediation, family
conferencing and
conciliation and, where
appropriate, adopt
indigenous modes of
conflict resolution in
accordance with the
best interest of the child
Child and his/her family
shall be present in these
activities
o Victimless crimes, imposable
penalty 6 years
Local social welfare and
development officer
meet with child and
his/her parents/guardians
for the development of
appropriate diversion
and rehabilitation
program, in coordination
with the Barangay
Council for the Protection
of Children
o Imposable penalty > 6 years
Diversion measures may
be resorted to only by the
court

Criminal Law | Mica Janine B. Regalado 2015

[3] NO INTENTION TO COMMIT SO

GRAVE A WRONG AS THAT
COMMITTED

BASIS; element of voluntariness is

diminished
Notable and evident disproportion
between the means employed to
execute the criminal act and its
consequences
Intention must be judged by external
acts
o Not only by the proportion of the
means employed by him to the
evil produced by his act, but by
the fact that the blow was or was
not aimed at a vital part of the
body
FACTORS TO CONSIDER
o Weapon used
o Part of the body injured
o Injury inflicted
o Manner it is inflicted
Not applicable when the offender
employed brute force (People v Yu 11
SCRA 199, 204)
Intention of the offender at the
particular moment when he executes or
commits the criminal act, not his
intention during the planning stage
(People v. Boyles, 11SCRA 88, 95-96)
MC in robbery with homicide
Appreciated in murder qualified by
circumstances based on manner of
commission, not on state of mind of
accused
Not appreciated in murder qualified by
treachery
Lack of intent to kill, not mitigating in
physical injuries
o In crimes against persons who do
not die as a result of the assault,
absence of the intent to kill
reduces the felony to mere
physical injuries
But it does not constitute
a mitigating
circumstance

Not applicable to felonies by

negligence
o Because in felonies through
negligence, he offender acts
without intent, hence there is no
intent on the part of the offender
which may be considered as
diminished
Unintentional abortion, not applicable
Applicable only to offenses resulting in
physical injuries or material harm
o Not appreciated in cases of
defamation or slander (People v
Galang de Bautista, 40 O.G.
4473)

Criminal Law | Mica Janine B. Regalado 2015

[4] SUFFICIENT PROVOCATION OR

THREAT ON THE PART OF THE
OFFENDED PARTY IMMEDIATELY
PRECEDED THE ACT

BASIS: Diminution of intelligence and

intent
PROVOCATION
o any unjust or improper conduct
or act of the offended party,
capable of exciting, inciting, or
irritating any one
REQUISITES:
1. Sufficient provocation
2. Must originate from the offended
part
3. Provocation must be immediate
to the act
Provocation must be sufficient and
immediately preceding the act
SUFFICIENT
o Adequate to excite a person to
commit the wrong and must
accordingly be proportionate to
its gravity
o Depends upon the following:
Act constituting the
provocation
Social standing of the
person provoked
Place and time where
provocation is made
Provocation in incomplete self defense
vs provocation in mitigating
o Incomplete self-defense:
absence on the part of person
defending himself
o Mitigating: presence on the part
of the offended party
Provocation by the deceased in the first
stage of the fight is not a mitigating
circumstance when the accused killed
him after he had fled
Provocation must be immediate to the
commission of the crime
o There should not be any interval
of time (otherwise he had the

time to regain his reason and to

exercise self-control)
Not mitigating when accused pursued
and killed the victim while fleeing
o Fled -> death= no more
provocation
The threat should not be offensive and
positively strong, because if it is, the
threat to inflict real injury is an unlawful
aggression which may give rise to selfdefense
Vague threats not sufficient
o if you do not agree, beware
not sufficient
Sufficient: Follow us if you dare and we
will kill you

Criminal Law | Mica Janine B. Regalado 2015

[5] IMMEDIATE VINDICATION TO A

GRAVE OFFENSE
5- That the act was committed in the
immediate vindication of a grave offense to
the one committing the felony, his spouse,
ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or
relatives by affinity within the same degrees
REQUISITES
1. Grave offense done to the one
committing the felony, his spouse,
ascendants, descendants,
legitimate, natural or adopted
brothers or sisters, or relatives by
affinity within the same degrees
2. Committed in vindication of such
grave offense
a lapse of time is allowed
between the vindication and
the doing of the grave
offense
BASIS: diminution of conditions of
voluntariness

Provocation vs Vindication
Provocation
Vindication
Made directly only
May be committed
to the person
also against the
committing the
offenders relatives
felony
mentioned by the
law
Provocation need
Offended party
not be a grave
must have done a
offense
grave offense
Necessary that
Vindication of the
provocation or
grave offense may
threat immediately
be proximate
preceded the act
(there may be
(no interval of time) interval of time)

Note:

immediate not the correct translation

o proxima
The killing of the paramour by the
offended husband one day after the
adultery was considered still proximate
(People v Palaan)
2-3 days (People v Diokno)

Greater leniency in vindication because

it concerns the honor of a person
Killing a relative is a grave offense
Basis to determine the gravity of offense
in vindication
o Social standing of the person
o Place
o Time when insult was made
The provocation should be
proportionate to the damage caused
by the act and adequate to stir one to
its commission
Vindication of a grave offense
incompatible with passion or
obfuscation
o They cannot be counted
separately or independently

Criminal Law | Mica Janine B. Regalado 2015

[6] PASSION OR OBFUSCATION

6- That of having acted upon an impulse so

powerful as naturally to have produced
passion or obfuscation

REQUISITES:

Accused acted upon an impulse

Impulse so powerful that it naturally
produced passion or obfuscation in
him
There be an act, both unlawful and
sufficient to produce such a
condition of mind
Act was not far removed from the
commission of the crime by a
considerable length of time, during
which the perpetrator might recover
his normal equanimity

BASIS: diminution of the exercise of will

power (diminution of intelligence and intent)

MC only when the same arose from

LAWFUL SENTIMENTS
NO MC: (part of the offender)
o When act is committed in a spirit
of lawlessness
o When act is committed in a spirit
of revenge
Exercise of a right or fulfillment of duty is
not proper source of passion or
obfuscation
Act must be sufficient to produce such a
condition of mind
No passion or obfuscation after 24 hours,
or several hours or half an hour
The defense must prove that the act
which produced passion or obfuscation
tool place at a time not far removed
from the commission of the crime
The crime committed must be the result
of a sudden impulse of natural and
uncontrollable fury
Obfuscation arising from jealousy
cannot be invoked in favor of the
accused whose relationship with the
woman was illegitimate

Obfuscation when relationship is

illegitimate- not mitigating
The cause producing passion or
obfuscation must come from the
offended party
May passion or obfuscation lawfully arise
from causes existing only in the honest
belief of the offender? YES
Provocation and obfuscation arising
from one and the same cause should be
treated as only one MC
Vindication of a grave offense cannot
co-exist with passion and obfuscation
One single fact cannot be made the
basis of different modifying
circumstances
o EXC:
When there are other
facts, although closely
connected
P/O compatible with lack of intention to
commit so grave a wrong
P/O incompatible with treachery
P/O cannot co-exist with evident
premeditation

Passion or obfuscation vs Irresistible force

P/O
Irresistible force
MC
EC
Cannot give rise to
Requires physical
an irresistible force
force
in the offender
must come from a
himself
third person
Must arise from
The irresistible force
lawful sentiments
is unlawful
Passion or obfuscation vs Provocation
Passion or
Provocation
obfuscation
produced by an
Comes from the
impulse which may
injured party
be caused by
provocations
Need not be
Must immediately
immediate; only
precede the
requires that the
commission of the
influence thereof
crime
lasts until the crime
is committed
Effect is the loss of reason and self-control
on the part of the offender

Criminal Law | Mica Janine B. Regalado 2015

[7] VOLUNTARY SURRENDER/

VOLUNTARY CONFESSION
7- That the offender had voluntarily
surrendered himself to a person in authority
or his agents, or that he had voluntarily
confessed his guilt before the court prior to
the presentation of the evidence for the
prosecution
BASIS; lesser perversity of the offender

Two MCs

VOLUNTARY SURRENDER to a person

in authority or his agents
VOLUNTARY CONFESSION of guilt
before the court prior to the
presentation of evidence for the
prosecution

Note:

Although in one subsection, when both

are present, they should have the effect
of mitigating as two INDEPENDENT
circumstances

REQUISITES FOR VOLUNTARY SURRENDER

1. Offender had not been actually

arrested
2. Offender surrendered himself to
a person in authority or to the
latters agent
3. Surrender was voluntary
Surrender must be spontaneous in such
a manner that it shows the interest of the
accused to surrender unconditionally to
the authorities
Accused must actually surrender his own
person to the authorities, admitting
complicity in the crime
His conduct must indicate a desire on his
part to own the responsibility for the
crime
No voluntary surrender if the warrant of
arrest showed that the defendant was in
fact arrested
Having an opportunity to escape,
voluntarily waited for authorities or

agents and voluntarily gave himself up,

MC
When accused helped in carrying his
victim to the hospital where he was
disarmed and arrested, it is tantamount
to voluntary surrender
When the accused surrendered only
after the warrant of arrest had been
served upon him, it is not mitigating
When the warrant of arrest had not
been served or not returned unserved
because the accused cannot be
located, the surrender is mitigating
The law does not require that the
surrender be prior to the order of arrest
Surrender of weapons cannot be
equated with voluntary surrender
A PERSON IN AUTHORITY
o One directly vested with
jurisdiction
o A public officer who has the
power to govern and execute
the laws whether as an individual
or as a member of some court or
governmental corporation,
board or commission
AGENT OF A PERSON IN AUTHORITY
o A person who, by direct provision
of the law, or by election or by
appointment by competent
authority, is charged with the
maintenance of public order
and the protection and security
of life and property and any
person who comes to the aid of
persons in authority
Voluntary surrender does not simply
mean non-flight
o It does not matter if the accused
never avoided arrest and never
hid or fled
RPC does not make any distinction
among the various moments when the
surrender may occur
The surrender must be by reason of the
commission of the crime for which
defendant is prosecuted
Surrender through an intermediary is
allowed

Criminal Law | Mica Janine B. Regalado 2015

When is surrender voluntary?

o Must be spontaneous
o Intent to submit himself
unconditionally
o Either because
Acknowledges guilt
Wishes to save them the
trouble and expenses
necessarily incurred in his
search and capture
If none of the two reasons impelled the
accused to surrender, because his
surrender was obviously motivated more
by an intention to insure his safety, his
arrest being inevitable, the surrender is
not spontaneous and therefore not
voluntary
SPONTANEOUS
o Inner impulse, acting without
external stimulus
Intention to surrender, without actually
surrendering, in not mitigating
There is spontaneity even if the surrender
is induced by fear of retaliation by the
victims relatives
When the offender imposed a condition
or acted with external stimulus, his
surrender is not voluntary

REQUISITES OF PLEA OF GUILTY

1. Offender spontaneously
confessed his guilt
2. Confession made in open court
a. Before the competent
court that is to try the
case
3. Confession made prior to the
presentation of evidence for the
prosecution
BASIS: It is an act of repentance and respect
for the law; it indicates a moral disposition in
the accused, favorable to his reform

The plea must be made before trial

begins
Plea of guilty on appeal, not mitigating
Plea of not guilty at the preliminary
investigation is no plea at all

Extrajudicial confession made by the

accused is not the voluntary confession
which the Code contemplates
Plea of guilty after the fiscal had
presented evidence is not mitigating
because the third requisite is lacking
Withdrawal of plea of not guilty and
pleading guilty before the presentation
of evidence by the prosecution is still
mitigating
o All that the law requires is
voluntary plea of guilty prior to
the presentation of evidence by
the prosecution
The change of plea must be made at
the first opportunity
A conditional plea of guilty is not a
mitigating circumstance
Plea of guilty to amended information
allowed
Plea of guilty to lesser offense than that
charged, not mitigating
o Because to be voluntary, the
plea must be to the offense
charged
Plea of guilty to the offense charged in
the amender information, lesser than
that charged in the information, is
mitigating
When the accused is charged with a
grave offense, the court should take his
testimony in spite of his plea of guilty
o Trial court should determine
whether the accused really and
truly comprehended the
meaning, full significance and
consequences of his plea and
that the same was voluntarily
and intelligently entered or given
by the accused
There is mandatory presentation of
evidence in plea of guilty to capital
offense
Plea of guilty is not mitigating in culpable
felonies and in crimes punished by
special law

SEARCHING INQUIRY

Criminal Law | Mica Janine B. Regalado 2015

1. Ascertain from the accused himself
a. How he was brought to eh
custody of the law
b. Whether he had the assistance
of a competent counsel during
the custodial and preliminary
investigations
c. Under what conditions he was
detained and interrogated
during the investigations
2. Ask defense counsel a series of questions
as to whether he had conferred with,
and completely explained to, the
accused the meaning and
consequences of plea of guilty
3. Elicit information about the personality
profile of the accused (age, socioeconomic status, and educational
background) which may serve as
trustworthy index of his capacity to give
free and informed plea of guilty
4. Inform the accused of the exact length
of imprisonment or nature of the penalty
under the law and the certainty that he
will serve such sentence.
5. Inquire if the accused knows the crime
with which he is charged and to fully
explain to him the elements of the crime
which is the basis of his indictment
6. All questions posed to the accused
should be in a language known and
understood by the latter
7. The trial judge must satisfy himself that
the accused, in pleading guilty, is truly
guilty.

[8] DEAF AND DUMB, BLIND ETC

8- That the offender is deaf and dumb, blind
or otherwise suffering from some physical
defect which thus restricts his means of
action, defense, or communication with his
fellow beings

Physical defect must restrict means of

action, defense, or communication with
fellow beings
This paragraph DOES NOT DISTINGUISH
between educated and uneducated
deaf-mute or blind person

BASIS: does not have complete freedom of

action; diminution of that element of
voluntariness

[9] ILLNESS THAT WOULD DIMINISH

EXERCISE OF WILL-POWER
9- Such illness of the offender as would
diminish the exercise of the will-power of the
offender without however depriving him of
consciousness of his acts
REQUISITES
1. Illness of offender must diminish the
exercise of his will-power
2. Such illness should not deprive the
offender of consciousness of his acts
BASIS: Diminution of intelligence and intent

When the offender completely lost the

exercise of will-power, it may be an
exempting circumstance
Refers only to diseases of pathological
stat that trouble the conscience or will
A diseased mind, not amounting to
insanity, may give place to mitigation

Criminal Law | Mica Janine B. Regalado 2015

[10] ANALOGOUS CIRCUMSTANCE

10-And, finally, any other circumstance of a
similar nature and analogous to those
abovementioned

Must be of similar nature and analogous

to those mentioned in 13(1-9)
Over 60 years old with falling sight, similar
to over 70 years of age mentioned in
paragraph 2
Outraged feeling of owner of animal
taken for ransom analogous to
vindication of a grave offense
Outraged feeling of creditor, similar to
passion and obfuscation mentioned in
paragraph 6
Impulse of jealous feeling, similar to
passion and obfuscation
Manifestation of Battered Wife
Syndrome, analogous to an illness that
diminished the exercise of will power
Esprit de corps, similar to passion and
obfuscation
Voluntary restitution of stolen property,
similar to voluntary surrender mentioned
in par 7
Extreme poverty and necessity, similar to
incomplete justification based on the
state of necessity
Testifying for the prosecution, analogous
to plea of guilty
Restitution in malversation case is only a
mitigating circumstance
Killing the wrong man is not mitigating
Not resisting arrest, not analogous to
voluntary surrender
The condition of running amuck in not
mitigating
Mitigating circumstances which are
personal to the offender
o Those which arise from the moral
attributes of the offender
o From his private relations with the
offended party
o From any other personal cause,
shall only serve to mitigate the
liability of the principals,
accomplices, and accessories

ass to whom such circumstances

are attendant
All mitigating circumstances are
personal to the offenders

CIRCUMSTANCES WHICH ARE NEITHER

EXEMPTING NOR MITIGATING

Aberration ictus / Mistake in the blow

o Art 48, complex crime
o The penalty is even higher
Mistake in the identity of the victim
o Art 4(1)
Entrapment of the accused
>18
Performance of righteous action