G.R. No. 166401 October 30, 2006 by appellant.
by appellant. This time, she was raped in an outdoor clearing9 after having been invited there by appellant to
[Formerly G.R. Nos. 158660-67]
PEOPLE OF THE PHILIPPINES, appellee,
vs.
ALFREDO BON, appellant.
DECISION
TINGA, J.:
Two critical issues emerge in this case. The first relates to whether the Court should affirm the conviction of
appellant Alfredo Bon (appellant) for six counts of rape and two counts of attempted rape, the victims being his
then-minor nieces. On that score, we affirm. As a consequence though, we are ultimately impelled to
confront a question much broader in both scope and import. While the Court had previously declined
to acknowledge the constitutional abolition of the death penalty through the 1987 Constitution, 1 we
now find it necessary to determine whether the enactment of Republic Act No. 9346 resulted in the statutory
interdiction of the death penalty.
The second issue arises as we are compelled to review the maximum term of reclusion temporal in the
sentence imposed on appellant by the Court of Appeals for the two counts of attempted rape. The sentence
was prescribed by the appellate court prior to the enactment of Republic Act No. 9346 which ended the
imposition of the death penalty in the Philippines. The proximate concern as to appellant is whether his penalty
for attempted qualified rape, which under the penal law should be two degrees lower than that of
consummated qualified rape, should be computed from death or reclusion perpetua.
First, the antecedent facts.
I.
Eight (8) Informations2 were filed within the period from 21 August 2000 to 23 February 2001 by the Assistant
Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of AAA3 and
BBB,4 the daughters of his older brother. Appellant was accused of raping AAA in Criminal Case Nos. 6899-G,
6902-G, 6906-G, and 6908-G; while he was accused of raping BBB in Criminal Case Nos. 6689-G, 6903-G,
6905-G, and 6907-G.5All these cases were consolidated for trial. The rapes were alleged to have been
committed in several instances over a span of six (6) years.
Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped
them. During trial, their respective birth certificates and the medical certificates executed by the doctor who
physically examined them were entered as documentary evidence.
AAA testified that she was only six (6) years old when she was first molested in 1994 in the house appellant
had shared with her grandmother.6 She recounted that the incident took place when she and appellant were
alone in the house. Appellant touched her thighs and vagina, removed her clothes and inserted his penis into
her vagina. Appellant threatened that she and her parents would be killed should she disclose the incident to
anyone. She thereafter stopped sleeping in the house of her grandmother. It was only three (3) years after, in
1997, that she slept in the said house, yet again she was sexually abused by appellant. She was then nine (9)
years old.7
AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again at the
house of her grandmother.8 The following year, when she was twelve (12), she was abused for the fourth time
get some vegetables. While at the clearing, appellant forced her to lie down on a grassy spot and tried to
insert his penis in her vagina. As she cried in pain, appellant allegedly stopped. 10
It was only on 12 June 2000 that she decided to reveal to her mother, CCC,11 the brutish acts appellant had
done to her.12 Her mother thus filed a complaint against her uncle. AAA identified appellant in open court and
presented as documentary evidence her birth certificate to prove that she was born on 3 September 1988.13
BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten (10) years
old, also at the house appellant shared with her grandmother. While alone in the house, appellant poked a
knife at her, removed her clothes and inserted his penis in her vagina. Despite the pain she felt, she could not
resist appellant as he was holding a knife. She did not report the rape to her parents out of fear of appellant's
threat that he would kill her.14 BBB further testified that in 1998 and 1999, she was raped again by appellant
on several occasions, the rapes occurring under threat of a bladed weapon, and regardless of the time of
day.15
BBB stated that she was last raped by appellant on 15 January 2000.16 On that night, she was sleeping beside
her sister AAA in the house of her grandmother when she felt appellant touching her body. She pushed him
away but appellant pulled her three (3) meters away from AAA towards the door. As appellant was holding a
knife, BBB could not make any noise to alert her sister. Appellant ordered her to remove her clothes and
forced her to lie down. After he took off his clothes, appellant placed himself on top of BBB and stayed there
for three (3) minutes "moving up and down." Thereafter, she put on her clothes and returned to where her
sister was. She added that although it was dark, she knew it was appellant who had molested her as she was
familiar with his smell. Since then, she never slept in her grandmother's house again.17
It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that, however,
she had already revealed the sexual abuses she had underwent to her sister AAA. Upon learning of the same,
her mother brought her to the police station and her statement was taken. Thereafter, she was brought to the
hospital to be examined. Furthermore, BBB explained that she only reported the abuses done to her on 14
June 2000 or five (5) months after the last rape because she was afraid of appellant's threat of killing her and
her family.18
The third witness for the prosecution was the mother, CCC. She testified that she only knew of the abuses
done on her daughters on 15 June 2000. Five months earlier, CCC became concerned after observing that
BBB, on the pretext of preparing clothes for a game, was packing more than enough clothes. She asked her
other daughter, DDD, to dig into the matter and the latter told her that BBB was planning to leave their house.
Upon learning this, she sent somebody to retrieve BBB. However, it was only five months after that incident
that BBB confided to her mother that she was raped by appellant. CCC lost no time in reporting the matter to
the authorities and had BBB and AAA examined in the hospital. After examination, it was confirmed that BBB
was indeed sexually molested.19
CCC initially did not tell her husband about what had happened to their daughters because she was afraid that
her husband might kill appellant. It was only after appellant was arrested that she disclosed such fact to her
husband. After the arrest of appellant, his relatives became angry at CCC, and her mother-in-law avoided
talking to her since then.20
The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas (Dr. Tullas),
medical officer of Gumaca District Hospital, testified that she was the one who examined BBB and AAA, and
thereafter, issued medical certificates for each child. These medical certificates were presented in court.21
The medical certificate of BBB revealed that at the time of examination, there were no external sign of physical
injury found on her body. However, Dr. Tullas found that the labia majora and minora of BBB was slightly
gaping, her vaginal orifice was admitting two fingers without resistance and there were hymenal lacerations at
"three (3) o'clock" and "eight (8) o'clock" which might have happened a long time before her examination. Dr.
Tullas concluded that there might have been sexual penetration caused by a male sex organ for several
times.22
AAA's medical certificate stated that at the time of examination, there were no external physical injuries
apparent on her body. AAA's labia majora and minora were well coaptated and the hymen was still intact. On
direct examination, Dr. Tullas said that it could happen that the hymen would still be intact despite sexual
penetration with a person having an elastic hymen. On the other hand, when asked on cross-examination, she
stated that there was also the possibility that no foreign body touched the labia of the pudendum of AAA. 23
Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court that from
1994 to 2000, he lived in the house of his parents which was about "thirty (30) arm stretches" away from the
house of BBB and AAA. He denied having raped BBB on 15 January 2000 because on said date he was at
the house of his sister, two (2) kilometers away from the house of his parents where the rape occurred, from
11:30 in the morning and stayed there until early morning of the following day. 24
He offered a general denial of the other charges against him by BBB and AAA. He claimed that he seldom
saw the two minors. He further asserted that prior to the institution of the criminal case against him he had a
smooth relationship with his nieces and the only reason the case was filed against him was that CCC, his
sister-in-law and the mother of his nieces, harbored ill-feelings towards his deceased father, who would call
CCC "lazy" within earshot of other family members.25
The RTC convicted appellant on all eight (8) counts of rape.26 The RTC pronounced appellant's defense of
denial and alibi as unconvincing, citing jurisprudence declaring denial and alibi as intrinsically weak defenses.
The RTC concluded that appellant failed to controvert the clear, candid and straightforward testimonies of his
nieces. It further considered the qualifying circumstances of minority of the victims and the relationship of the
victims and appellant, the latter being the former's relative by consanguinity within the third degree.
As the penalty imposed consisted of eight (8) death sentences, the records of the case were automatically
elevated to this Court for review. However, in the aftermath of the pronouncement of the Court in People v.
Mateo27 the present case was transferred to the Court of Appeals for appropriate action and disposition.
On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight
(8) death sentences imposed on appellant.28 The appellate court ratiocinated, thus:
We have painstakingly gone over the record of these cases and find no cogent reason to deviate
from the findings of the trial court except in at least two (2) cases. The prosecution's case which
was anchored mainly on the testimonies of private complainants [BBB] and [AAA], deserve full
faith and credit for being clear, precise and straightforward. Like the trial court, We find no reason
to disbelieve the private complainants. It was established with certitude that the accused on
several occasions sexually assaulted his nieces. The perpetration of the crimes and its authorship
were proved by the victims' candid and unwavering testimonies both of whom had the misfortune
of sharing the same fate in the hands of their own uncle. The sincerity of [AAA] was made more
evident when she cried on the witness stand in obvious distress over what their uncle had done to
her and her sister.29
The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. In
these two (2) cases, it was alleged that appellant had raped AAA in 1999 and on 11 June 2000, respectively.
According to the appellate court, it could not find evidence beyond reasonable doubt in those two (2) cases
that appellant had accomplished the slightest penetration of AAA's vagina to make him liable for consummated
rape. It stressed that there was not even moral certainty that appellant's penis ever touched the labia of the
pudendum, quoting portions of the transcript of the stenographic notes where AAA was asked if appellant was
then successful in inserting his penis into her vagina and she answered in the negative.30 Accordingly, the
Court of Appeals reduced the penalties attached to the two (2) counts of rape from death for consummated
qualified rape to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum, for attempted rape.
Appellant, in his Supplemental Brief31 before this Court, assails the findings of the Court of Appeals. He cites
inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly,
appellant observes that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and
appellant had been sleeping side by side. However, when BBB again testified on 3 July 2002, this time she
stated that on that night, as she and her sister AAA were sleeping in their room at their parents' house (and
not at her grandmother's), the accused passed through a window, entered their room and raped her
again.32 Appellant also latches on the inconsistencies in BBB's testimony as to the length of the duration of her
rape on that day. In BBB's testimony on 6 June 2001, she said that appellant was atop her for three (3)
minutes while in the 3 July 2002 hearing, BBB stated that the rape lasted for only half a minute.
It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these
inconsistencies, which the RTC and the Court of Appeals did not consider material, were elicited while BBB
was testifying in open court. Our observations in People v. Perez33 on the appreciation of alleged
inconsistencies in the testimony of rape victims who happen to be minors are instructive, thus:
We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant
details. They bear no materiality to the commission of the crime of rape of which accused-
appellant was convicted.[34] As pointed out by the Solicitor General in the Appellee's Brief, the
seeming inconsistencies were brought about by confusion and merely represent minor lapses
during the rape victim's direct examination and cannot possibly affect her credibility. Minor lapses
are to be expected when a person is recounting details of a traumatic experience too painful to
recall. The rape victim was testifying in open court, in the presence of strangers, on an extremely
intimate matter, which, more often than not, is talked about in hushed tones. Under such
circumstances, it is not surprising that her narration was less than letter-perfect.[35] "Moreover, the
inconsistency may be attributed to the well-known fact that a courtroom atmosphere can affect the
accuracy of testimony and the manner in which a witness answers questions."[ 36]37
Further, the public prosecutor offered a convincing explanation on why BBB was confused on some points of
her two testimonies. Particularly in the Memorandum for the People38 filed with the RTC, the public prosecutor
creditably explained the inconsistencies, thus:
[BBB]'s testimony on July 3, 2002 might be contradictory to her first testimony on June 6, 2001,
with respect to the last rape on January 15, 2000, as regards the place of commission—house of
her parents or house of accused; and the length of time he stayed on her top – 3 minutes or half-
minute. But she remained consistent in her declaration that on January 15, 2000, her uncle
inserted his penis into her vagina, and he was moving while on her top then she felt something
came out from him. He was able to rape her because he threatened her with a knife or bladed
weapon. Further, the first she took the witness stand on June 6, 2001, she was made to recall the
last rape, the first rape and many acts of sexual abuses [sic] against her. She was even confused
about her age when she was first raped by her uncle. After she testified on November 14, 2001, for
the separate charges of rapes in 1997, 1998 and 1999, she was able to recall more clearly the last
rape on January 15, 2000, which happened in her own house. These noted discrepancies as to the
exact place of commission – accused's house or victim's house – is not an essential element of the
crime of rape and both houses are situated in Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is
within the territorial jurisdiction of this Honorable Court. x x x 39
In addition, we share the lower court's disbelief of appellant's proffered defenses of denial and alibi. These two
defenses are inherently the weakest as they are negative defenses. Mere denials of involvement in a crime
cannot take precedence over the positive testimony of the offended party. For alibi to prosper, it is not enough
for the defendant to prove that he was somewhere else when the crime was committed; he must likewise
demonstrate that it is physically impossible for him to have been at the scene of the crime at the time.40
In the case at bar, appellant's alibi that he was at his sister's house barely two (2) kilometers away when the
rape took place on 15 January 2000 cannot be given credence by this Court. If we are to thread this line of
reasoning, appellant could have easily left his sister's house in the middle of the night, raped BBB, and then
returned to his sister's house without much difficulty and without anybody noticing his absence.
Well-settled is the rule that a categorical and positive identification of an accused, without any showing of ill-
motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial.41 The defenses of
denial and alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence
identifying appellant as the perpetrator.42 In this case, both BBB and AAA, minors and relatives of appellant,
positively identified him as their rapist in open court. The lower courts found no issue detracting from the
credibility of such identification.
It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He
offers nothing to counteract the accusations against him involving the seven (7) other specific acts of rape
other than the averment that he did not know anything about the allegations propounded on him, an
infinitesimal defense considering the evidence against him.
Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his
deceased father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating
experience of coming before the court and narrating their harrowing experience just because she was tagged Q – Why?
by her father-in-law as lazy. In addition, CCC's father-in-law had died several years before the criminal
charges against appellant were ever instituted. If CCC truly wanted to retaliate and damage the reputation of
her father-in-law, she could have done so when the latter was still alive. No member of a rape victim's family A – It was painful, Mam. [sic]
would dare encourage the victim to publicly expose the dishonor of the family, more specifically if such
accusation is against a member of the family, unless the crime was in fact committed.43
xxxx

Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her
Q – How many times did he try to insert his penis into your vagina?
private parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and
impelled to seek justice for the wrong done to her. Testimonies of child-victims are normally given full weight
and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect A – Many times, Mam.48 [sic]
all that is necessary to show that rape has been committed. Youth and immaturity are generally badges of
truth and sincerity.44 The weight of such testimonies may be countered by physical evidence to the contrary, or
indubitable proof that the accused could not have committed the rape, but in the absence of such AAA also testified in the same vein in Criminal Case No. 6908-G.
countervailing proof, these testimonies shall be accorded utmost value.
Q – I am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for Rape.
The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The When was the last time that this sexual abuse was committed by your Uncle?
minority of the victims and their relationship with appellant were aptly established
A – June 11, Mam. [sic]
in the lower court proceedings. Not only did the prosecution allege in the Informations the ages of the victims
when they were raped but the prosecution also presented the birth certificates of BBB and AAA in court as
documentary evidence to prove that they were both minors when appellant raped them. Appellant, in open Q – What year?
court, also admitted that that he was the uncle of both victims being the brother of the victims' father, and thus,
a relative of the victims within the third degree of consanguinity.
A – June 11, 2000, Mam. [sic]

Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is understandably justified,
xxxx
considering that appellant repeatedly threatened to kill them and their family should they disclose the incidents
to anyone. It has been held time and again that delay in revealing the commission of rape is not an indication
of a fabricated charge.45 Such intimidation must be viewed in light of the victim's perception and judgment at Q – What did your Uncle do to you on June 11, 2000?
the time of the commission of the crime and not by any hard and fast rule. It is enough that the intimidation
produces a fear that if the victim does not yield to the perverse impulses of the accused, something would
happen to her at the moment, or even thereafter, as when she is threatened with death if she would report the A – He also removed my clothes, Mam. [sic]
incident.46
Q – And after removing your clothes, what did he do to you?
At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-
G and 6908-G were not proven beyond reasonable doubt, but only the two separate incidents of attempted
rape. A – He was trying to insert his penis into my vagina, Mam. [sic]

It is to be noted that there is an attempt to commit rape when the offender commences its commission directly xxxx
by overt acts but does not perform all acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.47 In Criminal Case No. 6906-G, the records Q – And what did you feel when he was trying to insert his penis in your vagina?
show that there was no penetration or any indication that the penis of appellant touched the labia of the
pudendum of AAA. This was evident in AAA's testimony at the hearing on 17 October 2001, to wit:
A – Painful, Mam. [sic]
Q – Do you remember of any unusual incident that happened to you when you were eleven years
old? Q – And what did you do when you feel painful?

A – Yes, Mam. [sic] A – I cried, Mam. [sic]

Q – What was that? Q – When you cried, what did your Uncle do, if any?

A – He also touched my vagina and my other private parts and he inserted also his penis (into) my A – He did not pursue what he was doing, Mam. [sic]
vagina. [sic]

xxxx
Q – Was he able to insert his penis into your vagina?

Q – And your Uncle was not able to penetrate his penis to your vagina?
A – No, Mam. [sic]
 A – No, Mam.49 [sic] ART. 51. xxx — A penalty lower by two degrees than that prescribed by law for the consummated
felony shall be imposed upon the principals in an attempt to commit a felony.54

In downgrading the offense committed and consequently decreasing the penalty, the CA declared:
What is the penalty "lower by two degrees than that prescribed by law" for attempted rape? Article 266-B of
the Revised Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes:
It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may be
deduced from the sexual act but accused cannot be convicted of rape by presuming carnal
knowledge out of pain. It is well-settled that complete penetration of the penis into the vagina is not The death penalty shall also be imposed if the crime of rape is committed with any of the following
necessary to convict for consummated rape since the slightest penetration of one into the other will aggravating/qualifying circumstances:
suffice. However, in People v. Campuhan, the term "slightest penetration" was clarified to mean
that there must be sufficient and convincing proof of the penis indeed touching at the very least the
labias of the female organ. Mere epidermal contact between the penis and the external layer of the 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
victim's vagina (the stroking and the grazing of the male organ upon the female organ or the mons step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive common law spouse of the parent of the victim. x x x55
proof of even the slightest penetration, more accurately, the touching of the labias by the penis,
before rape could be deemed consummated. We, therefore, take exception to the finding of the
The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years
trial court that when the accused was trying to insert his penis into the child's vagina, the act
of age and to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The
proved painful to [AAA,] which made the accused stop from further executing the act. From the
determination of the penalty two degrees lower than the death penalty entails the application of Articles 61 and
testimony of private complainant, [AAA] in the afore-numbered cases, the prosecution failed to
71 of the Revised Penal Code:
demonstrate beyond any shadow of doubt that accused-appellant's penis reached the labia of the
pudendum of AAA's vagina. There is no basis then to apply the rule that the introduction of the
penis into the aperture of the female organ (thereby touching the labia of the pudendum) already Art. 61. Rules of graduating penalties.—For the purpose of graduating the penalties which,
consummates the case of rape. x x x 50 according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon
persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories,
the following rules shall be observed:
It should be added that under Article 6 of the Revised Penal Code, there is an attempt when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other than his own spontaneous 1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in
desistance. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for degree shall be that immediately following that indivisible penalty in the respective graduated scale
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to prescribed in Article 71 of this Code.56
the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the
penetration, however slight, is not completed.51
xxxx

The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable
doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our disposition of
Rep. Act No. 9346, the appropriate penalties for both crimes should be amended. this question. The provision reads:

II.
We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The
sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view
of Rep. Act No. 9346, titled "An Act Prohibiting the Imposition of Death Penalty in the Philippines." Section 2 of
the law mandates that in lieu of the death penalty, the penalty of reclusion perpetua shall be imposed.
Correspondingly, the Court can no longer uphold the death sentences imposed by lower courts, but must, if
the
Art. 71. Graduated scales. — In the case in which the law prescribes a penalty lower or higher by
one or more degrees than another given penalty, the rules prescribed in Article 61 shall be
observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is comprised the
given penalty:
The courts, in applying such lower or higher penalty, shall observe the following graduated scales:

guilt of the accused is affirmed, impose instead the penalty of reclusion perpetua, or life imprisonment when
appropriate. Since the passage of Rep. Act No. 9346, the Court has had occasion to effectuate such reduction SCALE NO. 1
in recent cases such as People v. Tubongbanua52 and People v. Cabalquinto.53
1. Death
III.
2. Reclusion perpetua
The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be
the more challenging but interesting question facing the Court.
3. Reclusion temporal

The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to "an indeterminate penalty of 4. Prision mayor
ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion
temporal as maximum," for each count of attempted rape. There is no doubt as to the validity of this sentence
at the time it was meted prior to the enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code 5. Prision correctional
establishes the penalty to be imposed upon the principals of an attempted felony:
 6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10. Fine57
xxxx
Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal,
which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion
temporal is a penalty comprised of three divisible periods, a minimum, a medium and a maximum.
At the same time, the Indeterminate Sentence Law prescribes that "the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the Code for the offense." The purpose of the
prescription of minimum and maximum periods under the Indeterminate Sentence Law is to effect the privilege
granted under the same law, for prisoners who have served the minimum penalty to be eligible for parole per
the discretion of the Board of Indiscriminate Sentence.58 Thus, convicts sentenced to suffer death penalty or
life-imprisonment are ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible
penalty without minimum or maximum periods.59
Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum
penalty within the range of reclusion temporal, and a minimum penalty within the range of the penalty next
lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would have affirmed such
sentence without complication. However, the enactment of the law has given rise to the problem concerning
the imposable penalty. Appellant was sentenced to a maximum term within reclusion temporal since that is the
penalty two degrees lower than death. With the elimination of death as a penalty, does it follow that appellant
should now be sentenced to a penalty two degrees lower than reclusion perpetua, the highest remaining
penalty with the enactment of Rep. Act No. 9346? If it so followed, appellant would be sentenced to prision
mayor in lieu of reclusion temporal.
IV.
Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant,
but several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to
make the following qualification.
Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different frames of
reference. This was especially made clear with the 1993 amendments to the Revised Penal Code through Rep.
Act No. 7659, or the Death Penalty Law. Under the Revised Penal Code, as amended, the death penalty was
provided for in two ways, namely: as the maximum penalty for "reclusion perpetua to death," and death itself
as an automatic and exclusive penalty. Death as the automatic penalty was mandated for the crimes of
qualified bribery "if it is the public officer who asks or demands such gift or present;" 60 kidnapping or detention
"for the purpose of extorting ransom from the victim or any other person;"61 destructive
arson wherein "death results;"62 and rape qualified by any of the several circumstances enumerated under the
law.
On the other hand, the penalty of "reclusion perpetua to death" was imposable on several crimes, including
murder,63 qualified piracy,64 and treason.65 The imposition of the death penalty for crimes punishable by
"reclusion perpetua to death" depended on the appreciation of the aggravating and mitigating circumstances
generally outlined in Articles 13 and 14 of the Revised Penal Code. Reference to those two provisions was
unnecessary if the penalty imposed was death, as opposed to "reclusion perpetua to death."
There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and
attempted felonies which were punishable by "reclusion perpetua to death" if consummated, or on
accomplices and accessories to such felonies. Such situations do not relate to the case of appellant, who was
convicted of two (2) counts of attempted rape, which, if consummated, of course would have carried prior to
the enactment of Rep. Act 9346 the penalty of death, and not "reclusion perpetua to death."
The Court also recognizes that the graduation of penalties reckoned from "reclusion perpetua to death" differs
from that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees
lower than "reclusion perpetua to death" is prision mayor.66 In contrast, the Court has likewise held that for
qualified rape in the attempted stage, "the penalty x x x two (2) degrees lower than the imposable penalty of
death for the offense charged x x x is reclusion temporal."67 In People v. Tolentino,68 we ruled that the accused,
who had been sentenced to die for the rape of his nine (9)-year old stepdaughter, was guilty only of attempted
rape. In explaining that "reclusion temporal" was the proper penalty, the Court, through then Chief Justice
Davide, explained:
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty
lower by two degrees than that prescribed by law for the consummated felony." In this case, the
penalty for the rape if it had been consummated would have been death, pursuant to Article 335 of
the Revised Penal Code, as amended by R.A. No. 7659, since [RT69] was eight years old and
TOLENTINO was the common-law spouse of [RT's] mother. The last paragraph thereof provides:
The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.
xxxx
The penalty in this case should have been reclusion temporal, which is the penalty lower by two
degrees than death. However, with the application of the Indeterminate Sentence Law,
TOLENTINO may be sentenced to an indeterminate imprisonment penalty whose minimum shall
be within the range of prision mayor and whose maximum shall be within the range of reclusion
temporal in its medium period pursuant to Article 64 (1) of the Revised Penal Code.70
This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion
perpetua and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the
penalty prescribed for the crime is composed of two indivisible penalties … the penalty next lower in degree
shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale."
Hence, in passing sentence on those convicted of attempted felonies which warranted the penalty of
"reclusion perpetua to death" if consummated, the Court has consistently held that penalty two degrees lower
than "reclusion perpetua to death" is prision mayor. In contrast, if the penalty for the consummated crime is the
single indivisible penalty of death, as was prescribed for several crimes under Rep. Act No. 7659, Article 61(1)
of the Revised Penal Code provides that "the penalty prescribed for the felony is single and indivisible, the
penalty next lower in degree shall be that immediately following that indivisible penalty in the respective
graduated scale prescribed in Article 71". Thus, the proper penalty two degrees lower than death is reclusion
temporal.
It is also for this reason that the controversy we are now addressing did not similarly arise after the enactment
of the 1987 Constitution, which prohibits the imposition of the death penalty subject to its subsequent
readoption at the choice of Congress. Generally, the highest penalty imposed under the Revised Penal Code
was "reclusion perpetuato death," a penalty composed of two indivisible penalties. As a result, the Court had
no occasion, after the passage of the 1987 Constitution, to consider the effect of the charter on penalties
downgraded from a single indivisible penalty. It was under Rep. Act No. 7659, passed in 1993, that some
commonly occurring crimes, such as qualified rape and kidnapping for ransom, were penalized with the single
indivisible penalty of death.
The discussion for purposes of this decision will only center on crimes, such as qualified rape as defined in the
Revised Penal Code, as amended, for which the imposable penalty was death alone. Thus, our ruling will bear
no direct effect on the sentencing of accomplices and accessories or persons guilty of the attempted or
frustrated stage of felonies for which the imposable penalty was "reclusion perpetua to death."
Hence, it should be understood that any reference forthwith to the penalty of death does not refer to
the penalty of "reclusion perpetua to death."
V.
If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose sentences had
been graduated beginning from death pursuant to Article 71, the Court would not hesitate to enforce such
downgrading based on clear statutory intent. However, nothing in Rep. Act No. 9346 expressly refers to those
penalties imposed on frustrated or attempted felonies, or on accessories and accomplices.
Section 1 of Rep. Act No. 9346 bears examination:
Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act
No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act
Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six
Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws,
executive orders and decrees, insofar as they impose the death penalty are hereby repealed or
amended accordingly.
If the penalties for attempted rape of a minor,71 among others, were deemed to have been amended by virtue
of Rep. Act No. 9346, such amendment can be justified under the ambit of the repealing clause, which reads,
"all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or
amended accordingly." While this clause may, given its breadth, initially impress as the nature of a general
repealing clause, it is in actuality an express repealing clause. Section 1 specifically repeals all laws, executive
orders and decrees insofar as they impose the death penalty, and not merely such enactments which are
inconsistent with Rep. Act No. 9346.
Section 1 arguably presents more problems in that regard with its utilization of the particular phrase "insofar as
they impose the death penalty." We can entertain two schools of thought in construing this provision, both of
them rooted in literalist interpretations. First, it can be claimed that the present application of the penalties for
attempted rape of a minor (among many examples) does not "impose the death penalty," since none of the
convicts concerned would face execution through the application of the penalty for attempted rape. Hence, the
statutory provisions enforced in determining the penalty for attempted rape, or other crimes not punishable by
death, are not amended by Rep. Act No. 9346.
On the other hand, the operation of the provisions imposing the penalty for attempted rape of a minor
necessarily calls for the application, if not its literal imposition, of death as a penalty, in the context of applying
the graduated scale of penalties under Article 71 of the Revised Penal Code. If we were to construe "impose"
as to mean "apply," then it could be argued that Article 71 was indeed amended by Rep. Act No. 9346. After
all, the application of Article 71 to crimes such as attempted rape of a minor call for the actual operation of the
death penalty not only in theory, but as a means of determining the proper graduated penalty.
On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate conservatism,
limiting as it would the effects of Rep. Act No. 9346. It also can be understood if confronted with the option of
employing either a liberal or a conservative construction, there is a natural tendency to employ the
conservative mode. Further, the reasoning is seemingly consistent with that employed by the Court in People
v. Muñoz,72 a decision which will be thoroughly analyzed in the course of this discussion.
If the true intent of Rep. Act No. 9346 was to limit the extent of the "imposition" of the death penalty to actual
executions, this could have been accomplished with more clarity. For example, had Section 1 read instead
"insofar as they sentence an accused to death," there would have been no room for doubt that only those
statutory provisions calling for actual executions would have been repealed or amended. The inability of
Congress to shape the repealing clause in so specific a fashion does leave open the question whether
Congress did actually intend to limit the operation of Rep. Act No. 9346 to actual executions only.
But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act No. 9346
was to limit the prohibition of the law to the physical imposition of the death penalty, without extending any
effect to the graduated scale of penalties under Article 71 of the Revised Penal Code.
VI.
There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep. Act No.
9346 that limits its effects only to matters relating to the physical imposition of the death penalty.
Illustrations are necessary. The easy demonstration of iniquitous results is in the case of accomplices. Under
Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was punishable by death. Let us
say X and Y were tried for the crime. X was charged as a principal for having directly participated in the
kidnapping. Y was charged as an accomplice for having allowed X to use his house to detain the victim, even
though Y was abroad at the time of the crime and otherwise had no other participation therein. Both X and Y
were convicted by final judgment. Since X could no longer be meted the death penalty, he is sentenced
instead to reclusion perpetua. Ordinarily, Y as an accomplice should receive the penalty next lower in degree,
or reclusion temporal. Yet following the "conservative" interpretation of Rep. Act No. 9346, the graduation of
penalties remains unaffected with the enactment of the new law. Thus, under Article 71, which would still take
into account the death penalty within the graduated scale, Y, as an accomplice, would be sentenced
to reclusion perpetua, the same penalty as the principal.
It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the graduated scale
of penalties under Article 71, was to equalize the penalties of principals and accomplices for crimes previously
punishable by death. We do not doubt that the legislature has the theoretical capability to amend the penal law
in such fashion. Yet given the drastic effects of equalizing the penalties for principals and accomplices, a step
that runs contrary to entrenched thought in criminal law, one could reasonably assume that a legislature truly
oriented to enact such change would have been candid enough to have explicitly stated such intent in the law
itself. Of course, nothing in Rep. Act No. 9346, either in the caption or in the provisions, explicates the
intention to equalize the penalties for principals and accomplices in any crime at all.
Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for principals
and accomplices are equalized in some crimes, and not in others. Let us return to our previous example of X
and Y, but this time, assume that they were charged for simple kidnapping, with no qualifying circumstance
that would have resulted in the imposition of the death penalty. Since the crime is not punishable by death,
Rep. Act No. 9346 would have no effect in the imposition of the penalty for simple kidnapping. Accordingly, X
would have been sentenced to reclusion perpetua as the principal, while Y would have been sentenced
to reclusion temporal as an accomplice.
Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser penalties are
justified. Since Y was merely an accomplice to the crime of simple kidnapping, the imposition on him of a
lighter penalty than X is in accord with the Revised Penal Code and established juridical and legal thought.
Less justifiable would be the notion that in kidnapping for ransom, the principal and the accomplice would
receive the same penalty, while in simple kidnapping, the principal suffers a higher penalty than the
accomplice. Frankly, there is no rational explanation for such a disparity, and no legal justification other than
the recognition that Congress has the power to will it so.
Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted felonies
which were punishable by death if consummated. The consummated felony previously punishable by death
would now be punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage
would, under the foregoing premise in this section, be penalized one degree lower from death, or
also reclusion perpetua. It does not seem right, of course, that the same penalty of reclusion perpetua would
be imposed on both the consummated and frustrated felony. However, the anomaly would be mainly in theory,
as we recognize that those felonies previously punishable by death are improbable of commission in their
frustrated stage, unlike several felonies punishable by "reclusion perpetua to death,"73 such as murder, which
may be frustrated.
Still, it cannot be denied that these felonies previously punishable by death are capable of commission in their
attempted stages and that the Revised Penal Code provides that the penalty for attempted felonies is "a
penalty lower by two degrees than that prescribed by law for the consummated felony." The Court has thus
consistently imposed reclusion temporal, the penalty two degrees lower than death, as the maximum term for
attempted felonies which, if consummated, would have warranted the death penalty.74 If it were to be insisted
that Rep. Act No. 9346 did not affect at all the penalties for attempted felonies, then those found guilty of the
subject attempted felonies would still be sentenced to reclusion temporal, even though the "penalty lower by
two degrees than that prescribed by law for the consummated felony" would now be prision mayor.
It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for some
attempted felonies that is only one degree lower than the consummated crime would, again, be disharmonious
and inconsistent with the Revised Penal Code and established thought in criminal law. Conceding again that
the legislature has the discretion to designate the criminal penalties it sees fit, a regime that foists a differential
theoretical basis for the punishment of different attempted felonies resulting in discriminatory penalties is not
only irrational but also, to say the least, highly suspect. Considering that physical liberties are at stake, it would
be a most cruel joke if such discriminatory effects ensued not from deliberate legislative will, but from oversight.
VII.
The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices,
accessories, frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent effects. In
contrast, no similar flaws ensue should we construe Rep. Act No. 9346 instead as not having barred the
application of the death penalty even as a means of depreciating penalties other than death. In particular, the
operative amendment that would assure the integrity of penalties for accomplices, accessories, frustrated and
attempted felonies lies in Article 71, which ranks "death" at the top of the scale for graduated penalties.
Simply put, the negation of the word "death" as previously inscribed in Article 71 will have the effect of
appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and
attempted felonies to the level consistent with the rest of our penal laws. Returning to our previous examples,
Y, the convicted accomplice in kidnapping for ransom, would now bear the penalty of reclusion temporal, the
penalty one degree lower than that the principal X would bear (reclusion perpetua). Such sentence would be
consistent with Article 52 of the Revised Penal Code, as well as Article 71, as amended, to remove the
reference to "death." Moreover, the prospect of the accomplice receiving the same sentence as the principal,
an anomalous notion within our penal laws, would be eliminated. Thus, the same standard would prevail in
sentencing principals and accomplices to the crime of kidnapping in ransom, as that prescribed to the crime of
simple kidnapping.
The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the reference to
"death" in Article 71 would run across the board in our penal laws. Consistent with Article 51 of the Revised
Penal Code, those convicted of attempted qualified rape would receive the penalty two degrees lower than
that prescribed by law, now Rep. Act No. 9346, for qualified rape.
There are principles in statutory construction that will sanction, even mandate, this "expansive" interpretation
of Rep. Act No. 9346. The maxim interpretare et concordare legibus est optimus interpretandi embodies the
principle that a statute should be so construed not only to be consistent with itself, but also to harmonize with
other laws on the same subject matter, as to form a complete, coherent and intelligible system—a uniform
system of jurisprudence.75"Interpreting and harmonizing laws with laws is the best method of interpretation. x x
x x This manner of construction would provide a complete, consistent and intelligible system to secure the
rights of all persons affected by different legislative and quasi-
legislative acts."76 There can be no harmony between Rep. Act No. 9346 and the Revised Penal Code unless
the later statute is construed as having downgraded those penalties attached to death by reason of the
graduated scale under Article 71. Only in that manner will a clear and consistent rule emerge as to the
application of penalties for frustrated and attempted felonies, and for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the
state and liberally in favor of the accused.77 If the language of the law were ambiguous, the court will lean
more strongly in favor of the defendant than it would if the statute were remedial, as a means of effecting
substantial justice.78 The law is tender in favor of the rights of an individual.79 It is this philosophy of caution
before the State may deprive a person of life or liberty that animates one of the most fundamental principles in
our Bill of Rights, that every person is presumed innocent until proven guilty.
Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act
No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the
corresponding modification of penalties other than death, dependent as these are on "death" as a measure
under the graduated scale of penalties under Article 71. Admittedly, if this were indeed the intent of Congress,
and such intent were unequivocally expressed in Rep. Act No. 9346, the resulting inequities and
inconsistencies we had earlier pointed out would have remained. If that were to be the case, we would have
acknowledged, perhaps tacitly, that such inequities and inconsistencies fell part of the legislative intent. It does
not speak well of a Congress to be deliberately inconsistent with, or ignorant of its own prior enactments. Yet
ultimately, Section 1 of Rep. Act No. 9346 is not expressive of such rash or injudicious notions, as it is
susceptible to a reading that would harmonize its effects with the precepts and practices that pervade our
general penal laws, and in a manner that does not defy the clear will of Congress.
VIII.
One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties
other than death in our penal laws would most certainly invoke our ruling in People v. Muñoz,80 decided in
1989. Therein, a divided Court ruled in that the constitutional bar on the imposition of the death penalty did not
enact "a corresponding modification in the other periods [in penalties]", there being no expression of "such a
requirement… in Article III, Section 19(1) of the Constitution or indicat[ion] therein by at least
clear and unmistakable implication."81 In so concluding, the Court made the oft-cited pronouncement that there
was nothing in the 1987 Constitution "which expressly declares the abolition of the death penalty."82
It is time to re-examine Muñoz and its continued viability in light of Rep. Act No. 9346. More precisely,
would Muñozas precedent deter the Court from ruling that Rep. Act No. 9346 consequently downgraded
penalties other than death?
It can be recalled that the accused in Muñoz were found guilty of murder, which under the Revised Penal
Code, carried the penalty of reclusion temporal in its maximum period to death. The subject murders therein
were not attended by any modifying circumstance, and thus penalized in the penalty's medium term.
Jurisprudence previous to Muñoz held that the proper penalty in such instances should be "the higher half
of reclusion temporal maximum," with reclusion temporal maximum, divided into two halves for that
purpose. Muñoz rejected this formulation, holding instead that the penalty should be reclusion perpetua.
Towards this conclusion, the Court made the above-cited conclusions relating to the constitutional abolition of
the death penalty, and the charter's effects on the other periods. Six justices dissented from that ruling, and as
recently as 1997, a member of the Court felt strongly enough to publish a view urging the reexamination
of Muñoz.83
It would be disingenuous to consider Muñoz as directly settling the question now befacing us, as the legal
premises behind Muñoz are different from those in this case. Most pertinently, Muñoz inquired into the effects
of the Constitution on the proper penalty for murder; while herein, we are ascertaining the effects of Rep. Act
No. 9346 on the proper penalty for attempted qualified rape. Muñoz may have pronounced that the
Constitution did not abolish the death penalty, but that issue no longer falls into consideration herein,
the correct query now being whether Congress has banned the death penalty through Rep. Act No.
9346. Otherwise framed, Muñoz does not preclude the Court from concluding that with the express
prohibition of the imposition of the death penalty Congress has unequivocally banned the same.
Muñoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that "[n]either shall
death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter
provides for it." Muñoz and its progenies, have interpreted that provision as prohibiting the actual imposition of
the death penalty, as opposed to enacting an amendatory law that eliminates all references and applications
of the death penalty in our statutes. It can also be understood and appreciated that at the time Muñoz was
decided, it would have been polemical to foster an unequivocal pronouncement that Section 19(1), Article III
abolished the death penalty, since the very provision itself acknowledged that Congress may nonetheless
subsequently provide for the penalty "for compelling reasons involving heinous crimes," as Congress very well
did just four (4) years after Muñoz. No such language exists in Rep. Act No. 9346. Of course, the legislature
has the inherent and constitutional power to enact laws prescribing penalties for crimes, and the Constitution
will not prohibit Congress from reenacting the death penalty "for compelling reasons involving heinous crimes."
Yet it was that express stipulation in the Constitution that dissuaded the Court from recognizing the
constitutional abolition of the death penalty; and there is no similar statutory expression in Rep. Act No. 9346,
which could be construed as evocative of intent similar to that of the Constitution.
The doctrine in Muñoz that the constitutional prohibition on the imposition of the death penalty did not enact a
corresponding modification of other penalties is similarly irrelevant to this case, which calls for an examination
as to whether such corresponding modifications of other penalties arose as a consequence of Rep. Act No.
9346, and not the Constitution.
For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to delete the
word "death" as expressly provided for in the graduated scale of penalties under Article 71. Muñoz did not
engage in an analogous inquiry in relation to Article 71 and the Constitution, for what was relevant therein was
not the general graduated scale of penalties, but the range of the penalties for murder. Herein, at bare
minimum, no provision in Rep. Act No. 9346 provides a context within which the concept of "death penalty"
bears retentive legal effect, especially in relation to Article 71. Unlike the Constitution, Rep. Act No. 9346
does expressly stipulate the amendment of all extant laws insofar as they called for the imposition of the
penalty of death.
The impression left by Muñoz was that the use of the word "imposition" in the Constitution evinced the framer's
intent to retain the operation of penalties under the Revised Penal Code. In the same vein, one might try to
construe the use of "imposition" in Rep. Act No. 9346 as a means employed by Congress to ensure that the
"death penalty", as applied in Article 71, remain extant. If the use of "imposition" was implemented as a means
of retaining "death" under Article 71, it would have been a most curious, roundabout means indeed. The Court
can tolerate to a certain degree the deliberate vagueness sometimes employed in legislation, yet constitutional
due process demands a higher degree of clarity when infringements on life or liberty are intended. We have
ruled, on due process grounds, as arbitrary and oppressive a tax assessed on a standard characterized as
"nothing but blather in search of meaning."84 In the matter of statutes that deprive a person of physical liberty,
the demand for a clear standard in sentencing is even more exacting.
Yet in truth, there is no material difference between "imposition" and "application," for both terms embody the
operation in law of the death penalty. Since Article 71 denominates "death" as an element in the graduated
scale of penalties, there is no question that the operation of Article 71 involves the actual application of the
death penalty as a means of determining the extent which a person's liberty is to be deprived. Since Rep. Act
No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such
statutory provisions requiring the application of the death penalty, such effect necessarily extends to its
relevance to the graduated scale of penalties under Article 71.
We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death
penalty in the graduation of the other penalties in our penal laws. Munoz cannot enjoin us to adopt such
conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muñoz on Section 19(1),
Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty
once thought it best to do so, through Rep. Act No. 7650. Within the same realm of constitutional discretion,
Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death
penalty in the Philippines has never been more secure than at any time in our political history as a nation.
Following Muñoz, the sovereign people, through the 1987 Constitution, might not have willed the abolition of
the death penalty and instead placed it under a suspensive condition. As such, we affirmed the
characterization of the death penalty during the interregnum between the 1987 Constitution and its
reimposition through law as being "in a state of hibernation."85 No longer. It reawakened — then it died;
because the sovereign people, through Rep. Act No. 9346, banned the death penalty. Only by an Act of
Congress can it be reborn. Before that day, the consideration of death as a penalty is bereft of legal effect,
whether as a means of depriving life, or as a means of depriving liberty.
Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge
that Muñozlacked legal justification when it was decided; that its application as precedent prior to Rep. Act No.
9346 was erroneous; or that previous sentences imposed on convicts on the basis of Muñoz were
wrong. Muñoz properly stood as the governing precedent in the matter of sentences that passed finality prior
to Rep. Act No. 9346; and the consistent reliance by the courts on its doctrines entrenched its footing in
criminal law jurisprudence.
IX.
Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively
classified the crimes listed therein as "heinous," within constitutional contemplation. Such reclassification
under Rep. Act No. 7659 was accompanied by certain legal effects other than the imposition of the death
penalty, such as the increase in imposable fines attached to certain heinous crimes.86 The categorization of
certain crimes as "heinous", constituting as it does official recognition that some crimes are more odious than
others, has also influenced this Court in adjudging the proper pecuniary indemnities awarded to the victims of
these crimes. Hence, a general inclination persists in levying a greater amount of damages on accused found
guilty of heinous crimes.
It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not
correspondingly declassify those crimes previously catalogued as "heinous". The amendatory effects of Rep.
Act No. 9346 extend only to the application of the death penalty but not to the definition or classification of
crimes. True, the penalties for heinous crimes have been downgraded under the aegis of the new law. Still,
what remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special
category by themselves. Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction of civil
indemnity and other damages that adhere to heinous crimes.
X.
Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and the
corresponding modification of penalties other than death through that statute, we now proceed to discuss the
effects of these rulings.
As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth,
"death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the
graduation of penalties. For example, in the case of appellant, the determination of his penalty for attempted
rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua.
Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by the Court of
Appeals, but instead, prision mayor.
There should be little complication if the crime committed was punishable by the free-standing penalty of
"death," as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion perpetua to death,"
as often used in the Revised Penal Code and other penal laws. The facts of the present case do not concern
the latter penalty, hence our reluctance to avail of an extended discussion thereof. However, we did earlier
observe that both "reclusion perpetua" and death are indivisible penalties. Under Article 61 (2) of the Revised
Penal Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties x x x x the
penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the
respective graduated scale." Hence, as we earlier noted, our previous rulings that the penalty two degrees
lower than "reclusion perpetua to death" is prision mayor.
Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is
to persons previously convicted of crimes which, if consummated or participated in as a principal, would have
warranted the solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of
the Revised Penal Code states that "[p]enal laws shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal[87] x x x x although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same." Given that we have ruled
that Rep. Act No. 9346 downgraded the penalties for such crimes, the benefit of Article 22 has to apply, except
as to those persons defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly recognized that its
enactment would have retroactive beneficial effects, referring as it did to "persons x x x whose sentences were
reduced to reclusion perpetua by reason of this Act."88
It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal Code,
there may be convicts presently serving their original sentences whose actual served terms exceed their
reduced sentences. It should be understood that this decision does not make operative the release of
such convicts, especially as there may be other reasons that exist for their continued detention. There
are remedies under law that could be employed to obtain the release of such prisoners, if warranted. Offices
such as the Public Attorney's Office and non-governmental organizations that frequently assist detainees
possess the capacity and acumen to help implement the release of such prisoners who are so entitled by
reason of this ruling.
XI.
We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is spared the
death sentence, and entitled to the corresponding reduction of his penalty as a consequence of the
downgrading of his offense from two (2) counts consummated rape to two (2) counts of attempted rape. For
the six (6) counts of rape, we downgrade the penalty of death to reclusion perpetua with no eligibility for parole,
pursuant to Rep. Act No. 9346. For each of the two (2) counts of attempted rape, we downgrade by one
degree lower the penalty imposed by the Court of Appeals. We hold that there being no mitigating or
aggravating circumstances, the penalty of prision mayor should be imposed in it medium period. Consequently,
we impose the new penalty of two (2) years, four (4) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor as maximum.
Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral damages
and P10,000.00 as exemplary damages for each count of attempted rape, it being the prevailing rate of
indemnity as pronounced in the recent case of People v. Miranda.89
Separately, the Court applies prevailing jurisprudence90 in awarding to BBB and AAA P75,000.00 as civil
indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of
consummated rape.
WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH
MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion perpetua with no
possibility of parole for each of the six (6) counts of consummated rape committed against AAA in Criminal
Case Nos. 6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is
further ORDERED to indemnify AAA and BBB for the crime of consummated rape, in the amounts
of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages for
each of them.
For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby
SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision
correccionalas minimum, to eight (8) years and one (1) of prision mayor as maximum for each count of
attempted rape. In addition, appellant is ORDERED to indemnify AAA for each of the two (2) counts of
attempted rape in the amounts of P30,000.00 as civil indemnity, P25,000.00 as moral damages
and P10,000.00 as exemplary damages.
(2) The penalty imposed is the whole penalty of prision mayor the minimum of
which is 6 years and one day and the maximum of which is 12 years.
(3) There is substantial compliance with the last portion of Sec. 1 of the
Indeterminate Sentence Law, when the penalty is prision mayor, it being
understood that the minimum thereof is not less than six (6) years and one (1)
day, and the maximum not more than 12 years.
The court finds the explanation not satisfactory. The provision of the Indeterminate Sentence Law is
very explicit in its applicability even as to offenses punished by special laws not by the Revised Penal
Code. Presidential Decree No. 583 is such special penal statute.
The need for specifying the minimum and maximum periods of the indeterminate sentence is to
prevent the unnecessary and excessive deprivation of liberty and economic usefulness of the accused,
since he may be exempted from serving the entire sentence, depending upon his behavior and his
physical, mental and moral record. The requirement of imposing an indeterminate sentence in all
criminal offenses, whether punished by the Revised Penal Code or by special laws, with definite
minimum and maximum terms, as the Court deems proper within the legal range of the penalty
specified by the law must, therefore, be deemed mandatory. Compliance with this requirement should
have appeared to respondent judge particularly clear and easy in the case in question, where the
penalty is given in the same term as those prescribed for offenses punished under the Revised Penal
Code, that of prision mayor, which, like all the other penalties prescribed in said Code, except the
indivisible penalties, have minimum and maximum periods for easy determination of the indeterminate
sentence to be imposed, in terms of specific number of years, months and days both in its minimum
and maximum periods.
WHEREFORE, respondent Judge Guadiz is hereby ADMONISHED that a repetition of similar acts in the
future will be dealt with more severely by the Court. Let a copy of this resolution be attached to the
personal record of Judge Guadiz.

SO ORDERED. SO ORDERED.

A.M. No. 1553 CFI September 12, 1980 Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.

(RE. PENALTY IMPOSED BY JUDGE TEOFILO GUADIZ, JR., CFI, BRANCH V, NUEVA ECIJA, IN
CRIMINAL CASE NO. 604, ENTITLED, "PEOPLE OF THE PHILIPPINES,
vs.
FROILAN MAGLAYA".)

Separate Opinions

DE CASTRO, J.:

On March 4, 1977, the Court required Judge Teofilo Guadiz, Jr., CFI of Nueva Ecija to explain why he TEEHANKEE, J., concurring:
should not be held administratively for incompetence and/or ignorance of the law for not liable the
minimum and maximum periods of the imprisonment meted out by him in Criminal Case No. 604 under
I concur, adding only the note that our action in this administrative matter against respondent Judge
the Indeterminate Sentence Law. In compliance therewith, respondent judge submitted the following
Guadiz should in no way be taken as prejudging the correctness of his judgment of conviction of the
explanation:
accused, former Judge Froilan Maglaya, which is presently pending determination on appeal.

(1) Since accused former Judge Froilan Maglaya has been charged and
convicted for violation of Sec. 2 of Pres. Decree No. 583, which is not an offense
penalized by the Revised Penal Code or its amendments, it is obvious that the
last portion of Sec. 1 of the Indeterminate Sentence Law is applicable which Separate Opinions
provides that if the offense is punished by any other law, the Court shall
sentence the accused to an indeterminate sentence, the maximum of which shall
not exceed the maximum fixed by said law and the minimum shall not be less TEEHANKEE, J., concurring:
than the minimum term prescribed by the same.
I concur, adding only the note that our action in this administrative matter against respondent Judge
Guadiz should in no way be taken as prejudging the correctness of his judgment of conviction of the
accused, former Judge Froilan Maglaya, which is presently pending determination on appeal.
JUNO BATISTIS, G.R. No. 181571
Petitioner, Present:
PUNO, C.J., Chairperson,
CARPIO-MORALES,
LEONARDO-DE CASTRO,
-versus - BERSAMIN, and
VILLARAMA, JR., JJ.
Promulgated:
PEOPLE OF THE
PHILIPPINES, December 16, 2009
Respondent.
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
On January 23, 2006, the Regional Trial Court (RTC), Branch 24, in Manila convicted Juno Batistis
for violations of Section 155 (infringement of trademark) and Section 168 (unfair competition) of the Intellectual
Property Code (Republic Act No. 8293).[1]
On September 13, 2007, the Court of Appeals (CA) affirmed the conviction for infringement of
trademark, but reversed the conviction for unfair competition for failure of the State to prove guilt beyond
reasonable doubt.[2]
Batistis now appeals via petition for review on certiorari to challenge the CAs affirmance of his
conviction for infringement of trademark.
We affirm the conviction, but we modify the penalty by imposing an indeterminate sentence,
conformably with the Indeterminate Sentence Law and pertinent jurisprudence.
Antecedents
The Fundador trademark characterized the brandy products manufactured by Pedro Domecq, S.A.
of Cadiz, Spain.[3] It was duly registered in the Principal Register of the Philippines Patent Office on July 12,
1968 under Certificate of Registration No. 15987,[4] for a term of 20 years from November 5, 1970. The
registration was renewed for another 20 years effective November 5, 1990.[5]
Allied Domecq Philippines, Inc., a Philippine corporation exclusively authorized [6] to
distribute Fundador brandy products imported from Spain wholly in finished form,[7] initiated this case against
Batistis. Upon its request, agents of the National Bureau of Investigation (NBI) conducted a test-buy in the
premises of Batistis, and thereby confirmed that he was actively engaged in the manufacture, sale and
distribution of counterfeit Fundador brandy products.[8] Upon application of the NBI agents based on the
positive results of the test-buy,[9] Judge Antonio M. Eugenio, Jr. of the Manila RTC issued on December 20,
2001 Search Warrant No. 01-2576,[10] authorizing the search of the premises of Batistis located at No.1664
Onyx St., San Andres Bukid, Sta. Ana, Manila. The search yielded 20 empty Carlos I bottles, 10 empty bottles
of Black Label whiskey, two empty bottles of Johnny Walker Swing, an empty bottle of Remy Martin XO, an
empty bottle of Chabot, 241 empty Fundador bottles, 163 boxes of Fundador, a half sack of Fundador plastic
caps, two filled bottles of Fundador brandy, and eight cartons of empty Jose Cuervo bottles.[11]
The Office of the City Prosecutor of Manila formally charged Batistis in the RTC in Manila with two
separate offenses, namely, infringement of trademark and unfair competition, through the following information,
to wit:
That on or about December 20, 2001, in the City of Manila, Philippines, the said
accused, being then in possession of two hundred forty one (241) empty Fundador
bottles, one hundred sixty three Fundador boxes, one half (1/2) sack of Fundador
plastic caps, and two (2) Fundador bottles with intention of deceiving and defrauding
the public in general and Allied Domecq Spirits and Wines and Allied Domecq
Philippines, Inc. represented by Atty. Leonardo P. Salvador, a corporation duly
organized and existing under the laws of the Republic of the Philippines and engaged
in manufacturing of Fundador Brandy under license of Pedro Domecq, S.A. Cadiz,
Spain, and/or copyright owner of the said product, did then and there wilfully, unlawfully
and feloniously reproduce, sell and offer for sale, without prior authority and consent of
said manufacturing company, the accused giving their own low quality product the
general appearance and other features of the original Fundador Brandy of the said
manufacturing company which would be likely induce the public to believe that the said
fake Fundador Brandy reproduced and/or sold are the real Fundador Brandy produced
or distributed by the Allied Domecq Spirits and Wines Limited, U.K. and Allied Domecq
Philippines, Inc. to the damage and prejudice of the latter and the public.
Contrary to law.[12]
With Batistis pleading not guilty on June 3, 2003,[13] the RTC proceeded to trial. On January 23,
2006, the RTC found Batistis guilty beyond reasonable doubt of infringement of trademark and unfair
competition, viz:
ACCORDINGLY, this Court finds the accused JUNO BATISTIS Guilty Beyond
Reasonable Doubt of the crime of Violation of Section 155 of the Intellectual Property
Code and hereby sentences him to suffer the penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND(P50,000.00) PESOS.
This Court likewise finds accused JUNO BATISTIS Guilty Beyond Reasonable
Doubt of the crime of Violation of Section 168 (sic) penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND (Php50,000.00) PESOS.
Accused is further ordered to indemnify the private complainant the sum of
TWENTY-FIVE (Php25,000.00) PESOS as actual damages.
The following items recovered from the premises of the accused and subject
of the case are hereby ordered destroyed, pursuant to existing rules and regulations:
Twenty (20) empty Carlos 1 bottles
Ten (10) Black Label empty bottles
Two (2) empty bottles of Jhonny (sic) Walker Swing
One(1) empty bottle of Remy Martin XO
One (1) empty bottle of Chabot
Two hundred forty-one (241) empty Fundador bottles
One hundred sixty-three (163) Fundador boxes
One half (1/2 sack of Fundador plastic caps, and
Two (2) filled Fundador bottles
Eight (8) boxes of empty Jose Cuervo bottles
WITH COSTS AGAINST ACCUSED
SO ORDERED.[14]
Batistis appealed to the CA, which, on September 13, 2007, affirmed his conviction
for infringement of trademark, but acquitted him of unfair competition,[15] disposing:
WHEREFORE, premises considered, the Appeal of Appellant JUNO
BATISTIS is hereby PARTIALLY GRANTED. The challenged Decision is AFFIRMED in
so far as the charge against him for Violation of Section 155 of the Intellectual Property
Code is concerned.
However, for failure of the prosecution to prove to a moral certainty the guilt of
the said Appellant, for violation of Section 168 of the same code a judgment of
ACQUITTAL is hereby rendered in his favor.
SO ORDERED.[16]
After the CA denied his motion for reconsideration, Batistis brought this appeal.
Issue
Batistis contends that:

THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE
BASIS OF THE SELF-SERVING AFFIDAVITS AND TESTIMONIES OF THE POLICE
OFFICERS WHO CONDUCTED THE RAID ON THE HOUSE OF THE ACCUSED.
He submits that the only direct proofs of his guilt were the self-serving testimonies of the NBI
raiding team; that he was not present during the search; that one of the NBI raiding agents failed to
immediately identify him in court; and that aside from the two bottles of Fundadorbrandy, the rest of the
confiscated items were not found in his house.
Ruling
The petition for review has no merit.
1.
Appeal confined only to Questions of Law
Pursuant to Section 3,[17] Rule 122, and Section 9,[18] Rule 45, of the Rules of Court, the review on
appeal of a decision in a criminal case, wherein the CA imposes a penalty other than death, reclusion
perpetua, or life imprisonment, is by petition for review on certiorari.
A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court,
explicitly so provides, viz:
Section 1. Filing of petition with Supreme Court.A party desiring to appeal
by certiorari from a judgment, final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek the same provisional remedies
by verified motion filed in the same action or proceeding at any time during its
pendency.
Accordingly, we reject the appeal for the following reasons:
Firstly: The petition for review replicates Batistis appellant's brief filed in the CA,[19] a true indication
that the errors he submits for our review and reversal are those he had attributed to the RTC. He thereby rests
his appeal on his rehashed arguments that the CA already discarded. His appeal is, therefore, improper,
considering that his petition for review on certiorari should raise only the errors committed by the CA as the
appellate court, not the errors of the RTC.
Secondly: Batistis assigned errors stated in the petition for review on certiorari require a re-
appreciation and re-examination of the trial evidence. As such, they raise issues evidentiary and factual in
nature. The appeal is dismissible on that basis, because, one, the petition for review thereby violates the
limitation of the issues to only legal questions, and, two, the Court, not being a trier of facts, will not disturb the
factual findings of the CA, unless they were mistaken, absurd, speculative, conflicting, tainted with grave
abuse of discretion, or contrary to the findings reached by the court of origin.[20]
Whether a question of law or a question of fact is involved is explained in Belgica v. Belgica:[21]
xxx [t]here exists a question of law when there is doubt on what the law
applicable to a certain set of facts is. Questions of fact, on the other hand, arise when
there is an issue regarding the truth or falsity of the statement of facts. Questions on
whether certain pieces of evidence should be accorded probative value or whether the
proofs presented by one party are clear, convincing and adequate to establish a
proposition are issues of fact. Such questions are not subject to review by this
Court. As a general rule, we review cases decided by the CA only if they involve
questions of law raised and distinctly set forth in the petition.[22]
Thirdly: The factual findings of the RTC, its calibration of the testimonies of the witnesses, and its
assessment of their probative weight are given high respect, if not conclusive effect, unless cogent facts and
circumstances of substance, which if considered, would alter the outcome of the case, were ignored,
misconstrued or misinterpreted.[23]
To accord with the established doctrine of finality and bindingness of the trial courts findings of fact,
we do not disturb such findings of fact of the RTC, particularly after their affirmance by the CA, for Batistis, as
appellant, did not sufficiently prove any extraordinary circumstance justifying a departure from such doctrine.
2.
Findings of fact were even correct
A review of the decision of the CA, assuming that the appeal is permissible, even indicates that
both the RTC and the CA correctly appreciated the evidence against the accused, and correctly applied the
pertinent law to their findings of fact.
Article 155 of the Intellectual Property Code identifies the acts constituting infringement of
trademark, viz:
Section 155. Remedies; Infringement. Any person who shall, without the
consent of the owner of the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or colorable
imitation of a registered mark or the same container or a dominant feature thereof in
connection with the sale, offering for sale, distribution, advertising of any goods or
services including other preparatory steps necessary to carry out the sale of any goods
or services on or in connection with which such use is likely to cause confusion, or to
cause mistake, or to deceive; or
155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a
dominant feature thereof and apply such reproduction, counterfeit, copy or colorable
imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements
intended to be used in commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in connection with which such use
is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil
action for infringement by the registrant for the remedies hereinafter set forth: Provided,
That the infringement takes place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of whether there is actual sale of
goods or services using the infringing material.
Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task involved the detection of
counterfeit products in the Philippines, testified that the seized Fundador brandy, when compared with the
genuine product, revealed several characteristics of counterfeiting, namely: (a) the Bureau of Internal Revenue
(BIR) seal label attached to the confiscated products did not reflect the word tunay when he flashed a black
light against the BIR label; (b) the tamper evident ring on the confiscated item did not contain the
word Fundador; and (c) the word Fundadoron the label was printed flat with sharper edges, unlike the raised,
actually embossed, and finely printed genuine Fundador trademark.[24]
There is no question, therefore, that Batistis exerted the effort to make the counterfeit products
look genuine to deceive the unwary public into regarding the products as genuine. The buying public would be
easy to fall for the counterfeit products due to their having been given the appearance of the genuine products,
particularly with the difficulty of detecting whether the products were fake or real if the buyers had no
experience and the tools for detection, like black light. He thereby infringed the registered Fundador trademark
by the colorable imitation of it through applying the dominant features of the trademark on the fake products,
particularly the two bottles filled with Fundador brandy.[25] His acts constituted infringement of trademark as set
forth in Section 155, supra.
3.
Penalty Imposed should be an
Indeterminate Penalty and Fine
Section 170 of the Intellectual Property Code provides the penalty for infringement of trademark, to
wit:
Section 170. Penalties. - Independent of the civil and administrative sanctions
imposed by law, a criminal penalty of imprisonment from two (2) years to five (5) years
and a fine ranging from Fifty thousand pesos (P50,000) to Two hundred thousand
 pesos(P200,000), shall be imposed on any person who is found guilty of committing
any of the acts mentioned in Section 155, Section 168 and Subsection 169.1. (Arts.
188 and 189, Revised Penal Code).
The CA affirmed the decision of the RTC imposing the the penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND (P50,000.00) PESOS.
We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Law,[26] as
amended by Act No. 4225. We modify the penalty.
Section 1 of the Indeterminate Sentence Law, as amended, provides:
Section 1. Hereafter, in imposing a prison sentence for an offense punished by
the Revised Penal Code, or its amendments, the court shall sentence the accused to
an indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by the same.
The straight penalty the CA imposed was contrary to the Indeterminate Sentence Law, whose
Section 1 requires that the penalty of imprisonment should be an indeterminate sentence. According
to Spouses Bacar v. Judge de Guzman,Jr.,[27] the imposition of an indeterminate sentence with maximum and
minimum periods in criminal cases not excepted from the coverage of the Indeterminate Sentence
Law pursuant to its Section 2[28] is mandatory, viz:
The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive deprivation of
liberty and to enhance the economic usefulness of the accused, since he may be
exempted from serving the entire sentence, depending upon his behavior and his
physical, mental, and moral record. The requirement of imposing an indeterminate
sentence in all criminal offenses whether punishable by the Revised Penal
Code or by special laws, with definite minimum and maximum terms, as the
Court deems proper within the legal range of the penalty specified by the law
must, therefore, be deemed mandatory.
Indeed, the imposition of an indeterminate sentence is mandatory. For instance, in Argoncillo v.
Court of Appeals,[29] three persons were prosecuted for and found guilty of illegal fishing (with the use of
explosives) as defined in Section 33, Presidential Decree No. 704, as amended by Presidential Decree No.
1058, for which the prescribed penalty was imprisonment from 20 years to life imprisonment. The trial court
imposed on each of the accused a straight penalty of 20 years imprisonment, and the CA affirmed the trial
court. On appeal, however, this Court declared the straight penalty to be erroneous, and modified it by
imposing imprisonment ranging from 20 years, as minimum, to 25 years, as maximum.
We are aware that an exception was enunciated in People v. Nang Kay,[30] a prosecution for illegal
possession of firearms punished by a special law (that is, Section 2692, Revised Administrative Code, as
amended by Commonwealth Act 56 and Republic Act No. 4) with imprisonment of not less than five years nor
more than ten years. There, the Court sustained the straight penalty of five years and one day imposed by the
trial court (Court of First Instance of Rizal) because the application of the Indeterminate Sentence Law would
be unfavorable to the accused by lengthening his prison sentence. Yet, we cannot apply the Nang
Kay exception herein, even if this case was a prosecution under a special law like that in Nang Kay. Firstly, the
trial court in Nang Kay could well and lawfully have given the accused the lowest prison sentence of five years
because of the mitigating circumstance of his voluntary plea of guilty, but, herein, both the trial court and the
CA did not have a similar circumstance to justify the lenity towards the accused. Secondly, the large number
of Fundador articles confiscated from his house (namely, 241 empty bottles of Fundador, 163 Fundador boxes,
a half sack full of Fundador plastic caps, and two filled bottles of FundadorBrandy) clearly demonstrated that
Batistis had been committing a grave economic offense over a period of time, thereby deserving for him the
indeterminate, rather than the straight and lower, penalty.
ACCORDINGLY, we affirm the decision dated September 13, 2007 rendered in C.A.-G.R. CR No.
30392 entitled People of the Philippines v. Juno Batistis, but modify the penalty to imprisonment ranging from
two years, as minimum, to three years, as maximum, and a fine of P50,000.00.
The accused shall pay the costs of suit.
SO ORDERED.
G.R. No. 84850 June 29, 1989
RICARDO A. LLAMADO, petitioner,
vs.
HONORABLE COURT OF APPEALS and LEON GAW, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner.
FELICIANO, J.:
Petitioner Ricardo A. Llamado was Treasurer of Pan Asia Finance Corporation. Together with Jacinto N.
Pascual, Sr., President of the same corporation, petitioner Llamado was prosecuted for violation of Batas
Pambansa Blg. 22 in Criminal Case No. 85-38653, Regional Trial Court of Manila, Branch 49. The two (2) had
co-signed a postdated check payable to private respondent Leon Gaw in the amount of P186,500.00, which
check was dishonored for lack of sufficient funds.
In a decision dated 10 March 1987, the trial court convicted the petitioner alone, since jurisdiction over the
person of Pascual, who had thoughtfully fled the country, had not been obtained. Petitioner was sentenced to
imprisonment for a period of one (1) year of prision correccional and to pay a fine of P 200,000.00 with
subsidiary imprisonment in case of insolvency. Petitioner was also required to reimburse respondent Gaw the
amount of P186,500.00 plus the cost of suit.
On 20 March 1987, after the decision of the trial court was read to him, petitioner through counsel orally
manifested that he was taking an appeal. Having been so notified, the trial court on the same day ordered the
forwarding of the records of the case to the Court of Appeals. On 9 July 1987, petitioner through his counsel
received from the Court of Appeals a notice to file his Appellant's Brief within thirty (30) days. Petitioner
managed to secure several extensions of time within which to file his brief, the last extension expiring on 18
November 1987. 1
Petitioner Llamado, even while his Appellant's Brief was being finalized by his then counsel of record, sought
advice from another counselor. On 30 November 1987, petitioner, with the assistance of his new counsel, filed
in the Regional Trial Court a Petition for Probation invoking Presidential Decree No. 968, as amended. The
Petition was not, however, accepted by the lower court, since the records of the case had already been
forwarded to the Court of Appeals.
Petitioner then filed with the Court of Appeals Manifestation and Petition for Probation" dated 16 November
1987, enclosing a copy of the Petition for Probation that he had submitted to the trial court. Petitioner asked
the Court of Appeals to grant his Petition for Probation or, in the alternative, to remand the Petition back to the
trial court, together with the records of the criminal case, for consideration and approval under P.D. No. 968,
as amended. At the same time, petitioner prayed that the running of the period for the filing of his Appellant's
Brief be held in abeyance until after the Court of Appeals shall have acted on his Petition for Probation.
In a "Manifestation and Motion" dated 3 March 1988 and filed with the Court of Appeals, petitioner formally
withdrew his appeal conditioned, however, on the approval of his Petition for Probation. 2
Complying with a Resolution of the Court of Appeals, the Office of the Solicitor General filed a Comment
stating that it had no objection to petitioner Llamado's application for probation. Private respondent-
complainant, upon the other hand, sought and obtained leave to file a Comment on petitioner Llamado's
application for probation, to which Comment, petitioner filed a Reply. Private respondent then filed his
"Comment" on the Office of the Solicitor General's Comment of 18 March 1988.
In a Resolution dated 17 June 1988, the Court of Appeals, through Mr. Justice Magsino, denied the Petition for
Probation. A dissenting opinion was filed by Mr. Justice Bellosillo while Mr. Justice Santiago submitted a
concurring opinion. Petitioner moved for reconsideration which Motion was denied by the Court of Appeals on
23 August 1988, with another, briefer, dissenting opinion from Mr. Justice Bellosillo.
Petitioner now asks this Court to review and reverse the opinion of the majority in the Court of Appeals and, in
effect, to accept and adopt the dissenting opinion as its own.
The issue to be resolved here is whether or not petitioner's application for probation which was filed after a
notice of appeal had been filed with the trial court, after the records of the case had been forwarded to the
Court of Appeals and the Court of Appeals had issued the notice to file Appellant's Brief, after several
extensions of time to file Appellant's Brief had been sought from and granted by the Court of Appeals but
before actual filing of such brief, is barred under P.D. No. 968, as amended.
P.D. No. 968, known as the Probation Law of 1976, was promulgated on 24 July 1976. Section 4 of this
statute provided as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court
may, after it shall have convicted and sentenced a defendant and upon application at
any time of said defendant, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and conditions as it may
deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only. An application for probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence of conviction. The filing
of the application shall be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal.
An order granting or denying probation shall not be appealable. (Emphasis supplied)
It will be noted that under Section 4 of P.D. No. 968, the trial court could grant an application for probation "at
any time" "after it shall have convicted and sentenced a defendant" and certainly after "an appeal has been
taken from the sentence of conviction." Thus, the filing of the application for probation was "deemed [to
constitute] automatic withdrawal of a pending appeal."
On 1 December 1977, Section 4 of P.D. No. 968 was amended by P.D. No. 1257 so as to read as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may,
senteafter it shall have convicted and sentenced a defendant but before he begins to
serve his sentence and upon his application, suspend the execution of said sentence
and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing of the application for probation and
he may submit his comment on such application within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine with subsidiary imprisonment in case of insolvency. An application for probation
shall be filed with the trial court, with notice to the appellate court if an appeal has been
taken from the sentence of conviction. The filing of the application shall be deemed a
waiver of the right to appeal, or the automatic withdrawal of a pending appeal. In the
latter case, however, if the application is filed on or after the date of the judgment of the
appellate court, said application shall be acted upon by the trial court on the basis of
the judgment of the appellate court. (Emphasis supplied)
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established a prolonged
but definite period during which an application for probation may be granted by the trial court. That period was:
'After [the trial court] shall have convicted and sentenced a defendant but before he begins to serve his
sentence." Clearly, the cut-off time-commencement of service of sentence-takes place not only after an appeal
has been taken from the sentence of conviction, but even after judgement has been rendered by the appellate
court and after judgment has become final. Indeed, in this last situation, Section 4, as amended by P.D. No.
1257 provides that "the application [for probation] shall be acted upon by the trial court on the basis of the
judgment of the appellate court"; for the appellate court might have increased or reduced the original penalty
imposed by the trial court. It would seem beyond dispute then that had the present case arisen while Section 4
of the statute as amended by P.D. No. 1257 was still in effect, petitioner Llamado's application for probation
would have had to be granted. Mr. Llamado's application for probation was filed well before the cut-off time
established by Section 4 as then amended by P.D. No. 1257.
On 5 October 1985, however, Section 4 of the Probation Law of 1976 was once again amended. This time by
P.D. No. 1990. As so amended and in its present form, Section 4 reads as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application by
said defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for probation shall
be entertained or granted if the defendant has perfected an appeal from the judgment
of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. (Emphasis supplied)
In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4 establishes a
much narrower period during which an application for probation may be filed with the trial court: "after [the trial
court] shall have convicted and sentenced a defendant and — within the period for perfecting an appeal — ."
As if to provide emphasis, a new proviso was appended to the first paragraph of Section 4 that
expressly prohibits the grant of an application for probation "if the defendant has perfected an appeal from the
judgment of conviction." It is worthy of note too that Section 4 in its present form has dropped the phrase
which said that the filing of an application for probation means "the automatic withdrawal of a pending appeal".
The deletion is quite logical since an application for probation can no longer be filed once an appeal is
perfected; there can, therefore, be no pending appeal that would have to be withdrawn.
In applying Section 4 in the form it exists today (and at the time petitioner Llamado was convicted by the trial
court), to the instant case, we must then inquire whether petitioner Llamado had submitted his application for
probation "within the period for perfecting an appeal." Put a little differently, the question is whether by the time
petitioner Llamado's application was filed, he had already "perfected an appeal" from the judgment of
conviction of the Regional Trial Court of Manila.
The period for perfecting an appeal from a judgment rendered by the Regional Trial Court, under Section 39 of
Batas Pambansa Blg. 129, Section 19 of the Interim Rules and Guidelines for the Implementation of B.P. Blg.
129 and under the 1985 Rules on Criminal Procedure, as amended, or more specifically Section 5 of Rule 122
of the Revised Rules of Court, is fifteen (15) days from the promulgation or notice of the judgment appealed
from. It is also clear from Section 3 (a) of Rule 122 that such appeal is taken or perfected by simply filing a
notice of appeal with the Regional Trial Court which rendered the judgment appealed from and by serving a
copy thereof upon the People of the Philippines. As noted earlier, petitioner Llamado had manifested orally
and in open court his intention to appeal at the time of promulgation of the judgment of conviction, a
manifestation at least equivalent to a written notice of appeal and treated as such by the Regional Trial Court.
Petitioner urges, however, that the phrase "period for perfecting an appeal" and the clause "if the defendant
has perfected an appeal from the judgment of conviction" found in Section 4 in its current form, should not be
interpreted to refer to Rule 122 of the Revised Rules of Court; and that the "whereas" or preambulatory
clauses of P.D. No. 1990 did not specify a period of fifteen (15) days for perfecting an appeal. 3 It is also urged
that "the true legislative intent of the amendment (P.D. No. 1990) should not apply to petitioner who filed his
Petition for probation at the earliest opportunity then prevailing and withdrew his appeal." 4
Petitioner invokes the dissenting opinion rendered by Mr. Justice Bellosillo in the Court of Appeals. Petitioner
then asks us to have recourse to "the cardinal rule in statutory construction" that "penal laws [should]
be liberally construed in favor of the accused," and to avoid "a too literal and strict application of the proviso in
P.D. No. 1990" which would "defeat the manifest purpose or policy for which the [probation law] was enacted-
."
We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the dissenting
opinion. We are unable to persuade ourselves that Section 4 as it now stands, in authorizing the trial court to
grant probation "upon application by [the] defendant within the period for perfecting an appeal" and in
reiterating in the proviso that
no application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Blg. 129, the
Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on Criminal Procedure, but
rather to some vague and undefined time, i.e., "the earliest opportunity" to withdraw the defendant's appeal.
The whereas clauses invoked by petitioner did not, of course, refer to the fifteen-day period. There was
absolutely no reason why they should have so referred to that period for the operative words of Section 4
already do refer, in our view, to such fifteen-day period. Whereas clauses do not form part of a statute, strictly
speaking; they are not part of the operative language of the statute. 5 Nonetheless, whereas clauses may be
helpful to the extent they articulate the general purpose or reason underlying a new enactment, in the present
case, an enactment which drastically but clearly changed the substantive content of Section 4 existing before
the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific terms of the statute;
in the instant case, the whereas clauses of P.D. No. 1990 do not purport to control or modify the terms of
Section 4 as amended. Upon the other hand, the term "period for perfecting an appeal" used in Section 4 may
be seen to furnish specification for the loose language "first opportunity" employed in the fourth whereas
clause. "Perfection of an appeal" is, of course, a term of art but it is a term of art widely understood by lawyers
and judges and Section 4 of the Probation Law addresses itself essentially to judges and lawyers. "Perfecting
an appeal" has no sensible meaning apart from the meaning given to those words in our procedural law and
so the law-making agency could only have intended to refer to the meaning of those words in the context of
procedural law.
Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the outset that the
Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any
statutory language that appears to favor the accused in a criminal case should be given a "liberal
interpretation." Courts, however, have no authority to invoke "liberal interpretation' or "the spirit of the law"
where the words of the statute themselves, and as illuminated by the history of that statute, leave no room for
doubt or interpretation. We do not believe that "the spirit of law" may legitimately be invoked to set at naught
words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative
intent" must obviously be given effect by judges and all others who are charged with the application and
implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and the
intent that is to be given effect are to be derived from the words actually used by the law-maker, and not from
some external, mystical or metajuridical source independent of and transcending the words of the legislature.
The Court is not here to be understood as giving a "strict interpretation rather than a "liberal" one to Section 4
of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too
frequently impede a disciplined and principled search for the meaning which the law-making authority
projected when it promulgated the language which we must apply. That meaning is clearly visible in the text of
Section 4, as plain and unmistakable as the nose on a man's face. The Court is simply reading Section 4 as it
is in fact written. There is no need for the involved process of construction that petitioner invites us to engage
in, a process made necessary only because petitioner rejects the conclusion or meaning which shines through
the words of the statute. The first duty of a judge is to take and apply a statute as he finds it, not as he would
like it to be. Otherwise, as this Court in Yangco v. Court of First Instance of Manila warned, confusion and
uncertainty in application will surely follow, making, we might add, stability and continuity in the law much more
difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge words so as to give them
the color of a particular judicial theory are not only unnecessary but decidedly
harmful. That which has caused so much confusion in the law, which has made it so
difficult for the public to understand and know what the law is with respect to a given
matter, is in considerable measure the unwarranted interference by judicial tribunals
with the English language as found in statutes and contracts, cutting the words here
and inserting them there, making them fit personal ideas of what the legislature ought
to have done or what parties should have agreed upon, giving them meanings which
they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers
themselves are unable to advise their clients as to the meaning of a given statute or
contract until it has been submitted to some court for its interpretation and
construction. 6
The point in this warning may be expected to become sharper as our people's grasp of English is steadily
attenuated.
There is another and more fundamental reason why a judge must read a statute as the legislative authority
wrote it, not as he would prefer it to have been written. The words to be given meaning whether they be found
in the Constitution or in a statute, define and therefore limit the authority and discretion of the judges who must
apply those words. If judges may, under cover of seeking the "true spirit" and "real intent" of the law, disregard
the words in fact used by the law-giver, the judges will effectively escape the constitutional and statutory
limitations on their authority and discretion. Once a judge goes beyond the clear and ordinary import of the
words of the legislative authority, he is essentially on uncharted seas. In a polity like ours which enshrines the
fundamental notion of limiting power through the separation and distribution of powers, judges have to be
particularly careful lest they substitute their conceptions or preferences of policy for that actually projected by
the legislative agency. Where a judge believes passionately that he knows what the legislative agency should
have said on the particular matter dealt with by a statute, it is easy enough for him to reach the conclusion that
therefore that was what the law-making authority was really saying or trying to say, if somewhat ineptly As Mr.
Justice Frankfurter explained:
Even within their area of choice the courts are not at large. They are confined by the
nature and scope of the judicial function in its particular exercise in the field of
interpretation. They are under the constraints imposed by the judicial function in our
democratic society. As a matter of verbal recognition certainly, no one will gainsay
that the function in construing a statute is to ascertain the meaning of words used by
the legislature. To go beyond it is to usurp a power which our democracy has lodged in
its elected legislature. The great judges have constantly admonished their brethren of
the need for discipline in observing the limitations A judge must not rewrite a statute,
neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-
making might wisely suggest, construction must eschew interpolation and
evisceration He must not read in by way of creation. He must not read out except to
avoid patent nonsense of internal contradictions. ... 7
Petitioner finally argues that since under Section 4 of Probation Law as amended has vested in the trial court
the authority to grant the application for probation, the Court of Appeals had no jurisdiction to entertain the
same and should have (as he had prayed in the alternative) remanded instead the records to the lower court.
Once more, we are not persuaded. The trial court lost jurisdiction over the case when petitioner perfected his
appeal. The Court of Appeals was not, therefore, in a position to remand the case except for execution of
judgment. Moreover, having invoked the jurisdiction of the Court of Appeals, petitioner is not at liberty casually
to attack that jurisdiction when exercised adversely to him. In any case, the argument is mooted by the
conclusion that we have reached, that is, that petitioner's right to apply for probation was lost when he
perfected his appeal from the judgment of conviction.
WHEREFORE, the Decision of the Court of Appeals in CAGR No. 04678 is hereby AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 89606 August 30, 1990
AGUSTIN SALGADO, petitioner,
vs.
THE HON. COURT OF APPEALS, (Fourteenth Division) and HON. ANTONIO SOLANO, in his capacity
as Presiding Judge of the RTC-Quezon City (Branch 86) and FRANCISCO LUKBAN, respondents.
Ernesto L. Pineda for petitioner.
Lukban, Vega, Lozada & Associates for private respondent.
MEDIALDEA, J.:
This petition for review on certiorari seeks to set aside the decision of the Court of Appeals in CA-G.R. SP No.
15493 entitled, "Agustin Salgado v. Hon. Antonio P. Solano, et al.," which affirmed the Order dated December
22, 1987 of the Regional Trial Court of Quezon City (Branch 86) sustaining its previous order dated November
18, 1987 directing the issuance of a writ of execution to enforce the civil liability of herein petitioner in Criminal
Case No. 0-33798.
The facts are as follows:
Petitioner was charged with the crime of serious physical injuries in Criminal Case No. 0-33798 entitled,
"People of the Philippines v. Agustin Salgado," before the Regional Trial Court of Quezon City (Branch 86).
After trial, judgment was rendered on October 16, 1986 finding him guilty beyond reasonable doubt of the
crime charged. The dispositive portion of the decision, states:
WHEREFORE, the court finds the accused AGUSTIN P. SALGADO, JR., guilty beyond
reasonable doubt of the crime of serious physical injuries, defined and penalized under
paragraph 3 Article 263 of the Revised Penal Code, and appreciating in his favor the
following mitigating circumstances:
1) voluntary surrender; and
2) No intention to commit so grave a wrong hereby sentence (sic) said accused to
suffer imprisonment for a period of four (4) months and twenty (20) days, with the
accessories provided for by law, and to indemnify the victim, Francisco Lukban, Jr., in
the sum of P126,633.50 as actual or compensatory damages, and the sum of
P50,000.00 as damages for the incapacity of Francisco Lukban to pursue and engage
in his poultry business.
SO ORDERED. (p. 19, Rollo)
On October 17, 1986, petitioner filed an application for probation with the trial court. The application was
granted in an Order dated April 15, 1987. The order contained, among others, the following condition:
xxx xxx xxx
4. Indemnify the victim FRANCISCO LUKBAN, JR., in a monthly installment of
P2,000.00 (TWO THOUSAND PESOS) every month during the entire period of his
probation. (p. 15, Rollo)
For the months of May, June, July, August, September and October, 1987, petitioner complied with the above
condition by paying in checks the said sum of P2,000.00 monthly, through the City Probation Officer, Perla
Diaz Alonzo. Private respondent Francisco Lukban, Jr. voluntarily accepted the checks and subsequently
encashed them (p. 19, Rollo).
On September 19, 1987, private respondent Francisco Lukban, Jr. filed a motion for the issuance of a writ of
execution for the enforcement of the civil liability adjudged in his favor in the criminal case. The motion was
opposed by the petitioner.
On November 18, 1987, the trial court issued an order granting the motion for issuance of a writ of execution.
A motion for reconsideration was filed by petitioner but it was denied on December 22, 1987. After the denial
of his motion for reconsideration, the petitioner filed directly with this Court a petition for review of the trial
court's order granting the motion for issuance of a writ of execution. We referred the petition to the Court of
Appeals in a resolution dated April 13, 1988 (p. 18, Rollo).
On March 16, 1989, respondent Court of Appeals rendered a decision affirming the order of the trial court
granting the motion for the issuance of a writ of execution. A motion for reconsideration was filed by petitioner
but respondent Court of Appeals denied the motion in a resolution dated August 3, 1989 (pp. 9-10, Rollo).
The petitioner went to this Court via a petition for review which was filed on September 26, 1989 and raised
the following assignment of errors:
ASSIGNMENT OF ERRORS
1. THE COURT OF APPEALS ERRED IN HOLDING THAT THE ORDER DATED
APRIL 15, 1987 HAS NOT MODIFIED THE DECISION OF OCTOBER 16, 1986 AS
FAR AS THE CIVIL ASPECT IS CONCERNED.
2. THE COURT OF APPEALS ERRED IN HOLDING THAT THE CONDITION IN THE
PROBATION ORDER MODIFYING OR ALTERING THE CIVIL LIABILITY OF THE
OFFENDER IS UNAUTHORIZED AND NOT SANCTIONED BY LAW. (p. 10, Rollo)
In its decision affirming the order of the trial court granting private respondent's motion for the issuance of a
writ of execution, respondent Court of Appeals advanced three (3) reasons: 1) that the decision dated October
16, 1986 had become final and executory and the judge who rendered the decision cannot lawfully alter or
modify it; 2) that it is clear that the probation law provides only for the suspension of sentence imposed on the
accused; that it has absolutely no beating on his civil liability and that none of the conditions listed under
Section 10 of the Probation Law relates to civil liability; and 3) that private respondent is not estopped because
he had nothing to do with the filing and the granting of the probation.
There is no question that the decision of October 16, 1986 in Criminal Case No. Q-33798 finding petitioner
guilty beyond reasonable doubt of the crime of serious physical injuries had become final and executory
because the filing by respondent of an application for probation is deemed a waiver of his right to appeal (See
Section 4 of P.D. 968). Likewise, the judgment finding petitioner liable to private respondent for P126,633.50
as actual damages and P50,000.00 as consequential damages had also become final because no appeal was
taken therefrom. Hence, it is beyond the power of the trial court to alter or modify. In the case of Samson v.
Hon. Montejo, L-18605, October 31, 1963, 9 SCRA 419, 422-423 cited by respondent appellate court, it was
held:
. . . , once a decision becomes final, even the court which rendered it cannot lawfully
alter or modify the same (Rili, et al. v. Chunaco, et al., G.R. No. L-6630, Feb. 29, 1956),
especially, considering the fact that, as in the instant case, the alteration or
modification is material and substantial (Ablaza v. Sycip, et al., L-12125, Nov. 23,
1960). In the case of Behn, Meyer & Co., v. J. Mcmicking et al., 11 Phil. 276, (cited by
respondents), it was held that "where a final judgment of an executory character had
been rendered in a suit the mission of the court is limited to the execution and
enforcement of the said final judgment in all of its parts and in accordance with its
express orders." The judgment in question is clear, and with the amended writ of
execution, the liability of petitioner is greatly augmented, without the benefit of proper
proceeding. (Emphasis ours)
We do not believe, however, that the order dated April 15, 1987 granting the application for probation and
imposing some conditions therein altered or modified the decision dated October 16, 1986. The April 15, 1987
Order of the trial court granting the application for probation and providing as one of the conditions therein that
petitioner indemnify private respondent P2,000.00 monthly during the period of probation did not increase or
decrease the civil liability adjudged against petitioner but merely provided for the manner of payment by the
accused of his civil liability during the period of probation.
It is the submission of private respondent that in the case of Budlong v. Apalisok, No. 60151, June 24, 1983,
122 SCRA 935. We already ruled that "(T)he 'conviction and sentence' clause of the statutory definition clearly
signifies that probation affects only the criminal aspect of the case."
The pronouncement in Apalisok that "probation affects only the criminal aspect of the case" should not be
given a literal meaning. Interpreting the phrase within the context of that case, it means that although the
execution of sentence is suspended by the grant of probation, it does not follow that the civil liability of the
offender, if any, is extinguished. This can be inferred from a reading of the text of the Apalisok case where the
issue that was involved therein was whether a grant of probation carries with it the extinction of the civil liability
of the offender. The reason for ruling that the grant of probation does not extinguish the civil liability of the
offender is clear, "(T)he extinction or survival of civil liability are governed by Chapter III, Title V, Book I of the
Revised Penal Code where under Article 113 thereof provides that: '. . . , the offender shall continue to be
obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he
has served his sentence consisting of deprivation of liberty or other lights, or has not been required to serve
the same by reason of amnesty, pardon, commutation of sentence, or any other reason.'" In the instant case,
the issue is not the survival or extinction of the civil liability of a probationer but, whether or not the trial court
may impose as a condition of probation the manner in which a probationer may settle his civil liability against
the offended party during the period of probation.
Respondent appellate court ruled that Section 10 of the Probation Law enumerates thirteen (13) conditions of
probation not one of which relates to the civil liability of the offender (p. 22, Rollo).
Section 4 of Presidential Decree No. 968 (Probation Law of 1976) provides:
Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the court may,
after it shall have convicted and sentenced a defendant but before he begins to serve
his sentence and upon his application, suspend the execution of said sentence
and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.
In the case of Florentino L. Baclayon v. Hon. Pacito G. Mutia, et al., G.R. No. 59298, April 30, 1984, 129
SCRA 148, We ruled that the conditions listed under Section 10 of the Probation Law are not exclusive. Courts
are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the
constitutional rights of the accused. Courts may impose conditions with the end that these conditions would
help the probationer develop into a law-abiding individual. Thus,
The conditions which trial courts may impose on a probationer may be classified into
general or mandatory and special or discretionary. The mandatory conditions,
enumerated in Section 10 of the Probation Law, require that probationer should a)
present himself to the probation officer designated to undertake his supervision at such
place as may be specified in the order within 72 hours from receipt of said order, and b)
report to the probation officer at least once a month at such time and place as specified
by said officer. Special or discretionary conditions are those additional conditions, listed
in the same Section 10 of the Probation Law, which the courts may additionally impose
on the probationer towards his correction and rehabilitation outside of prison. The
enumeration, however, is not inclusive. Probation statutes are liberal in character and
enable courts to designate practically any term it chooses as long as the probationer's
constitutional rights are not jeopardized. There are innumerable conditions which may
be relevant to the rehabilitation of the probationer when viewed in their specific
individual context. It should, however, be borne in mind that the special or discretionary
conditions of probation should be realistic, purposive and geared to help the
probationer develop into a law-abiding and self-respecting individual. Conditions should
be interpreted with flexibility in their application, and each case should be judged on its
own merits — on the basis of the problems, needs and capacity of the probationer. . . . .
The primary consideration in granting probation is the reformation of the probationer. That is why, under the
law, a post sentence investigation, which is mandatory, has to be conducted before a person can be granted
probation to help the court in determining whether the ends of justice and the best interest of the public as well
as the defendant will be served by the granting of the probation (Alvin Lee Koenig, Post Sentence
Investigation, Its Importance and Utility, IBP Journal, Special Issue on Probation, Vol. 5, No. 5, pp. 381-387).
In the case of People v. Lippner, 219 Cal. 395, 26 p. 2d, 457, 458 (1933), among those which has to be
ascertained is the financial condition and capacity of the offender to meet his obligations:
. . . there can be no real reformation of a wrong-doer unless there is at least a
willingness on his part to right the wrong committed, and the effect of such an act upon
the individual is of inestimable value, and to a large extent, determines whether there
has been any real reformation. To be clearly consonant with such a purpose, the post
sentence investigation must include a financial examination of the offender's capability
in order to work out a system of payment which can effectively accomplish
reimbursement without interfering with the defendant's family and other financial
responsibilities, according to U.S. Model Penal Code of the American Law Institute. . . .
(Sec. 301.1 Comments (Tentative Draft No. 2, 1954; Also 2 U.S. Dept. of Justice,
Attorney General's Survey of Release Procedures 38 (1939) cited in The Period and
Conditions of Probation by Sergio F. Go, IBP Journal Special Issue on Probation, Vol.
5, No. 5, pp. 406-420). (Emphasis ours)
The trial court is given the discretion to impose conditions in the order granting probation "as it may deem
best." As already stated, it is not only limited to those listed under Section 10 of the Probation Law. Thus,
under Section 26, paragraph (d) of the Rules on Probation Methods and Procedures, among the conditions
which may be imposed in the order granting probation is:
Sec. 26. Other conditions of Probation. The Probation Order may also require the
probationer in appropriate cases, to:
xxx xxx xxx
(d) comply with a program of payment of civil liability to the victim or his heirs . . . .
However, this is not to say that the manner by which the probationer should satisfy the payment of his civil
liability in a criminal case during the probation period may be demanded at will by him. It is necessary that the
condition which provides for a program of payment of his civil liability will address the offender's needs and
capacity. Such need may be ascertained from the findings and recommendations in the post-sentence
investigation report submitted by the Probation Officer after investigation of the financial capacity of the
offender and that such condition is to the end that the interest of the state and the reformation of the
probationer is best served.
In the instant case, in the absence of any showing to the contrary, it is presumed that when the trial court
issued the order of April 15, 1987, the condition that the petitioner has to pay private respondent P2,000.00 a
month for the satisfaction of the civil liability adjudged against him was recommended by the probation officer
who prepared the post-sentence investigation and that such condition is, in the judgment of the trial court,
"deemed best" under the circumstances.
Counting from April 15, 1987, the date of issuance of the order granting probation which under the law is also
the date of its effectivity (Sec. 11, P.D. 968), the probation period must have lapsed by now. Hence, the order
for petitioner to indemnify the private respondent in the amount of P2,000.00 monthly during the period of
probationmust have also lapsed. If such were the case, there would therefore, be no more obstacle for the
private respondent to enforce the execution of the balance of the civil liability of the petitioner. However, the
records are bereft of allegations to this effect.
ACCORDINGLY, the petition is GRANTED. The decision dated March 16, 1989 of respondent Court of
Appeals affirming the order of the trial court granting the motion for the issuance of a writ of execution as well
as the resolution dated August 3, 1989 of the same court are hereby REVERSED and SET ASIDE.
SO ORDERED.
Narvasa (Chairman), Gancayco and Griño-Aquino, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur in the result, the issue having become moot and academic. At the same time, however, I must
express my reservation on the holding that the condition imposed on the probation was a valid requirement
and within the sound discretion of the trial court. I am not certain that the award of civil damages, having
become final and executory, could still be amended by the trial court by providing for its payment in
installments during the period of probation. It seems to me that the said award was already a vested property
right of the victim and that it could be enforced by him immediately and in full as in ordinary money judgments
where there is no indication of a different mode and period of payment. There is none in the decision in
question. That decision was never appealed. Consequently, I submit that the trial judge had no authority to in
effect defer the immediate enforcement of the civil award of P176,633.50 by requiring the probationer to pay it
at the rate of only P2,000.00 a month, a paltry amount, indeed, considering the total obligation. The fact that
the victim accepted the payments did not validate the condition, which was void ab initio as far as he was
concerned. At any time he saw fit, he could have disregarded that condition as an invalid amendment of the
decision and demanded the immediate issuance of a writ of execution for the fullamount of the civil award. I
believe that was his vested right.
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects
appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state of
time, effort and expenses to jettison an appeal. The law expressly requires that an accused must not have
appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part
of the accused — to wager on the result of his appeal — that when his conviction is finally affirmed on appeal,
the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation
as an "escape hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently,
probation should be availed of at the first opportunity by convicts who are willing to be reformed and
rehabilitated, who manifest spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257
and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to
control his outburst and blurted —
You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo
walang utak . . . . Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate
Informations instituted by five (5) of his employees, each Information charging him with gravely maligning them
on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner
guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206,
105207, 105209 and 105210, sentenced him to a prison term of one (1) year and one (l) day to one (1) year
and eight (8) months of prision correccional "in each crime committed on each date of each case, as alleqed in
the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz,
Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's
fees, plus costs of suit.1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the
offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the
Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his
favor a mitigating circumstance analogous to passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the defamatory words complained
of . . . . he must have been angry and worried "about some missing documents . . . as
well as the letter of the Department of Tourism advising ASPAC about its delinquent
tax of P1.2 million . . . . " the said defamatory words must have been uttered in the heat
of anger which is a mitigating circumstance analogous to passion or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment . . . . "3 After he failed to interpose an appeal therefrom the decision.of the RTC became final.
The case was then set for execution of judgment by the MeTC which, as a consequence, issued a warrant of
arrest. But·before he could be arrested petitioner filed an application for probation which the MeTC denied "in
the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989,
174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the
following grounds —
Initially, the Court notes that the petitioner has failed to comply with the provisions of
Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is
sufficient cause for dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition that he had asked the
respondent court to reconsider its above order; in fact, he had failed to give the court
an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is,
however, required to move for reconsideration of the questioned order before filing a
petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It
is a ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA
823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public Service
Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary,
despotic or whimsical exercise of power in denying the petitioner's application for
probation . . . .
Fourthly, the petition for probation was filed by the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon
an application by the defendant within the period of appeal, upon terms and conditions and period appropriate
to each case, but expressly rules out probation where an appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in
dispensing with the minor technicalities which may militate against his petition as he now argues before us that
he has not yet lost his right to avail of probation notwithstanding his appeal from the MeTC to the RTC since
"[t]he reason for his appeal was precisely to enable him to avail himself of the benefits of the Probation Law
because the original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to
probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of
reducing the penalties imposed upon him by the said court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his
conviction to the RTC which affirmed the MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included.
Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the
state which may be granted by the court to a seemingly deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of which he stands convicted. 9 It is a special
prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit
of organized society, and only incidentally for the benefit of the accused.10 The Probation Law should not
therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or
remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit
from the terms of the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction,"
nor Llamado v. Court of Appeals 11 which interprets the quoted provision, offers any ambiguity or qualification.
As such, the application of the law should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for probation if the appealis solely to
reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for
the Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is not a penal statute. We, however,
understand petitioner's argument to be really that any statutory language that appears
to favor the accused in acriminal case should be given.a "liberal interpretation."
Courts . . . have no authority to invoke "liberal interpretation" or "the spirit of the law"
where the words of the statute themselves, and·as illuminated by the history of that
statute, leave no room for doubt or interpretation. We do not believe that "the spirit
of·the law" may legitimately be invoked to set at naught words which have a clear and
definite meaning imparted to them by our procedural law. The "true legislative intent"
must obviously be given effect by judges and all others who are charged with the
application and implementation of a statute. It is absolutely essential to bear in mind,
however, that the spirit of the law and the intent that is to be given effect are derived
from the words actually used by the law-maker, and not from some external, mystical
or metajuridical source independent of and transcending the words of the legislature.
The Court is not here to be understood as giving a "strict interpretation" rather than a
"liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which too frequently impede a disciplined and
principled search for the meaning which the law-making authority projected when it
promulgated the language which we must apply. That meaning is clearly visible in the
text of Section 4, as plain and unmistakable as the nose on a man's face. The Courtis
simply·reading Section 4 as it is in fact written. There is no need for the involved
process of construction that petitioner invites us to engage in, a process made
necessary only because petitioner rejects the conclusion or meaning which shines
through the words of the statute. The first duty of the judge is to take and apply a
statute as he finds it, not as he would like·it to be. Otherwise, as this Court in Yangco v.
Court of First Instance warned, confusion and uncertainty will surely follow, making, we
might add, stability and continuity in the law much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge
words as to give them the color of a particular judicial theory are
not only unnecessary but decidedly harmful. That which has
caused so much confusion in the law, which has made it so
difficult for the public to understand and know what the law is
with respect to a given matter, is in considerable measure the
unwarranted interference by judicial tribunals with the English
language as found in statutes and contracts, cutting the words
here and inserting them there, making them fit personal ideas of
what the legislature ought to have done or what parties should
have agreed upon, giving them meanings which they do not
ordinarily have cutting, trimming, fitting, changing and coloring
until lawyers themselves are unable to advise their clients as to
the meaning of a given statute or contract until it has been
submitted to some court for its interpretation and construction.
The point in this warning may be expected to become sharper as our people's grasp of
English is steadily attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for probation if the appeal is taken solely
to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as
amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction." In Bersabal v. Salvador, 13 we said
—
By its very language, the Rule is mandatory. Under the rule of statutory construction.
negative words and phrases are to be regarded as mandatory while those in the
affirmative are merely directory. . . . the use of the term "shall" further emphasizes its
mandatory character and means that it is imperative, operating to impose a duty which
may be enforced.
And where the law does not distinguish the courts should not distinguish; where the law does not make
exception the court should not except.
Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no
need to appeal if only to reduce the penalties to within the probationable period. Multiple prison terms imposed
against an accused found guilty of several offenses in one decision are not, and should not be, added up. And,
the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility
for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none
of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled
to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968,
as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be
extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years."
Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and
distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one
(1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he
was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in
the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4)
private complainants on four (4) different, separate days, he was still·eligible for probation, as each prison
term imposed on petitioner was probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the
assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrong doing but because of the gravity and serious consequences of the
offense they might further commit. 14 The Probation Law, as amended, disqualifies only those who have been
convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not
necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be
less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and
the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years
are not generally considered callous, hard core criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13)
counts of grave oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to
a total prison term of thirteen (13) years, and another who has been found guilty of mutilation and sentenced
to six (6) years and one (l) day of prision mayor minimum as minimum to twelve (l2) years and one (1) day
of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is disqualified
from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have
availed of the benefits of probation. Since he could have, although he did not, his appeal now precludes him
from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties
imposed against him should be summed up, still he would not have qualified under the Decision rendered by
the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is
multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8) months, which
is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To
illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10
years and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as the total
of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4)
Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to
understand. The penalties imposed by the MeTC cannot be any clearer — "one (1) year and one (1) day to
one (1) year and eight (8) months of prision correccional, in each crime committed on each date of each case,
as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On
the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty
imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on
account of a mitigating circumstance for each case, count or incident of grave oral defamation·There is no
valid reason therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not
sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner
in each of the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered by the trial court is
AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY
beyond reasonable doubt in each of the above entitled cases and appreciating in his
favor the mitigating circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a straight penalty of EIGHT
(8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay
the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any
of the four (4) counts under each of the four (4) Informatfons, or that any part of thejudgment of conviction was
reversed, or that any of the cases, counts or incidents was dismissed. Otherwise, we will have to account for
the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that the judgment of conviction
rendered by the was affirmed with the sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality
of all the penalties is not the test, petitioner should have immediately filed an application for probation as he
was already qualified after being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to
unconditionally accept the verdict of the court and admit his liability. Consequently, in appealing the Decision
of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and
probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to
assert his innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for
the sole purpose of reducing his penalties to make him eligible for probation — since he was already qualified
under the MeTC Decision — but rather to insist on his innocence. The appeal record is wanting of any other
purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly
committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been
established because of his positive identification by the witness for the prosecution; (b) in giving full faith and
credence to the bare statements of the private complainants despite the absence of corroborating testimonies;
and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed
an error in relying on his positive identification considering that private complainants could not have missed
identifying him who was their President and General Manager with whom they worked for a good number of
years. Petitioner further argued that although the alleged defamatory words were uttered in the presence of
other persons, mostly private complainants, co-employees and clients, not one of them was presented as a
witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of the
uncorroborative testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do
not simply put in issue the propriety of the penalties imposed. For sure, the accused never manifested that he
was appealing only for the purpose of correcting a wrong penalty — to reduce it to within the probationable
range. Hence, upon interposing an appeal, more so after asserting his innocence therein, petitioner should be
precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative
remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism
on the part of an accused who although already eligible does not at once apply for probation, but doing so only
after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals
does not necessarily mean that his appeal to the RTC was solely to reduce his penalties. Conversely, he was
afraid that the Court of Appeals would increase his penalties, which could be worse for him. Besides, the RTC
Decision had already become final and executory because of the negligence, according to him, of his former
counsel who failed to seek possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of
the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed against him
charged four (4) separate crimes of grave oral defamation, committed on four (4) separate days. His failure to
do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly
convicted, as in the instant case, of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond
the period allowed by law and crucial. From the records it is clear that the application for probation was filed
"only after a warrant for the arrest of petitioner had been issued . . . (and) almost two months after (his) receipt
of the Decision" 22of the RTC. This is a significant fact which militates against the instant petition. We quote
with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals
Nathanael P. De Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the petitioner out of time. The law in point,
Section 4 of P.D. 968, as amended, provides thus:
Sec. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal. . . . place the
defendant on probation . . . .
Going to the extreme, and assuming that an application for probation from one who
had appealed the trial court's judgment is allowed by law, the petitioner's plea for
probation was filed out of time. In the petition is a clear statement that the petitioner
was up for execution of judgment before he filed his application for probation. P.D. No.
968 says that the application for probation must be filed "within the period for perfecting
an appeal;" but in this case, such period for appeal had passed, meaning to say that
the Regional Trial Court's decision had attained finality, and no appeal therefrom was
possible under the law. Even granting that an appeal from the appellate court's
 judgment is contemplated by P.D. 968, in addition to the judgment rendered by the trial
court, that appellate judgment had become final and was, in fact, up for actual
execution before the application for probation was attempted by the petitioner. The
petitioner did not file his application for probation before the finality of the said
judgment; therefore, the petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted
even if it was filed only after judgment has become final, the conviction already set for execution and a warrant
of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be
after the decision of the RTC had become final, for him to file the application for probation with the trial court,
is to stretch the law beyond comprehension. The law, simply, does not allow probation after an appeal has
been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive
remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties were
already probationable, and in his appeal, he asserted only his innocence and did not even raise the issue of
the propriety of the penalties imposed on him, and finally, he filed an application for probation outside the
period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review
should be as it is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.
Separate Opinions
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this case.
I.
The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that
petitioner had appealed his sentence before filing his application for probation. Reliance is placed on the literal
application of § 4 of the Probation Law of 1976 ,as amended, which provides as follows:
Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application by
said defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for probation shall
be entertained or granted if the defendant has perfected the appeal from the judgment
of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only probation shall be filed with the trial court application shall be deemed a
waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Thus, under § 4 the accused is given the choice of appealing his sentence or applying for probation. If he
appeals, he cannot later apply for probation. If he opts for probation, he can not appeal. Implicit in the choice,
however, is that the accused is not disqualified for probation under any of the cases mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to
those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public
order;
(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than
Two Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof.
Consequently, if under the sentence given to him an accused is not qualified for probation, as when the
penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal the sentence
is modified so that he becomes qualified, I believe that the accused should not be denied the benefit of
probation.
Before its amendment by P.D. No. 1990, the law allowed — even encouraged — speculation on the outcome
of appeals by permitting the accused to apply for probation after he had appealed and failed to obtain an
acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990 by expressly providing that "no
application for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to
appeal in the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his
conviction is affirmed.2
There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of
either appealing from the decision of the trial court or applying for probation, the purpose is to deny him the
right to probation in cases like the one at bar where he becomes eligible for probation only because on appeal
his sentence is reduced. The purpose of the amendment, it bears repeating, is simply to prevent speculation
or opportunism on the part of an accused who; although eligible for probation, does not at once apply for
probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated
by a desire to be acquitted. While acquittal might have been an alluring prospect for him, what is clear is that
he had a reason for appealing because under the sentence given to him he was disqualified to apply for
probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months of prision
correccional for "each crime committed on each date of each case, as alleged in the information[s]." This
meant, as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1
year and 8 months sixteen times, since he was found guilty of four crimes of grave oral defamation in each of
four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus exceeded the limit
of six (6) years of imprisonment allowed by § 9(a) and disqualified him for probation. It was only after this
penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total
term of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did not
appeal further although he could have done so.
The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on
probation . . . where in its original state, the petitioner was disqualified from applying for probation under Sec.
9 of the Decree, becoming eligible for probation only under the terms of the judgment on appeal," nevertheless
felt bound by the letter of § 4: "No application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that to
allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation
Law, as amended." (p. 9)
To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he
comes within its letter is to disregard the teaching in many cases that the Probation Law should be applied in
favor of the accused not because it is a criminal law — it is not — but to achieve its beneficent purpose.
(Santos To v. Paño, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its purpose to
"help the probationer develop into a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA
148, 149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the
stigma of a prison record, to save government funds that may otherwise be spent for his food and
maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA
228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead
commends itself to me:
Regarding this, it suffices to state that the Probation Law was never intended to limit
the right of an accused person to present all relevant evidence he can avail of in order
to secure a verdict of acquittal or a reduction of the penalty. Neither does the law
require a plea of guilty on the part of the accused to enable him to avail of the benefits
of probation. A contrary view would certainly negate the constitutional right of an
accused to be presumed innocent until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty
imposed on him by the MeTC had been reduced by the RTC so that he thereby became qualified for probation,
he did not appeal further. The majority says that this was because he was afraid that if he did the penalty
could be increased. That possibility, however, was also there when he appealed from the MeTC to the RTC.
For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as
the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply
questioned the propriety of his sentence, but no more so does an accused who, upon being arraigned, pleads,
"Not Guilty." And yet the latter cannot be denied probation if he is otherwise eligible for probation.
It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later
acknowledges his guilt and shows contrition after he is found guilty. So does an accused who appeals a
sentence because under it he is not qualified for probation, but after the penalty is reduced, instead of
appealing further, accepts the new sentence and applies for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was
held that because the petitioner had appealed his sentence, he could not subsequently apply for probation.
For, unlike petitioner in the case at bar, the accused in that case could have applied for probation as his
original sentence of one year of prision correccional did not disqualify him for probation. That case fell
squarely within the ambit of the prohibition in § 4 that one who applies for probation must not "have perfected
an appeal from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the original sentence meted out to him he
was not disqualified for probation. The issue here is whether the multiple prison terms imposed on petitioner
are to be considered singly or in their totality for the purpose of § 9(a) which disqualifies from probation those
"sentenced to serve a maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for
"one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in each crime
committed on each date of each case" and as there are four offenses of grave oral defamation against
petitioner in each of the four cases, the total prison term which he would have to serve was 26 years and 8
months. This is clearly beyond the probationable maximum allowed by law.
It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the
RTC would not qualify the petitioner for probation because he has to suffer imprisonment of eight months
sixteen times. That is not so. The RTC only "sentence[d] the said accused in each case to STRAIGHT penalty
of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there are four cases,
or 32 months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are
jointly tried and decided. For example, § 9(c) disqualifies from probation persons "who have previously been
convicted by final judgment of an offense punished by imprisonment of not less than one month and one day
and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that
the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because
although the crimes had been committed on different dates he was found guilty of each crime on the same day.
As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7) months and twenty-five (25)
days. In each criminal case the sentence was three (3) months and fifteen (15) days.
That the duration of a convict's sentence is determined by considering the totality of several penalties for
different offenses committed is also implicit in the provisions of the Revised Penal Code on the accumulation
of penalties. (See e.g., arts. 48 and 70)
It is said that the basis of disqualification under § 9 is the gravity of the offense committed and the penalty
imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral defamation for
which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense than another who is
guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year and 8 months. The
relevant comparison is between an accused convicted of one offense of grave oral defamation and another
one convicted of the same offense, say four or more times. The relevant comparison is not, as the majority
says, between an accused found guilty of grave oral defamation four or more times and another one found
guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of prision mayor to 12 years
and 1 day of reclusion temporal.
III.
Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that
petitioner applied for probation only after his case had been remanded to the MeTC for the execution of its
decision as modified. But that is because § 4 provides that "an application for probation shall be filed with the
trial court." In the circumstances of this case, petitioner had to await the remand of the case to the MeTC,
which necessarily must be after the decision of the RTC had become final.
The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial
Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an
accused, who originally is not qualified for probation because the penalty imposed on him by a court a
quo exceeds six (6) years, should not be denied that benefit of probation if on appeal the sentence is
ultimately reduced to within the prescribed limit, I am unable, however, to second the other proposition that
multiple prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No.
968. In this respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility
or disqualification of an applicant for probation charged with, and sentenced to serve multiple prison terms for,
several offenses, "the number of offenses is immaterial as long as all the penalties imposed, taken separately,
are within the probationable period." The use of the word maximum instead of the word total in Section 9,
paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent.
Thus, I still must vote for the denial of the petition.
ARNEL COLINARES, G.R. No. 182748 On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of
Petitioner, frustrated homicide and sentenced him to suffer imprisonment from two years and four months
Present: of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the
CORONA, C.J., maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for
CARPIO, probation.
VELASCO, JR.,
LEONARDO-DE CASTRO, Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking
BRION, conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on
- versus - PERALTA, him. The CA entirely affirmed the RTC decision but deleted the award for lost income in the absence of
BERSAMIN, evidence to support it.[3] Not satisfied, Arnel comes to this Court on petition for review.
DEL CASTILLO,
ABAD, In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to
VILLARAMA, JR., submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of
PEREZ, attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum,
MENDOZA, to two years and four months of prision correccional, as maximum, he could still apply for probation upon
SERENO, remand of the case to the trial court.
REYES, and
PERLAS-BERNABE, JJ. Both complied with Arnel taking the position that he should be entitled to apply for probation in
PEOPLE OF THE PHILIPPINES, case the Court metes out a new penalty on him that makes his offense probationable. The language and spirit
Respondent. Promulgated: of the probation law warrants such a stand. The Solicitor General, on the other hand, argues that under the
Probation Law no application for probation can be entertained once the accused has perfected his appeal from
December 13, 2011 the judgment of conviction.

x ---------------------------------------------------------------------------------------- x The Issues Presented

DECISION The case essentially presents three issues:

ABAD, J.: 1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone;

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what
distinguishes frustrated homicide from attempted homicide; and c) when an accused who appeals may still
apply for probation on remand of the case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with
frustrated homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-
2213.[1]
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide;
and
3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced
probationable penalty, whether or not he may still apply for probation on remand of the case to the trial court.
The Courts Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in
self-defense when he hit Rufino back with a stone.

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and When the accused invokes self-defense, he bears the burden of showing that he was legally
Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the justified in killing the victim or inflicting injury to him. The accused must establish the elements of self-defense
roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the by clear and convincing evidence. When successful, the otherwise felonious deed would be excused, mainly
head with a huge stone, about 15 inches in diameter. Rufino fell unconscious as Jesus fled. predicated on the lack of criminal intent of the accused.[4]

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the
roadside. Ananias tried to help but someone struck him with something hard on the right temple, knocking him
out. He later learned that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his
house. He sought the help of a barangay tanod and they brought Rufino to the hospital.
[2]
Dr. Albert Belleza issued a Medico-Legal Certificate showing that Rufino suffered two lacerated wounds on
the forehead, along the hairline area. The doctor testified that these injuries were serious and potentially fatal
but Rufino chose to go home after initial treatment.
In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the
person whom the offender killed or injured committed unlawful aggression; (2) that the offender employed
means that is reasonably necessary to prevent or repel the unlawful aggression; and (3) that the person
defending himself did not act with sufficient provocation.[5]
If the victim did not commit unlawful aggression against the accused, the latter has nothing to
prevent or repel and the other two requisites of self-defense would have no basis for being
appreciated. Unlawful aggression contemplates an actual, sudden, and unexpected attack or an imminent
danger of such attack. A mere threatening or intimidating attitude is not enough. The victim must attack the
accused with actual physical force or with a weapon.[6]

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that
he was on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite
drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed
him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel
but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When
Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the
attack and hit Ananias with the same stone. Arnel then fled and hid in his sisters house. On September 4,
2000, he voluntarily surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the
incident. His three companions were all drunk. On his way home, Diomedes saw the three engaged in heated
argument with Arnel.
Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He
alone testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnels testimony that it was Rufino who started it. Arnels only other witness,
Diomedes, merely testified that he saw those involved having a heated argument in the middle of the
street. Arnel did not submit any medical certificate to prove his point that he suffered injuries in the hands of
Rufino and his companions.[7]
In contrast, the three witnessesJesus, Paciano, and Ananiastestified that Arnel was the
aggressor. Although their versions were mottled with inconsistencies, these do not detract from their core
story. The witnesses were one in what Arnel did and when and how he did it. Compared to Arnels testimony,
the prosecutions version is more believable and consistent with reality, hence deserving credence.[8]
 Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated
homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in
death as in fact it did not?
The main element of attempted or frustrated homicide is the accuseds intent to take his victims
life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent.[9] And the intent to kill is often inferred from, among other things, the means the offender used
and the nature, location, and number of wounds he inflicted on his victim.[10]
Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked
Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the wounds
that Arnel inflicted on his victim, the Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated,
homicide. In Palaganas v. People,[11] we ruled that when the accused intended to kill his victim, as shown by
his use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely medical
assistance, the crime is frustrated murder or frustrated homicide. If the victims wounds are not fatal, the crime
is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the
victims wounds. While Dr. Belleza testified that head injuries are always very serious,[12] he could not
categorically say that Rufinos wounds in this case were fatal. Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds actually are
not fatal on that very day?
A: I could not say, with the treatment we did, prevent from becoming fatal. But on
that case the patient preferred to go home at that time.
Q: The findings also indicated in the medical certificate only refers to the length
of the wound not the depth of the wound?
A: When you say lacerated wound, the entire length of the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is broken up the label
of the frontal lo[b]e, we always call it lacerated wound, but in that kind
of wound, we did not measure the depth.[13]
Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull
incurred fracture or that he bled internally as a result of the pounding of his head. The wounds were not so
deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza further
testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give antibiotics and
antit[e]tanus the problem the contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them would
rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.[14]
Taken in its entirety, there is a dearth of medical evidence on record to support the prosecutions
claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel liable only
for attempted homicide and entitled to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the
judgment of the RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the
maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor,
as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it
would be but fair to allow him the right to apply for probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere privilege granted by the state
only to qualified convicted offenders.Section 4 of the probation law (PD 968) provides: That no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of
conviction.[15] Since Arnel appealed his conviction for frustrated homicide, he should be deemed permanently
disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right
to such privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court
finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to apply for
probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him
the privilege of probation, taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals from the judgment of conviction is
disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction
have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set
aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it will apply the probation law
on Arnel based on the trial courts annulled judgment against him. He will not be entitled to probation because
of the severe penalty that such judgment imposed on him. More, the Supreme Courts judgment of conviction
for a lesser offense and a lighter penalty will also have to bend over to the trial courts judgmenteven if this has
been found in error. And, worse, Arnel will now also be made to pay for the trial courts erroneous judgment
with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa
kalabaw (the horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation
would dilute the ruling of this Court in Francisco v. Court of Appeals[16] that the probation law requires that an
accused must not have appealed his conviction before he can avail himself of probation. But there is a huge
difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral
defamation and sentenced him to a prison term of one year and one day to one year and eight months
of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he chose to appeal,
seeking an acquittal, hence clearly waiving his right to apply for probation. When the acquittal did not come, he
wanted probation. The Court would not of course let him. It served him right that he wanted to save his cake
and eat it too. He certainly could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused must not have appealed
his conviction before he can avail himself of probation. This requirement outlaws the element of speculation on
the part of the accusedto wager on the result of his appealthat when his conviction is finally affirmed on appeal,
the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation
as an escape hatch thus rendering nugatory the appellate courts affirmance of his conviction.[17]
Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. He was not in a position to say, By taking
this appeal, I choose not to apply for probation. The stiff penalty that the trial court imposed on him denied him
that choice. Thus, a ruling that would allow Arnel to now seek probation under this Courts greatly diminished
penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of
conviction, when they have the option to try for probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on
him. He claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide,
which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to bring
down the penalty to the level where the law would allow him to apply for probation.
 In a real sense, the Courts finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and
imposed on him the right penalty of two years and four months maximum. This would have afforded Arnel the
right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through no fault of his.
The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served
by a harsh and stringent interpretation of the statutory provisions.[18] As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused
only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to
achieve its beneficent purpose.[19]
One of those who dissent from this decision points out that allowing Arnel to apply for probation
after he appealed from the trial courts judgment of conviction would not be consistent with the provision of
Section 2 that the probation law should be interpreted to provide an opportunity for the reformation of a
penitent offender. An accused like Arnel who appeals from a judgment convicting him, it is claimed, shows no
penitence.
This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here,
however, it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6
years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it
would be sending him straight behind bars. It would be robbing him of the chance to instead undergo
reformation as a penitent offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the
correct penalty of two years and four months maximum, he would have had the right to apply for probation. No
one could say with certainty that he would have availed himself of the right had the RTC done right by
him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for
probation when the new penalty that the Court imposes on him is, unlike the one erroneously imposed by the
trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July
31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond
reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate penalty from four
months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, and
to pay Rufino P. Buena the amount of P20,000.00 as moral damages, without prejudice to petitioner applying
for probation within 15 days from notice that the record of the case has been remanded for execution to the
Regional Trial Court of San Jose, Camarines Sur, in Criminal Case T-2213.
SO ORDERED.
G.R. No. L-67301 January 29, 1990
MANUEL V. BALA, petitioner,
vs.
THE HON. JUDGE ANTONIO M. MARTINEZ, THE PEOPLE OF THE PHILIPPINES, and PAUL AYANG-
ANG Probation Officer, Manila Probation Office No. 4, respondents.
Coronet Law Office for petitioner.
SARMIENTO, J.:
The petitioner by this Petition for Certiorari and Prohibition with Preliminary Injunction and/or Temporary
Restraining Order seeks the reversal of the order dated April 2, 1984 of the then Court of First Instance (CFI),
now Regional Trial Court (RTC), of Manila, Branch XX. 1 The decretal portion of the assailed order reads:
WHEREFORE, for the reasons above-stated, the motion to dismiss and/or strike out motion to
revoke probation, filed by Manuel Bala, thru counsel, should be, as it is hereby DENIED, for lack of
merit.
Let the motion be set for continuation of hearing on April 25 & 27, at 8:30 o'clock in the morning.
SO ORDERED.
The petitioner had been indicted for removing and substituting the picture of Maria Eloisa Criss Diazen which
had been attached to her United States of America passport, with that of Florencia Notarte, in effect falsifying
a genuine public or official document. On January 3, 1978, the trial court adjudged petitioner Manuel Bala in
Criminal Case No. 24443, guilty of the crime of falsification of a public document. The dispositive portion of the
judgment states:
WHEREFORE, in view of the foregoing, the Court finds the accused Manuel Bala y Valdellon guilty
beyond reasonable doubt of the crime of falsification of a public or official document defined and
penalized under article 172 of the Revised Penal Code, without any mitigating or aggravating
circumstances. Applying the Indeterminate Sentence Law, he is hereby sentenced to an
indeterminate penalty of not less than ONE (1) YEAR AND ONE (1) DAY and not exceeding
THREE (3) YEARS, SIX (6) MONTHS & TWENTY-ONE (21) DAYS of prision correccional, to pay
a fine of Pl,800.00 with subsidiary imprisonment in case of insolvency at the rate of P8.00 for each
day, and to pay the cost. He shall be credited with the period of preventive imprisonment that he
may have undergone in accordance with law.
The petitioner seasonably appealed, but the Court of Appeals, on April 9, 1980, affirmed in toto the lower
court's decision.
After the case had been remanded to the court of origin for execution of judgment, 2 the petitioner applied for
and was granted probation by the respondent judge in his order dated August 11, 1982. The petitioner was
then placed under probation for a period of one (1) year, subject to the terms and conditions enumerated
therein.
On September 23, 1982, the probationer (petitioner) asked his supervising probation officer for permission to
transfer his residence from BF Homes to Phil-Am Life Subdivision in Las Piñas specifically 33 Jingco Street.
The probation officer verbally granted the probationer's request as he found nothing objectionable to it.
By the terms of the petitioner's probation, it should have expired on August 10, 1983, 3 one year after the order
granting the same was issued. But, the order of final discharge could not be issued because the respondent
probation officer had not yet submitted his final report on the conduct of his charge.
On December 8, 1983, the respondent People of the Philippines, through Assistant City Fiscal Jose D.
Cajucom of Manila, filed a motion to revoke the probation of the petitioner before Branch XX of the Regional
Trial Court (RTC) of Manila, presided over by the respondent judge. 4
The motion alleged that the petitioner had violated the terms and conditions of his probation.
On January 4, 1984, the petitioner filed his opposition to the motion on the ground that he was no longer under
probation, 5 his probation period having terminated on August 10, 1983, as previously adverted to. As such, no
valid reason existed to revoke the same, he contended.
As if to confirm the Manila Assistant City Fiscal's motion to revoke the petitioner's probation, the respondent
probation officer filed on January 6, 1984, a motion to terminate Manuel Bala's probation, at the same time
attaching his progress report on supervision dated January 5, 1984. 6 The same motion, however, became the
subject of a "Manifestation," dated January 10, 1984, which stated that the probation officer was not pursuing
the motion to terminate dated January 6, 1984; instead, he was submitting a supplemental report 7 which
recommended the revocation of probation "in the light of new facts, information, and evidences."
Thereafter, the petitioner filed a motion to dismiss and/or strike out the motion to revoke probation, questioning
the jurisdiction of the court over his case inasmuch as his probation period had already expired. Moreover, his
change of residence automatically transferred the venue of the case from the RTC of Manila to the Executive.
Judge, of the RTC of Makati which latter court include under its jurisdiction the Municipality of Las Piñas the
probationer's place of residence, invoking Section 13, P.D. No. 968, which provides
Sec. 13. Control and Supervision of Probationer. ...
Whenever a probationer is permitted to reside in a place under the jurisdiction of another court,
control over him shall be transferred to the Executive Judge of the, Court of First Instance of that
place, and in such a case a copy of the probation order the investigation report and other pertinent
records shall be furnished to said Executive Judge. Thereafter. the Executive Judge to whom
jurisdiction over the probationer is transferred shall have the power with respect to him that was
previously possessed by the court which granted the probation.
As stated at the outset, the respondent judge denied the motion to dismiss for lack of merit.
Hence, this petition.
The present law on probation, Presidential Decree (P.D.) 1990, which amends section 4 of P.D. 968, clearly
states that "no application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction."
However, in the case at bar, P.D. 1990 is inapplicable. P.D. 1990, which went in force on January 15, 1985
can not be given retroactive effect because it would be prejudicial to the accused.
It is worthy to note, that what was actually resolved and denied was the motion to dismiss and/or strike out the
motion to revoke probation which disposed of only the issue of the petitioner's transfer of residence. The
motion did not touch on the issue of the timeliness to revoke probation. The respondent judge has not yet
heard and received evidence, much less acted on the matter. Accordingly, the Solicitor General submits that
the present petition is premature.
The Court finds no merit in the petition. Probation is revocable before the final discharge of the probationer by
the court, contrary to the petitioner's submission.
Section 16 of PD 968 8 is clear on this score:
See. 16. Termination of Probation. — After the period of probation and upon consideration of the
report and recommendation of the probation officer, the court may order the final discharge of the
probationer upon finding that he has fulfilled the terms and conditions of his probation and
thereupon the case is deemed terminated.
Thus, the expiration of the probation period alone does not automatically terminate probation. Nowhere is
the ipso facto termination of probation found in the provisions of the probation law. Probation is not
coterminous with its period. There must first be issued by the court of an order of final discharge based on the
report and recommendation of the probation officer. Only from such issuance can the case of the probationer
be deemed terminated.
The period of probation may either be shortened or made longer, but not to exceed the period set in the law.
This is so because the period of probation, like the period of incarceration, is deemed the appropriate period
for the rehabilitation of the probationer. In the instant case, a review of the records compels a revocation of the
probation without the need of further proceedings in the trial court which, after all, would only be an exercise in
futility. If we render justice now, why should we allow the petitioner to further delay it. Probationer Manuel Bala
failed to reunite with responsible society. Precisely he was granted probation in order to give him a chance to
return to the main stream, to give him hope — hope for self-respect and a better life. Unfortunately, he has
continued to shun the straight and narrow path. He thus wrecked his chance. He has not reformed.
A major role is played by the probation officer in the release of the probationer because he (probation officer)
is in the best position to report all information relative to the conduct and mental and physical condition of the
probationer in his environment, and the existing institutional and community resources that he may avail
himself of when necessary. Indeed, it is the probation officer who primarily undertakes the supervision and
reform of the probationer through a personalized, individualized, and community-based rehabilitation program
for a specific period of time. On the basis of his final report, the court can determine whether or not the
probationer may be released from probation.
We find it reprehensible that the respondent probation officer had neglected to submit his report and
recommendation. For, as earlier discussed, without this report, the trial court could not issue the order of final
discharge of the probationer. And it is this order of final discharge which would restore the probationer's
suspended civil rights. In the absence of the order of final discharge, the probation would still subsist, unless
otherwise revoked for cause and that is precisely what we are going to do. We are revoking his probation for
cause.
The petitioner, by applying for probation and getting it, consented to be emancipated from the yoke if not
stigma of a prison sentence, pledging to faithfully comply with the conditions of his probation, among which are:
xxx
4. To be gainfully employed and be a productive member of society;
xxx
6. To cooperate fully with his program of supervision and rehabilitation that will be prescribed by
the Probation Officer. 9
These conditions, as the records show, were not complied with. This non-compliance has defeated the very
purposes of the probation law, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;
(b) provide an opportunity for the reformation of a penitent offender which might be less probable if
he were to serve a prison sentence; and
(c) prevent the commission of offenses. 10
By his actuations, probationer-petitioner Manuel V. Bala has ridiculed the probation program. Instead of
utilizing his temporary liberty to rehabilitate and reintegrate himself as a productive, law abiding, and socially
responsible member of society, he continued in his wayward ways — falsifying public or official documents.
Specifically, on April 30, 1984, the Regional Trial Court of Manila, National Capital Judicial Region, Branch
XXX, convicted the petitioner, along with two other persons, Lorenzo Rolo y Punzalan and Efren Faderanga y
Fesalbon, for falsification of public and/or official documents (U.S. Passports), under Article 172, in relation to
Article 171, of the Revised Penal Code, in five separate informations, in Criminal Cases Nos. 29100, 29101,
29102, 29103, and 29107. The trial court imposed upon each of them in all five (5) cases a prison term of "two
(2) years of prision correccional, as minimum, to four (4) years also of prison correccional, as maximum, to
pay a fine of P2,000, the accessory penalties thereof, and to pay the costs." On appeal, the Court of Appeals
affirmed the judgment of the RTC with modification by granting restitution of the amounts they collected from
the offended private parties. The judgment has since become final. As a matter of fact, for failure of the
petitioner to appear for execution of judgment despite notice, the trial court ordered the arrest of Manuel Bala
on July 10, 1989. A warrant of arrest against Bala was issued on July 12, 1989 and this warrant has not yet
been implemented because Bala absconded. These facts are evident and constitute violations of the xxx
conditions of his probation. Thus, the revocation of his probation is compelling.

(j) reside at premises approved by it (court) and not to change his residence without its
At any time during the probation, the court may issue a warrant for the arrest of a probationer for prior written approval;
violation of any of the conditions of probation. The probationer, once arrested and detained, shall
immediately be brought before the court for a hearing which may be informal and summary, of the
violation charged. ... If the violation is established, the court may revoke or continue his probation xxx
and modify the conditions thereof. If revoked, the court shall order the probationer to serve the
sentence originally imposed. An order revoking the grant of probation or modifying the terms and
Further, such written approval is required by the 21 probation order of August 11, 1982 as one of the conditions
conditions thereof shall not be appealable. 11
of probation, to wit:

(Emphasis supplied.)
(3) To reside in BF Homes, Las Piñas and not to change said address nor leave the territorial
jurisdiction of Metro Manila for more than twenty-four (24) hours without first securing prior
The probation having been revoked, it is imperative that the probationer be arrested so that he can serve the written approval of his Probation Officer.
sentence originally imposed. The expiration of the probation period of one year is of no moment, there being
no order of final discharge as yet, as we stressed earlier. Neither can there be a deduction of the one year
In the light of all the foregoing and in the interest of the expeditious administration of justice, we revoke the
probation period from the penalty of one year and one day to three years, six months, and twenty-one days of
probation of the petitioner for violations of the conditions of his probation, instead of remanding the case to the
imprisonment because an order placing the defendant on "probation" is not a "sentence," but is in effect
trial court and having the parties start all over again in needless protracted proceedings. 22
a suspension of the imposition of the sentence. 12 It is not a final judgment but an "interlocutory judgment" in
the nature of a conditional order placing the convicted defendant under the supervision of the court for his
reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied WHEREFORE, the Petition is DISMISSED and the probation of the petitioner is hereby REVOKED. Further,
with, or by a final judgment if the conditions are violated." 13 the trial court is ORDERED to issue a warrant for the arrest of the petitioner and for him to serve the sentence
originally imposed without any deduction. Costs against the petitioner.
Lastly, probation is a mere privilege. Privilege is a peculiar benefit or immunity conferred by law on a person or
group of persons, not enjoyed by others or by all; special enjoyment of a good or exemption from an evil; it is a SO ORDERED.
special prerogative granted by law to some persons. 14 Accordingly, the grant of probation rests solely upon
the discretion of the court. This discretion is to be exercised primarily for the benefit of organized society, and
only incidentally for the benefit of the accused. 15 If the probationer has proven to be unrepentant, as in the G.R. No. 169641 September 10, 2009
case of the petitioner, the State is not barred from revoking such a privilege. Otherwise, the seriousness of the
offense is lessened if probation is not revoked.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
On the second assigned error, the petitioner argues that his transfer of residence automatically transferred RICHARD O. SARCIA, Accused-Appellant.
jurisdiction over his probation from the Manila Regional Trial Court to the same court in his new address.
DECISION
We disagree.
LEONARDO-DE CASTRO, J.:
In criminal cases, venue is an element of jurisdiction. 16 Such being the case, the Manila RTC would not be
deprived of its ,jurisdiction over the probation case. To uphold the petitioner's contention would mean a
depreciation of the Manila court's power to grant probation in the first place. It is to be remembered that when On automatic review is the decision1 dated July 14, 2005 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
the petitioner-accused applied for probation in the then CFI of Manila, he was a resident of Las Piñas as he is 00717 which affirmed, with modifications, an earlier decision2 of the Regional Trial Court (RTC) of Ligao City,
up to now, although in a different subdivision. As pointed out earlier, he merely moved from BF Homes to Branch 13, in Criminal Case No. 4134, finding herein accused-appellant Richard O. Sarcia alias "Nogi" guilty
Philam Life Subdivision 33 Jingco Street, also in Las Piñas. 17 On the other hand, pursuing the petitioner's beyond reasonable doubt of the crime of rape3 committed against AAA,4 and sentenced him to suffer the
argument on this score to the limits of it logic would mean that his probation was null and void in the place, penalty of Reclusion Perpetua and to pay the amount of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
because then the Manila CFI was without jurisdiction to grant him probation as he was a resident of Las Piñas. damages, and the cost of the suit. However, the CA modified the penalties imposed by the RTC by imposing
the death penalty, increasing the award of civil indemnity to ₱75,000.00, and awarding ₱25,000.00 as
exemplary damages, aside from the ₱50,000.00 for moral damages.
It is therefore incorrect to assume that the petitioner's change of abode compels change of venue, and
necessarily, control over the petitioner, to the Executive Judge of the RTC of his new residence. Thus, in the
apportionment of the regional trial courts under Batas Pambansa Blg. 129, otherwise known as the Judiciary The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl. After almost
Reorganization Act of 1980, Las Piñas is one among the municipalities included in the National Capital four (4) years, AAA’s father filed a complaint5 for acts of lasciviousness against herein accused-appellant on
Judicial Region (Metro Manila) with a seat at Makati. 18 Needless to say, the Regional Trial Court in Makati, July 7, 2000. Upon review of the evidence, the Office of the Provincial Prosecutor at Ligao, Albay upgraded
like the Manila Regional Trial Court, forms part of the Regional Trial Court of the National Capital the charge to rape.6 The Information7 dated September 5, 2000 reads:
Region. 19 Accordingly, the various branches of the regional trial courts of Makati or Manila under the National
Capital Region, are coordinate and co-equal courts, the totality of which is only one Regional Trial Court. That sometime in 1996 at Barangay Doña Tomasa, Municipality of Guinobatan, Province of Albay, Philippines,
Jurisdiction is vested in the court, not in the judges. In other words, the case does not attach to the branch or
and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design,
judge. 20 Therefore, in this case, RTC Branch XX of Manila, which granted the probation, has not lost control
and by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have
and supervision over the probation of the petitioner.
sexual intercourse with [AAA], who was then 6 years of age, against her will and consent, to her damage and
prejudice.
The petitioner also claims that he had verbally obtained permission to transfer residence from his probation
officer.1âwphi1This would not suffice the law is very explicit in its requirement of a prior court approval in ACTS CONTRARY TO LAW.
writing. Section 10 of PD 968 categorically decrees that the probationer must
At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel, entered a plea
of not guilty.8 Thereafter, trial on the merits ensued.
The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and Dr. Joana
Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the accused-appellant
himself, who vehemently denied committing the crimes imputed to him and Manuel Casimiro, Clerk of Court II
of the Municipal Trial Court at Guinobatan, Albay.
On January 17, 2003, the trial court rendered its Decision9 finding the accused-appellant guilty of the crime of
rape and imposed the penalty mentioned above.
The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the accused-
appellant.10
Accused-appellant filed his Appellant’s Brief11 on July 15, 2004, while the People, through the Office of the
Solicitor General, filed its Appellee’s Brief12 on December 15, 2004.
Pursuant to our pronouncement in People v. Mateo,13 modifying the pertinent provisions of the Revised Rules
on Criminal Procedure insofar as they provide for direct appeals from the RTC to this Court in cases in which
the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, and the Resolution
dated September 19, 1995 in "Internal Rules of the Supreme Court," the case was transferred, for appropriate
action and disposition, to the CA where it was docketed as CA-G.R. CR-H.C. No. 00717.
As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No. 000717,
affirmed with modification the judgment of conviction pronounced by the trial court. We quote the fallo of the
CA decision:
WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is ordered to
suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) ₱75,000.00 as civil indemnity; (2)
₱50,000.00 as moral damages, and (3) ₱25,000.00 as exemplary damages.
Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No. 00-5-03-
SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases), which took
effect on October 15, 2004.
SO ORDERED.
On September 30, 2005, the case was elevated to this Court for further review. 14
In our Resolution15 of November 15, 2005, we required the parties to simultaneously submit their respective
supplemental briefs. Accused-appellant filed his Supplemental Brief16 on April 7, 2006. Having failed to submit
one, the Office of the Solicitor General (OSG) was deemed to have waived the filing of its supplemental brief.
In his Brief filed before the CA, accused-appellant raised the following assignment of errors:
I
THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA], [her
cousin] and [her father].
II
THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY
THE ACCUSED WHICH IS MORE CREDIBLE.
III
THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD SARCIA.
The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows:
On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was playing
in the yard of Saling Crisologo near a mango tree.
Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologo’s house.
She agreed. Unknown to appellant, [AAA’s cousin] followed them.
Upon reaching the place, appellant removed [AAA’s] shorts and underwear. He also removed his trousers and
brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her and inserted his penis
into [AAA’s] private organ. Appellant made an up-and-down movement ("Nagdapadapa tabi"). [AAA] felt
severe pain inside her private part and said "aray." She also felt an intense pain inside her stomach.
[AAA’s cousin], who positioned herself around five (5) meters away from them, witnessed appellant’s dastardly
act. Horrified, [AAA’s cousin] instinctively rushed to the house of [AAA’s] mother, her aunt Emily, and told the
latter what she had seen. [AAA’s] mother answered that they (referring to {AAA and her cousin} were still very
young to be talking about such matters.
Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes. Appellant then
left.
Perplexed, [AAA’s cousin] immediately returned to the backyard of Saling Crisologo where she found [AAA]
crying. Appellant, however, was gone. [AAA’s cousin] approached [AAA] and asked her what appellant had
done to her. When [AAA] did not answer, [her cousin] did not ask her any further question and just
accompanied her home.
At home, [AAA] did not tell her mother what appellant had done to her because she feared that her mother
might slap her. Later, when her mother washed her body, she felt a grating sensation in her private part.
Thereafter, [AAA] called for [her cousin]. [AAA’s cousin] came to their house and told [AAA’s] mother again
that appellant had earlier made an up-and-down movement on top of [AAA]. [AAA’s mother], however did not
say anything. At that time, [AAA’s] father was working in Manila.
Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was the rural
health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr. Reantaso prepared and
signed a medico-legal certificate containing the result of [AAA]’s examination; (3) Dr. Reantaso, however, had
already resigned as rural health officer of Guinobatan, Albay; (4) as a medical doctor, she can interpret, the
findings in said medico-legal certificate issued to [AAA]; (5) [AAA]’s medical findings are as follows: "negative
for introital vulvar laceration nor scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal admits
little finger with resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in layman’s
language, that there was no showing of any scar or wound, and (7) there is a complete perforation of the
hymen which means that it could have been subjected to a certain trauma or pressure such as strenuous
exercise or the entry of an object like a medical instrument or penis.17
On the other hand, the trial court summarized the version of the defense as follows:
Richard Sarcia, 24 years old, single, student and a resident of Doña Tomasa, Guinobatan, Albay denied he
raped [AAA]. While he knows [AAA’s] parents, because sometimes they go to their house looking for his father
to borrow money, he does not know [AAA] herself. His father retired as a fireman from Crispa in 1991 while his
mother worked as an agriculturist in the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of the
Department of Agriculture, his mother would bring seedlings and attend seminars in Batangas and Baguio.
They were residing in Cainta, Rizal when sometime in 1992 they transferred residence to Guinobatan, Albay.
His father is from barangay Masarawag while his mother is from barangay Doña Tomasa both of Guinobatan,
Albay. After their transfer in Guinobatan, his mother continued to be an agriculturist while his father tended to
his 1-hectare coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992
when they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to 1998 he
took his high school at Masarawag High School. His daily routine was at about 4:00 o’clock in the afternoon
after school before proceeding home he would usually play basketball at the basketball court near the church
in Doña Tomasa about 1 kilometer away from their house. When her mother suffered a stroke in 1999 he and
his father took turns taking care of his mother. Richard denied molesting other girls ... and was most surprised
when he was accused of raping [AAA]. He knows Saling Crisologo and the latter’s place which is more than
half kilometer to their house. Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose
death on May 7, 2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was
filed against him with the docile cooperation of [AAA’s] parents who are related to Salvacion, concocted and
instigated [AAA’s] rape charge against him to make the case for Murder against him stronger and life for him
miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2) months later while he
already in detention, the rape case supposedly committed in 1996 was filed against him in the Municipal Trial
Court (MTC) of Guinobatan, Albay. He was to learn about it from his sister, Marivic, on a Sunday afternoon
sometime on July 20, 2000 when his sister visited him in jail. He naturally got angry when he heard of this rape
charge because he did not do such thing and recalled telling his sister they can go to a doctor and have the
child examine to prove he did not rape her. Subsequently, from his sister again he was to learn that the rape
case was ordered dismissed.
On cross-examination, Richard admitted [AAA’s] mother, is also related to his father, [AAA mother’s] father,
being a second cousin of his father. Richard is convinced it is not the lending of money by his father to the
AAA’s family as the motive for the latter to file the rape case against him but the instigation of Salvacion Bobier.
Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified on the
records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for Rape in relation
to RA 7610 relative to the alleged withdrawal of said rape case but the accused through counsel failed to
formally offer the marked exhibits relative to said case.18
Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not able to prove
his guilt beyond reasonable doubt. He assailed the credibility of the prosecution witnesses, AAA, her cousin
and her father on the following grounds: (1) the testimonies of AAA and her cousin were inconsistent with each
other; (2) the victim was confused as to the date and time of the commission of the offense; (3) there was a
four-year delay in filing the criminal case, and the only reason why they filed the said case was "to help
Salvacion Bobier get a conviction of this same accused in a murder case filed by said Salvacion Bobier for the
death of her granddaughter Mae Christine Camu on May 7, 2000." Accused-appellant stressed that the same
Salvacion Bobier helped AAA’s father in filing the said case for rape. Accused-appellant also claimed that the
prosecution failed to prove that he employed force, threats or intimidation to achieve his end. Finally, accused-
appellant harped on the finding in the medical certificate issued by Dr. Reantaso and interpreted by Dr. Joana
Manatlao, stating "negative for introital bulvar laceration nor scar which means that there was no showing of
any scar or wound."
In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAA’s and her cousin’s
testimonies as follows: (1) the cousin testified that she played with AAA at the time of the incident, while AAA
testified that she was doing nothing before accused-appellant invited her to the back of the house of a certain
Saling; (2) the cousin testified that when she saw accused-appellant doing the push-and-pull motion while on
top of AAA, the latter shouted in a loud voice contrary to AAA’s testimony that when accused-appellant was
inside her and started the up-and-down motion, she said "aray"; (3) when the cousin returned to AAA after
telling the latter’s mother what accused-appellant had done to AAA, she found AAA crying. AAA however
testified that, after putting on her clothes, she invited the cousin to their house; and (4) the cousin testified that
other children were playing at the time of the incident, but AAA testified that there were only four of them who
were playing at that time.
As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details and
collateral matters, do not affect the veracity and weight of their testimonies where there is consistency in
relating the principal occurrence and the positive identification of the accused. Slight contradictions in fact
even serve to strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed.
Nor are such inconsistencies, and even improbabilities, unusual, for there is no person with perfect faculties or
senses.19 The alleged inconsistencies in this case are too inconsequential to overturn the findings of the court
a quo. It is important that the two prosecution witnesses were one in saying that it was accused-appellant who
sexually abused AAA. Their positive, candid and straightforward narrations of how AAA was sexually abused
by accused-appellant evidently deserve full faith and credence. When the rape incident happened, AAA was
only five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old,
respectively. This Court has had occasion to rule that the alleged inconsistencies in the testimonies of the
witnesses can be explained by their age and their inexperience with court proceedings, and that even the most
candid of witnesses commit mistakes and make confused and inconsistent statements. This is especially true
of young witnesses, who could be overwhelmed by the atmosphere of the courtroom. Hence, there is more
reason to accord them ample space for inaccuracy.20
Accused-appellant capitalizes on AAA’s inability to recall the exact date when the incident in 1996 was
committed. Failure to recall the exact date of the crime, however, is not an indication of false testimony, for
even discrepancies regarding exact dates of rapes are inconsequential and immaterial and cannot discredit
the credibility of the victim as a witness.21 In People v. Purazo,22 We ruled:
We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen
of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need
not be accurately stated. As early as 1908, we already held that where the time or place or any other fact
alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of
the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the
proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that
the specific crime charged was in fact committed prior to the date of the filing of the complaint or information
within the period of the statute of limitations and at a place within the jurisdiction of the court.
Also in People v. Salalima,23 the Court held:
Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information
defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an
element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the
offense was committed at any time as near to the actual date when the offense was committed an information
is sufficient. In previous cases, we ruled that allegations that rapes were committed "before and until October
15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in November 1995 and some
occasions prior and/or subsequent thereto" and "on or about and sometime in the year 1988" constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.
In this case, AAA’s declaration that the rape incident took place on December 15, 1996 was explained by the
trial court, and we quote:
The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned by [AAA]
may have been arbitrarily chosen by the latter due to the intense cross-examination she was subjected but the
Court believes it could have been in any month and date in the year 1996 as in fact neither the information nor
[AAA’s] sworn statement mention the month and date but only the year.24
Likewise, witnesses’ credibility is not affected by the delay in the filing of the case against accused-appellant.
Neither does the delay bolster accused-appellant’s claim that the only reason why this case was filed against
him was "to help Salvacion Bobier get a conviction of this same accused-appellant in the case of murder filed
by Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000."
The rape victim’s delay or hesitation in reporting the crime does not destroy the truth of the charge nor is it an
indication of deceit. It is common for a rape victim to prefer silence for fear of her aggressor and the lack of
courage to face the public stigma of having been sexually abused. In People v. Coloma25 we even considered
an 8-year delay in reporting the long history of rape by the victim’s father as understandable and not enough to
render incredible the complaint of a 13-year-old daughter. Thus, in the absence of other circumstances that
show that the charge was a mere concoction and impelled by some ill motive, delay in the filing of the
complainant is not sufficient to defeat the charge. Here, the failure of AAA’s parents to immediately file this
case was sufficiently justified by the complainant’s father in the latter’s testimony, thus:
Q But, did you not say, please correct me if I am wrong, you got angry when your wife told you that
something happened to Hazel way back in 1996?
A Yes, sir.
Q Yet, despite your anger you were telling us that you waited until June to file this case?
 A After I heard about the incident, I and my wife had a talk for which reason that during that time
we had no money yet to use in filing the case, so we waited. When we were able to save enough
amounts, we filed the case.26
Accused-appellant also contends that he could not be liable for rape because there is no proof that he
employed force, threats or intimidation in having carnal knowledge of AAA. Where the girl is below 12 years
old, as in this case, the only subject of inquiry is whether "carnal knowledge" took place. Proof of force,
intimidation or consent is unnecessary, since none of these is an element of statutory rape. There is a
conclusive presumption of absence of free consent when the rape victim is below the age of twelve.27
Accused-appellant harps on the medical report, particularly the conclusion quoted as follows: "negative for
introital bulvar laceration nor scars, which means, in layman language, that there was no showing of any scar
or wound." The Court has consistently ruled that the presence of lacerations in the victim’s sexual organ is not
necessary to prove the crime of rape and its absence does not negate the fact of rape. A medical report is not
indispensable in a prosecution for rape.28 What is important is that AAA’s testimony meets the test of credibility,
and that is sufficient to convict the accused.
Accused-appellant’s defense of denial was properly rejected. Time and time again, we have ruled that denial
like alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Furthermore, it
cannot prevail over the positive and unequivocal identification of appellant by the offended party and other
witnesses. Categorical and consistent positive identification, absent any showing of ill motive on the part of the
eyewitness testifying on the matter, prevails over the appellants’ defense of denial and alibi. 29 The shallow
hypothesis put forward by accused-appellant that he was accused of raping AAA due to the instigation of
Salvacion Bobier hardly convinces this Court. On this score, the trial court aptly reached the following
conclusion:
…True, Salvacion Bobier actively assisted AAA’s family file the instant case against the accused, but the
Court believes [AAA’s] parents finally decided to file the rape case because after they have come to realize
after what happened to Mae Christine Camu that what previously [AAA and her cousin] told her mother and
which the latter had continually ignored is after all true.
AAA was barely 9 years of age when she testified. It has been stressed often enough that the testimony of
rape victims who are young and immature deserve full credence. It is improbable for a girl of complainant’s
age to fabricate a charge so humiliating to herself and her family had she not been truly subjected to the
painful experience of sexual abuse. At any rate, a girl of tender years, innocent and guileless, cannot be
expected to brazenly impute a crime so serious as rape to any man if it were not true.30 Parents would not
sacrifice their own daughter, a child of tender years at that, and subject her to the rigors and humiliation of
public trial for rape, if they were not motivated by an honest desire to have their daughter’s transgressor
punished accordingly.31 Hence, the logical conclusion is that no such improper motive exists and that her
testimony is worthy of full faith and credence.
The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now the proper
penalty to be imposed on him.
Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, 32 was the governing law at the
time the accused-appellant committed the rape in question. Under the said law, the penalty of death shall be
imposed when the victim of rape is a child below seven years of age. In this case, as the age of AAA, who was
five (5) years old at the time the rape was committed, was alleged in the information and proven during trial by
the presentation of her birth certificate, which showed her date of birth as January 16, 1991, the death penalty
should be imposed.
However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree with the CA’s
conclusion that the accused-appellant cannot be deemed a minor at the time of the commission of the offense
to entitle him to the privileged mitigating circumstance of minority pursuant to Article 68(2)33 of the Revised
Penal Code. When accused appellant testified on March 14, 2002, he admitted that he was 24 years old,
which means that in 1996, he was 18 years of age. As found by the trial court, the rape incident could have
taken place "in any month and date in the year 1996." Since the prosecution was not able to prove the exact
date and time when the rape was committed, it is not certain that the crime of rape was committed on or after
he reached 18 years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all
doubts should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several
cases, this Court has appreciated this circumstance on the basis of a lone declaration of the accused
regarding his age.34
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next
lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of
determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of
death is still the penalty to be reckoned with.35 Thus, the proper imposable penalty for the accused-appellant is
reclusion perpetua.
It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in case a crime
is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the damages to be
adjudicated may be respectively increased or lessened according to the aggravating or mitigating
circumstances." The issue now is whether the award of damages should be reduced in view of the presence
here of the privileged mitigating circumstance of minority of the accused at the time of the commission of the
offense.
A review of the nature and purpose of the damages imposed on the convicted offender is in order. Article 107
of the Revised Penal Code defines the term "indemnification," which is included in the civil liability prescribed
by Article 104 of the same Code, as follows:
Art. 107. Indemnification-What is included. – Indemnification for consequential damages shall include not only
those caused the injured party, but also those suffered by his family or by a third person by reason of the
crime.
Relative to civil indemnity, People v. Victor36 ratiocinated as follows:
The lower court, however, erred in categorizing the award of ₱50,000.00 to the offended party as being in the
nature of moral damages. We have heretofore explained in People v. Gementiza that the indemnity authorized
by our criminal law as civil liability ex delicto for the offended party, in the amount authorized by the prevailing
judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory
damages in civil law. It is not to be considered as moral damages thereunder, the latter being based on
different jural foundations and assessed by the court in the exercise of sound discretion.
One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative
response has been in the form of higher penalties. The Court believes that, on like considerations, the
jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if
the crime of rape is committed or effectively qualified by any of the circumstances under which the death
penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased
amount of not less than ₱75,000.00. This is not only a reaction to the apathetic societal perception of the
penal law, and the financial fluctuations over time, but also an expression of the displeasure of the Court over
the incidence of heinous crimes against chastity. (Emphasis Supplied)
The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In San
Andres v. Court of Appeals,37 we held:
x x x Moral damages, though incapable of pecuniary estimation, are in the category of an award designed
to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer.
(Emphasis Supplied)
In another case, this Court also explained:
What we call moral damages are treated in American jurisprudence as compensatory damages awarded for
mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S. 815).38 (Emphasis Supplied)
Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory damages
for the injury caused to the offended party and that suffered by her family, and moral damages are likewise
compensatory in nature. The fact of minority of the offender at the time of the commission of the offense has
no bearing on the gravity and extent of injury caused to the victim and her family, particularly considering the
circumstances attending this case. Here, the accused-appelant could have been eighteen at the time of the
commission of the rape. He was accorded the benefit of the privileged mitigating circumstance of minority
because of a lack of proof regarding his actual age and the date of the rape rather than a moral or evidentiary
certainty of his minority.
In any event, notwithstanding the presence of the privileged mitigating circumstance of minority, which
warrants the lowering of the public penalty by one degree, there is no justifiable ground to depart from the
jurisprudential trend in the award of damages in the case of qualified rape, considering the compensatory
nature of the award of civil indemnity and moral damages. This was the same stance this Court took in People
v. Candelario,39 a case decided on July 28, 1999, which did not reduce the award of damages. At that time,
the damages amounted to ₱75,000.00 for civil indemnity and ₱50,000.00 for moral damages, even if the
public penalty imposed on the accused was lowered by one degree, because of the presence of the privileged
mitigating circumstance of minority.
The principal consideration for the award of damages, under the ruling in People v. Salome40 and People v.
Quiachon41 is the penalty provided by law or imposable for the offense because of its heinousness, not the
public penalty actually imposed on the offender.
Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the
amount of said civil damages as follows:
The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with the
ruling in People v. Sambrano which states:
"As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances
that require the imposition of the death penalty, the civil indemnity for the victim shall ₱75,000.00 … Also, in
rape cases, moral damages are awarded without the need proof other than the fact of rape because it is
assumed that the victim has suffered moral injuries entitling her to such an award. However, the trial court’s
award of ₱50,000.00 as moral damages should also be increased to ₱75,000 pursuant to current
jurisprudence on qualified rape."
It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for
by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for
the victim is still ₱75,000.00.
People v. Quiachon also ratiocinates as follows:
With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly
awarded the following amounts; ₱75,000.00 as civil indemnity which is awarded if the crime is qualified by
circumstances warranting the imposition of the death penalty; ₱75,000.00.00 as moral damages because the
victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even
without proof thereof, x x x
Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346,
the civil indemnity of ₱75,000.00 is still proper because, following the ratiocination in People v. Victor, the said
award is not dependent on the actual imposition of the death penalty but on the fact that qualifying
circumstances warranting the imposition of the death penalty attended the commission of the offense. The
Court declared that the award of ₱75,000.00 shows "not only a reaction to the apathetic societal perception of
the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of
the incidence of heinous crimes against chastity."
The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty
actually imposed is reduced to reclusion perpetua.
As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or corrective
damages are imposed in addition to the moral, temperate, liquidated or compensatory damages. Exemplary
damages are not recoverable as a matter of right. The requirements of an award of exemplary damagees are:
(1) they may be imposed by way of example in addition to compensatory damages, and only after the
claimant’s right to them has been established; (2) they cannot be recovered as a matter of right, their
determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3)
the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent
manner.42 Since the compensatory damages, such as the civil indemnity and moral damages, are increased
when qualified rape is committed, the exemplary damages should likewise be increased in accordance with
prevailing jurisprudence.43
In sum, the increased amount of ₱75,000.00 each as civil indemnity and moral damages should be maintained.
It is also proper and appropriate that the award of exemplary damages be likewise increased to the amount of
₱30,000.00 based on the latest jurisprudence on the award of damages on qualified rape. Thus, the CA
correctly awarded ₱75,000.00 as civil indemnity. However the award of ₱50,000.00 as moral damages is
increased to ₱75,000.0044 and that of ₱25,000.00 as exemplary damages is likewise increased to
₱30,000.00.45
Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of his
appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of 2006 took
effect on May 20, 2006. The RTC decision and CA decision were promulgated on January 17, 2003 and July
14, 2005, respectively. The promulgation of the sentence of conviction of accused-appellant handed down by
the RTC was not suspended as he was about 25 years of age at that time, in accordance with Article 192 of
Presidential Decree (P.D.) No. 603, The Child and Youth Welfare Code46 and Section 32 of A.M. No. 02-1-18-
SC, the Rule on Juveniles in Conflict with the Law.47 Accused-appellant is now approximately 31 years of age.
He was previously detained at the Albay Provincial Jail at Legaspi City and transferred to the New Bilibid
Prison, Muntinlupa City on October 13, 2003.
R.A. No. 9344 provides for its retroactive application as follows:
Sec. 68. Children Who Have Been Convicted and are Serving Sentence. – Persons who have been convicted
and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18)
years at the time of the commission of the offense for which they were convicted and are serving sentence,
shall likewise benefit from the retroactive application of this Act. x x x
The aforequoted provision allows the retroactive application of the Act to those who have been convicted and
are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at
the time of the commission of the offense. With more reason, the Act should apply to this case wherein the
conviction by the lower court is still under review. Hence, it is necessary to examine which provisions of R.A.
No. 9344 shall apply to accused-appellant, who was below 18 years old at the time of the commission of the
offense.
Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with the law,
even if he/she is already 18 years of age or more at the time he/she is found guilty of the offense charged. It
reads:
Sec. 38. Automatic Suspension of Sentence. – Once the child who is under eighteen (18) years of age at the
time of the commission of the offense is found guilty of the offense charged, the court shall determine and
ascertain any civil liability which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) of age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various circumstances of the child, the court shall
impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in Conflict with the
Law.
The above-quoted provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.48 The said P.D. and Supreme Court (SC)
Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if,
among others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life
imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory
construction that when the law does not distinguish, we should not distinguish. 49 Since R.A. No. 9344 does not
distinguish between a minor who has been convicted of a capital offense and another who has been convicted
of a lesser offense, the Court should also not distinguish and should apply the automatic suspension of
sentence to a child in conflict with the law who has been found guilty of a heinous crime.
Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of a child in
conflict with the law can be gleaned from the Senate deliberations50 on Senate Bill No. 1402 (Juvenile Justice
and Delinquency Prevention Act of 2005), the pertinent portion of which is quoted below:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed
a serious offense, and may have acted with discernment, then the child could be recommended by the
Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children
(LCPC), or by my proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but
the welfare, best interests, and restoration of the child should still be a primordial or primary consideration.
Even in heinous crimes, the intention should still be the child’s restoration, rehabilitation and reintegration. xxx
(Italics supplied)1avvphi1
Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if
the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement
of his/her guilt, Sec. 40 of the same law limits the said suspension of sentence until the said child reaches the
maximum age of 21, thus:
Sec. 40. Return of the Child in Conflict with the Law to Court. – If the court finds that the objective of the
disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in
conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence,
the court shall determine whether to discharge the child in accordance with this Act, to order execution of
sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the
maximum age of twenty-one (21) years. (emphasis ours)
To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been promulgated,
even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40 to the suspension of
sentence is now moot and academic.51 However, accused-appellant shall be entitled to appropriate disposition
under Sec. 51 of R.A. No. 9344, which provides for the confinement of convicted children as follows:
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A child in
conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in
lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may
be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.
The civil liability resulting from the commission of the offense is not affected by the appropriate disposition
measures and shall be enforced in accordance with law.52
WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is hereby
AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accused-appellant is
reduced to reclusion perpetua;53 and (2) accused-appellant is ordered to pay the victim the amount of
₱75,000.00 and ₱30,000.00 as moral damages and exemplary damages, respectively. The award of civil
indemnity in the amount of ₱75,000.00 is maintained. However, the case shall be REMANDED to the court a
quo for appropriate disposition in accordance with Sec. 51 of R.A. 9344.
SO ORDERED.
G.R. No. 182239 March 16, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the victim’s
positive identification of the accused as the perpetrator of the crime.1 For it to prosper, the court must be
convinced that there was physical impossibility on the part of the accused to have been at the locus criminis at
the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and executory
only after his disqualification from availing of the benefits of suspended sentence on the ground that he/she
has exceeded the age limit of twenty-one (21) years, shall still be entitled to the right to restoration,
rehabilitation, and reintegration in accordance with Republic Act No. 9344, otherwise known as "An Act
Establishing a Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and
Welfare Council under the Department of Justice, Appropriating Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the reversal
of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal Case No.
1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less, at barangay
xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto],
with lewd design did then and there willfully, unlawfully and feloniously had carnal knowledge with one AAA, a
five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only five
years old.7
On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the defense admitted the existence
of the following documents: (1) birth certificate of AAA, showing that she was born on 3 December 1997; (2)
police blotter entry on the rape incident; and (3) medical certificate, upon presentation of the original or upon
identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective versions of
the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be summarized in
the following manner:
FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That of
appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to pass by
FFF’s house, the frequency of which the latter describes to be "every minute [and] every hour." Also, appellant
often visits FFF because they were close friends. He bore no grudge against appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time – playing at the
basketball court near her house, fetching water, and passing by her house on his way to the road. She and
appellant used to be friends until the incident.14
At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter CCC to the
store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned without AAA, FFF was not
alarmed. He thought she was watching television at the house of her aunt Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum.16 At the store, he
saw appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of short pants.18 All of them
left the store at the same time.19 Julito proceeded to the house of Rita to watch television, while appellant, who
held the hand of AAA, went towards the direction of the "lower area or place." 20
21
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants when he held her hand
while on the road near the store.22 They walked towards the rice field near the house of spouses Alejandro
and Gloria Perocho [the Perochos].23 There he made her lie down on harrowed ground, removed her panty
and boxed her on the chest.24 Already half-naked from waist down,25 he mounted her, and, while her legs were
pushed apart, pushed his penis into her vagina and made a push and pull movement.26 She felt pain and
cried.27 Afterwards, appellant left and proceeded to the Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He found her face
greasy.32 There was mud on her head and blood was oozing from the back of her head.33 He checked for any
injury and found on her neck a contusion that was already turning black.34 She had no underwear on and he
saw white substance and mud on her vagina.35 AAA told him that appellant brought her from the store36 to the
grassy area at the back of the house of the Perochos;37 that he threw away her pair of slippers, removed her
panty, choked her and boxed her breast;38 and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he did to
AAA.41Appellant replied that he was asked to buy rum at the store and that AAA followed him.42 FFF went
home to check on his daughter,43 afterwhich, he went back to appellant, asked again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the house of
Rita.46AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked what
happened to her, to which she replied that appellant raped her.49 Julito left and found appellant at the
Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the daughter of [MMM]?" but the latter
ignored his question.51Appellant’s aunt, Gloria, told appellant that the policemen were coming to which the
appellant responded, "Wait a minute because I will wash the dirt of my elbow (sic) and my knees." 52 Julito did
found the elbows and knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to have the incident blottered.54 FFF also
had AAA undergo a physical check up at the municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural
Health Physician, issued a medical certificate56 dated 29 January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the provincial
hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated 29 January 2003,58 the pertinent portion of which
reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no bleeding in
this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his testimony,
Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was at the Perochos at
the time of the commission of the crime.60 Luzvilla even went further to state that she actually saw Julito, not
appellant, pick up AAA on the road.61 In addition, Antonia Perocho [Antonia], sister-in-law of appellant’s aunt,
Gloria,62 testified on the behavior of Julito after the rape incident was revealed. 63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of FFF’s
house.64He denied that there was a need to pass by the house of FFF in order to access the road or to fetch
water.65 He, however, admitted that he occasionally worked for FFF,66 and whenever he was asked to buy
something from the store, AAA always approached him.67
At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a birthday
party. At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro Perocho
[Alejandro], were gathered together in a drinking session, appellant’s uncle sent him to the store to buy
Tanduay Rum. Since the store is only about 20 meters from the house, he was able to return after three (3)
minutes. He was certain of the time because he had a watch .68
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the birthday party;
and that appellant went out between 6 and 7 in the evening to buy a bottle of Tanduay from the store. She
recalled that appellant was back around five (5) minutes later. She also observed that appellant’s white shorts
and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a drink with
his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side of the tree beside
the road next to the house of the Perochos.72 From where she was, she saw Julito, who was wearing black
short pants and black T-shirt, carry AAA.73 AAA’s face was covered and she was wiggling.74 This did not alarm
her because she thought it was just a game.75 Meanwhile, appellant was still in the kitchen when she
returned.76 Around three (3) minutes later, Luzvilla saw Julito, now in a white T-shirt,77 running towards the
house of Rita.78 AAA was slowly following behind.79 Luzvilla followed them.80 Just outside the house, Julito
embraced AAA and asked what the appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that appellant
was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant, boxed him, and left.
FFF came in the second time and again boxed appellant. This time, he had a bolo pointed at appellant.
Appellant’s uncle Alejandro, a barangay councilor, and another Civilian Voluntary Organization (CVO) member
admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television along with
other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of black short pants
without a shirt on, entered the house drunk. He paced back and forth. After 10 minutes, AAA came in crying.
Julito tightly embraced AAA and asked her what happened. AAA did not answer. Upon Antonia’s advice, Julito
released her and went out of the house.84
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused,
though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which only two persons
are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the
evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from
the weakness of the evidence for the defense.97

Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him, brandished Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict the
a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in the evening. This time, accused.98More so, when the testimony is supported by the medico-legal findings of the examining
he boxed appellant and asked again why he molested his daughter.85 physician.99

On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape committed upon a
5-year old girl, the court sentences him to death and orders him to pay [AAA] P75,000.000 as rape indemnity
and P50,000.00 as moral damages. With costs87
Further, the defense of alibi cannot prevail over the victim’s positive identification of the perpetrator of the
crime,100except when it is established that it was physically impossible for the accused to have been at
the locus criminis at the time of the commission of the crime.101
I

The defense moved to reopen trial for reception of newly discovered evidence stating that appellant was A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in the
apparently born on 1 March 1985 and that he was only seventeen (17) years old when the crime was absence of any of the following circumstances: (a) through force, threat or intimidation; (b) when the offended
committed on 28 January 2003.88 The trial court appreciated the evidence and reduced the penalty from death party is deprived of reason or otherwise unconscious; or (c) by means of fraudulent machination or grave
to reclusion perpetua.89 Thus: abuse of authority.102

WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended in order to That the crime of rape has been committed is certain. The vivid narration of the acts culminating in the
consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon the accused, insertion of appellant’s organ into the vagina of five-year-old AAA and the medical findings of the physicians
therefore[,] is reduced to reclusion perpetua. xxx sufficiently proved such fact.

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of the ruling AAA testified:
in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate review by the Court
of Appeals of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.90
PROS. OMANDAM:

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS: xxxx

xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1) day to Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he
twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months of reclusion temporal, do to you?
as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in the sum of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages and to pay the costs.91
A He mounted me.

On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of Appeal.92 This Court
Q When Hermie mounted you, was he facing you?
required the parties to simultaneously file their respective supplemental briefs.93 Both parties manifested that
they have exhaustively discussed their positions in their respective briefs and would no longer file any
supplement.94 A Yes.

Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN CONVICTING Q When he mounted you what did he do, did he move?
HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF RAPE" 95 by invoking the
principle that "if the inculpatory facts and circumstances are capable of two or more reasonable explanations,
one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence A He moved his ass, he made a push and pull movement.
does not pass the test of moral certainty and will not suffice to support a conviction." 96
Q When he made a push and pull movement, how were your legs positioned?
Our Ruling
A They were apart.
We sustain the judgment of conviction.
Q Who pushed them apart?
In the determination of the innocence or guilt of a person accused of rape, we consider the three well-
entrenched principles:
A Hermie.

Q Did Hermie push anything at you?

 A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased and re-phrased in order to
test that AAA well understood the information elicited from her, said it all – she had been raped. When a
woman, more so a minor, says so, she says in effect all that is essential to show that rape was
committed.104 Significantly, youth and immaturity are normally badges of truth and honesty.105
Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the hymenal lacerations at 5
o’clock and 9 o’clock positions could have been caused by the penetration of an object; that the redness of the
introitus could have been "the result of the repeated battering of the object;" and that such object could have
been an erect male organ.107
The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively established
the essential requisite of carnal knowledge.108
II
The real identity of the assailant and the whereabouts of the appellant at the time of the commission of the
crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that appellant was elsewhere
when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily identify her assailant, especially
when he is not a stranger to her, considering that she could have a good look at him during the commission of
the crime.110 AAA had known appellant all her life. Moreover, appellant and AAA even walked together from
the road near the store to the situs criminus111 that it would be impossible for the child not to recognize the
man who held her hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused, whom she called "kuya"
and who used to play basketball and fetch water near their house, and who was wearing a sleeveless shirt
and shorts at the time he raped her, was convincing and persuasive. The defense attempted to impute the
crime to someone else – one Julito Apiki, but the child, on rebuttal, was steadfast and did not equivocate,
asserting that it was accused who is younger, and not Julito, who is older, who molested her.112
In a long line of cases, this Court has consistently ruled that the determination by the trial court of the
credibility of the witnesses deserves full weight and respect considering that it has "the opportunity to observe
the witnesses’ manner of testifying, their furtive glances, calmness, sighs and the scant or full realization of
their oath,"113 unless it is shown that material facts and circumstances have been "ignored, overlooked,
misconstrued, or misinterpreted."114
Further, as correctly observed by the trial court:
xxx His and his witness’ attempt to throw the court off the track by imputing the crime to someone else is xxx a
vain exercise in view of the private complainant’s positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito Apiki, the supposed real culprit, asked
him "What is this incident, Pare?", thus corroborating the latter’s testimony that he confronted accused after
hearing of the incident from the child."115
On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial and alibi
weak despite the presentation of witnesses to corroborate his testimony. Glaring inconsistencies were all over
their respective testimonies that even destroyed the credibility of the appellant’s very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay; that he gave
the bottle to his uncle; and that they had already been drinking long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-examination,
she revealed that her husband was not around before, during, and after the rape incident because he was
then at work.116 He arrived from work only after FFF came to their house for the second time and boxed
appellant.117 It was actually the fish vendor, not her husband, who asked appellant to buy Tanduay. 118 Further,
the drinking session started only after the appellant’s errand to the store.119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to Gloria’s
statement that her husband was at work.
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho. Antonia recalled
that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore a white shirt on his way to the
house of Rita. In addition, while both the prosecution, as testified to by AAA and Julito, and the defense, as
testified to by Gloria, were consistent in saying that appellant wore a sleeveless shirt, Luzvilla’s recollection
differ in that Julito wore a T-shirt (colored black and later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes after she
returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the house of Rita at 7:30.
In this respect, we find the trial court’s appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell her father that Hermie
had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers who were watching
TV, as Luzvilla Balucan would have the court believe. When the child was seen at the house of Lita Lingkay by
Julito Apiki and Luzvilla Balucan, it was only later, after she had been brought there by her mother Brenda so
that Lita Lingkay could take a look at her ˗ just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been offered
preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot qualify as such, "they
being related or were one way or another linked to each other."121
Even assuming for the sake of argument that we consider the corroborations on his whereabouts, still, the
defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically impossible for the
accused to have been at the locus criminis at the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between the situs criminis and the location of
the accused when the crime was committed. He must demonstrate that he was so far away and could not
have been physically present at the scene of the crime and its immediate vicinity when the crime was
committed.123
124
In People v. Paraiso, the distance of two thousand meters from the place of the commission of the crime
was considered not physically impossible to reach in less than an hour even by foot.125 Inasmuch as it would
take the accused not more than five minutes to rape the victim, this Court disregarded the testimony of the
defense witness attesting that the accused was fast asleep when she left to gather bamboo trees and returned
several hours after. She could have merely presumed that the accused slept all throughout.126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant that he was
in their company at the time of the commission of the crime were likewise disregarded by this Court in the
following manner:
Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-law and co-
worker, in unison, vouched for the appellant’s physical presence in the fishpond at the time Rachel was raped.
It is, however, an established fact that the appellant’s house where the rape occurred, was a stone’s
throw away from the fishpond. Their claim that the appellant never left their sight the entire
afternoon of December 4, 1997 is unacceptable. It was impossible for Marites to have kept an eye on the
appellant for almost four hours, since she testified that she, too, was very much occupied with her task of
counting and recording the fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters
away from the fishpond, could not have focused his entire attention solely on the appellant. It is, therefore,
not farfetched that the appellant easily sneaked out unnoticed, and along the way inveigled the victim,
brought her inside his house and ravished her, then returned to the fishpond as if he never
left.128 (Emphasis supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that appellant never left their sight, save from
the 5-minute errand to the store, is contrary to ordinary human experience. Moreover, considering that the
farmland where the crime was committed is just behind the house of the Perochos, it would take appellant only
a few minutes to bring AAA from the road near the store next to the Perochos down the farmland and
consummate the crime. As correctly pointed out by the Court of Appeals, appellant could have committed the
rape after buying the bottle of Tanduay and immediately returned to his uncle’s house.129 Unfortunately, the
testimonies of his corroborating witnesses even bolstered the fact that he was within the immediate vicinity of
the scene of the crime.130
Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the time and
place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the appellant beyond
reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered Republic Act No.
9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3) years before it
was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131
[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who have been
convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age
of 18 years at the time of the commission of the offense. With more reason, the Act should apply to this
case wherein the conviction by the lower court is still under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age
from criminal liability, unless the child is found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful
act.135 Such capacity may be known and should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case.136
xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was
wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s cunning and
shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark place to
perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her defense" are
indicative of then seventeen (17) year-old appellant’s mental capacity to fully understand the consequences of
his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she was only
five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the death penalty when
rape is committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the imposition of the
penalty of death in accordance with Republic Act No. 9346;142 and (2) the privileged mitigating circumstance of
minority of the appellant, which has the effect of reducing the penalty one degree lower than that prescribed by
law, pursuant to Article 68 of the Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties provided in
Article 71 of the Revised Penal Code.145 Consequently, in its appreciation of the privileged mitigating
circumstance of minority of appellant, it lowered the penalty one degree from reclusion perpetua and
sentenced appellant to suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, in its
medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de Castro,
clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next
lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes
of determining the proper penalty because of the privileged mitigating circumstance of minority, the
penalty of death is still the penalty to be reckoned with. Thus, the proper imposable penalty for the
accused-appellant is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime committed,
which would have warranted the imposition of the death penalty, regardless of whether the penalty actually
imposed is reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he committed the crime has no bearing on the
gravity and extent of injury suffered by the victim and her family.150 The respective awards of civil indemnity
and moral damages in the amount of ₱75,000.00 each are, therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority which effectively
lowered the penalty by one degree, we affirm the damages awarded by the Court of Appeals in the amount of
₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And, consistent with prevailing
jurisprudence,152 the amount of exemplary damages should be increased from ₱25,000.00 to ₱30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period of
Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding
that he/she has reached the age of majority at the time the judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the
time of the commission of the offense is found guilty of the offense charged, the court shall determine and
ascertain any civil liability which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however, That suspension of sentence shall still be
applied even if the juvenile is already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt. (Emphasis supplied.)
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed
a serious offense, and may have acted with discernment, then the child could be recommended by the
Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children
(LCPC), or by [Senator Miriam Defensor-Santiago’s] proposed Office of Juvenile Welfare and Restoration to
go through a judicial proceeding; but the welfare, best interests, and restoration of the child should still be a
primordial or primary consideration. Even in heinous crimes, the intention should still be the child’s restoration,
rehabilitation and reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict with the
Law,which reflected the same position.160
These developments notwithstanding, we find that the benefits of a suspended sentence can no longer apply
to appellant. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum
age of twenty-one (21) years.161 Section 40162 of the law and Section 48163 of the Rule are clear on the matter.
Unfortunately, appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of a child in
conflict with the law should extend even to one who has exceeded the age limit of twenty-one (21) years, so
long as he/she committed the crime when he/she was still a child. The offender shall be entitled to the right to
restoration, rehabilitation and reintegration in accordance with the Act in order that he/she is given the chance
to live a normal life and become a productive member of the community. The age of the child in conflict with
the law at the time of the promulgation of the judgment of conviction is not material. What matters is that the
offender committed the offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility in accordance with Sec.
51 of Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A child in
conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in
lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may
be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.

Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to effect
xxxx
appellant’s confinement in an agricultrual camp or other training facility.

Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of Appeals held that,
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No. 00213
consistent with Article 192 of Presidential Decree No. 603, as amended,154 the aforestated provision does not
finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape is AFFIRMED with the
apply to one who has been convicted of an offense punishable by death, reclusion perpetua or life
following MODIFICATIONS: (1) the death penalty imposed on the appellant is reduced to reclusion perpetua;
imprisonment.155
and (2) appellant is ordered to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P30,000.00 as exemplary damages. The case is hereby REMANDED to the court of origin for its
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the ruling appropriate action in accordance with Section 51 of Republic Act No. 9344.
in Gubaton. Thus:
SO ORDERED.
The xxx provision makes no distinction as to the nature of the offense committed by the child in conflict with
the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide
that the benefit of suspended sentence would not apply to a child in conflict with the law if, among others,
he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In
construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that
when the law does not distinguish, we should not distinguish. Since R.A. No. 9344 does not distinguish
between a minor who has been convicted of a capital offense and another who has been convicted of a lesser
offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a
child in conflict with the law who has been found guilty of a heinous crime.157

The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile Justice and
Delinquency Prevention Act of 2005) further strengthened the new position of this Court to cover heinous
crimes in the application of the provision on the automatic suspension of sentence of a child in conflict with the
law. The pertinent portion of the deliberation reads: