Philippine Penal Code: Penalties, Accessory Penalties, and Graduation of Penalties, Study notes of Law

Download Philippine Penal Code: Penalties, Accessory Penalties, and Graduation of Penalties and more Study notes Law in PDF only on Docsity! a. Conspiracy and proposal i. Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. (Art. 8, RPC) 1. It states “felony.” a. Hence, this applies only to crimes punishable under RPC. In order for these principles to apply to special penal laws, these laws must explicitly state that conspiracy and proposal are punishable. An example is conspiracy to commit terrorism under the Human Security Act. 2. “Only in cases in which the law specially provides a penalty therefor.” a. The law means RPC. This provision is highly relevant to: 1) conspiracy and proposal to commit treason; 2) conspiracy and proposal to commit coup d’etat, rebellion, or insurrection; and 3) conspiracy (only) to commit sedition. 3. Conspiracy a. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. i. Two or more persons come to an agreement - There must be meeting of the minds. The prosecution must show that the accused agreed to the commission of a felony. Otherwise, the accused will be acquitted. ii. Concerning the commission of a felony - The agreement must refer to committing a crime. If they merely agreed upon that the Government is inept and corrupt, then there is no conspiracy. There is no “felony” in what they agreed upon. iii. Decide to commit it - The conspirators must make up their minds to commit the crime. There must be a determination to commit the crime, such as treason, rebellion, and sedition. 1. DIRECT evidence is not essential to establish conspiracy. 2. CIRCUMSTANTIAL evidence is also allowed to prove conspiracy. The fact of conspiracy can be INFERRED from the collective acts of the accused before, during, and after the commission of the crime. 3. However, similar to the elements of the crime, the conspiracy must be proven beyond reasonable doubt. 4. NOTE: The elements of the crime/fact of conspiracy can be proven by circumstantial evidence. a. Direct evidence proves a challenged fact without drawing any inference. b. Circumstantial evidence "indirectly proves a fact in issue, such that the fact-finder must draw an inference or reason from other evidence." i. EX: A and B conspired to kill C. They were able to kill him inside a room. D saw A and B killing C inside the room. Later, D testified in court to prove the fact of conspiracy between A and B. What kind of evidence is D’s testimony? Circumstantial evidence. We still need to INFER from the collective acts of A and B, during the time of killing, that they teamed up/conspired/connived to kill C. ii. EX: A and B conspired to kill C. They were able to kill him inside a room. D saw A and B running away at the same time from the said room. D then checked what happened in the room and he saw C’s lifeless body lying on the floor. Later, D testified in court to prove the fact of conspiracy between A and B. What kind of evidence is a. Thus, if on the same date, the accused was adjudged as guilty for both crimes, there is no recidivism. Why? Because there is no previous conviction. 3. “Embraced in the same title of this Code” means paragraph 9 will NOT apply if the two (2) crimes are rape and seduction; rape and acts of lasciviousness; or rape and abduction. However, it will apply if the two (2) crimes are rape and homicide; rape and physical injuries; homicide and physical injuries; homicide and abortion; and homicide and parricide. 4. Since the paragraph does not distinguish, there is still recidivism even if the lapse of time between the two (2) felonies is more than ten (10) years. 5. Pardon and amnesty, in relation to recidivism a. As a rule, pardon does not obliterate the fact that the accused was a recidivist. It looks forward, and not backward. b. For amnesty, it obliterates the fact that the accused was a recidivist. In the eyes of the law, the person amnestied was never a criminal. b. Habituality/Reiteration i. The offender had been previously punished for: 1. an offense to which the law attaches an equal or greater penalty or 2. two or more crimes to which it attaches a lighter penalty. (Art. 14) ii. “Previously punished” means he previously served sentence for another offense. iii. “To which the law attaches” means the penalty prescribed for the offense, not the penalty actually imposed. iv. “An equal or greater penalty; lighter penalty” is self-explanatory. c. Recidivism and habituality, distinguished Recidivism Habituality Previous service of sentence is not necessary, because it only requires that he was previously convicted by final judgment for the first offense. It is necessary that the offender shall have served out his sentence for the first felony or for the first and second felonies. Penalty is immaterial The law must attach an equal or greater penalty for the first felony, or the law must attach a lighter penalty for the first and second felonies. However, the felonies must be embraced in the same title of the RPC. There is no need for the felonies to be embraced in the same title of the RPC d. Quasi-recidivism i. Any person who shall commit a felony ii. After having been convicted by final judgment, iii. Before beginning to serve such sentence, or while serving the same, iv. Shall be punished by the maximum period of the penalty prescribed by law for the new felony. (Art. 160) 1. This is a special aggravating circumstance. Hence, it cannot be offset by ordinary mitigating circumstance. 2. Is the convict a quasi-recidivist if he commits another crime after escaping from prison? No, because when he committed the crime, he was not serving his sentence. e. Habitual delinquency i. There is habitual delinquency when a person, within 10 years from the date of his last release or last conviction ii. of the crimes of (SIX) serious physical injuries, less serious physical injuries, robbery, theft, estafa, or falsification, iii. is found guilty for any of the said offenses for a third time or oftener. (Art. 62) 1. Theft includes attempted theft; Robbery includes attempted robbery or frustrated robbery; and so on. (People v Abuyen) 2. Habitual delinquencies applies to accomplices and accessories. 3. The date of commission is immaterial. In habitual delinquency, we only consider date of last release or last conviction. 4. Crimes COMMITTED on the same date, although conviction on different dates (July and September 1937) are considered as only one. (People v Albuquerque) 5. CONVICTIONS on the same day or about the same time are considered as one only. a. Convictions on March 3 and March 5, 1934 were considered as one only. (People v Lopido) 6. The imposition of additional penalty is mandatory. (Art. 62) It is NOT discretionary, like imposition of fine. 7. Further, it must be factored in for Article 70 - Successive service of sentence. a. It cannot exceed the three-fold length of the most severe of penalties, b. Nor can the maximum prison sentence exceed 40 years. i. Why? Because the penalty imposed for the new crime and the penalty imposed for the habitual delinquency must be ADDED. 8. Penalty for habitual delinquency must be considered to determine jurisdiction of the court, i.e., whether the prescribed penalty would exceed 6 years of imprisonment. 9. A habitual delinquent may or may not be a recidivist. Why? Because serious and less serious physical injuries (crimes against persons are embraced in the same title of this Code. The same is true for robbery, estafa, and theft (crimes against property). a. A habitual delinquent can never be covered by paragraph 10 - habituality. It is only paragraph 9 - recidivism. 10. Modifying circumstances must be considered and applicable to the additional penalty in habitual delinquency, i.e., mitigating circumstances. a. However, recidivism shall only be considered as aggravating circumstance to the principal penalty. It cannot be considered as aggravating to the additional penalty of habitual delinquency, because it is deemed inherent. 3. Penalties a. Imposable penalties i. Principal - Those expressly imposed by the court in the judgment of conviction ii. Accessory - Those that are deemed included in the imposition of principal penalties iii. Subsidiary - Those imposed in lieu of the principal penalty, i.e., imprisonment in case of inability to pay the fine. 1. NOTE: Not inability to pay the civil liability arising from delict, i.e., actual damages, moral damages, and so on. b. Classification i. Principal 1. Afflictive a. Reclusion perpetua b. Reclusion temporal c. Perpetual or temporary absolute disqualification d. Perpetual or temporary special disqualification e. Prision mayor 2. Correctional a. Prision correccional b. Arresto mayor c. Suspension d. Destierro 3. Light a. Arresto menor b. Public censure c. Penalties common to the three preceding classes 4. Fine (How can fine be afflictive, correctional, or light?) a. A fine, whether imposed as a single of as an alternative penalty, shall be considered: i. An afflictive penalty, if it exceeds 1.2M pesos; ii. A correctional penalty, if it does not exceed 1.2M pesos but is not less than 40,000 pesos; and iii. A light penalty if less than 40,000 pesos. (Art. 26) 5. Bond to keep the peace ii. Accessory 1. Perpetual or temporary absolute disqualification 2. Perpetual or temporary special disqualification 3. Suspension (from public office, right to vote and be voted for, profession or calling) 4. Civil interdiction 5. Indemnification 6. Forfeiture or confiscation of instruments and proceeds of the offense 7. Payment of costs c. Grave, less grave, and light felonies i. Grave felonies - are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25 of this Code. ii. Less grave felonies - are those which the law punishes with penalties which in their maximum period are correctional iii. Light felonies - are those infractions of law for the commission of which a penalty of arrest menor or a fine not exceeding P40,000 or both. (Art. 9) 1. NOTE: In Art. 26, the exact amount of P40k is a correctional penalty. The text of Art. 26 states “correctional… is not less than P40,000.” In Art. 9, the exact amount of P40k is a light penalty. The text of Art. 9 states “light… not exceeding P40,000 or both.” 2. Example of Light Felonies (MATTHS): a. Malicious mischief when the value of the damage does not exceed P40,000 or cannot be estimated b. Alteration of boundary marks c. Theft when the value of the thing stolen does not exceed P500 and theft is committed under the circumstances enumerated under Art. 308 (3) d. Theft when the value of the thing stolen is not over Five hundred pesos (P500), and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family e. Intriguing against Honor f. Slight physical injuries iv. How do we interpret Art. 9 and Art. 26 if the fine is exactly P40k? 1. There is a conflict. 2. For prescription of crimes - Art. 9, so it is light 3. For prescription of penalties - Art. 26, so it is correctional d. Duration and effects i. Principal penalties (IMPRISONMENT) 1. RP – 20 years and 1 day to 40 years 2. RT – 12 years and 1 day to 20 years 3. PM – 6 years and 1 day to 12 years 4. PC – 6 months and 1 day to 6 years 5. AMa – 1 month and 1 day to 6 months 6. AMe – 1 day to 30 days a. NOTE: These penalties do NOT mention fines. RP, RT, PM… only cover length of imprisonment. ii. Accessory penalties of principal penalties 1. Reclusion perpetua and reclusion temporal a. Civil interdiction b. Perpetual absolute disqualification, which the offender shall suffer even though pardoned, unless the same is expressly remitted in the pardon. 2. Prision mayor a. Temporary absolute disqualification, during the term of sentence b. Perpetual special disqualification of the right of suffrage, unless the same shall have been expressly remitted in the pardon. 3. Prision correccional a. Perpetual special disqualification of the right of suffrage, if the period of imprisonment exceeds 18 months, unless the same shall have been expressly remitted in the pardon. b. Suspension from public office, profession, or calling, if the period of imprisonment does not exceed 18 months. 4. Arresto mayor and arresto menor a. Suspension of the right to hold office and the right to suffrage during the term of sentence iii. Accessory penalties – what are their durations/effects? Civil interdiction (RP, RT) Perpetual or temporary absolute disqualification (RP, RT, PM) (4) Perpetual or temporary special disqualification of the right of suffrage (PM, PC exceed 18) (2) Suspension from public office, profession, calling, or right of suffrage (PC not exceed 18, AM, AM) (1) Perpetual or temporary special disqualification for public office, profession, or calling (inapplicable) Deprivation of the right of parental authority, or guardianship, or marital authority, during the term of sentence Deprivation of public office, which the offender held Deprivation of the office, profession, or calling affected because it is deemed imposed with the principal penalty. iii. No subsidiary penalty for nonpayment of other pecuniary liabilities 1. As Article 39 is worded, there is no subsidiary penalty for nonpayment of 1) reparation of the damage caused; 2) the indemnification of consequential damages; and 3) the costs of the proceedings. (Ramos v Gonong, 1961) 2. It is only applicable for fines. iv. If the fine is less than P537 (highest minimum wage rate in the Philippines), there is no subsidiary penalty. 1. Why? Because there can only be 1 day of subsidiary imprisonment if the fine is equivalent to the highest minimum wage rate in the Philippines at the time of the promulgation of judgment. v. Subsidiary imprisonment is not imprisonment for debt. 1. The laws which prohibit imprisonment for debt relate to the imprisonment of debtors for liability incurred in the fulfillment of contracts, but not to the cases seeking enforcement of penal statues that provide for the payment of money as a penalty for the commission of the crime. (US v Cara) vi. Subsidiary imprisonment, like accessory penalties and fines, is not essential in determining jurisdiction. 1. For jurisdiction (CRIMPRO), we determine the jurisdiction by analyzing the prescribed penalty of imprisonment. vii. The additional penalty for habitual delinquency should be included in determining whether or not subsidiary penalty should be imposed. 1. Even if the penalty imposed for the crime committed is not higher than prision correccional, if the accused is a habitual delinquent who deserves an additional penalty of 12 years and 1 day of reclusion temporal, there is no subsidiary imprisonment. (People v Concepcion) a. An example of this crime is less serious physical injuries, since its prescribed penalty is only arresto mayor. 4. Graduation of penalties a. Rules for graduation of penalties (degrees) i. Single and indivisible penalty 1. The penalty next lower in degree shall be that immediately following the indivisible penalty, as provided by Art. 71 ii. Two indivisible penalties, or one or more divisible penalties to be imposed in their full extent 1. The penalty next lower in degree shall be that immediately following the lesser of the penalties iii. One or two indivisible penalties and the maximum period of another divisible penalty 1. The penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum period of that immediately following iv. Several periods, corresponding to different divisible penalties 1. The penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale v. By analogy 1. The penalty next lower in degree shall be that period immediately following the given penalty. (Art. 61) b. Rules for application of indivisible penalties with respect to mitigating and aggravating circumstances i. Single indivisible penalty 1. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts, REGARDLESS of any mitigating or aggravating circumstance that attended the commission of the crime. (Art. 63) c. Rules for application of mitigating and aggravating circumstances, in general i. Neither aggravating nor mitigating 1. Impose the penalty prescribed by law in its medium period ii. Only a mitigating circumstance 1. Minimum period iii. Only an aggravating circumstance 1. Maximum period iv. Both mitigating and aggravating circumstances 1. Offset v. Two or more mitigating AND no aggravating 1. Penalty next lower in degree than that prescribed by law vi. Whatever may be the number of the aggravating circumstances, the court shall not impose a greater penalty than that prescribed by law for the crime, in its maximum period. vii. Within the limits of each period, the courts shall determine the extent of the penalty. (Art. 64) 1. EX: Prision mayor in its maximum period is 10 years and 1 day to 12 years. The court has discretion to impose a penalty of 10 years and 6 months, 11 years, 11 years and 3 months and so on. d. Indeterminate Sentence Law (Act 4103) i. RPC 1. Courts shall sentence the accused to an indeterminate sentence: a. The maximum term of which, in view of the attending circumstances, could be properly imposed under the RPC; and b. The minimum term which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. 2. NOTES FOR ISLAW v. RPC a. “In view of the attending circumstances" i. If there is privileged mitigating circumstance, the starting point for determining the minimum term is the penalty next lower from that prescribed by the RPC. ii. If there is ordinary modifying circumstances, they shall NOT be considered for the minimum term. (People v Gonzales) iii. However, for determining the maximum term, the ordinary modifying circumstances shall be considered. (People v De Joya) iv. In determining the exact period of the maximum and minimum term, it is left entirely within the discretion of the court to fix it anywhere within its range. (People v Ducosin) 1. EX: The maximum term is prision mayor in its medium period (8 years and 1 day to 10 years). The court has discretion to b. Accused, a 17-year old boy who acted with discernment, pleaded and voluntarily surrendered to the crime of direct assault with homicide. i. The accused shall suffer an indeterminate sentence, the maximum term of which shall be prision correccional in its maximum period, and the minimum term of which shall be anywhere within the range of arresto mayor. Why? 1. For the maximum term, Art. 48 provides that in complex crimes, the most severe penalty shall be imposed in its maximum period. Case law dictates that privileged mitigating circumstances shall be considered. Since minority and the presence of two mitigating circumstances and no aggravating circumstance are present, the maximum penalty shall be prision correccional in its maximum period. 2. For the minimum penalty, ISLAW provides that the minimum term shall be within the range of the penalty next lower to that prescribed by the RPC for the offense. Case law dictates that privileged mitigating circumstances shall be considered. Hence, the minimum penalty is arresto mayor, because it is the penalty next lower in degree. c. NOTE: In your answer, you do not have to state the number of years of imprisonment. You just have to state the penalty prescribed by law, i.e., reclusion temporal, prision mayor, and so on. d. Special law - A is convicted of illegal possession of firearm punishable by imprisonment from one year and one day to five years. i. The court can impose an indeterminate sentence, the maximum term of which shall be 4 years, and the minimum term of which is 2 years and 1 day; or maximum term of 5 years and minimum term of 3 years; or maximum term of 3 years and minimum term of 6 months; and so on. e. NOTE: For special laws, you have to state the prescribed period of imprisonment. However, if the special law adopts the nomenclature of the RPC, then you have to follow the illustrations for RPC. f. NOTE: Don’t worry. You don’t have to memorize the prescribed penalty of each crime. The question itself would state the prescribed penalty. It’ll be easier. 5. Execution and service a. Three-fold rule (Art. 70) i. General Rule: 1. When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. ii. Exception: 1. If it’s impossible to serve them simultaneously, the following rules shall be observed: a. In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. b. Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. c. Such maximum period shall in no case exceed forty years. iii. Notes for successive service of sentence/three-fold rule/40-year rule 1. Does Art. 70 apply to special penal laws? No, because special penal laws are not subject to the provisions of the Code. (Art. 10) 2. Perpetual penalties, i.e., reclusion perpetua, are considered under the three-fold rule. Reclusion perpetua has an equivalent duration of 30 years under the three-fold rule. 3. Do not MIX Art. 70 and ISLAW. If the three-fold rule is the question, the analytical process should be limited to the provisions of the RPC. 4. Three-fold rule a. The length of the sentence of the offender shall not EXCEED three-fold the length of time corresponding to the most severe penalty imposed. (Art. 70) i. In short, the sentence shall not be more than the most severe penalty imposed times three (3). b. “Most severe of the penalties imposed” i. This includes equal penalties. They are equally “severe.” ii. The provision states “penalties imposed.” Thus, the question would provide the EXACT PERIODS OF PENALTIES IMPOSED. It will not be limited to “penalties prescribed,” such as reclusion perpetua, reclusion temporal, and so on. Since it is “imposed,” the mitigating and aggravating circumstances would be considered by the court. iii. The three-fold rule applies only when the convict has to serve at least four (4) sentences. 1. The reason is if there are only three (3) sentences, the total of the 3 sentences will always be equal to or less than the three- fold rule. Hence, the three-fold shall not apply. a. EX: Equal sentences – total of 3 counts of murder (30 years) vs. 1 count of murder (30 years) times 3 = In both cases, the total is 90 years. Thus, the three-fold rule does not apply. b. EX: Less than – 1 count of murder (30 years) and 2 counts of homicide (15 years each) vs. 1 count of murder (RP) times 3 = The total for the first one is 60 years. The total for the second one is 90 years. Thus, the three-fold rule does not apply. iv. Even if there are 4 sentences imposed, the three- fold rule may still not apply, if the total of the penalties imposed is LESS than the most severe penalty times 3. 1. EX: 1 count of murder (30 years) and 3 counts of slight physical injuries (10 days each) v. 1 count of murder (30 years) 2. Lastly, compare three numbers: (a) the total of the sentences, and (b) the most severe sentence times 3, and (c) 40 years. The answer is the LOWEST NUMBER. b. LET’S APPLY! i. EX: A is convicted of 3 counts of rape (30 years each). What’s the maximum duration of sentence? 1. There are 3 sentences – first factor done 2. Total the 3 sentences – 90 years. 3. Compare the total of the 3 sentences and the 40-year rule – 40 is the lower number, so the maximum duration of sentence is 40 years! (THE SECOND NUMBER WINS) ii. EX: A is convicted of 1 count of homicide (15 years) and 2 counts of acts of lasciviousness (3 years each). What’s the maximum duration of sentence? 1. There are 3 sentences – first factor done 2. Total the 3 sentences – 21 years 3. Compare the total of the 3 sentences and the 40-year rule – 21 years is the lower number, so the maximum duration is 21 years! (THE FIRST NUMBER WINS) iii. EX: A is convicted of 4 counts of rape (30 years each). What’s the maximum duration of sentence? 1. There are 4 sentences – first factor done 2. Total the 4 sentences – 120 years. 3. 30 years times 3 – 90 years 4. Compare the total of the 4 sentences, 30 years times 3, and the 40-year rule – 40 is the lowest number, so the maximum duration of sentence is 40 years! (THE THIRD NUMBER WINS) iv. EX: A is convicted of 10 counts of less serious physical injuries (4 months each). What’s the maximum duration of sentence? 1. There are 10 sentences – first factor done 2. Total the 10 sentences – 40 months 3. 4 months times 3 – 12 months 4. Compare the total of the 10 sentences, 4 months times 3, and the 40-year rule – 12 months is the lowest number, so the maximum duration of sentence is 12 months! (THE SECOND NUMBER WINS) v. EX: A is convicted of 1 count of homicide (15 years) and 5 counts of slight physical injuries (10 days each). What’s the maximum duration of sentence? 1. There are 6 sentences – first factor done 2. Total the 6 sentences – 15 years and 50 days 3. 15 years times 3 – 45 years 4. Compare the total of the 6 sentences, 15 years times 3, and the 40-year rule – 15 years and 50 days is the lowest number, so the maximum duration of sentence is 15 years and 50 days! (THE FIRST NUMBER WINS) 9. NOTE: Remember not to overanalyze! Repeat this topic again and again until it becomes NATURAL and BASIC to you! b. Probation Law (PD 968, as amended) i. What is material is the PENALTY IMPOSED by the court, not the penalty prescribed by the law for the crime. 1. It is clear from both Section 24, Article II of RA 9165 and the provisions of the Probation Law that in applying for probation, what is essential is not the offense charged but the offense to which the accused is ultimately found guilty of. 2. Thus, upon the acceptance of the plea bargaining, regardless of what the original charge was in the Information, the judgment would be for the lesser offense to which the accused pled guilty. 3. If the [penalty imposed] is probationable, then the person guilty of the offense can apply for probation. (Pascua v People, 2020) ii. The Probation Law applies to crimes under the RPC and to crimes under special penal laws iii. Grant of Probation (Sec. 4, PD 968, as amended) 1. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant for a probationable penalty 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. 2. No application for probation shall be entertained if the defendant has perfected the appeal from the judgment of conviction: a. Provided, That when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final. i. The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where such case has since been re- raffled. 3. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction. 4. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. 5. The filing of the application for probation shall be deemed a waiver of the right to appeal. 6. An order granting or denying probation shall not be appealable. iv. Disqualified Offenders (Sec. 9, PD 968, as amended) 1. The benefits of this Decree shall not be extended to those: (S- 66-OA) a. Convicted of any crime against the Security of the State; b. Sentenced to serve a maximum term of imprisonment of more than six (6) years; c. Who have previously been convicted by final judgment of an offense punished by imprisonment of more than six (6) months and one day and/or a fine of not less than P1,000; 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. v. Period of Probation (Sec. 14, PD 968, as amended) 1. The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two COMMENT: The court must AUTOMATICALLY place the child under suspended sentence, even if he is already 18 at the time of judgment. However, the suspension shall only extend until he is 21 years of age. Probation Law (5) ISLAW (11) GCTA (4) Grounds (national security; penalty; once probation) Grounds (national security; evasion; penalty; Habitual Delinquent) Grounds (heinous; escapee; penalty) Crimes against national security Treason, conspiracy and proposal to commit treason, misprision of treason, espionage Heinous crimes Piracy Rebellion or sedition Conditional pardon but violated the terms Evaded sentence or escaped from confinement Escapee Reclusion perpetua or life imprisonment Penalty is NOT a prison sentence, such as destierro (People v Perla) Maximum term of imprisonment exceeds 6 years Maximum term of imprisonment does not exceed 1 year Previously convicted by final judgment of an offense punished by imprisonment of more than 6 months and 1 day and/or a fine of more than P1000. Straight penalty, i.e., prescribed penalty is 10 years. Recidivist Once on probation under this Decree Habitual delinquent Habitual delinquent Already serving sentence at the time of the approval of this Decree Already sentenced by final judgment at the time of approval of this Act. Further notes Further notes Further notes GR: Appeal and probation are mutually exclusive remedies, so once the accused appeals, he cannot apply for probation. EXC: if appellate court modifies a non- For maximum term does not exceed 1 year, the issue is prision correccional in its minimum period (6 months and 1 day to 2 years and 4 months). Hence, the court has discretion whether to apply ISLAW or not. If the What are heinous crimes? (RA 7659) 1. Treason 2. Piracy/mutiny high seas 3. Qualified bribery probationable penalty to probationable. Judgment imposing non- probationable + appealed + modified to probationable + offender allowed to apply probation based on the modified decision NOTE: For first time minor drug offenders, the court may place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation. (Sec. 70, RA 9165 - CDDA) sentence is prision correccional in its medium period, the court shall apply ISLAW. Further, if ISLAW does not apply, a STRAIGHT PENALTY can be imposed by the Court, i.e,. Straight penalty of 4 months of arresto mayor (People v Lumauig, 2014) 4. Plunder 5. Parricide 6. Murder 7. Infanticide 8. Rape 9. Kidnapping 10. Robbery with V/I 11. Carnapping 12. Destructive arson 13. Importation, distribution, manufacturing, sale of illegal drugs 14. Possession of illegal drugs d. An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based, and the Fines Imposed under The Revised Penal Code (RA 10951) i. ART. 9. Grave felonies, less grave felonies and light felonies.- Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Article 25 of this Code. Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the abovementioned article. Light felonies are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding Forty thousand pesos (P40,000) or both is provided." ii. ART. 26. Fine.- When afflictive, correctional, or light penalty.- A fine, whether imposed as a single or as an alternative penalty, shall be considered an afflictive penalty, if it exceeds One million two hundred thousand pesos (P1, 200, 000); a correctional penalty, if it does not exceed One million two hundred thousand pesos (P1, 200, 000) but is not less than Forty thousand pesos (P40, 000); and a light penalty, if be less than Forty thousand pesos (P40, 000). 1. Art. 9 – 40,000 pesos – light felony 2. Art. 26 – 40,000 pesos – corrrectional penalty 6. Extinction of criminal liability a. Modes of TOTALLY extinguishing criminal liability i. Death of convict, as to personal penalties; as to pecuniary penalties, it is extinguished only when the death happened before final judgment ii. Service of sentence iii. Amnesty iv. Absolute pardon v. Prescription of crime vi. Prescription of penalty vii. Marriage of offended woman, for rape, acts of lasciviousness, seduction, and abduction b. Death i. Death extinguishes criminal liability before or after the judgment attains finality. ii. However, civil liability ex delicto is ONLY extinguished if death occurs before judgment attains finality, i.e., the case was on appeal. (Hernandez v People, Leonen) iii. Other sources of obligation are not extinguished, whether before or after final judgment. 1. The Court ruled that, the immutability of final judgments is not a hard and fast rule as the Court has the power and prerogative to relax the same in order to serve the demands of substantial justice. If the death of the accused happened prior to the finality of the judgement convicting him of rape and acts of lasciviousness, but the Court was belatedly informed of such death only after the finality of such judgment, the case will be re-opened for purposes of dismissing the case. (People v Layag, 2016) iv. Death of the co-conspirator does not extinguish criminal liability, because (1) that is not provided under Art. 89, and (2) conspiracy can still be proven despite the death of the co-conspirator. c. Service of sentence i. Service of sentence does not extinguish civil liability, as provided under Article 113. d. Amnesty e. Pardon i. A pardon shall NOT work the restoration of the right to hold public office, or the right of suffrage, UNLESS such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Art. 36) 1. In Risos-Vidal v Lim, the absolute pardon stated that “He is hereby restored to his civil and political rights.” Hence, the Court ruled that Estrada was expressly restored of his right to hold public office or right of suffrage. j. South Korea k. Switzerland l. United Kingdom m. United States of America 3. If the offender goes to a country with extradition treaty with the Philippines, the running of the period of prescription of penalty shall not be interrupted. It will continue to run. 4. If he goes to a country without such extradition treaty, it will be interrupted. a. Why? The reason why penalty prescribes is while out of prison, the offender’s liberty is restrained, because he has to hide from the authoritiyes. b. If there’s no extradition treaty, he will not be extradited to the Philippines. Thus, in that country, it’s as if he was never convicted of any crime. He is a free man. 5. NOTE: The facts will mention whether the Philippines has extradition treaty with the country where the fugitive is currently sojourning. iv. “Should commit another crime before the expiration of the period of prescription” 1. Thus, there will be three (3) crimes: (1) the original crime that he was imprisoned for, since it will never prescribe after it was interrupted (2) evasion of service of sentence under Art. 157, RPC, and (3) the other crime that he committed before the expiration of the period of prescription. a. He must first be convicted by final judgment for the third crime, to safeguard his right to be presumed innocent. i. If he will be acquitted, then (1) the original crime that he was imprisoned for can prescribe, and (2) there’s no third crime committed. 1. Thus, at most, he will only be convicted for evasion of service of sentence. v. Let’s compare prescription of crimes and prescription of penalties later. h. Marriage of the offended woman i. Rape - marriage extinguishes the criminal liability of the husband ONLY. (Art. 266-C) ii. Acts of lasciviousness/seduction/abduction - marriage extinguishes the criminal liability of the husband, along with his co-principals, accomplices, and accessories. (Art. 344) i. Re-election is not a mode of extinguishing criminal liability (Morales v. CA and Binay) Pardon Amnesty As to who grants An act of grace by the Chief Executive alone (Tiu v Dizon) Chief Executive with the concurrence of Congress Nature of Act Private Public As to when After conviction Before or after institution of criminal action or after conviction As to which crimes Generally all Political offenses Effect Looks forward Looks Backward Abolishes the punishment and does NOT work the restoration of the rights to hold public office, or right of suffrage, UNLESS such rights be expressly restored by the terms of the pardon. (Risos-Vidal v Lim) Abolishes the crime and puts into oblivion the offense and the accused stands as though he did not commit the offense. Judicial Notice The courts do not take judicial notice because it is a private act. Hence, it must be proved before the courts. The courts take judicial notice because it is a public act. Hence, there is no need to prove before the courts. Prescription of crime Prescription of penalty Commence Discovery of the commission of the crime (Blameless Ignorance Doctrine) Evaded service of sentence Interrupt 1) Filing of complaint or information 2) Absent from the Philippines 1) Give himself up 2) Captured 3) Go to foreign country with no extradition treaty 4) Commit another crime before expiration of period Run again 1) Proceedings terminate without the accused being convicted or acquitted, i.e., information is quashed 2) Proceedings were unjustifiably stopped for any reason not imputable to him Prescribed/Actually imposed The penalty prescribed by law will be considered. The penalty actually imposed will be considered. Hence, modifying circumstances shall be taken into account. Libel/oral defamation/slander by deed For libel - 1 year; For oral defamation/slander by deed - 6 months For libel, oral defamation, or slander by deed, the prescription of penalties is either 10 years or 5 years, depending on the final sentence. Period of prescription Prescription of crime Prescription of penalty 20 years - RP/RT 20 years - RP 15 years - PM 15 years - RT/PM 10 years - PC 10 years - PC 5 years - A. Mayor 5 years - A. Mayor 2 months - A. Menor 1 year - A. Menor 1 year - libel 6 months - slander by deed/ oral defemation j. Modes of PARTIALLY extinguishing criminal liability i. Conditional pardon ii. Commutation of sentence iii. Good conduct allowances, which the culprit earned while undergoing preventive imprisonment or while serving sentence. 1. GCTA Law (RA 10592) a. Preventive imprisonment deducted from term of imprisonment i. Accused agrees in writing to abide by the same disciplinary rules imposed upon convicted persons, after being informed of the effects, and with assistance of counsel 1. They shall be credited in the service of sentence, with the FULL TIME during which they were under preventive imprisonment, except: a. Recidivists/Those who have been convicted previously twice or more times of any crime; and b. When upon being summoned for the execution of their sentence 4. Upon receipt of the application for community service, the comi shall immediately notify the following officers: (a) the barangay chairperson or his/her authorized representative of the barangay where the crime was committed; (b) a representative from the provincial or city's Probation Office; and, (c) the local government unit's Social Welfare Development Officer (SWDO). The court may resort to electronic service of the notices to the above officers. 5. The notice shall direct the barangay chairperson or his/her authorized representative to submit a proposed community service program for accused on or before the scheduled hearing on the application. The SWDO shall also be directed to recommend a rehabilitative counseling program and schedule for the accused that shall be incorporated in the barangay's proposal. The following programs of the Parole and Probation Office in relation to community service may also be considered: a. Mentoring and Intergenerational Service; b. Economic Development; c. Citizenship and Civic participation-experiential activities which involve solving community problems; and d. Involvement in Crime Prevention projects. 6. In assessing the recommendations of the barangay chairperson or his/her authorized representative and SWDO, the court shall take into account that the type of program for community service shall (i) consist of actual physical activity which inculcates civic consciousness; (ii) intended towards the improvement of a public work; or, (iii) promotion of public service. 7. In exercising the discretion to allow service of penalty through community service, the following factors may be taken into consideration by the court: a. The gravity of the offense; b. The circumstances of the case; c. The welfare of the society; and d. The reasonable probability that the accused shall not violate the law while rendering the service. In no case shall the benefit of the Community Service Law be given to the accused more than once. Also, the period for the community service to be rendered should not be more than the maximum sentence imposed by· law, but not less than one-third (1/3) thereof. If the accused has undergone preventive imprisonment, the period shall be deducted from the term of community service. 8. The court shall resolve the application for community service immediately after the hearing thereon. An order granting or denying the application shall not be appealable. Failure of the accused to appear at the said hearing, except for justified reasons, shall be a ground to deny the application and a warrant of arrest shall be issued against the accused. 9. In the event the court needs time to resolve the application, the court shall set the order for promulgation within twenty four (24) hours from the hearing thereof and require the presence of accused and his/her counsel, including the representatives from the concerned barangay, city or municipal Probation Office and SWDO. 10. The community service order shall provide for the following: 1. The details ofthe community service program; 2. The specific number of hours to be accomplished and period within which to complete the service; 3. The referral of accused to the probation office having jurisdiction over the place where the crime was committed for supervision; 4. A statement requiring the concerned probation officer to provide a final report on the accused's compliance with the program within five (5) calendar days from expiration of the period and recommendation for discharge if applicable; 5. A statement requiring the SWDO to submit a report within five (5) calendar days after completion ofrehabilitative counseling; and 6. The imposition of additional conditions as may be warranted by the circumstances ofthe case. The community service order shall take effect upon its issuance in open court, at which time, the court shall inform the accused of the consequences thereof and explain that failure to comply with the terms or commission of another offense, he/she shall be re-arrested to serve the full term of the penalty. 11. After the period of community service and upon consideration of the report and recommendation of the probation officer and SWDO, the court may order the final discharge of accused upon finding that he/she has fulfilled the terms and conditions of his community service and thereupon, the case is deemed terminated. The accused, probation officer and SWDO shall each be furnished with a copy of such order. 12. If the accused is sentenced with a penalty higher than arresto menor or arresto mayor, and on appeal the penalty was lowered to arresto menor or arresto mayor, which became final and executory, the accused may, upon written application with the court of origin, seek community service in lieu of imprisonment, which may be acted upon subject to the provisions ofthese guidelines. With respect hereto, in no case shall community service be allowed if the defendant is a habitual delinquent. 13. In the event the court denies the application for community service, and the period to appeal has not yet lapsed, the accused may still choose to appeal the said judgment or apply for probation. 14. An accused who has applied and was granted probation in a previous case is not disqualified to apply for community service in a subsequent case. 15. These guidelines shall take effect on November 2, 2020, after publication in two (2) newspapers of general circulation.