Representaciones gráficas

186. Section 9 paragraph (c) is in clear and plain language, to the effect that a person who was previously convicted by final judgment of an offense punishable by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos, is disqualified from applying for probation. This provision of law is definitive and unqualified. There is nothing in Section 9, paragraph (c) which qualifies "previous conviction" as referring to a conviction for a crime which is entirely different from that for which the offender is applying for probation or a crime which arose out of a single act or transaction as petitioner would have the court to understand.²²⁵

187. Facts: On the date the judgment of conviction was promulgated, the accused filed an application for probation. On the 14^th day therefrom, accused withdrew said application for probation and filed notice of appeal. The trial court denied accused’s notice of appeal.

Is the order denying the notice of appeal correct?

222Bautista vs. Cuneta-Pangilinan, 684 SCRA 521 (2012)

223CA-G.R. CR No. 13561, 06 November 1995

224Fermin vs. People, G.R. No. 157643, 28 March 2008

225Pablo vs. Castillo, 337 SCRA 176 (2000)

Ruling: Yes.

Section 7, Rule 120, of the Rules on Criminal Procedure is explicit that a judgment in a criminal case becomes final when the accused has applied for probation.

This is totally in accord with Section 4 of Presidential Decree No. 968 (Probation Law of 1976, as amended), which in part provides that the filing of an application for probation is deemed a waiver of the right to appeal. Thus, there was no more opportunity for petitioner to exercise her right to appeal, the judgment having become final by the filing of an application for probation.²²⁶

188. Facts: The RTC convicted Arnel of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. On appeal, he Court of Appeals (CA) affirmed the RTC decision. On petition for review, the Supreme Court modified the lower courts’ rulings whereby Arnel was adjudged guilty of the lower crime of attempted homicide and was accordingly sentenced to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum.

Is Arnel still entitled to apply for probation?

Ruling: Yes.

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.

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.

Applying such rule, the probation law will be applied on Arnel based on the trial courts annulled judgment against him. Hence, he will not be entitled to probation because of the severe penalty that such judgment imposed on him. In such case however, the Supreme Court’s judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial courts judgment even 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?²²⁷

226Vicoy vs. People, 383 SCRA 707 (2002)

227Colinares vs. People, 662 SCRA 266 (2011)

Indeterminate Sentence Law

189. Under the Indeterminate Sentence Law, the maximum term of the penalty shall be “that which, in view of the attending circumstances, could be properly imposed” under the Revised Penal Code, and the minimum shall be “within the range of the penalty next lower to that prescribed” for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.²²⁸

190. In People v. Asturias, Serrano v. Court of Appeals, People v. Lampaza and People v.

Tan, to name a few cases, the Supreme Court had in effect equated the penalty of reclusion perpetua as synonymous to life-imprisonment for purposes of the Indeterminate Sentence Law, and ruled that the latter law does not apply to persons convicted of offenses punishable with the said penalty.²²⁹

191. Persons sentenced to suffer the penalty of reclusion perpetua shall not be entitled to parole in view of Republic Act (R.A.) No. 9346, Sec. 3 of which states that “[p]ersons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Moreover, it is settled that reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the other hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of the Indeterminate Sentence Law, which provides that it is only after “any prisoner shall have served the minimum penalty imposed on him” that the Board of Indeterminate Sentence may consider whether such prisoner may be granted parole.²³⁰

Comprehensive Dangerous Drugs Act

192. In illegal possession of dangerous drugs, the following facts must be proved: (a) the accused was in possession of dangerous drugs, (b) such possession was not authorized by law, and (c) the accused was freely and consciously aware of being in possession of dangerous drugs.²³¹ We also note that the crime under consideration is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act.²³²

193. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his

228Real vs. People, 543 SCRA 15 (2008)

229People vs. Enriquez, 465 SCRA 407 (2005)

230People vs. Gardon, 503 SCRA 757 (2006)

231People vs. Villarta, 731 SCRA 497 (2014); People vs. De Jesus, 690 SCRA 180 (2013)

232People vs. Tiu, 405 SCRA 280 (2003)

right to exercise control and dominion over the place where the contraband is located, is shared with another.²³³

194. In sale of dangerous drugs, a successful prosecution thereof requires the concurrence of the following elements: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor.²³⁴ What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.²³⁵

195. “Possession of prohibited drugs” is a necessary element in the offense of selling them, except where the seller is also found in possession of another quantity of prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller.²³⁶

196. "Chain of custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.²³⁷

197. The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.]

This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and

233People vs. Tira, 430 SCRA 134 (2004)

234Chan vs. Secretary of Justice, 548 SCRA 337 (2008)

235People vs. Lascano, 635 SCRA 551 (2010)

236People vs. Balag-ey, 427 SCRA 384 (2004)

237People vs. Adriano, G.R. No. 208169, 08 October 2014

invalid such seizures of and custody over said items[.]

Strict compliance with the prescribed procedure is required because of the illegal drug's unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise.²³⁸

198. Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible.²³⁹ What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.²⁴⁰

199. While non-compliance with the prescribed procedural requirements will not automatically render the seizure and custody of the items void and invalid, this is true only when (a) there is a justifiable ground for such noncompliance, and (b) the integrity and evidentiary value of the seized items are properly preserved. Hence, any divergence from the prescribed procedure must be justified and should not affect the integrity and evidentiary value of the confiscated items.²⁴¹

Anti-Graft and Corrupt Practices Act

200. The legislature, in mandating the inclusion of “presidents, directors or trustees, or managers of government-owned or controlled corporations” within the jurisdiction of the Sandiganbayan, has consistently refrained from making any distinction with respect to the manner of their creation. The deliberate omission, in our view, clearly reveals the intention of the legislature to include the presidents, directors or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption.²⁴²

201. Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner (a Student Regent of the University of the Philippines) falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.²⁴³

202. Once a court determines that the information charging a public officer with an offense under R.A. No. 3019 or Title 7, Book II of the Revised Penal Code, or any other offense involving fraud upon government or public funds or property is valid, it is bound to issue an order of preventive suspension of the accused public officer as a matter of course.

The order of suspension pendente lite, while mandatory in nature, is by no means automatic or self-operative. Before such suspension is imposed, a determination as to the validity of the information must first be made in a pre-suspension hearing.

238People vs. Lascano, note235

239People vs. Bondad, 573 SCRA 497 (2008)

240People vs. Ortega, 729 SCRA 179 (2014)

241People vs. Viterbo, 730 SCRA 672 (2014)

242People vs. Sandiganbayan and Alas, 451 SCRA 413 (2005)

243Serana vs. Sandiganbayan, 542 SCRA 224 (2008)

xxx

Once the information is found to be sufficient in form and substance, then the court must issue the order of suspension as a matter or course. There are no ifs and buts about it. This is because a preventive suspension is not a penalty. It is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension... Taking into consideration the public policy involved in preventively suspending a public officer charged under a valid information, the protection of public interest will definitely have to prevail over the private interest of the accused.²⁴⁴

203. Preventive suspension is not a penalty in itself. xxx. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.²⁴⁵

Anti-Plunder Law

204. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se.²⁴⁶

Comprehensive Firearms and Ammunition Regulation Act

205. Two requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm; and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence.²⁴⁷

206. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever.

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.²⁴⁸

244Flores vs. Layosa, 436 SCRA 337 (2004)

245Bustillo vs. Sandiganbayan, 486 SCRA 545 (2006)

246Estrada vs. Sandiganbayan, 369 SCRA 394 (2001)

247People vs. Eling, 553 SCRA 724 (2008)

248Fajardo vs. People, 639 SCRA 194 (2011)

207. It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing “any of the crimes defined in the Revised Penal Code.” The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code.

Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of

“explosion” in paragraph 12, “evident premeditation” in paragraph 13, or “treachery” in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248.

What the law emphasizes is the act’s lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of “the use of the aforementioned explosives, etc.” as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. “unlawfully” manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully “manufactured … or possessed” explosives. The mere use of explosives is not.

Anti-Fencing Law

208. The elements of "fencing" are 1) a robbery or theft has been committed; 2) the accused, who took no part in the robbery or theft, "buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article or object taken" during that robbery or theft; (3) the accused knows or should have known that the thing derived from that crime; and (4) he intends by the deal he makes to gain for himself or for another.²⁴⁹

209. Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property. The stolen property subject of the charge is not indispensable to prove fencing. It is

209. Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property. The stolen property subject of the charge is not indispensable to prove fencing. It is