Pointers in Criminal Law

Bar Examinations
Prof. Victoria V. Loanzon
(U.P. College of Law)
with the assistance of
Atty. Consuelo Maria Lucero
(U.E. College of Law, 2017)
PART A -

I. Preliminaries
Q. What is the nature and scope of Criminal Law?
A. (1) Generality – will apply to people who commit any criminal act committed within the
territory of the Philippines and will generally deal with the characteristic of the person accused
of committing the crime;
(2) Territoriality – Philippines will have jurisdiction over crimes committed inside its territory
except as provided for in treaties and laws of preferential application and will normally deal
with the characteristic of the place where the crime was committed; and
(3) Prospectivity – based on Art. 22 of RPC, the appreciation of the crime committed must take
into consideration the date of the passage of the law and give it retroactive effect (a) if it is
favorable to the accused; and (b) if the accused is not a habitual delinquent.

Q. What provisions of the Bill of Rights are relevant to Criminal Law?

A. The Bill of Rights
Sec. 1: due process and equal protection clause;
Sec. 2: right against illegal arrest, illegal search and seizure (in relation to admission in evidence
of extrajudicial admissions, warrantless arrest, warrantless search and seizure and planted
evidence);
Sec. 3: privacy of communications (in relation to Wire Tapping Law);
Sec. 5: freedom of religion (in relation to crime offending a religion);
Sec. 6: liberty of abode (in relation to restraint of travel (issuance of Hold Departure Order;
illegal detention committed by a public officer or a private individual) ;
Sec.11: free access to courts (in relation to right to appropriate legal representation);
Sec. 12: (1) and (3) Miranda rights (in relation to extrajudicial confessions and when one can
become a state witness), (2) and (4) Rights while under detention (in relation to Human Security
Act of 2007 and Human Torture Act of 2009;
Sec. 13: Right to bail (in relation to non-bailable offenses like Plunder, Rebellion, etc. (Please
pay attention to JPE v. Sandiganbayan where a new ground was invoked to grant bail) ;
Sec. 14: Presumption of innocence (in relation to degree of proof required to convict);
Sec. 15: Limitation on the privilege of habeas corpus;
Sec. 16: Right to speedy trial (Please pay attention to People vs. Sandiganbayan, G.R. No.
188165, 11 December 2013, penned by BERSAMIN, J., where former DOJ Secretary Perez
moved for dismissal of the charges against him due to inordinate delay);
Sec.17: Right against self-incrimination;
Sec. 18: Nature of penalty of imprisonment (in relation to imposition of penalties under RPC,
Probation Law, Indeterminate Sentence Law, Diversion and Rehabilitation);

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Sec. 19: Nature fines and physical detention in case of conviction (in relation to appreciation of
attending circumstances in the commission of the crime, suspension of death penalty);
Sec. 20: Non-imprisonment for debt or non-payment of a poll tax;
Sec. 21: Prohibition against double jeopardy; and
Sec. 22: Prohibition against ex post fact law/ bill of attainder.

Q. JPE is one of the senators who was ordered arrested by the Sandiganbayan. His plea for
provisional liberty was denied by the trial court. May such public officer charged with plunder
punishable with reclusion perpetua and when evidence of guilt is strong still be entitled to
bail?
A. Yes. Citing Dela Rama v. The People’s Court, the Court said: “x x [U]nless allowance of bail
is forbidden by law in the particular case, the illness of the prisoner, independently of the
merits of the case, is a circumstance, and the humanity of the law makes it a consideration
which should, regardless of the charge and the stage of the proceeding, influence the court
to exercise its discretion to admit the prisoner to bail; x x x”

It is relevant to observe that granting provisional liberty to Enrile will then enable him to have
his medical condition be properly addressed and better attended to by competent physicians in
the hospitals of his choice. This will not only aid in his adequate preparation of his defense but,
more importantly, will guarantee his appearance in court for the trial.

“This national commitment to uphold the fundamental human rights as well as value the
worth and dignity of every person has authorized the grant of bail not only to those
charged in criminal proceedings but also to extraditees upon a clear and convincing
showing: (1) that the detainee will not be a flight risk or a danger to the community; and
(2) that there exist special, humanitarian and compelling circumstances.” (Juan Ponce
Enrile vs. Sandiganbayan, 18 August 2015, BERSAMIN, J.)

Q. What is the burden of the prosecution to overcome the presumption of innocence of the
accused in a drug-related case?
A. In order for the prosecution to successfully overturn the constitutionally mandated
presumption of innocence in favor of the accused, it should, in drug-related cases, prove not only
the acquisition of the subject specimens through a legitimate buy-bust operation, but likewise the
identity and integrity of the corpus delicti by a substantially unbroken chain in the custody of
said specimens from their acquisition to the necessary laboratory examination. (People vs.
Meriam Guru, G.R. No. 189808, 24 October 2012, Leonardo-De Castro, J.)

Q. Accused-appellant appealed his conviction alleging that prosecution largely hinged its
evidence on the buy-bust operations conducted by the law enforcers. Is entrapment sanctioned
by law as a legitimate method of apprehending criminals?
A. Yes. Entrapment is sanctioned by the law as a legitimate method of apprehending criminals.
Its purpose is to trap and capture lawbreakers in the execution of their plan. (People vs. Legaspi,
710 SCRA 284)

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Q. Distinguish entrapment from instigation.
A. Instigation, on the other hand, involves the inducement of the would-be accused into the
commission of the offense. In such case, the instigators become co-principals themselves. Where
the criminal intent originates in the mind of the instigating person and the accused is lured into
the commission of the offense charged in order to prosecute him, there is instigation and no
conviction may be had. (People vs. Legaspi, 710 SCRA 28, citing People vs. Pacis, 434 Phil.
148, 157-158 (2002))

Q. Fernando appealed his conviction for violation of the Dangerous Drugs Act. He said the
prosecution failed to show with moral certainty that the law enforcers proved his guilt. How
should inculpatory facts be appreciated to establish the guilt of the accused?
A. Where the inculpatory facts admit of several interpretations, one consistent with accused’s
innocence and another with his guilt, the evidence thus adduced failed to meet the test of moral
certainty. An honest witness, who has sufficient memory to state one fact, and that fact a
material one, cannot be safely relied upon as such weakness of memory not only leaves the case
incomplete, but throws doubt upon the accuracy of the statements made. Such a witness may be
honest, but his testimony is not reliable. (People vs. De los Reyes, 656 SCRA 417)

Q. What are the elements of double jeopardy?

A. Double jeopardy only applies when:
(1) a first jeopardy attached;
(2) it has been validly terminated; and
(3) a second jeopardy is for the same offense as in the first.
A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has
been dismissed or otherwise terminated without his express consent, by a competent court in a
valid indictment for which the accused has entered a valid plea during arraignment. (Saturnino
C. Ocampo vs. Hon. Ephrem S. Abando, et al, G.R. No. 176830, 11 February 2014)

Q. What is the fruit of the poisonous tree doctrine?

A. The Constitution enshrines in the Bill of Rights the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose. To give full protection to it, the Bill of Rights also ordains the
exclusionary principle that any evidence obtained in violation of said right is inadmissible for
any purpose in any proceeding. However, the interdiction against warrantless searches and
seizures is not absolute and that warrantless searches and seizures have long been deemed
permissible by jurisprudence in the following instances:
(1) search of moving vehicles;
(2) seizure in plain view;
(3) customs searches;
(4) waiver or consented searches;
(5) stop and frisk situations (Terry search); and
(6) search incidental to a lawful arrest.
The last includes a valid warrantless search and seizure pursuant to an equally warrantless arrest,
for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest,
Rule 113 of the Rules of Court recognize permissible warrantless arrest, to wit: (1) arrest

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in flagrante delicto; (2) arrest effected in hot pursuit; and (3) arrest of escaped prisoners. (People
of the Philippines vs. Vicente Rom, G.R. No. 198452, 19 February 2014)

Q. Can the accused move for the dismissal of the case against them based on the political
offense doctrine prior to determination that certain criminal acts have been absorbed in
furtherance of rebellion?
A. No. The political offense doctrine is not a ground to dismiss the charge against petitioners
prior to a determination by the trial court that the murders were committed in furtherance of
rebellion.

Under the political offense doctrine, “common crimes, perpetrated in furtherance of a political
offense, are divested of their character as “common” offenses and assume the political
complexion of the main crime of which they are mere ingredients, and, consequently, cannot be
punished separately from the principal offense, or complexed with the same, to justify the
imposition of a graver penalty.” (People vs. Hernandez, 99 Phil. 515, 541)

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion. Thus,
when a killing is committed in furtherance of rebellion, the killing is not homicide or murder.
Rather, the killing assumes the political complexion of rebellion as its mere ingredient and must
be prosecuted and punished as rebellion alone. (People vs. Lovedioro, 320 Phil. 481, 489)

But when the political offense doctrine is asserted as a defense in the trial court, it becomes
crucial for the court to determine whether the act of killing was done in furtherance of a political
end, and for the political motive of the act to be conclusively demonstrated.

Q. Cite the distinction between mala in se and mala prohibitum.

A. The distinctions are:
(1) in mala in se by itself the act is inherently wrong (ex. killing another person) while in mala
prohibitum the act is merely prohibited by law (ex. smoking or jay walking);
(2) good faith is a defense in mala in se but not in mala prohibitum;
(3) stages of commission under Art.6 of RPC is considered in mala in se but not in mala
prohibitum;
(4) degree of participation under Title II of RPC is considered in mala in se but not in mala
prohibitum;
(5) in mala in se, modifying circumstances are considered in determining imposable penalty but
not mala prohibitum; and
(6) in mala in se, generally, the crimes are punished under RPC while generally, crimes
considered mala prohibitum are punished under special penal laws.

“[I]llegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous
drugs during parties, social gatherings or meetings under Section 14 of R.A. No. 9165 is a crime
of malum prohibitum, that is, the act is made wrong or evil because there is a law prohibiting it.”

Since violation of Section 14 of R.A. No. 9165 is a crime of mala prohibita, the degree of
participation of the offenders is not considered. All who perpetrated the prohibited act are
penalized to the same extent. There is no principal or accomplice or accessory to consider.

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In short, the degree of participation of the offenders does not affect their liability, and the penalty
on all of them are the same whether they are principals or merely accomplices or accessories.
(Citing Boado, Notes and Cases on the Revised Penal Code, 2008 edition. Atty. Boado was a
former Professor at the U.E. College of Law.)

Q. What is the probative value of out-of-court identification of the accused?

A. The following ruling of the Court in People vs. Teehankee, Jr. is instructive on the conduct of
and test for a valid out–of–court identification: Out–of–court identification is conducted by the
police in various ways:
1) It is done thru show–ups where the suspect alone is brought face to face with the witness for
identification.
2) It is done thru mug shots where photographs are shown to the witness to identify the suspect.
3) It is also done thru line–ups where a witness identifies the suspect from a group of persons
lined up for the purpose.

Since corruption of out–of–court identification contaminates the integrity of in–court

identification during the trial of the case, courts have fashioned out rules to assure its fairness
and its compliance with the requirements of constitutional due process.

In resolving the admissibility of and relying on out–of–court identification of suspects, courts

have adopted the totality of circumstances test where they consider the following factors, viz:
(1) the witness’ opportunity to view the criminal at the time of the crime;
(2) the witness’ degree of attention at that time;
(3) the accuracy of any prior description given by the witness;
(4) the level of certainty demonstrated by the witness at the identification;
(5) the length of time between the crime and the identification; and,
(6) the suggestiveness of the identification procedure. (See Neil vs. Biggers, 409 US 188 [1973];
Manson vs. Brathwaite, 432 US 98 [1977]; Del Carmen, Criminal Procedure, Law and Practice,
3rd Edition, p. 346)

Q. What is alibi?
A. Alibi is an inherently weak defense because it is easy to fabricate and highly unreliable. To
merit approbation, the accused must adduce clear and convincing evidence that he was in a place
other than the situs criminis at the time the crime was committed, such that it was physically
impossible for him to have been at the scene of the crime when it was committed. Alibi cannot
prevail over and is worthless in the face of the positive identification by a credible witness that
an accused perpetrated the crime. (People of the Philippines vs. Jonathan “Uto” Veloso y
Rama, G.R. No. 188849, 13 February 2013)

Q. What is the nature of the defense of alibi?

A The established doctrine is that, for the defense of alibi to prosper, the accused must prove not
only that he was at some other place at the time of the commission of the crime, but also that it
was physically impossible for him to be at the locus delicti or within its immediate vicinity.
(People vs. Asis, 624 SCRA 209 (2010); People vs. Baroquillo, 656 SCRA 250 (2011); People
vs. Tejero, 674 SCRA 244 (2012))

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Q. When is alibi applicable as a defense?
A. It has been held that for the defense of alibi to prosper, the accused must prove the following:
(i) that he was present at another place at the time of the perpetration of the crime; and
(ii) that it was physically impossible for him to be at the scene of the crime during its
commission. (People of the Philippines vs. Aurelio Jastiva, G.R. No. 199268, 12 February
2014)

Alibi:
Alibi is an inherently weak and unreliable defense, because it is easy to fabricate and difficult to
disprove. To establish alibi, the accused must prove:
(a) that he was actually in another place at the time of the perpetration of the crime; and
(b) that it was physically impossible for him to be at the scene of the crime when the
crime was perpetrated.

Physical impossibility refers to the distance between the place where the accused was when the
crime transpired and the place where the crime was committed, as well as to the facility of access
between the two places.

Q. When is intoxication appreciated as considered as an aggravating circumstance?

A. The intoxication of the offender shall be taken into consideration as a mitigating circumstance
when the offender has committed a felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional,
it shall be considered as an aggravating circumstance.

ART. 15. Their concept. - Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and effects of the crime and
the other conditions attending its commission. They are the relationship, intoxication and the
degree of instruction and education of the offender. x x x.” (People vs. Andres Fontanilla, 638
SCRA 721 (2010))

Q. What is the probative value of an affidavit if the affiant is not presented in court?
A. An affidavit is hearsay unless affiant presented in court. It is settled that while affidavits
may be considered as public documents if they are acknowledged before a notary public (here, a
public officer authorized to administer oaths), they are still classified as hearsay evidence
unless the affiants themselves are placed on the witness stand to testify thereon and the
adverse party is accorded the opportunity to cross-examine them. With the prosecution’s
failure to present the affiant to affirm his statement should be treated as hearsay and, thus,
inadmissible to establish the truth or falsity of the relevant claims.

Q. How is circumstantial evidence appreciated in establishing one’s culpability in a special

crime of rape with homicide?
A. It is settled that in the special complex crime of rape with homicide, both the rape and the
homicide must be established beyond reasonable doubt. In this regard, we have held that the
crime of rape is difficult to prove because it is generally unwitnessed and very often only the
victim is left to testify for herself. It becomes even more difficult when the complex crime of
rape with homicide is committed because the victim could no longer testify. Thus, in crimes of

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rape with homicide, resort to circumstantial evidence is usually unavoidable. (People vs. Alfredo
Pascual, 576 242 (2009), Leonardo-De Castro, J.)

Q. What will support a conviction based circumstantial evidence?

A. Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for
conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances results in a moral certainty that the accused,
to the exclusion of all others, is the one who has committed the crime.

Q. What is the probative value of an affidavit if the affiant is not presented in court?
A. An affidavit is hearsay unless affiant presented in court. It is settled that while affidavits
may be considered as public documents if they are acknowledged before a notary public (here, a
public officer authorized to administer oaths), they are still classified as hearsay evidence
unless the affiants themselves are placed on the witness stand to testify thereon and the
adverse party is accorded the opportunity to cross-examine them. With the prosecution’s
failure to present the affiant to affirm his statement should be treated as hearsay and, thus,
inadmissible to establish the truth or falsity of the relevant claims.

Q. What is the best evidence to establish minority to be appreciated as a mitigating

circumstance?
A. To establish minority one’s Certificate of Birth may be introduced as evidence. Article 68(2)
of the Revised Penal Code provides that when the offender is a minor over 15 and under 18
years, the penalty next lower than that prescribed by law shall be imposed on the accused but
always in the proper period. The rationale of the law in extending such leniency and compassion
is that because of his age, the accused is presumed to have acted with less discernment. This is
regardless of the fact that his minority was not proved during the trial and that his birth
certificate was belatedly presented for our consideration, since to rule accordingly will not
adversely affect the rights of the state, the victim and his heirs. (People v. Agacer et. al., 07
January 2013)

People vs. Pruna (G.R. No. 138471, 10 October 2002, Davide, C.J.) formulated a set of
guidelines that will serve as a jurisprudential benchmark in appreciating age either as an element
of the crime or as a qualifying circumstance in order to address the seemingly conflicting court
decisions regarding the sufficiency of evidence of the victim’s age in rape cases.
The Pruna guidelines are as follows:
1. The best evidence to prove the age of the offended party is an original or certified true copy
of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to prove
age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a
member of the family either by affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or date of birth of the offended party

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pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be proved is
that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is
that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is
that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victims age, the complainant’s testimony will
suffice provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be taken
against him.
6. The trial court should always make a categorical finding as to the age of the victim.

Q. Can an accused claim insanity as a defense?

A. Insanity is a defense in the nature of confession and avoidance. As such, it must be
adequately proved.
Garchitorena, who never denied his participation in the killing, insisted that he is exempt from
criminal liability because he was suffering from a mental disorder before, during and after the
commission of the crime. CA affirmed the ruling of the RTC that the defense of insanity cannot
be given merit when the expert witness herself attested that accused Garchitorena was
experiencing remission and was even aware of his murder case in court. (People vs.
Garchitorena, G.R. No. 175605, 28 August 2009, 687 SCRA 420, Leonardo-De Castro, J.)

II. Penalties

A. General principles; purpose why penalty is imposed; classification of penalties; duration

and effect of penalties.
Under Section 2, Rule 120 of the Rules of Court to have the judgment, if it was of conviction,
state:
"(1) the legal qualification of the offense constituted by the acts committed by the
accused and the aggravating or mitigating circumstances which attended its commission;
(2) the participation of the accused in the offense, whether as principal, accomplice, or
accessory after the fact;
(3) the penalty imposed upon the accused; and
(4) the civil liability or damages caused by his wrongful act or omission to be recovered
from the accused by the offended party, if there is any, unless the enforcement of the civil
liability by a separate civil action has been reserved or waived."

Q. What is the general rule on the imposition of two indivisible penalties?

A. When the law prescribes a penalty consisting of two indivisible penalties, and the crime is not
attended by any aggravating circumstance, the lesser penalty shall be imposed. (People vs.
Aleman, G.R. No. 181539, 24 July 2013, 702 SCRA 118, Leonardo-De Castro, J)

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On computation of penalties – It is important to relate the felony committed with the
corresponding penalty prescribed for such felony, then consider the attending
circumstances which may shorten or lengthen the service sentence and if IS Law applies,
then the corresponding adjustments will have to be made.

Effect of Acquittal on Civil Liability

If acquittal is based on reasonable doubt, will not relieve the accused of the corresponding civil
liability. (Nissan Gallery-Ortigas vs. Felipe, G.R. No. 199067, 11 November 2013, Mendoza,
J.)

Q: Accused was found guilty by the RTC of the crime of qualified rape. The CA then affirmed
the RTC’s decision. Upon accused’s appeal to the Court, a letter was received from the Bureau
of Corrections Assistant Director who advised that the accused had died at the New Bilibid
Prison Hospital in Muntinlupa in which the immediate cause was cardio-respiratory arrest
with pneumonia. What is the effect of the death of the accused?
A: The death of the accused during the pendency of his appeal totally extinguished his criminal
liability. This is based on Article 89 of the Revised Penal Code which provides that “Criminal
liability is totally extinguished: (1) by the death of the convict, as to the personal penalties; and
as to pecuniary penalties, liability therefor is extinguished only when the death of the offender
occurs before final judgment.

The death of the accused likewise extinguished the civil liability that was based exclusively on
the crime for which the accused was convicted because no final judgment of conviction was yet
rendered by the time of his death. This case was then considered closed and terminated.
(PEOPLE vs. BUNAY, G.R. No. 171268, 14 September 2010)

Q: Can the court award exemplary damages to rape victim?

A: Yes. The Court needs to add exemplary damages to the civil damages awarded to AAA.
Under the Civil Code, exemplary damages are imposed in a criminal case as part of the civil
liability “when the crime was committed with one or more aggravating circumstances.” Such
damages are awarded “by way of example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages.

Conformably with the Civil Code, the CA and the RTC should have recognized the entitlement
of AAA to exemplary damages on account of the attendance of the aggravating circumstance of
her minority under 12 years. (PEOPLE vs. LUPAC, G.R. No. 182230, 19 September 2012)

Other relevant ruling of the Court:

The Court affirmed CA’s decision which found the accused guilty of the crime of simple rape.
Accused, being the common-law husband of BBB at the time of the commission of the rape,
even if established during the trial, could not be appreciated because the information did not
specifically allege it as a qualifying circumstance. The accused was liable for exemplary
damages. According to the Civil Code, exemplary damages may be imposed in criminal cases as
part of the civil liability "when the crime was committed with one or more aggravating
circumstances." The law permits such damages to be awarded "by way of example or correction

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for the public good, in addition to the moral, temperate, liquidated or compensatory damages."
Accordingly, the CA and the RTC should have recognized the entitlement of AAA to exemplary
damages on account of the attendance of her minority and the common-law relationship between
him and her mother. It did not matter that such qualifying circumstances were not taken into
consideration in fixing his criminal liability, because the term aggravating circumstances as basis
for awarding exemplary damages under the Civil Code was understood in its generic sense.
(PEOPLE vs. ARCILLAS, G.R. No. 181491, 30 July 2012)

Q: May the court award damages in favor of the heirs of the victim despite the fact that there
no allegation and evidence presented during the trial?
A: Yes. In this case, the Court holds that the amount of P50,000.00 is reasonable, which,
pursuant to prevailing jurisprudence, is awarded even in the absence of any allegation and proof
of the heirs’ emotional suffering. The CA did not state whether the amount of P50,000.00 was
for death indemnity or moral damages. Nonetheless, the CA should have awarded both damages,
considering that they were of different kinds. For death indemnity, the amount of P50,000.00 is
fixed pursuant to the current judicial policy on the matter, without the need of any evidence or
proof of damages. Likewise, the mental anguish of the surviving family should be assuaged by
the award of appropriate and reasonable moral damages. Although the surviving family’s mental
anguish is not ever quantifiable with mathematical precision, the Court must nonetheless
determine the amount to which the heirs of the deceased are entitled. (PEOPLE vs.
MAYINGQUE, G.R. No. 179709, 06 July 2010)

B. Probation Law: nature and purpose of the law; when may defendant avail of probation
– after conviction and no appeal is made during the period perfecting an appeal; it is error
on the part of the court to issue a Commitment Order on the same day of promulgation
because defendant’s right to appeal has not yet prescribed; conversely, if defendant filed an
appeal, he can no longer avail of probation and if defendant files an application for
probation, he can no longer appeal; individuals found guilty of drug trafficking cannot
avail of probation; probation also applies even if penalty is only a fine; probation shall not
exceed six years; consequences for violating the terms of probation; when probation is
deemed terminated.

Q. If one avails of the benefits of probation, can he still appeal his conviction?
A. Aside from the goals of according expediency and liberality to the accused, the rationale for
the treatment of appeal and probation as mutually exclusive remedies is that they rest on
diametrically opposed legal positions. An accused applying for probation is deemed to have
accepted the judgment. The application for probation is an admission of guilt on the part of
an accused for the crime which led to the judgment of conviction. This was the reason why
the Probation Law was amended: precisely to put a stop to the practice of appealing from
judgments of conviction – even if the sentence is probationable – for the purpose of securing an
acquittal and applying for the probation only if the accused fails in his bid. (Enrique Almero y
Alcantara vs. People of the Philippines, et al, G.R. No. 188191, 12 March 2014, Sereno, C.J.)

PLEASE READ SEC. 9 OF THE PROBATION LAW AS TO WHO CANNOT AVAIL OF

THE BENEFITS OF PROBATION.

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C. Indeterminate Sentence Law (IS Law): purposes of the law; where a special law adopted
penalties from RPC, IS Law will apply just as it would in felonies. PLEASE READ SEC. 2
OF IS Law WHEN BENEFITS OF IS Law MAY NOT BE AVAILED OF BY THE
DEFENDANT. For example, a person convicted of plunder which is punishable by life
imprisonment cannot avail of IS Law.

Q. Who are the persons not eligible for Parole?

A. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to
death. There being no other aggravating circumstance other than the qualifying circumstance of
treachery, the Court of Appeals correctly held that the proper imposable penalty is reclusion
perpetua, the lower of the two indivisible penalties. It must be emphasized, however, that
appellant is not eligible for parole pursuant to Section 3 of R.A. 9346 which states that ‘persons
convicted of offenses punished with reclusion perpetua, or whose sentence will be reduced
to reclusion perpetua by reason of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as amended. (People of the Philippines vs.
Wilfredo Gunda alias “Fred”, G.R. No. 195525, 05 February 2014, Del Castillo, J.)

D. Graduation of Penalty: graduation of penalties may be appreciated as follows – stage of

execution: for frustrated, 1 degree; for attempted stage, 2 degrees except: for frustrated
homicide, parricide or murder, 1 to 2 degrees and for attempted homicide, parricide or
murder, 1 to 2 degrees; nature of execution – as an accomplice, 1 degree and as accessory, 2
degrees; privileged mitigating circumstance – for minority, 1 degree and incomplete
justification or exemption(except accident), 1 or 2 degrees.

Q. How is minority as mitigating circumstance in the imposition of penalty?

A. The penalty imposed upon Franklin, being a minor, must be accordingly modified. The
penalty for murder is reclusion perpetua to death. A degree lower is reclusion temporal. There
being no aggravating and ordinary mitigating circumstance, the penalty to be imposed on
Franklin should be reclusion temporal in its medium period, as maximum, which ranges from
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4)
months. Applying the Indeterminate Sentence Law, the penalty next lower in degree is prision
mayor, the medium period of which ranges from eight (8) years and one (1) day to ten (10) years.
Due to the seriousness of the crime and the manner it was committed, the penalty must be
imposed at its most severe range. (People vs. Agacer et. al., G.R. No. 177751, 07 January 2013,
Del Castillo, J.)

Q. When can the court impose of two indivisible penalties?

A. Under Section 15, Article III, in relation to Section 20, Article IV, of the Dangerous Drugs
Act of 1972, as amended by R.A. No. 7659, the unauthorized sale of 200 grams or more of shabu
or methamphetamine hydrochloride is punishable by reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos. The total weight of the shabu
confiscated in this case is 983.5 grams. Hence, the proper penalty should be reclusion perpetua to
death. But since the penalty of reclusion perpetua to death consists of two indivisible penalties,
appellant was correctly meted the lesser penalty of reclusion perpetua, conformably with Article
63(2) of the Revised Penal Code which provides that when there are no mitigating or aggravating

11 | P a g e
circumstances in the commission of the deed, the lesser penalty shall be applied. (People vs.
Seraspe, G.R. No. 180919, 09 January 2013, Del Castillo, J.)

Q. Is the penalty of Reclusion Temporal to Reclusion Perpetua composed of three periods?

A. No. The information specifically alleged that the house burned by the accused was an
inhabited dwelling. Pursuant to Section 3(2) of Presidential Decree No. 1613 (Amending the
Law on Arson), the penalty to be imposed if the property burned is an inhabited house or
dwelling is from reclusion temporal to reclusion perpetua. Not being composed of three periods,
however, such penalty should be divided into three equal portions of time, and each portion
forms one period of the penalty. Yet, reclusion perpetua, being an indivisible penalty,
immediately becomes the maximum period, leaving reclusion temporal to be divided into two in
order to fix the medium and minimum periods of the penalty. The three periods of the prescribed
penalty of reclusion temporal to reclusion perpetua are then as follows:

Minimum period – 12 years and 1 day to 16 years;

Medium period – 16 years and 1 day to 20 years;
Maximum period – reclusion perpetua.

Accordingly, the maximum of the indeterminate penalty in this case should be within the range
of the medium period of the penalty, i.e., from 16 years and 1 day to 20 years, because neither
aggravating nor mitigating circumstance attended the commission of the crime; and the
minimum of the indeterminate sentence should be within the range of the penalty next lower in
degree to that prescribed for the crime, without regard to its periods. (BACOLOD vs. PEOPLE,
G.R. No. 206236, 15 July 2013)

Graduating Death Penalty – Death penalty is still the penalty to be reckoned with. With the
suspension of death penalty, the next imposable penalty shall apply.

E. Three-fold and 40-year limitation rule: distinguish simultaneous service (ex.

imprisonment and fine) from successive rule (ex. where there is multiple penalties of
imprisonment); three-fold rule on maximum period of imprisonment; and 40-year
limitation rule.

F. Subsidiary Imprisonment: when defendant shall be subjected to subsidiary

imprisonment after final conviction; imposition of civil liability

G. Exemption from Criminal Liability under the Juvenile Justice and Welfare Act:
Distinguish between Diversion and Rehabilitation; how it can be availed of;

H. Modes and Extinction of Criminal Liability: 1. from the Executive Branch: acts of
clemency by the President; 2. from the Legislative Branch: amnesty; 3. Prescription of
crimes; 4. Prescription of penalties; and 5. pardon by offended party, where allowed.

General Rule: In resolving the issue of prescription, the following must be considered, namely:
(1) the period of prescription for the offense charged;
(2) the time when the period of prescription starts to run; and

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 (3) the time when the prescriptive period is interrupted.

Q. On April 18, 1994 Simeona Mirandilla (“Mirandilla”) and the late Rogelio Llona
(“Llona”), her common-law husband, were at the house of Manuel Desder. Simeona heard
thundering steps and then two successive gunshots. Mirandilla then saw Salvador Atizado
(“Atizado”) pointing a gun at Llona. Thereafter, she shouted: “Stop, that’s enough!” At the
same time, while aiding Llona, she heard three clicking sounds, she then, turned towards the
direction of said clicking sounds, and saw Salvador Monreal (“Monreal”), a minor, pointing
his gun at her while he was moving backwards and simultaneously adjusting the cylinder of
his gun. Subsequently, Mirandilla and Monreal fled the scene of the shooting. Captain
Juanito Lagonsing and Mirandilla brought Llona to a hospital where the latter was
pronounced dead.
Given the foregoing facts, what would be the proper penalty to be imposed by the court?
A: Under Article 248 of the RPC, as amended by Republic Act No. 7659, the penalty for murder
is reclusion perpetua to death. There being no modifying circumstances, the CA correctly
imposed the lesser penalty of reclusion perpetua on Atizado, which was conformable with
Article 63 (2) of the RPC. But reclusion perpetua was not the correct penalty for Monreal due to
his being a minor over 15 but under 18 years of age.
Pursuant to Article 68 (2) of the RPC, when the offender is over 15 and under 18 years of age,
the penalty next lower than that prescribed by law is imposed. Based on Article 61 (2) of the
RPC, reclusion temporal is the penalty next lower than reclusion perpetua to death. Applying the
Indeterminate Sentence Law and Article 64 of the RPC, therefore, the range of the penalty of
imprisonment imposable on Monreal was prision mayor in any of its periods, as the minimum
period, to reclusion temporal in its medium period, as the maximum period. Accordingly, his
proper indeterminate penalty is from six years and one day of prision mayor, as the minimum
period, to 14 years, eight months, and one day of reclusion temporal, as the maximum period.
(ATIZADO vs. PEOPLE, G.R. No. 173822, 13 October 2010)

The defense of consensual sexual intercourse demands corroboration which the accused failed to
offer. The physical evidence (e.g. multiple stab wounds) negated the claim of consensual sexual
intercourse. The accused did not also prove the presence of elements of qualified seduction
which involve:
(a) that AAA was a virgin;
(b) that she was over 12 and under 18 years of age;
(c) that he had sexual intercourse with her; and
(d) that there was abuse of authority, or of confidence, or of relationship.
(PEOPLE vs. TORIAGA, G.R. No. 177145, 09 February 2011)

Q: What is the proper penalty which can be imposed under the foregoing facts?
A. The RTC and CA correctly determined the penalty of reclusion perpetua as imposable.
Article 335 of the Revised Penal Code provides that whenever the crime of rape is committed
with use of a deadly weapon the imposable penalty is reclusion perpetua to death. In this case,
since the accused had used ice pick to assault AAA and intimidate her into submission, the
penalty of reclusion perpetua is proper. AAA is entitled to recover exemplary damages by
reason of the established presence of qualifying circumstance of use of a deadly weapon.
(PEOPLE vs. TORIAGA, G.R. No. 177145, 09 February 2011)

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III. CRIMES COMMITTED BY PUBLIC OFFICERS
Q: Petitioner contends that the RTC and the CA erroneously convicted him of several counts
of malversation of public funds through falsification of public documents on the basis of the
finding that he had been negligent in the performance of his duties as Revenue District
Officer; that the acts imputed to him did not constitute negligence; and that he could not be
convicted of intentional malversation and malversation through negligence at the same time.
Is the legal argument of the accused tenable?
A: No. The findings of fact of the RTC were affirmed by the CA. Hence, the petitioner was
correctly convicted of the crimes charged because such findings of fact by the trial court, being
affirmed by the CA as the intermediate reviewing tribunal, are now binding and conclusive on
the Supreme Court. Accordingly, the Prosecution sufficiently established that the petitioner had
been the forger of the falsified and tampered public documents, and that the falsifications of the
public documents had been necessary to commit the malversations of the collected taxes.

It is axiomatic that by appealing, he waived the constitutional protection against double

jeopardy, leaving him open to being convicted of whatever crimes the Court would
ultimately conclude from the records to have been actually committed by him within the
terms of the allegations in the informations under which he had been arraigned.
(MANOLITO GIL ZAFRA vs. PEOPLE OF THE PHILIPPINES, G.R. No. 176317,
23 July 2014)

Q. What are the elements of Corruption under Sec.4 (a) of R.A. 3019?
A. The sufficiency of the allegations in the information charging the violation of Section 4 (a) of
R.A. No. 3019 is similarly upheld. The elements of the offense under Section 4 (a) of R.A. No.
3019 are: that the offender has family or close personal relation with a public official; that he
capitalizes or exploits or takes advantage of such family or close personal relation by directly or
indirectly requesting or receiving any present, gift, material or pecuniary advantage from any
person having some business, transaction, application, request, or contract with the government;
that the public official with whom the offender has family or close personal relation has to
intervene in the business transaction, application, request, or contract with the government.
(Disini vs. Sandiganbayan, G.R. Nos. 169823-24, 11 September 2013, BERSAMIN, J.)

Q. What characterizes direct bribery and indirect bribery?

A. The elements of corruption of public officials under Article 212 of the Revised Penal Code
are: that the offender makes offers or promises, or gives gifts or presents to a public officer; and
that the offers or promises are made or the gifts or presents are given to a public officer under
circumstances that will make the public officer liable for direct bribery or indirect bribery.
(Disini vs. Sandiganbayan, G.R. Nos. 169823-24, 11 September 2013, BERSAMIN, J.)

Q. What are the offenses under Section 3(e) of Anti-Graft and Corrupt Practices Act (R.A.
3019)?
A. In a catena of cases, the Supreme Court (SC) has held that there are two (2) ways by which a
public official violates section 3(e) of R.A. 3019 in the performance of his functions, namely:
(1) by causing undue injury to any party, including the Government; or
(2) by giving any private party any unwarranted benefit, advantage or preference.

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The accused may be charged under either mode or under both. The disjunctive term “or”
connotes that either act qualifies as a violation of section 3(e) of R.A. 3019.In other words, the
presence of one would suffice for conviction. To be found guilty under the second mode, it
suffices that the accused has given unjustified favor or benefit to another, in the exercise of his
official, administrative and judicial functions.” The element of damage is not required for
violation of section 3(e) under the second mode. Settled is the rule that private persons, when
acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the
pertinent offenses under section 3 of R.A. 3019. Considering that all the elements of the offense
of violation of section 3(e) were alleged in the second information, the SC found the same to be
sufficient in form and substance to sustain a conviction. (Isabelo A. Braza vs. The Honorable
Sandiganbayan (1st Division), G.R. No. 195032, 20 February 2013, Mendoza, J.)

Q. Can a private individual acting in conspiracy with a public officer be held liable under
Anti-Graft and Corrupt Practices Act?
A. Yes. Under Section 3(g) of R. A. No. 3019, private persons acting in conspiracy with public
officers may be indicted. The only question that needs to be settled in the present petition is
whether herein respondent, a private person, may be indicted for conspiracy in violating Section
3(g) of R.A. 3019 even if the public officer, with whom he was alleged to have conspired, has
died prior to the filing of the Information. Respondent contends that by reason of the death of
Secretary Enrile, there is no public officer who was charged in the Information and, as such,
prosecution against respondent may not prosper. The Supreme Court was not persuaded and it
said that the only thing extinguished by the death of Secretary Enrile is his criminal liability. His
death did not extinguish the crime nor did it remove the basis of the charge of conspiracy
between him and private respondent. Stated differently, the death of Secretary Enrile does not
mean that there was no public officer who allegedly violated Section 3(g) of R.A. 3019. (People
of the Philippines vs. Henry T. Go, G.R. No. 168539, 25 March 2014, Peralta, J.)

Q. What is the basis for the indictment of the private person under Sec.3 (g) of R.A. 3019?
A. Under Section 3(g) of R.A. 3019, private persons acting in conspiracy with public officers
may be indicted. The requirement before a private person may be indicted for violation of
Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have
acted in conspiracy with a public officer. The law, however, does not require that such person
must, in all instances, be indicted together with the public officer. If circumstances exist where
the public officer may no longer be charged in court, as in the present case where the public
officer has already died, the private person may be indicted alone. (People of the Philippines vs.
Henry T. Go, G.R. No. 168539, 25 March 2014, Peralta, J.)

R.A. 3019; Section 3(e); proof of the extent of damage is not essential.
The third element of the offense – that the act of the accused caused undue injury to any party,
including the Government, or gave any private party unwarranted benefit, advantage or
preference in the discharge of the functions of the accused – was established here. Proof of the
extent of damage is not essential, it being sufficient that the injury suffered or the benefit
received is perceived to be substantial enough and not merely negligible. (Danilo O. Garcia and
Joven SD. Brizuela vs. Sandiganbayan and People of the Philippines, G.R. No. 197204, 26
March 2014, Carpio, J.)

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Liability under Section 3(e) of R.A. 3019. (Plameras vs. People, G.R. No. 187268, 04
September 2013, Perez, J.)
The following elements must concur to be liable under Section 3(e) of R.A. 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 gross inexcusable
negligence; and
3) That his action caused undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions.
Laws Governing Liability of Public Officers
1. Republic Act No. 6713 – Code of Conduct and Ethical Standards of Public Officers
2. Republic Act No. 3019 – Anti-Graft and Corrupt Practices Law
3. Revised Penal Code – Crimes Committed by Public Officers:
Article 209–Revelation of Secrets, 210-Direct Bribery, 2
Article 11-Indirect Bribery, 211A-Qualified Bribery
Article 212-Corruption of Public Officials
Article 213-Frauds against public treasury and similar offenses
Article 214- Other frauds
Article 215-Prohibited Transactions
Article 216-Possession of prohibited interest by a public officer
Article 217- Malversation of public funds or property
Article 218-Failure of accountable officer to render account
Article 219-Failure of a responsible public officer to render accounts before leaving the
country
Article 220-Illegal use of public funds or property
Article 226-Removal, concealment or destruction of documents
Article 227-Officer breaking seal
Article 231-Open disobedience
Article 232-Disobedience to order of superior officer, when said order was suspended by an
inferior officer
Article 234-Refusal to discharge elective office
Article 237-Prolonging performance of duties and powers
Article 238-Abandonment of office or position
Article 239- Usurpation of legislative powers
Article 240-Usurpation of executive functions
Article 241-Usurpation of judicial functions
Article 242- Disobeying request for disqualification
Article 244-Unlawful appointments

Definition of Public Officer under Article 203, RPC

THE PLUNDER LAW – Republic Act No. 7080, as amended: (Estrada vs.
Sandiganbayan, G.R. No.148560, 19 November 2001, Bellosillo, J.)

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PART B - Selected Jurisprudential Doctrines in Criminal Law
From the Cases Penned by J. Del Castillo

I. On the Privileged Mitigating Circumstance of Minority and Extinguishment of Criminal

Liability by Death before Conviction
Q: A, B, and C were charged with Murder for the killing of Z. At the time of the offense, C was
16 years old. At the time of conviction, A had died, and C had reached age of majority. Upon
appeal, C asserted that the privileged mitigating circumstance of minority should have applied to
C, and belatedly attached his certificate of live birth.
Determine whether or not the privileged mitigating circumstance of minority may be asserted
only for the first time on appeal, vis-à-vis the penalty meted onto him; and whether the death of
appellant A erased his criminal and civil liability.
A: The privileged mitigating circumstance of minority should have been applied to C, as he was
a minor—sixteen years of age—when the crime was committed, regardless of this fact not being
proved during trial and only introduced as evidence on appeal. Under Section 68(2) of the
Revised Penal Code, and the spirit of upholding of the best interest of the child under the
Juvenile Justice and Welfare Act, the penalty next lower than that prescribed by law shall be
imposed on the minor accused but always in the proper period.
As to A, who had died prior to conviction, his criminal and civil liability ex delicto are
extinguished upon his death, pursuant to Section 89 of the Revised Penal Code which states that
criminal liability is totally extinguished by the death of the convict; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment. (People v. Agacer, G.R. No. 177751, January 7, 2013)

II. Praeter Intentionem vis-à-vis Articles 3 and 4

Q: A and B declared in a holdup inside a moving UV Express along Espana Blvd. They
threatened to shoot the passengers with their two loaded hand guns if they did not cooperate. One
passenger, X, pleaded with A and B, telling them that he was still a student had already given his
cellphone, PSP, and wallet to them. Another passenger, Y, jumped from the UV Express when it
stopped at an intersection, and shouted for help.
Police officers, traffic enforcers and bystanders at the area heard Y’s cries, and chased A and B.
In the ensuing chaos, X sought to recover his valuables from the robbers. A punched X so
strongly, which caused the latter to fall out the vehicle and hit his head on the street. X later
succumbed to his wounds and died.
A and B were charged with robbery with homicide. In his defense, A stated that he had no intent
to commit so grave a wrong, and should be liable only for simple robbery. The RTC found only
A liable for robbery with homicide, and B with simple robbery.
Can A claim praeter intentionem as a mitigating circumstance?
A: No, this mitigating circumstance of prater intentionem, or no intent to commit so grave a
wrong, is inapplicable. Article 3 of the RPC states that every person shall be held responsible for
all the natural and logical consequences of his felonious act; and Article 4 states that criminal
liability shall be incurred by any person committing a felony, although the wrongful act done be
different from that which he intended. Here, we consider the force with which A, who was
committing a robbery, boxed X, the victim of the robbery, so that the latter fell off the vehicle,
and hit his head so hard that he died. A must then be liable for all the consequences of his

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felonious act and must be deemed to have incurred criminal liability although the felonious act
he committed might have been different from what he intended. (People v. Stanley Buenamer, et
al.)

III. Abuse of Superior Strength

Q: While inside Domi’s house, Ric slapped Domi, and Eli stabbed him with a knife. In a rush of
adrenaline, Domi retaliated by hitting them with a large piece of wood. Thereafter, Eli and Ric
ran away. Domi was rushed to the hospital, but later died due to septic and hypovolemic shock
secondary to his stab wound. Eli and Ric were charged and convicted of murder, qualified by
abuse of superior strength.
Is the killing attended by the aggravating circumstance of abuse of superior strength?
A: No. Jurisprudence holds that the fact that there were two persons who attacked the victim
does not per se establish that the crime was committed with abuse of superior strength, there
being no proof of the relative strength of the aggressors and the victim. The evidence must
establish that the assailants purposely sought the advantage, or that they had the deliberate
intent to use this advantage. Here, the fact of having two assailants, and one with a knife, does
not ipso facto show that there is an abuse of superior strength. In fact, there is evidence to show
that the victim Domi was able to retaliate against the assailants. Hence, the aggravating
circumstance of abuse of superior strength is not present. (People v. Elizer Beduya, et al.)

IV. Conspiracy and Proposal to Commit Conspiracy

Q: Simpresueta M. Seraspe, her mother Primitiva Seraspe and Melba Espiritu were all charged
with the violation of Section 15, Article II of R.A. No. 6425 (The Dangerous Drugs Act of
1972), as amended. They were all found guilty of selling and transporting 983.5 grams of shabu
to Carla and another police officer, PO3 Carino, who acted as poseur buyers. Simpresueta, in her
defense, claims that she only accompanied Espiritu and cannot be held liable for that act.

Can Simpresueta be held liable for conspiracy?

A: Yes. The law states that there is conspiracy if two or more persons agree to commit a felony
and decide to commit it; this may be proved by circumstantial evidence. Although their acts
seemed independent, Simpresueta’s, Primitiva’s and Espiritu’s acts were all concerted and
cooperative, indicating concerted action and concurrence of sentiments. To be a conspirator, one
need not participate in every detail of the execution; he need not even take part in every act or
need not even know the exact part to be performed by the others in the execution of the
conspiracy. Thus, Simpresueta cannot say that her act of accompanying Espiritu is not part of a
conspiracy. (People v. Seimpresueta, et al.)

V. Treachery and the Crime of Murder

Q: Eladio Globio, Sr., and his son, Eladio Jr., were walking along a trail. Suddenly, when Eladio
Jr. was about 10 meters ahead of his father, the latter was waylaid by Fred and his companions.
Eladio, Jr. testified that Fred was armed with a wooden pole and he positioned himself at the
back of the victim. He struck the latter’s head with the wood. Thereafter, several John Does held
the victim's arms, rendering him immobile, whereupon Wilfredo Gunda (Fred) stabbed him
several times. Fearing for his life, Eladio Jr. fled.
What is the crime committed by Fred and his companions?

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A: The crime committed is murder, which is the killing of Eladio Sr. attended with treachery.
Eladio Sr. was unarmed and had no inkling of the impending attack on his person by Fred and
his companions, who had rendered him helpless and immobile. In such position, there is no
opportunity for the victim to escape or even offer a feeble resistance, when Fred delivered his
killing blows. (People v. Wilfredo Gunda)

VI. Rape by Sexual Assault

Q: The Accused inserted his finger onto AAA’s vagina under the threat of killing her if she
refused. What is the crime committed?
A: Rape by sexual assault. Per the RPC, this crime is committed, inter alia, by any person who,
by force, threat or intimidation, inserts any instrument or object into the genital or the anal orifice
of another person. (PEOPLE OF THE PHILIPPINES v. EFREN ALFONSO, G.R. No.
182094, August 18, 2010)

Q: Pedro forced Ray to give him fellatio while pointing a loaded gun in his (Ray’s) head. Did
Pedro commit rape by sexual assault against Ray?
A: No. Rape by sexual assault is a crime committed by any person, who, under the circumstances
mentioned in Article 266-A(1) of the RPC, inserts his penis or any instrument or object into
another person’s genital or anal orifice.
Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997 amended Article 335 of
the RPC and incorporated therein Article 266-A which reads:
Article 266-A. Rape, When and How Committed. – Rape is committed –
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise unconscious,
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is demented, even though none
of the circumstances mentioned above be present;
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice,
or any instrument or object, into the genital or anal orifice of another person.
Thus, rape can now be committed either through sexual intercourse under paragraph 1 or by
sexual assault under paragraph 2 of the abovementioned provision. ( PEOPLE OF THE
PHILIPPINES v.BENJAMIN SORIA y GOMEZ, G.R. No. 179031, November 14, 2012)

VII. Statutory Rape

Q. BBB testified that Alfonso had sexual intercourse with her when she only five years old. The
doctor who conducted the medical examination BBB found that BBB had superficial lacerations
in her hymen.
What crime was committed by Alfonso?
A. Alfonso is guilty of Statutory Rape. Under Art. 266-A(1)(d) of the RPC, statutory rape is
committed by a man who shall have carnal knowledge of a woman who is under twelve (12)
years of age. In the instant case, the prosecution proved beyond reasonable doubt that appellant
had carnal knowledge of BBB who was only 5 years of age at the time. (PEOPLE OF THE
PHILIPPINES v. EFREN ALFONSO, G.R. No. 182094, August 18, 2010)

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VIII. RA 7610 (Child Abuse Law)
Q: AAA, a seventeen-year-old minor, had sex with her twenty-one year old boyfriend. Is there a
crime committed?
A: Yes. Per RA 7610 and the case of Malto v. People, a child cannot give consent to sexual
congress. Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5,
Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious
conduct with a child is a malum prohibitum. A child is presumed by law to be incapable of
giving rational consent to any lascivious act or sexual intercourse. (Malto v. People)

Q: Pinlac, an adult, and his fraternity brothers held an “initiation ceremony” wherein AAA, then
fourteen years old, was one of the neophytes. Pinlac succeeded in persuading AAA into drinking
alcohol and smoking marijuana. AAA entered a stupor, daze and was near total unconsciousness,
whereupon Pinlac disrobed him and performed oral sex on him by performing fellatio until AAA
ejaculated. The following day, the same thing happened again.
What was/were the crime/s committed?
A: The crimes committed were two counts of violation of RA 7610, or the Anti-Child Abuse
Law, particularly Section 5(b) thereof pertaining to Child Prostitution and Other Sexual Abuse:
“Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse.”
The act of Pinlac in disrobing the minor AAA, who was then under the influence of illegal drugs
and liquor after he was made to take them by Pinlac, and thereafter, sucking AAA’s penis, is
clearly a lascivious conduct performed by Pinlac on AAA.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child
indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult, syndicate or group. The law
covers not only a situation in which a child, through coercion or intimidation, engages in any
lascivious conduct. The very title of Section 5, Article III (Child prostitution and Other Sexual
Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a
child subjected to other sexual abuse. A child is deemed subjected to “other sexual abuse” when
he or she indulges in lascivious conduct under the coercion or influence of any adult. In the
instant case, Pinlac influenced minor AAA to go to Sta. Cruz, Zambales; made him to take drugs
and drink liquor; and when he was already high and out of control, Pinlac performed lascivious
conduct on AAA.(Pinlac v. People)

IX. Plunder: Raids on the Public Treasury

Q: What constitutes “raids on the public treasury” in the Anti-Plunder Law?
A: To discern the proper import of the phrase raids on the public treasury, the key is to look at
the accompanying words: misappropriation, conversion, misuse or malversation of public
funds. This process is conformable with the maxim of statutory construction noscitur a sociis, by
which the correct construction of a particular word or phrase that is ambiguous in itself or is
equally susceptible of various meanings may be made by considering the company of the words
in which the word or phrase is found or with which it is associated. Verily, a word or phrase in a
statute is always used in association with other words or phrases, and its meaning may, therefore,
be modified or restricted by the latter. (Arroyo v. Sandiganbayan)

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X. Qualified Theft
Q: Atty. Rebecca and her daughters were neighbors with Remedios, with the former treating the
latter as family. Atty. Rebecca eventually hired Remedios in her law office as liaison officer to
facilitate the transfer of titles of Atty. Rebecca’s clients. Remedios pilfered money that was
supposed to be used to pay for various taxes intended for Atty. Rebecca’s clients, resulting in
prejudice and damage to Atty. Rebecca. What is the crime committed?
A: The crime is Qualified Theft, with the following elements: taking of personal property
belonging to another, with intent to gain, without consent of the owner, accomplished without
violence or intimidation of persons or force upon things, and qualified by grave abuse of
confidence. All such elements of theft are present: Remedios took money which was not hers,
showing her intent to gain, without the consent of Atty. Rebecca or the owners of the money, and
the lack of use of violence or intimidation and force upon things.
Theft becomes qualified when committed with grave abuse of confidence. It must be the result of
the relation by reason of dependence, guardianship, or vigilance between the parties. Here, it is
undisputed that it was due to the personal relationship of the parties that Remedios was
employed by Atty. Rebecca as liaison officer which entails trust and confidence. (People vs.
Remedios Tanchangco)

XII. Estafa
Q. Ramirez entrusted her owner’s duplicate copy of title to Ansaldo so that the latter could
subdivide the same; Ansaldo had represented himself to have connections with the LRA and
could thus facilitate this. When one month lapsed, Ramirez demanded the return of her title, to
no avail. She later discovered that had mortgaged the land covered by the title she entrusted to
Ansaldo to a certain Nora Herrera. However, the prosecution was not able to prove that Ansaldo
falsified or even signed the notarized Deed of Mortgage.
What is the crime committed?
A: The crime committed by Ansaldo is Estafa under Article 315(2)(a), because he had made
false pretenses as to his power or imaginary transactions, prior to or simultaneous with his fraud,
which caused Ramirez to part with her Duplicate Owner’s Title, and caused Ramirez damage or
prejudice.

The elements of this crime are:

(1) The accused made false pretenses or fraudulent representations as to his power, influence,
qualifications, property, credit, agency, business or imaginary transactions;
(2) The false pretenses or fraudulent representations were made prior to or simultaneous with the
commission of the fraud;
(3) The false pretenses or fraudulent representations constitute the very cause which induced the
offended party to part with his money or property; and
(4) That as a result thereof, the offended party suffered damage.

Ansaldo cannot be convicted of falsification of a public document inasmuch as there was no

evidence adduced that Ansaldo had falsified the Deed of Mortgage. The Deed of Mortgage is a
public document, having been notarized by a notary public with the solemnities required by law.
(Ansaldo v. People)

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Q: Andre was the managing director of SPI, and was tasked with management and custody of
company property—in particular, for him to deliver the same to another company for fabrication.
Upon audit, it was discovered that many of SPI’s properties under Andre’s administration were
missing and unaccounted for. Demand was made for him to return the same, but he refused.
Some of these properties were eventually found in Andre’s house. What is the crime committed?
A: Estafa was committed by Andre under Article 315(1)(b). As managing director, Andre
received personal properties in trust or for administration. He misappropriated them—the
presumption lies because the property was found in his custody even after demand—resulting in
the prejudice to SPI. Demand was also made for Andre to return the properties.
Andre, as managing director, received the property for administration. He thus acquired both
physical and juridical possession. Juridical possession means a possession which gives the
transferee a right over the thing which the transferee may set up even against the owner.
Moreover, when SPI made a demand for their return after Andre’s alleged dismissal therefrom,
he deliberately ignored the same.

Misappropriation or conversion may be proved by the prosecution by direct evidence or by

circumstantial evidence. The failure to account upon demand, for funds or property held in trust,
is circumstantial evidence of misappropriation. As mentioned, D’ Aigle failed to account for,
upon demand, the properties of SPI which were received by him in trust. This already constitutes
circumstantial evidence of misappropriation or conversion of said properties to D’ Aigle’s own
personal use. (Andre D’Aigle v. People)

Q: Antonio wanted to buy a car to be used for his taxi business. Franco introduced himself to
Antonio as an Administrative Coordinator of Final Access Marketing which was engaged in the
sale and financing of repossessed cars. Antonio and Franco had an agreement whereby a car
would be delivered to Antonio three days after he had paid for down payment; the car would be
transferred to him after full payment. However, despite paying the down payment as agreed, the
car was not delivered.
What is the crime committed?
A: Estafa by means of deceit under Article 315(2)(a) of the RPC. Franco had made false
pretenses, and simultaneously with such false pretenses, defrauded Antonio of his money used as
down payment, resulting in Antonio’s prejudice. These are all elements of estafa by false
pretenses under the RPC: (1) there must be a false pretense, fraudulent acts or fraudulent means;
(2) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or
simultaneously with the commission of the fraud; (3) the offended party must have relied on the
false pretense, fraudulent act or fraudulent means and was thus induced to part with his money or
property; and (4) as a result thereof, the offended party suffered damage. (Lyzah Sy Franco v.
People)

Q: Metrobank charged Reynado with estafa under Article 315(1)(b), claiming that after their
audit, Reynado was discovered to have connived with one of their clients, Universal, to extend
unauthorized credit accommodation. Thereafter, Universal was able to make withdrawals
totaling P81 million against uncleared regional checks, through the assistance of Reynado.
Eventually, Metrobank and Universal entered into a Debt Settlement Agreement whereby the
latter would pay the former its claims. The prosecutor then stated that the execution of the Debt
Settlement Agreement puts the bank in estoppel to argue that the liability is criminal; since the

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agreement was made even before the filing of the information, the relations between the parties
have changed, novation has set in and prevented the incipience of any criminal liability.
Is the prosecutor correct?
A: No. It has been held in jurisprudence that novation not a mode of extinguishing criminal
liability for estafa. Reynado’s criminal liability for estafa is not affected by compromise or
novation of contract on part of Metrobank and Universal. A criminal offense like estafa is
committed against the State; the private offended party may not waive or extinguish the criminal
liability that the law imposes for the commission of the crime. What the Debt Settlement
Agreement thus affects is only the civil liability of the offender Reynado, not his criminal
liability. (Metropolitan Bank and Trust Company v. Rogelio Reynado)

XIII. Illegal Recruitment

Q. Mateo represented himself to A, B, C, D and E to have connection with Japanese firms. He
promised to the five employment in Japan as mechanics, welders and fitters, and that he could
facilitate their employment as direct hires that could leave for Japan within three weeks.
However, after the payment of PHP25,000, Mateo was unable to make good on his promises.
One of the victims, A, then went to POEA and was able to secure a certification stating that
Mateo was not licensed to recruit for overseas employment. Mateo was then charged with illegal
recruitment in large scale.
In his defense, Mateo claimed that he never received the money, and that there were no receipts
to prove the same. Further, Mateo contended that he cannot be convicted for estafa under Article
315(2)(a).
Is the fact that the receipt of money was not proven enough to exculpate Mateo from the charge
of illegal recruitment in large scale?
A: No, the fact that the receipt of money from the five victims of illegal recruitment was not
proven is not enough to overturn a conviction of illegal recruitment in large scale. Money is not
material to a prosecution for illegal recruitment considering that the definition of "illegal
recruitment" under the law includes the phrase "whether for profit or not." (People v. Angel
Mateo, et al.)

XIV. Theft
Q: Puzon was a dealer of SMC products. He bought such products on credit, and he issued post-
dated checks for the same. The checks were returned to him when he paid for the value of the
goods in full.
Puzon purchased P11 Million worth of SMC products and issued two checks for the same. When
he visited the SMC Sales office to settle his account, he grabbed the checks and left.
SMC demanded the return of the checks. Puzon ignored the same. SMC then lodged a complaint
for theft against Puzon, contending that the ownership over the checks was transferred to it.
Is Puzon liable for theft?
A: No, Puzon is not liable for theft. The essential elements of theft are: taking of personal
property belonging to another; the offender had intent to gain; the taking was without the consent
of the owner; and that the taking is accomplished without use of violence or intimidation against
persons or force upon things.
In this case, it cannot be considered that the thing taken, the checks, belonged to another. The
delivery by Puzon to SMC of the check was not as payment of the obligation, and there was no
intent to give effect to the instrument because the checks were returned to him after he had paid

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in full for the value of the goods covered. Thus, the ownership of the check was not transferred
to SMC. The Negotiable Instruments Law states that: “The person to whom an instrument so
dated is delivered acquires the title thereto as of the date of delivery”; “delivery” connotes that
the party doing so had the intent of giving effect to it. (San Miguel Corporation v. Bartolome
Puzon)

XV. Robbery with Rape

Q: AAA was walking when Amper suddenly put his hand on AAA’s shoulder, poked a pointed
instrument at the left side of her body and ordered her not to make any move. The appellant then
directed her to walk casually towards the direction of the church. When they reached the back of
the church, appellant ordered AAA to sit on the cemented floor and to remove all the pieces of
jewelry she was wearing, particularly her wrist watch, bracelet and pair of earrings.
After ordering AAA to lie down on the floor, appellant removed AAA’s shorts and underwear
then also lowered his own pants and briefs and forcibly inserted his penis into her vagina and
made push and pull movements. All this time, appellant poked a weapon at the left side of
AAA’s neck which prevented her from shouting for help.
Appellant was arrested and an Information was filed against him charging him with the crime of
robbery with rape.
Is the charge against Amper proper?
A: Yes. All the elements of robbery with rape are committed by Amper: (1) the taking of
personal property is committed with violence against or intimidation of persons; (2) the property
taken belongs to another; (3) the taking is characterized by intent to gain or animus lucrandi; and
(4) the robbery is accompanied by rape.

All these elements concur: the taking by Amper of AAA’s watch, bracelet and earrings with
violence against her person as Amper pointed his knife was pointed towards AAA; the property
taken were not Amper’s; there is animus lucrandi; and that the robbery was attended with rape by
use of force or intimidation. Thus, the charge against Amper is proper. (People v. Amper)

XVI. Robbery with Homicide

Q. Crisostomo and two other armed men on board a motorcycle arrived at a gasoline station
owned by Buencamino. Two of the men immediately went to the cashier while the driver stayed
on the motorcycle. Inside the office, one of the men pulled out a fan knife while the other, armed
with a gun, fired a shot at Ramos, the cashier. They forcibly took the money in the cash register
and the man with the gun fired a second shot that fatally hit Ramos in the right side of her head.
The two armed men returned to their companion waiting by the motorcycle and together sped
away from the scene of the crime. Rodel Crisostomo was later detained after being implicated in
a robbery and was identified in a police lineup by two gasoline boys who worked in the station
owned by Buencamino, but he was not identified as the man who had shot Ramos.
Is Crisostomo liable for robbery with homicide?
A: Yes, Crisostomo is liable for robbery with homicide. All the following elements are proven:
the taking of the personal property belonging to another (the money in the cashier was not owned
by Crisostomo and his cohorts), with intent to gain (gleaned from their taking of the money), the
use of violence or intimidation (as when Crisostomo and his cohorts intimidated Buencamino
and shot Ramos), and on occasion of or by reason of the robbery, homicide in its generic sense
was committed (the killing of Ramos). Furthermore, in this scenario, the purpose of Crisostomo

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and his cohorts was robbery and the killing was only incidental, inasmuch as the killing of
Ramos was only incidental.
Jurisprudence further holds that when conspiracy is established, as when the acts of Crisostomo
and his cohorts were concerted, it matters not who among the accused actually shot and killed
the victim, unless there was proof that he had endeavored to prevent the killing. (Rodel
Crisostomo v. People)

XVII. Libel
Q. Dr. Marilyn Martinez (Martinez) was the Plant Manager of Philippine Institute of Traditional
and Alternative Health Care (PITAHC), an attached agency of the Department of Health.
Martinez attended the Mid-Year Performance Evaluation Seminar conducted by McGimpers
International Consulting Corporation (McGimpers). During the seminar, Martinez and one of the
female resource speakers had a misunderstanding as a result of the alleged abusive remarks made
by the latter pertaining to the former's capability as a supervisor. Martinez was later on
summoned by the Regional Director and was handed a copy of Memorandum No. 6, Series of
2002 signed by Lagaya, the Director General. The subject of the memorandum is "Disclosure
and Misuse of Confidential and Classified Information" which further states that Martinez needs
to undergo psychological and psychiatric treatment to prevent deterioration of her mental and
emotional stability as recommended by McGimpers. On the account of her exposure to public
ridicule and humiliation, Martinez sought the assistance of a lawyer to file the necessary
administrative, civil and criminal charges against Lagaya. The Sandiganbayan adjudged Lagaya
guilty of the crime of libel.
Is the ruling of the Sandiganbayan proper?
A: Yes. For an imputation to be libelous, the following must concur: a) it must be defamatory; b)
it must be malicious; c) it must be given publicity; and d) the victim must be identifiable. In the
given scenario, all these concur: the defamatory remarks about the mental and emotional stability
of the clearly identified and named Martinez was maliciously disclosed to all regional offices of
the HPP. Under Article 354 of the RPC, every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is shown.
Lagaya claimed that when he issued the memorandum, he was motivated by good intention to
help Martinez and improve PITAHC. Such goodness, however, is not sufficient justification
considering the details of the entire contents of the memorandum. The element of malice was
thus established. (Lagaya v. People)

XVIII. Anti-Carnapping Act, as Amended

Q. Mallari and his companions Nocum, Ramos, Posadas and Pangadang planned to carnap a taxi
driven by Medel. However, in the course of the forcible taking of the taxi, Medel was killed
when he resisted the taking of his vehicle. Eventually, Mallari and his cohorts were charged with
carnapping with homicide.
Is the charge proper?
A: Yes. The Anti-Carnapping Law defines carnapping as "the taking, with intent to gain, of a
motor vehicle belonging to another without the latter’s consent, or by means of violence against
or intimidation of persons, or by using force upon things." The crime of carnapping with
homicide is punishable under Section 14 of the said law, as amended by Section 20 of RA 7659.
To prove the special complex crime of carnapping with homicide, there must be proof not only
of the essential elements of carnapping, but also that it was the original criminal design of the

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culprit and the killing was perpetrated "in the course of the commission of the carnapping or on
the occasion thereof."
Thus, the prosecution in this case has the burden of proving that: (1) Mallari took the Toyota FX
taxi; (2) his original criminal design was carnapping; (3) he killed the driver, Medel; and (4) the
killing was perpetrated "in the course of the commission of the carnapping or on the occasion
thereof."

XIX. B.P. No. 22

Q. Chua issued several post-dated checks to See pursuant to their rediscounting arrangement.
These checks were dishonored for being drawn against insufficient funds. Despite repeated oral
demands, Chua failed to make good on the checks, prompting See to file complaints for violation
of BP 22.
Probable cause was found and the necessary Informations were filed. The prosecution offered as
its evidence the demand letter dated December 10, 1993 to which Chua objected to as it is a mere
photocopy and that it does not bear any proof that he actually received it. Chua later filed a
Motion to Submit Demurrer to Evidence, which the MTC denied.
For lack of proof that Chua was notified of the notice of dishonor, is it proper for the case to be
dismissed?
A: Yes, it is proper to dismiss the case. While Section 2 of BP 22 creates a presumption of
knowledge of insufficiency of funds, this arises only after it is proved that the issuer, Chua in this
case, had received a written notice of dishonor and that within five days from receipt thereof, he
failed to pay the amount of the check or to make arrangements for its payment. However, given
that it was not proved that the demand letter was received by Chua, there is thus no way to
ascertain when the five-day period under Section 2 of BP 22 would start and end, since there was
no showing when Chua received the letter, if he ever did at all. (Robert Chua v. People)

XVII. COMPREHENSIVE DANGEROUS DRUGS ACT

Possession and Sale of Dangerous Drugs
Q: What are the elements of Illegal Sale of Dangerous Drugs under RA 9165?
A: The following are the elements of Illegal Sale of Dangerous Drugs under RA 9165: (1) the
identity of the buyer and the seller, the object, and consideration; and, (2) the delivery of the
thing sold and the payment therefor.

Q: What are the elements of Illegal Possession of Dangerous Drugs?

A: The following are the elements of Illegal Possession of Dangerous Drugs: (1) the accused was
in possession of an item or an object identified to be a prohibited or regulated drug, (2) such
possession is not authorized by law, and (3) the accused was freely and consciously aware of
being in possession of the drug.

Q: In a buy-bust operation, a police officer knocked on Aurelio’s door, said “Pare, iiskor ako ng
piso,” and paid for a sachet of white substance which Aurelio handed with marked money.
Thereafter, Aurelio was validly arrested in the presence of the media, a barangay kagawad and a
representative from the DOJ. The police immediately frisked Aurelio. They recovered their
marked money and another plastic sachet containing similar white substance. The white
crystalline substance was inventoried, properly and accordingly marked and photographed, and

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duly sent for forensic examination. The result of the forensic examination revealed that the white
substance in the two sachets from Aurelio were shabu.
What is/are the crimes of Aurelio?
A: Aurelio is liable for both Sale and Possession of Illegal Drugs.
The following are the elements of Sale of Illegal Drugs under RA 9165: (1) the identity of the
buyer and the seller, the object, and consideration; and, (2) the delivery of the thing sold and the
payment therefor. In this scenario, the identity of the buyer and seller are identified: Aurelio as
seller and the poseur police officer as the buyer; and for the delivery of the thing sold and the
payment, it was clear that in exchange for the marked money, Aurelio gave the poseur buyer a
sachet of crystalline substance later identified as shabu, a dangerous drug.
As for possession of illegal drugs, Aurelio is also liable therefor as the elements of that crime are
present: the accused Aurelio was in possession of a dangerous drug, which is the shabu in the
packet taken from him when he was frisked; the possession of Aurelio of that shabu is not
authorized by law; and that Aurelio was freely and consciously aware of being in possession of
the same.

Chain of Custody
Q. On August 25, 2003, at around 1:00 o'clock in the afternoon, a confidential informant
reported to SPO4 Menardo Araneta [SPO4 Araneta], Chief of the Intelligence Division of the
Culianan Police Station4 [at Zamboanga City], that a certain "Ismael Salim" was engaged in
selling shabu at Barangay Talabaan near the Muslim [c]emetery [in that city.
Upon arrival at Barangay Talabaan, the team parked their service vehicle along the road. SPO1
Santiago, the confidential informant and SPO1 Rodriguez alighted from the vehicle and walked
towards the [area fronting] the Muslim cemetery. As they approached the area, the informant
pointed to a man wearing a brown T-shirt and black short pants with white towel around his neck
[whom he identified] as appellant Ismael Salim, the target of the operation.
Upon seeing the exchange, SPO1 Rodriguez, who was positioned [some 10] meters away, rushed
in and arrested appellant[.] SPO1 Rodriguez made a precautionary search of appellant's body for
any concealed weapon, and found none]. Instead, SPO1 Rodriguez found, tucked inside
[appellant's left front pocket the ₱100.00] marked money and two (2) more plastic sachets
containing white crystalline substance wrapped in a golden cigarette paper.
PO2 Tan also prepared a request to the PNP Regional Crime Laboratory 9, [at] Zamboanga City
for laboratory examination of the plastic sachet containing the white crystalline substance subject
of the sale between appellant and SPO1 Santiago, and the other two (2) plastic sachet[s] found
inside appellant's pocket by SPO1 Rodriguez.
After conducting qualitative examination on the said specimens, Police Chief Inspector [PCI]
Mercedes D. Diestro, Forensic Chemist [Forensic Chemist Diestro], issued Chemistry Report
No. D-367-2003 dated August 25, 2003, finding [the above-mentioned] plastic sachets positive
for Methamphetamine Hydrochloride (shabu) a dangerous drug.
Among the defenses of the accused was that the prosecution failed to establish an unbroken
chain of custody of the seized drugs in violation of Section 21, RA 9165.
Rule on his contention.
A: The Prosecution failed to establish an unbroken chain of custody of the seized drugs in
violation of RA 9165.

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The first link in the chain of custody is provided by RA 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.
This was not done. Because of this gap, there is no certainty that the sachets of drugs presented
as evidence in the trial court were the same drugs found in appellant's possession. Aside from
these, there was also no receipt of the seized drugs, photographs taken, or representatives from
the media, the DOJ or any elected official who signed the inventory and given a copy of the
same.

Q: What is the chain of custody in dangerous drugs cases?

A: Per RA 10640, which amends Section 21 of RA 9165, the Custody and disposition of
confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals/paraphernalia and/or laboratory equipment are:
“(1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and confiscation, conduct a
physical inventory of the seized items and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a representative of the
National Prosecution Service or the media who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever
is practicable, in case of warrantless seizures: Provided, finally, That non-compliance 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.

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to
the PDEA Forensic Laboratory for a qualitative and quantitative examination

(3) A certification of the forensic laboratory examination results, which shall be done by
the forensic laboratory examiner, shall be issued immediately upon the receipt of the
subject item/s: Provided, That when the volume of dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and essential chemicals does not allow the
completion of testing within the time frame, a partial laboratory examination report shall
be provisionally issued stating therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however, That a final certification shall
be issued immediately upon completion of the said examination and certification.

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 (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous
drugs, plant sources of dangerous drugs, and controlled precursors and essential
chemicals, including the instruments/paraphernalia and/or laboratory equipment, and
through the PDEA shall within twenty-four (24) hours thereafter proceed with the
destruction or burning of the same, in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the DOJ, civil society groups and any elected public
official. The Board shall draw up the guidelines on the manner of proper disposition and
destruction of such item/s which shall be borne by the offender: Provided, That those
item/s of lawful commerce, as determined by the Board, shall be donated, used or
recycled for legitimate purposes: Provided, further, That a representative sample, duly
weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or
burning of the subject item/s which, together with the representative sample/s in the
custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In
all instances, the representative sample/s shall be kept to a minimum quantity as
determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to

personally observe all of the above proceedings and his/her presence shall not constitute
an admission of guilt. In case the said offender or accused refuses or fails to appoint a
representative after due notice in writing to the accused or his/her counsel within seventy-
two (72) hours before the actual burning or destruction of the evidence in question, the
Secretary of Justice shall appoint a member of the public attorney's office to represent the
former;

(7) After the promulgation and judgment in the criminal case wherein the representative
sample/s was presented as evidence in court, the trial prosecutor shall inform the Board
of the final termination of the case and, in turn, shall request the court for leave to turn
over the said representative sample/s to the PDEA for proper disposition and destruction
within twenty-four (24) hours from receipt of the same.

Non-Presentation of the Forensic Chemist is Insufficient for Acquittal

Q: Assuming the chain of custody is unbroken, is the presentation of the official forensic chemist
who identified the illegal drug sufficient to acquit the accused in a prosecution for violation of
RA 9165?
A: No. In a long line of cases, the report of an official forensic chemist regarding a recovered
prohibited drug enjoys the presumption of regularity in its preparation, inasmuch as witnesses
need not be summoned to testify on matters of public record. The non-presentation as witnesses
of other persons who had custody of the illegal drugs is not a crucial point against the
prosecution.

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Physical Inventory of the Seized Dangerous Drugs
Q: In one buy-bust operation conducted by the police, including the seizure and inventory of the
seized packets of shabu from the accused, the same was done without the presence of any elected
official, even the barangay kagawad, or a representative from the media. The police claim that to
invite even a barangay official would jeopardize the entire operation, and claim that their
operation should be accorded the presumption of regularity. Neither did the police invite any
member of the National Prosecution Service or the media, or any elected official for the eventual
marking, inventory and photography of the seized drugs.
Rule on this contention.
A: Any seized dangerous drug from one such operation as described in the question should not
be admissible in evidence. The presence of the persons who should witness the post-operation
procedures is necessary to insulate the apprehension and incrimination proceedings from any
taint of illegitimacy or irregularity. The insulating presence of such witnesses would have
preserved an unbroken chain of custody. We have noted in several cases that a buy-bust
operation is susceptible to abuse, and the only way to prevent this is to ensure that the procedural
safeguards provided by the law are strictly observed.

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