3.3 C ODIFICACIÓN
3.3.2 T ÉCNICAS DE C ODIFICACIÓN
How bout euthanasia / mercy killing? no, but murder under 248
SODOMY? Defined and penalize? No. but punished by RA 8353 – insertion of object into anal orifice
Is pedophilia a crime? None in rpc but penalized by 7610 child abuse law, 8350, art 336 and 339 of rpc (?) - Ppl v ricker – 194 scra 690 (ricker was pedophile, went to olongapo, paid a 12yo girl 15 pesos and raped her)
NEXT MTG: ZERO IN ON ART 48 Art 22
There can be retroaction of the reduction of death to RP.
RA 9344,
o Sec. 59: DP cannot be imposed on a minor
o Sec. 54: cases of children 15 and below – automatically dismissed and referred to appropriate diversion programs
Those undergoing service of sentence: must undergo rehab in youth rehab center
o Sec 67 – if minor is no longer entitled to suspension of sentence, and court resolves to impose the sentence, he can still apply for Probation
o Sec 68 – child serving sentence at time of passage of RA 9344 and below 18 at the time of commission of crime, and acted with discernment: benefited by retroactive effect of law
* Even before RA 9346, one convicted of a crime punishable by LI / RP is NOT entitled to parol. So after the law was passed, one originally convicted of DP can only be granted the lesser penalty of RP but still NO parol.
* IF MURDER CASE IS PENDING AND YOU ARE PUBLIC PROSECUTOR THEN LAW on ILLEGAL FIREARMS (RA 9346) IS PASSED. WHAT DO YOU DO? 1) Move for the withdrawal of the crime of possession of unlicensed firearm since it is merely a special aggravating circumstance; 2) amend the information and allege that firearm is unlicensed
BUT what if information was not amended? TRIAL proceeded. May the court still consider illegal firearm as aggravating circumstance? NO. Not alleged in information.
IF LAW not yet passed, should court consider use of unlicensed firearm as special aggravating circumstance? Ppl v. Bernal: Even if more favorable to the accused, in effect it is more unfavorable bec. If you consider use of unlicensed firearm as special aggravating circ, penalty would be DEATH and would be more unfavorable to the accused.
*STUDY WELL: RA 9346, 9344 problem will be given in midterms
Art 23
RA 8353 amended Art. 23 and Art. 344
o Rape and sexual assault are now crimes against persons o Criminal action can only be commenced by information filed by
public prosecutor, and not the private offended party
o Else, private crimes can only be instituted by private offended party. Not due to jurisdiction but to protect private offended party.
If a crime is public, private individual cannot pardon the crime or compromise it, unless provided by law. In a criminal action, it is the State that is the offended party; the private individual is just a witness.
Criminal liability may only be extinguished by law or the grounds in Art.
89.
o A public officer is charged with RA 3019. He returns the money. Will his liability be extinguished?
No. It will not exonerate him from criminal liability, but will extinguish his civil liability. P v. Sandiganbayan o Exception: RA 8353 – marriage of offender and rape victim Shall extinguish criminal action
If already convicted, penalty imposed will be extinguished
o A husband, however, can commit rape or sexual assault against his wife.
Art 24
Par. 2 mentions commitment of minor in a facility, according to Art. 80 already repealed by PD 1603 and amended by RA 9344
RA 6975, par. 4:
o If police officer or employee is charged for a crime in a valid information, he may be suspended during pendency of the case
o Lacson v. Roque: Suspension of mayor is not a penalty in this case. This is only to facilitate justice.
RA 3019:
o Public officer or employee is charged may be suspended 90 days
o This is not deemed a penalty
Plunder -> one can be suspended when charged
RA 9262 – don’t forget to study for exams (VAWC) – is there any measure contemplated? Court may issue a protection order to prevent accused from harassing/ inflicting psychological or moral injury on the victim during trial
o
Par. 4 refers to administrative sanctions in administrative cases against public officers and employees (imposed by superiors) Tudtud v.
Caayong Arts 25-27
RA 9346 – DP can no longer be imposed, but it did not abolish DP, because the Constitution still allows it to be imposed
Ikaw v. Judge: dual personality of temporary DQ or suspension o As principal penalty
Temporary DQ: 6 years and 1 day-12 years
Suspension: 6 months and 1 day-6 years o As accessory penalty:
Follow principal penalty
P v. Bon: RP is an indivisible penalty
o There is no minimum, medium, maximum period P v.
Villanueva
o It is not affected by mitigating or aggravating circumstances.
Indivisible penalties:
o RP
o Perpetual absolute or special DQ o Public censure
Effect of indivisible penalties:
o Impose penalty in its entirety
Even if there is a special aggravating or two mitigating it will not be affected
o BUT if there is privileged mitigating, it may be reduced by 1 or 2 degrees
P v. Diqui: after imprisonment of 30 years, eligible for pardon o Not mandatory; dependent on President
It was never the intention of Congress to convert RP into a divisible penalty. P v. Gawkard – penalty of 30 years of RP was erroneous, so it was converted to just RP.
o If it were the intent of Congress to make it divisible, it also should have amended Art 76 of the RPC but it did not (this is the table of divisible penalties). Art 63 provides for indivisible penalties, and RP is there.
o P v. Lucas: Only reason for the “30 year” imposition is for the three-fold rule under Art. 70, where the maximum duration of the convict’s sentence cannot be more than 3-fold of the length of time of the most severe sentence
Do not interchange RP with LI. Latter cannot be reduced by one or two degrees.
EXCEPTION:
o P.D. 818 Syndicated Estafa:
Maximum of crime is 30 years, which in connection with the accessory penalties shall be 30 years of RP o People v. Canales – imposed 40 years of RP, with accessory penalties of death, and cannot be pardoned until after 40 years have passed.
How did the court reach this decision?
Because under Art. 309 of the RPC, theft is punishable by maximum of RT. But for Art.
310, qualified theft, penalty is two degrees higher. This is death.
But the rule under Art. 74 is that if the next higher penalty is death, it becomes RP, with
accessory penalties of death. This is also the reason why he cannot be pardoned before 40 years have lapsed, instead of 30.
Art. 26 – penalty of fine
o Read in conjunction with Art. 38 (order of payment of pecuniary liabilities: 1. Reparation, 2. Indemnification, 3. Fine, 3. Cost of proceedings)
o Ricaforte v. Jurado: fine is not given to the complainant; it is given to the State.
o Can accused use its cash bail bond to pay his fine, if convicted?
Yes. The law does not prohibit him from using his cash bail bond to pay his fine. It is only meant to ensure his attendance during the process.
o Conflict of provisions leading to confusing rulings, if the fine is exactly 200 pesos:
Considered a light felony P v. Canson But for prescription, it is considered a correctional penalty – 10 years
Art. 28
How do you compute the penalty if the accused is not in jail?
o Compute from the time accused is at disposal of the authorities or the court for promulgation of sentence.
What if he is in prison?
o From the day the judgment of conviction becomes final. If he appeals, it is not yet final.
It is only when appellate court decision becomes final and executory and accused is in jail, you begin computing service of sentence.
Art 29 – preventive imprisonment
PI – NOT a penalty! Arises if one who is accused cannot post bail because he has no money/property, he will remain in jail.
Length of time for credit of PI depends upon whether he agrees to abide, in writing to the rules of jail where he is detained. If he agrees – accorded full term of imprisonment. Otherwise, only 4/5 of time he underwent PI.
Can those sentenced to destierro avail of art 29? YES. Destierro also form of PI (Ppl v. Sabillo); Destierro does not involve imprisonment, although only partial.
Sec. 53, RA 9344 [juveniles in conflict w/ the law] – any form of physical restraint imposed on a child in conflict with the law including his
community service or commitment to a rehabilitation center shall be considered as preventive imprisonment. might be in the midterms!:)
If minor served maximum, can he be made to remain? YES, depends on discretion of rehab center.
If penalty on minor destierro, he shall be released after 30 days as provided in Art 29.
If the minor juvenile is imprisoned pending trial – he shall be credited with the service of the sentence with the full time in which the child was preventively imprisoned
o Provided the child agrees with the rules and regulations of the penal institution
o If not, still entitled to 4/5ths of the time
If the convict is sentenced to life imprisonment, he is still entitled to the benefits of this provision.
Sentenced to Imprisonment and fine can he be released if he already served maximum imprisonment ? NO, he has to stay in prison til he his able to pay fine (Ppl v. mawunawao, March 12, 1975)
Habitual delinquent – is he disqualified for benefits under 29 although law does not state? YES, he is! (Ppl v Gana)
Under Art. 104 of the RPC, the offender is civilly liable to the offended party for restitution, damage, reparation, and
indemnification for consequential damages. The liability of the accused under Art. 104 civil liabilities or pecuniary liabilities.
How about the penalty of fine under Art. 38 of the RPC in relation to Art. 39?
o It is also a pecuniary liability of the accused, but it is a pecuniary PENALTY (not pecuniary liability), because it is a penalty under Art. 25 of the RPC.
Art. 38
Pecuniary liability – accused was convicted of a crime and ordered to pay civil indemnity, reparation for damage cost, fined and damage cost
How will amt be paid if his money is lacking ? Art 38 (relate to Art 72 of RPC – civil liabilites shall be paid following chronological order under art 72) Art 39 STUDY VERY WELL!
Subsidiary imprisonment can only be imposed if the accused is penalized with a fine (either alone or in conjunction with imprisonment), and because of insolvency, he cannot pay the fine.
ONLY APPLICABLE TO FINES! (not reparation, indemnification, cost)
Unlike preventive imp, SI is a penalty! Court must indicate in decision.
The convict cannot be ordered to serve subsidiary imprisonment for failure to pay pecuniary LIABILITY; but he can serve for pecuniary PENALTY.
If he is not insolvent, but he does not want to pay the fine, can he choose to go to jail instead?
o No. The accused the has no choice but to pay the fine. Fortun Ironworks Co v. Schwarzkott
o Although in P v. Subido, the SC said the convict has to choose whether to pay the fine or choose subsidiary imprisonment. J.
Callejo does not agree with this. He agrees with Ironworks.
Subsidiary imp vs. accessory penalties
o AP = automatically included in principal penalties; SI NOT included—must be stated by court (Ramos v. Judge) o Principal = should refer to penalty imposed on the offender
If the accused was convicted of a crime defined by SPL, Art. 39 will still apply, taking into account Art. 10 of the RPC.
o Ex: Violation of BP 22, an SPL,
o Ty v. P – the governing law is Art. 39, not Act 1732. Ignore 1732.
Supposing he was convicted for possession of unlicensed firearm and sentenced to prison term but he was insolvent. Subsidiary imprisonment?
o Yes. Again, Art. 39 is consistent with Art. 10, not Act 1732.
Subsidiary imprisonment is a penalty. There must be a statement in the dispositive portion that if he is insolvent, he must serve subsidiary imprisonment. Absent this specific order in the dispositive portion, he cannot be compelled to serve this. (Ramos v. Judge)
If the penalty is higher than prision correccional, there can be no subsidiary imprisonment.
Toledo v. Superintendent, citing Bagtas v. Director of Prisons, supposing the accused is charged with 2 or more offenses and there was 1 decision convicted him of all the charges. How do we determine the 6-year limit?
o Where this situation exists, the 6 year period limit shall be based on the total duration of the penalties [AGGREGATE]
imposed by the court based, after the joint trial, on the 3-fold rule under Art. 70 of tNhe RPC. If the totality of the penalties exceed 6 years, no subsidiary imprisonment shall not be imposed, even if the penalty for each of the crimes is less than 6 years.
Art. 45 – forfeiture of the proceeds of the crime
Who has the power to order forfeiture of the proceeds of the crime and the instruments or tools used in the crime?
o Only the TC which rendered conviction of the accused may order this.
o People v. Singson – but before the court may do so, the tools or instruments must be presented to the court as evidence.
Otherwise, the court has no jurisdiction to order the forfeiture or destruction of such.
o People v. Gacutan – In case of bribery, the money used may be forfeited in favor of the state.
The tool or instrument MUST belong to the accused himself. If it belongs to some other person and he has no involvement in the crime, there can be no such declaration People v. Elona Does this provision apply to SPLs?
o Yes.
The court may order destruction nonetheless if the items are contraband.
(DDA) RA 9165, Sec. 20 – those subject of the crime, including proceeds derived from drug trafficking, and even money and assets acquired in violation of RA 9165 – deemed and ordered forfeited in favor of the government, unless belonging to third persons without
involvement of the crime.
o Exception to third person rule: if the items are beyond lawful commerce – still forfeited
Under Sec. 20 of the same law, the proceeds of the sale or disposition of the property forfeited must be used to pay the expenses incurred in the proceedings including cost of the proceedings
Art. 48 – complex crimes
P v. Bon – Death penalty may no longer be imposed, even in relation to Art. 48 of the RPC.
Material Plurality – when a single act constitutes two or more gave or less grave offenses, or when an offense is a necessary means to commit the other
o There is only one penalty, although there are multiple crimes o The more serious crime’s penalty is imposed in maximum
period
Delito compuesto – (first mode) o Either dolo or culpa
P v. De los Santos – person was convicted for reckless imprudence resulting into homicide and destruction of property
o The felonies resulting from the single act must be felonies in the RPC
o If punishable under the RPC and an SPL, Art. 48 will NOT apply. The offender may be charged and convicted for both crimes, separately without double jeopardy.
Ex. Estafa and illegal recruitment
Ex. Estafa and BP 22
Supposing one wants to kill another with treachery, but there was abberatio ictus, or error in personae, then the crime committed by the accused is a COMPLEX CRIME.
o Attempted homicide + homicide
P v. Patrolla – the accused stabbed the victim with a bolo, the bolo hit both the person and the person behind him.
o Complex crime of murder and SPI.
P v. Andaya – the accused forcibly insert his penis into the vagina of the woman and she sustained Less SPI in her vagina. Art. 48 – Rape complexed with Less SPI
o Problem here: SC applied the second paragraph. J Callejo does not agree. It must be paragraph 1.
The law is clear: a single act. But the SC sometimes applied the single impulse test or the single criminal intent test.
Gamboa v. P, cited in P. v. Judge Pineda: there must be singularity of the criminal act, not singularity of the criminal impulse. Because singularity of criminal purpose is NOT written in Art. 48.
The SC applied single impulse test for the first time
o P v. Tulos – he stole on the same occasion 13 cows. SC held:
one crime of theft even if there were 13 cows, applying single impulse test.
o P v. de Leon – took two roosters on one occasion. SC HELD:
one crime of theft because it was in response to one criminal impulse.
In crimes against chastity, the SC adopted another test: single criminal intent.
o P. v. Obrique – raped niece at 10 am, then 11 am at same grassy area. One crime of rape, even though committed in intervals of one hour, he was motivated by one criminal intent.
o P v. Intong – accused inserted private organ and raped the victim, but he was not content; he also inserted his finger at the same place and same occasion. SC said: the accused is guilty of one count of rape and 2 counts of sexual assault, same place, same occasion.
o P v. Aaron (CJ Corona) – the accused inserted his penis into the vagina of the victim and made several push and pull movements but without removing his organ, until he reached orgasm. How many crimes of rape? Prosecutor said as many crimes of rape equal to the number of push and pull. HELD:
only one, because he reached orgasm only once then he removed it. Lesson: do not remove it.
o P v. Sollano – The accused raped his niece once a day, insert his finger once a day, for 16 successive days in different locations. HELD: as many crimes of rape and sexual assault equal to how many times he inserted his organ and finger.
Reasoning: there could not be a single criminal intent because
each time he committed the crime, was on different days – the accused was animate by separate criminal intents on each occasion.
o P v. Calimlim: Raped victim for first time is the pig pen, about 8m from the house. Then brought her to the room and raped her again. Then brought victim room of cousin, and raped again. Brought her to kitchen, where he raped her again.
HELD: There were separate criminal intents because he raped the victim in different places although the rapes were done successively.
o Test: “place test”
NOTE: P v. Escoton: Convicted person for 5 counts of rape even if it was in the same place, and at the same night. Be forewarned that this might be the new rule now (2010 decision).
What test will be applied for kidnapping? Single impulse, or single intent?
o P v. Laranaga – even if the persons were kidnapped on the same occasion and place, there were as many crimes of kidnapping as there were persons. Kidnapping with homicide, K with murder, K with rape: these are all special complex crimes, and not complex crimes under Art. 48 of the RPC.
Even if the homicide or rape is a mere afterthought, this would be the crime.
o P v. Rimurin (?) – if the victim of kidnapping got raped, how many crimes of special complex crime of kidnapping and rape?
There are as many times of crimes of kidnapping and rape as the number of persons kidnapped and raped.
o Test: “number of persons”
o P v. Bacungay – Same rule for kidnapping for ransom, Even if it is the same situs, the number of crimes of kidnapping will depend on the number of persons kidnapped.
o P v. Reyes – 7 persons kidnapped. Two of them killed. [The SC said there was only 1 crime of kidnapping with homicide.]
This is strange case (J Callejo does not agree)
Will you apply the single criminal intent or resolution test in mala
Will you apply the single criminal intent or resolution test in mala