G.R. No.

212719, June 25, 2019

INMATES OF THE NEW BILIBID PRISON, MUNTINLUPA CITY, NAMELY: VENANCIO A. ROXAS,
SATURNINO V. PARAS, EDGARDO G. MANUEL, HERMINILDO V. CRUZ, ALLAN F. TEJADA, ROBERTO C.
MARQUEZ, JULITO P. MONDEJAR, ARMANDO M. CABUANG, JONATHAN O. CRISANTO, EDGAR
ECHENIQUE, JANMARK SARACHO, JOSENEL ALVARAN, AND CRISENCIO NERI, JR., PETITIONERS, v.
SECRETARY LEILA M. DE LIMA, DEPARTMENT OF JUSTICE; AND SECRETARY MANUEL A. ROXAS II,
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

ATTY. RENE A.V. SAGUISAG, SR., PETITIONER-INTERVENOR,

WILLIAM M. MONTINOLA, FORTUNATO P. VISTO, AND ARESENIO C. CABANILLA, PETITIONERS-

INTERVENORS,

[G.R. No. 214637]

REYNALDO D. EDAGO, PETER R. TORIDA, JIMMY E. ACLAO, WILFREDO V. OMERES, PASCUA B.

GALLADAN, VICTOR M. MACOY, JR., EDWIN C. TRABUNCON, WILFREDO A. PATERNO, FEDERICO ELLIOT,
AND ROMEO R. MACOLBAS, PETITIONERS, v. SECRETARY LEILA M. DE LIMA, DEPARTMENT OF JUSTICE;
SECRETARY MANUEL A. ROXAS II, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT; ACTING
DIRECTOR FRANKLIN JESUS B. BUCAYU, BUREAU OF CORRECTIONS; AND JAIL CHIEF
SUPERINTENDENT DIONY DACANAY MAMARIL, BUREAU OF JAIL MANAGEMENT AND PENOLOGY,
RESPONDENTS.

DECISION

PERALTA, J.:

The sole issue for resolution in these consolidated cases1 is the legality of Section 4, Rule 1 of the Implementing
Rules and Regulations (IRR) of Republic Act (R.A.) No. 10592,2 which states:

SECTION 4. Prospective Application. - Considering that these Rules provide for new procedures and standards of
behavior for the grant of good conduct time allowance as provided in Section 4 of Rule V hereof and require the
creation of a Management, Screening and Evaluation Committee (MSEC) as provided in Section 3 of the same Rule,
the grant of good conduct time allowance under Republic Act No. 10592 shall be prospective in application.

The grant of time allowance of study, teaching and mentoring and of special time allowance for loyalty shall also be
prospective in application as these privileges are likewise subject to the management, screening and evaluation of
the MSEC.3
The Case

On May 29, 2013, then President Benigno S. Aquino III signed into law R.A. No. 10592, amending Articles 29, 94,
97, 98 and 99 of Act No. 3815, or the Revised Penal Code (RPC).4 For reference, the modifications are underscored
as follows:
ART. 29. Period of preventive imprisonment deducted from term of imprisonment. — Offenders or accused who
have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation
of liberty, with the full time during which they have undergone preventive imprisonment if the detention prisoner
agrees voluntarily in writing after being informed of the effects thereof and with the assistance of
counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners,
he shall do so in writing with the assistance of a counsel and shall be credited in the service of his sentence
with four-fifths of the time during which he has undergone preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty
(30) years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be
released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the
same is under review. Computation of preventive imprisonment for purposes of immediate release under
this paragraph shall be the actual period of detention with good conduct time allowance: Provided,
however, That if the accused is absent without justifiable cause at any stage of the trial, the court may
motu proprio order the rearrest of the accused: Provided, finally, That recidivists, habitual delinquents,
escapees and persons charged with heinous crimes are excluded from the coverage of this Act. In case
the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30)
days of preventive imprisonment.

ART. 94. Partial extinction of criminal liability — Criminal liability is extinguished partially:

1. By conditional pardon;

2. By commutation of the sentence; and

3. For good conduct allowances which the culprit may earn while he is undergoing preventive imprisonment
or serving his sentence.

ART. 97. Allowance for good conduct. - The good conduct of any offender qualified for credit for preventive
imprisonment pursuant to Article 29 of this Code, or of any convicted prisoner in any penal
institution, rehabilitation or detention center or any other local jail shall entitle him to the following
deductions from the period of his sentence:

1. During the first two years of (his) imprisonment, he shall be allowed a deduction of twenty days for each month
of good behavior during detention;

2. During the third to the fifth year, inclusive, of his imprisonment, he shall be allowed a deduction of twenty-
three days for each month of good behavior during detention;

3. During the following years until the tenth year, inclusive, of his imprisonment, he shall be allowed a deduction
of twenty-five days for each month of good behavior during detention;

4. During the eleventh and successive years of his imprisonment, he shall be allowed a deduction of thirty days for
each month of good behavior during detention; and

5. At any time during the period of imprisonment, he shall be allowed another deduction of fifteen days,
in addition to numbers one to four hereof, for each month of study, teaching or mentoring service time
rendered.

An appeal by the accused shall not deprive him of entitlement to the above allowances for good
conduct.

ART. 98. Special time allowance for loyalty. - A deduction of one fifth of the period of his sentence shall be granted
to any prisoner who, having evaded his preventive imprisonment or the service of his sentence under the
circumstances mentioned in Article 158 of this Code, gives himself up to the authorities within 48 hours following
the issuance of a proclamation announcing the passing away of the calamity or catastrophe referred to in said
article. A deduction of two-fifths of the period of his sentence shall be granted in case said prisoner
chose to stay in the place of his confinement notwithstanding the existence of a calamity or
catastrophe enumerated in Article 158 of this Code.

This Article shall apply to any prisoner whether undergoing preventive imprisonment or serving
sentence.

ART. 99. Who grants time allowances. - Whenever lawfully justified, the Director of the Bureau of Corrections,
the Chief of the Bureau of Jail Management and Penology and/or the Warden of a provincial, district,
municipal or city jail shall grant allowances for good conduct. Such allowances once granted shall not be
revoked. (Emphases ours)
Pursuant to the amendatory law, an IRR was jointly issued by respondents Department of Justice (DOJ) Secretary
Leila M. De Lima and Department of the Interior and Local Government (DILG) Secretary Manuel A. Roxas II on
March 26, 2014 and became effective on April 18, 2014.5 Petitioners and intervenors assail the validity of its
Section 4, Rule 1 that directs the prospective application of the grant of good conduct time allowance (GCTA), time
allowance for study, teaching and mentoring (TASTM), and special time allowance for loyalty (STAL) mainly on the
ground that it violates Article 22 of the RPC.6

G.R. No. 212719

On June 18, 2014, a Petition for Certiorari and Prohibition (with Prayer for the Issuance of a Preliminary
Injunction)7 was filed against respondents DOJ Secretary De Lima and DILG Secretary Roxas by Atty. Michael J.
Evangelista acting as the attorney-in-fact8 of convicted prisoners in the New Bilibid Prison (NBP), namely: Venancio
A. Roxas, Saturnino V. Paras, Edgardo G. Manuel, Herminildo V. Cruz, Allan F. Tejada, Roberto C. Marquez, Julito P.
Mondejar, Armando M. Cabuang, Jonathan O. Crisanto, Edgar Echenique, Janmark Saracho, Josenel Alvaran, and
Crisencio Neri, Jr. (Roxas et al.). Petitioners filed the case as real parties-in-interest and as representatives of their
member organizations and the organizations' individual members, as a class suit for themselves and in behalf of all
who are similarly situated. They contend that the provisions of R.A. No. 10592 are penal in nature and beneficial to
the inmates; hence, should be given retroactive effect in accordance with Article 22 of the RPC. For them, the IRR
contradicts the law it implements. They are puzzled why it would be complex for the Bureau of Corrections
(BUCOR) and the Bureau of Jail Management and Penology (BJMP) to retroactively apply the law when the
prisoners' records are complete and the distinctions between the pertinent provisions of the RPC and R.A. No.
10592 are easily identifiable. Petitioners submit that the simple standards added by the new law, which are matters
of record, and the creation of the Management, Screening and Evaluation Committee (MSEC) should not override
the constitutional guarantee of the rights to liberty and due process of law aside from the principle that penal laws
beneficial to the accused are given retroactive effect.

Almost a month after, or on July 11, 2014, Atty. Rene A.V. Saguisag, Sr. filed a Petition (In Intervention).9 He
incorporates by reference the Roxas et al. petition, impleads the same respondents, and adds that nowhere from
the legislative history of R.A. No. 10592 that it intends to be prospective in character. On July 22, 2014, the Court
resolved to grant the leave to intervene and require the adverse parties to comment thereon.10

Another Petition-in-Intervention11 was filed on October 21, 2014. This time, the Free Legal Assistance Group
(FLAG) served as counsel for William M. Montinola, Fortunato P. Visto, and Arsenio C. Cabanilla (Montinola et al.),
who are also inmates of the NBP. The petition argues that Section 4, Rule I of the IRR is facially void for being
contrary to the equal protection clause of the 1987 Constitution; it discriminates, without any reasonable basis,
against those who would have been benefited from the retroactive application of the law; and is also ultra vires, as
it was issued beyond the authority of respondents to promulgate. In a Resolution dated November 25, 2014, We
required the adverse parties to comment on the petition-in-intervention.12

On January 30, 2015, the Office of the Solicitor General (OSG) filed a Consolidated Comment13 to the Petition of
Roxas et al. and Petition-in-Intervention of Atty. Saguisag, Sr. More than two years later, or on July 7, 2017, it
filed a Comment14 to the Petition-in-Intervention of Montinola et al.

G.R. No. 214637

On October 24, 2014, a Petition for Certiorari and Prohibition15 was filed by Reynaldo D. Edago, Peter R. Torida,
Jimmy E. Aclao, Wilfredo V. Omeres, Pascua B. Galladan, Victor M. Macoy, Jr., Edwin C. Trabuncon, Wilfredo A.
Paterno, Federico Elliot, and Romeo R. Macolbas (Edago et al.), who are all inmates at the Maximum Security
Compound of the NBP, against DOJ Secretary De Lima, DILG Secretary Roxas, BUCOR Acting Director Franklin
Jesus B. Bucayu, and BJMP Chief Superintendent (Officer-in-Charge) Diony Dacanay Mamaril. The grounds of the
petition are as follows:
A.

SECTION 4, RULE I OF THE IRR PROVIDING FOR A PROSPECTIVE APPLICATION OF THE PROVISIONS OF R.A.
10592 WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
AND THEREBY VOID AND ILLEGAL FOR BEING CONTRARY AND ANATHEMA TO R.A. 10592.

a. R.A. 10592 does not state that its provisions shall have prospective application.

b. Section 4 of the IRR of R.A. 10592 is contrary to Article 22 of the Revised Penal Code
providing that penal laws that are beneficial to the accused shall have retroactive
application.

c. Section 4, Rule I of the IRR contravenes public policy and the intent of Congress when it
enacted R.A. 10592.

B.

SECTION 4, RULE I OF THE IRR WAS ISSUED BY RESPONDENTS WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION BECAUSE IT IS PATENTLY UNCONSTITUTIONAL.

a. Section 4, Rule I of the IRR violates the Equal Protection Clause of the Constitution.

b. Section 4, Rule I of the IRR violates substantive due process.16

Per Resolution17 dated November 11, 2014, respondents were ordered to file their comment to the petition. In
compliance, BJMP Chief Mamaril filed a Comment18 on December 10, 2014, while the OSG did the same on
February 9, 201519 in behalf of all the respondents.
Subsequently, Edago et al. filed a Motion with Leave of Court to File and Admit Reply,20 attaching therein said
Reply. On July 28, 2015, We granted the motion and noted the Reply.21

The Court's Ruling

The petition is granted.

Procedural Matters

Actual case or controversy

Respondents contend that the petition of Edago et al. did not comply with all the elements of justiciability as the
requirement of an actual case or controversy vis-a-vis the requirement of ripeness has not been complied with. For
them, the claimed injury of petitioners has not ripened to an actual case requiring this Court's intervention: First,
the MSEC has not been constituted yet so there is effectively no authority or specialized body to screen, evaluate
and recommend any applications for time credits based on R.A. No. 10592. Second, none of petitioners has applied
for the revised credits, making their claim of injury premature, if not anticipatory. And third, the prison records
annexed to the petition are neither signed nor certified by the BUCOR Director which belie the claim of actual injury
resulting from alleged extended incarceration. What petitioners did was they immediately filed this case after
obtaining their prison records and computing the purported application of the revised credits for GCTA under R.A.
No. 10592.

We disagree.

It is well settled that no question involving the constitutionality or validity of a law or governmental act may be
heard and decided unless the following requisites for judicial inquiry are present: (a) there must be an actual case
or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing
to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.22 As to the
requirement of actual case or controversy, the Court stated in Province of North Cotabato, et al. v. Gov't of the
Rep. of the Phils. Peace Panel on Ancestral Domain (GRP), et al.:23
The power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory opinions or
to resolve hypothetical or feigned problems, or mere academic questions. The limitation of the power of judicial
review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of government.

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence, x x
x.

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a
case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to itself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.24
There is an actual case or controversy in the case at bar because there is a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. Respondents stand for the prospective
application of the grant of GCTA, TASTM, and STAL while petitioners and intervenors view that such provision
violates the Constitution and Article 22 of the RPC. The legal issue posed is ripe for adjudication as the challenged
regulation has a direct adverse effect on petitioners and those detained and convicted prisoners who are similarly
situated. There exists an immediate and/or threatened injury and they have sustained or are immediately in
danger of sustaining direct injury as a result of the act complained of. In fact, while the case is pending, petitioners
are languishing in jail. If their assertion proved to be true, their illegal confinement or detention in the meantime is
oppressive. With the prisoners' continued incarceration, any delay in resolving the case would cause them great
prejudice. Justice demands that they be released soonest, if not on time.

There is no need to wait and see the actual organization and operation of the MSEC. Petitioners Edago et
al. correctly invoked Our ruling in Pimentel, Jr. v. Hon. Aguirre.25 There, We dismissed the novel theory that people
should wait for the implementing evil to befall on them before they could question acts that are illegal or
unconstitutional, and held that "[by] the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any other overt act." Similar
to Pimentel, Jr., the real issue in this case is whether the Constitution and the RPC are contravened by Section 4,
Rule 1 of the IRR, not whether they are violated by the acts implementing it. Concrete acts are not necessary to
render the present controversy ripe.26 An actual case may exist even in the absence of tangible instances when the
assailed IRR has actually and adversely affected petitioners. The mere issuance of the subject IRR has led to the
ripening of a judicial controversy even without any other overt act. If this Court cannot await the adverse
consequences of the law in order to consider the controversy actual and ripe for judicial intervention,27 the same
can be said for an IRR. Here, petitioners need not wait for the creation of the MSEC and be individually rejected in
their applications. They do not need to actually apply for the revised credits, considering that such application
would be an exercise in futility in view of respondents' insistence that the law should be prospectively applied. If
the assailed provision is indeed unconstitutional and illegal, there is no better time than the present action to settle
such question once and for all.28

Legal standing

We do not subscribe to respondents' supposition that it is the Congress which may claim any injury from the
alleged executive encroachment of the legislative function to amend, modify or repeal laws and that the challenged
acts of respondents have no direct adverse effect on petitioners, considering that based on records, there was no
GCTA granted to them.
It is a general rule that every action must be prosecuted or defended in the name of the real party-in-interest, who
stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

Jurisprudence defines interest as "material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest. By real interest is meant a
present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or
consequential interest." "To qualify a person to be a real party-in-interest in whose name an action must be
prosecuted, he must appear to be the present real owner of the right sought to be enforced."

"Legal standing" or locus standi calls for more than just a generalized grievance. The concept has been defined as a
personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions.

A party challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but
also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way." It must [be] shown that he has been,
or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected
to some burdens or penalties by reason of the statute complained of.29
In this case, petitioners are directly affected by Section 4, Rule 1 of the IRR because they are prisoners currently
serving their respective sentences at the NBP. They have a personal stake in the outcome of this case as their stay
in prison will potentially be shortened (if the assailed provision of the IRR is declared unlawful and void) or their
dates of release will be delayed (if R.A. No. 10592 is applied prospectively). It is erroneous to assert that the
questioned provision has no direct adverse effect on petitioners since there were no GCTAs granted to them. There
is none precisely because of the prospective application of R.A. No. 10592. It is a proof of the act complained of
rather than an evidence that petitioners lack legal standing. Further, the submission of certified prison records is
immaterial in determining whether or not petitioners' rights were breached by the IRR because, to repeat, the
possible violation was already fait accompli by the issuance of the IRR. The prison records were merely furnished to
show that respondents have prospectively applied R.A. No. 10592 and that petitioners will be affected thereby.

Propriety of legal remedy:

Respondents argue that the petitions for certiorari and prohibition, as well as the petitions-in-intervention, should
be dismissed because such petitions are proper only against a tribunal, board or officer exercising judicial or quasi-
judicial functions. Section 4, Rule 1 of the IRR is an administrative issuance of respondents made in the exercise of
their rule-making or quasi-legislative functions.

True, a petition for certiorari and prohibition is not an appropriate remedy to assail the validity of the subject IRR
as it was issued in the exercise of respondents' rule-making or quasi-legislative function. Nevertheless, the Court
has consistently held that "petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review, prohibit or nullify the acts of legislative and executive officials."30 In Araullo v. Aquino
III,31 former Associate Justice, now Chief Justice, Lucas P. Bersamin, explained the remedies of certiorari and
prohibition, thus:
What are the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government may be determined under the Constitution?

The present Rules of Court uses two special civil actions for determining and correcting grave abuse of discretion
amounting to lack or excess of jurisdiction. These are the special civil actions for certiorari and prohibition, and
both are governed by Rule 65. A similar remedy of certiorari exists under Rule 64, but the remedy is expressly
applicable only to the judgments and final orders or resolutions of the Commission on Elections and the
Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system are aptly explained in Delos Santos
v. Metropolitan Bank and Trust Company:
In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out of Chancery,
or the King's Bench, commanding agents or officers of the inferior courts to return the record of a cause pending
before them, so as to give the party more sure and speedy justice, for the writ would enable the superior court to
determine from an inspection of the record whether the inferior court's judgment was rendered without authority.
The errors were of such a nature that, if allowed to stand, they would result in a substantial injury to the petitioner
to whom no other remedy was available. If the inferior court acted without authority, the record was then revised
and corrected in matters of law. The writ of certiorari was limited to cases in which the inferior court was said to be
exceeding its jurisdiction or was not proceeding according to essential requirements of law and would lie only to
review judicial or quasi-judicial acts.

The concept of the remedy of certiorari in our judicial system remains much the same as it has been in the
common law. In this jurisdiction, however, the exercise of the power to issue the writ of certiorari is largely
regulated by laying down the instances or situations in the Rules of Court in which a superior court may issue the
writ of certiorari to an inferior court or officer. Section 1, Rule 65 of the Rules of Court compellingly provides the
requirements for that purpose, viz.:

xxxx

The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the commission of
grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not enough
to warrant the issuance of the writ. The abuse of discretion must be grave, which means either that the judicial or
quasi-judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or
that the respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-
judicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.
Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished
from prohibition by the fact that it is a corrective remedy used for the re-examination of some action of an inferior
tribunal, and is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is
a preventative remedy issuing to restrain future action, and is directed to the court itself. The Court expounded on
the nature and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor:
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a quasi-legislative
function. Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist from
further proceedings when said proceedings are without or in excess of said entity's or person's jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law. Prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels. Prohibition
is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the
exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds
prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which
such relief can be obtained. Where the principal relief sought is to invalidate an IRR, petitioners' remedy is an
ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court.
In any case, petitioners' allegation that "respondents are performing or threatening to perform functions without or
in excess of their jurisdiction" may appropriately be enjoined by the trial court through a writ of injunction or a
temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and
reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by
a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any
branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly authorized by the text of the second paragraph of Section
1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and executive officials.

Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the
Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or
affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty
and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action.
This entrustment is consistent with the republican system of checks and balances.32
In view of the foregoing, We shall proceed to discuss the substantive issues raised herein so as to finally resolve
the question on the validity of Section 4, Rule 1 of the IRR, which is purely legal in nature. This is also because of
the public importance of the issues raised,33 and the interest of substantial justice,34 not to mention the absence of
any dispute as to any underlying fact.35

Hierarchy of courts

Respondents contend that the petition for certiorari and prohibition, as well as the petitions-in-intervention, should
still be dismissed for failure to observe the rule on hierarchy of courts. According to them, this Court's jurisdiction
over actions assailing the validity of administrative issuances is primarily appellate in nature by virtue of Section
5(2)(a), Article VIII of the Constitution.36 An action assailing the validity of an administrative issuance is one that is
incapable of pecuniary estimation, which, under Batas Pambansa Bilang (B.P. Blg.) 129, the Regional Trial Court
(RTC) has exclusive original jurisdiction. Further, a petition for declaratory relief filed before the RTC, pursuant to
Section 1, Rule 63 of the Rules, is the proper remedy to question the validity of the IRR.37

Indeed, under Section 19(1) of B.P. Blg. 129, the question presented here is a matter incapable of pecuniary
estimation, which exclusively and originally pertained to the proper RTC.38 Fundamentally, there is no doubt that
this consolidated case captioned as petition for certiorari and prohibition seeks to declare the unconstitutionality
and illegality of Section 4 Rule 1 of the IRR; thus, partaking the nature of a petition for declaratory relief over
which We only have appellate jurisdiction pursuant to Section 5(2)(a), Article VIII of the Constitution. In
accordance with Section 1, Rule 63 of the Rules, the special civil action of declaratory relief falls under the
exclusive jurisdiction of the RTC.

Nevertheless, the judicial policy has been to entertain a direct resort to this Court in exceptional and compelling
circumstances, such as cases of national interest and of serious implications, and those of transcendental
importance and of first impression.39 As the petitions clearly and specifically set out special and important reasons
therefor, We may overlook the Rules. Here, petitioners Edago et al. are correct in asserting that R.A. No. 10592
and its IRR affect the entire correctional system of the Philippines. Not only the social, economic, and moral well-
being of the convicts and detainees are involved but also their victims and their own families, the jails, and the
society at large. The nationwide implications of the petitions, the extensive scope of the subject matter, the
upholding of public policy, and the repercussions on the society are factors warranting direct recourse to Us.

Yet more than anything, there is an urgent necessity to dispense substantive justice on the numerous affected
inmates. It is a must to treat this consolidated case with a circumspect leniency, granting petitioners the fullest
opportunity to establish the merits of their case rather than lose their liberty on the basis of technicalities.40 It need
not be said that while this case has been pending, their right to liberty is on the line. An extended period of
detention or one that is beyond the period allowed by law violates the accused person's right to liberty.41 Hence,
We shunt the rigidity of the rules of procedure so as not to deprive such birthright.42 The Court zealously guards
against the curtailment of a person's basic constitutional and natural right to liberty.43 The right to liberty, which
stands second only to life in the hierarchy of constitutional rights, cannot be lightly taken away.44 At its core,
substantive due process guarantees a right to liberty that cannot be taken away or unduly constricted, except
through valid causes provided by law.45

Substantive Issues

Every new law has a prospective effect. Under Article 22 of the RPC, however, a penal law that is favorable or
advantageous to the accused shall be given retroactive effect if he is not a habitual criminal. These are the rules,
the exception, and the exception to the exception on the effectivity of laws.46

In criminal law, the principle favorabilia sunt amplianda adiosa restrigenda (penal laws which are favorable to the
accused are given retroactive effect) is well entrenched.47 It has been sanctioned since the old Penal Code.48
x x x as far back as the year 1884, when the Penal Code took effect in these Islands until the 31st of December,
1931, the principle underlying our laws granting to the accused in certain cases an exception to the general rule
that laws shall not be retroactive when the law in question favors the accused, has evidently been carried over into
the Revised Penal Code at present in force in the Philippines through article 22 x x x. This is an exception to the
general rule that all laws are prospective, not retrospective, variously contained in the following maxims: Lex
prospicit, non respicit (the law looks forward, not backward); lex defuturo, judex de proeterito (the law provides for
the future, the judge for the past); and adopted in a modified form with a prudent limitation in our Civil Code
(article 3). Conscience and good law justify this exception, which is contained in the well-known
aphorism: Favorabilia sunt amplianda, odiosa restringenda. As one distinguished author has put it, the exception
was inspired by sentiments of humanity, and accepted by science.49
According to Mr. Chief Justice Manuel Araullo, the principle is "not as a right" of the offender, "but founded on the
very principles on which the right of the State to punish and the commination of the penalty are based, and
regards it not as an exception based on political considerations, but as a rule founded on principles of strict
justice."50

Further, case law has shown that the rule on retroactivity under Article 22 of the RPC applies to said Code51 and its
amendments,52 as well as to special laws,53 such as Act No. 2126,54 Presidential Decree No. 603,55 R.A. No.
7636,56 R.A. No. 8293,57 R.A. No. 8294,58 R.A. No. 9344,59 and R.A. No. 10586,60 to cite a few.
But what exactly is a penal law?

A penal provision or statute has been consistently defined by jurisprudence as follows:

A penal provision defines a crime or provides a punishment for one.61

Penal laws and laws which, while not penal in nature, have provisions defining offenses and prescribing penalties
for their violation.62

Properly speaking, a statute is penal when it imposes punishment for an offense committed against the state
which, under the Constitution, the Executive has the power to pardon. In common use, however, this sense has
been enlarged to include within the term "penal statutes" all statutes which command or prohibit certain acts, and
establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a
penalty upon their commission.63

Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations;
or those that define crimes, treat of their nature, and provide for their punishment.64
The "penal laws" mentioned in Article 22 of the RPC refer to substantive laws, not procedural rules.65 Moreover, the
mere fact that a law contains penal provisions does not make it penal in nature.66

In the case at bar, petitioners assert that Article 22 of the RPC applies because R.A. No. 10592 is a penal law. They
claim that said law has become an integral part of the RPC as Articles 29, 94, 97, 98 and 99 thereof. Edago et
al. further argue that if an amendment to the RPC that makes the penalties more onerous or prejudicial to the
accused cannot be applied retroactively for being an ex post facto law, a law that makes the penalties lighter
should be considered penal laws in accordance with Article 22 of the RPC.

We concur.

While R.A. No. 10592 does not define a crime/offense or provide/prescribe/establish a penalty67 as it addresses the
rehabilitation component68 of our correctional system, its provisions have the purpose and effect of diminishing the
punishment attached to the crime. The further reduction on the length of the penalty of imprisonment is, in the
ultimate analysis, beneficial to the detention and convicted prisoners alike; hence, calls for the application of Article
22 of the RPC.

The prospective application of the beneficial provisions of R.A. No. 10592 actually works to the disadvantage of
petitioners and those who are similarly situated. It precludes the decrease in the penalty attached to their
respective crimes and lengthens their prison stay; thus, making more onerous the punishment for the crimes they
committed. Depriving them of time off to which they are justly entitled as a practical matter results in extending
their sentence and increasing their punishment.69 Evidently, this transgresses the clear mandate of Article 22 of the
RPC.

In support of the prospective application of the grant of GCTA, TASTM, and STAL, respondents aver that a careful
scrutiny of R.A. No. 10592 would indicate the need for "new procedures and standards of behavior" to fully
implement the law by the BUCOR (as to persons serving their sentences after conviction) and the BJMP (as to
accused who are under preventive detention). It is alleged that the amendments introduced are substantial and of
utmost importance that they may not be implemented without a thorough revision of the BUCOR and the BJMP
operating manuals on jail management. In particular, the establishment of the MSEC is said to be an administrative
mechanism to address the policy and necessity that the BUCOR superintendents and the BJMP jail wardens must
follow uniform guidelines in managing, screening and evaluating the behavior or conduct of prisoners prior to their
recommendation to the heads of the two bureaus on who may be granted time allowances.

Respondents fail to persuade Us.

Except for the benefits of TASTM and the STAL granted to a prisoner who chose to stay in the place of his
confinement despite the existence of a calamity or catastrophe enumerated in Article 158 of the RPC, the
provisions of R.A. No. 10592 are mere modifications of the RPC that have been implemented by the BUCOR prior to
the issuance of the challenged IRR. In view of this, the claim of "new procedures and standards of behavior" for the
grant of time allowances is untenable.

It appears that even prior to February 1, 1916 when Act No. 2557 was enacted,70 prisoners have already been
entitled to deduct the period of preventive imprisonment from the service of their sentences. In addition, good
conduct time allowance has been in existence since August 30, 1906 upon the passage of Act No. 1533.71 Said law
provided for the diminution of sentences imposed upon convicted prisoners in consideration of good conduct and
diligence.72 Under Act No. 1533 and subsequently under Article 97 of the RPC, the time allowance may also apply
to detention prisoners if they voluntarily offer in writing to perform such labor as may be assigned to them.73 Such
prerequisite was removed by R.A. No. 10592.

Subject to the review, and in accordance with the rules and regulations, as may be prescribed by the Secretary of
Public Instruction, the wardens or officers in charge of Insular or provincial jails or prisons were mandated to make
and keep such records and take such further actions as may be necessary to carry out the provisions of Act No.
1533.74 When the RPC took effect on January 1, 1932,75 the Director of Prisons was empowered to grant
allowances for good conduct whenever lawfully justified.76 With the effectivity of R.A. No. 10592 on June 6, 2013,
such authority is now vested on the Director of the BUCOR, the Chief of the BJMP and/or the Warden of a
provincial, district, municipal or city jail.77

Under the IRR of R.A. No. 10592, the MSECs are established to act as the recommending body for the grant of
GCTA and TASTM.78 They are tasked to manage, screen and evaluate the behavior and conduct of a detention or
convicted prisoner and to monitor and certify whether said prisoner has actually studied, taught or performed
mentoring activities.79 The creation of the MSEC, however, does not justify the prospective application of R.A. No.
10592. Nowhere in the amendatory law was its formation set as a precondition before its beneficial provisions are
applied. What R.A. No. 10592 only provides is that the Secretaries of the DOJ and the DILG are authorized to
promulgate rules and regulations on the classification system for good conduct and time allowances, as may be
necessary to implement its provisions.80 Clearly, respondents went outside the bounds of their legal mandate when
they provided for rules beyond what was contemplated by the law to be enforced.
Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority
must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law's general
provisions into effect. The law itself cannot be expanded by such IRRSs, because an administrative agency cannot
amend an act of Congress.81
The contention of Edago et al. stands undisputed that, prior to the issuance of the assailed IRR and even before the
enactment of R.A. No. 10592, a Classification Board had been handling the functions of the MSEC and
implementing the provisions of the RPC on time allowances. While there is a noble intent to systematize and/or
institutionalize existing set-up, the administrative and procedural restructuring should not in any way prejudice the
substantive rights of current detention and convicted prisoners.

Furthermore, despite various amendments to the law, the standard of behavior in granting GCTA remains to be
"good conduct." In essence, the definition of what constitutes "good conduct" has been invariable through the
years, thus:
Act No. 1533: "not been guilty of a violation of discipline or any of the rules of the prison, and has labored with
diligence and fidelity upon all such tasks as have been assigned to him."82

BUCOR Operating Manual dated March 30, 2000: "displays good behavior and who has no record of breach of
discipline or violation of prison rules and regulations."83

IRR of R.A. No. 10592: "the conspicuous and satisfactory behavior of a detention or convicted prisoner consisting
of active involvement in rehabilitation programs, productive participation in authorized work activities or
accomplishment of exemplary deeds coupled with faithful obedience to all prison/jail rules and regulations"84
Among other data, an inmate's prison record contains information on his behavior or conduct while in
prison.85 Likewise, the certificate/diploma issued upon successful completion of an educational program or course
(i.e., elementary, secondary and college education as well as vocational training) forms part of the record.86 These
considered, the Court cannot but share the same sentiment of Roxas et al. It is indeed perplexing why it is complex
for respondents to retroactively apply R.A. No. 10592 when all that the MSEC has to do is to utilize the same
standard of behavior for the grant of time allowances and refer to existing prison records.

WHEREFORE, the consolidated petitions are GRANTED. Section 4, Rule 1 of the Implementing Rules and
Regulations of Republic Act No. 10592 is DECLARED invalid insofar as it provides for the prospective application of
the grant of good conduct time allowance, time allowance for study, teaching and mentoring, and special time
allowance for loyalty. The Director General of the Bureau of Corrections and the Chief of the Bureau of Jail
Management and Penology are REQUIRED to RE-COMPUTE with reasonable dispatch the time allowances due to
petitioners and all those who are similarly situated and, thereafter, to CAUSE their immediate release from
imprisonment in case of full service of sentence, unless they are being confined thereat for any other lawful cause.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.
G.R. No. 206513

MUSTAPHA DIMAKUTA MARUHOM, Petitioner

vs.
PEOPLE OF THE PHIILPPINES, Respondent

DECISION

PERALTA, J.:

The Court is now faced with one of the predicaments I discussed in my Dissenting and Concurring Opinion
in Colinares v. People.1 The question regarding the application of the Probation Law is again inescapably
intertwined with the present petition. Consequently, I must reiterate my assertions and arguments in
Colinares to the case at bar.

In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was indicted for Violation
of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special Protection of Children
Against Abuse, Exploitation and Discriminatory Act. The Information reads:

That on or about the 24th day of September 2005, in the City of Las Piñas, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there
willfully, unlawfully and feloniously commit a lascivious conduct upon the person of one AAA, who was then
a sixteen (16) year old minor, by then and there embracing her, touching her breast and private part
against her will and without her consent and the act complained of is prejudicial to the physical and
psychological development of the complainant.2

After trial, the RTC promulgated its Decision3 which convicted petitioner of the crime charged and
sentenced him to suffer an indeterminate penalty of imprisonment ranging from ten (10) years of prision
mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
maximum, with the accessory penalty of perpetual absolute disqualification. In addition, he was directed to
pay a fine of ₱20,000.00, civil indemnity of ₱25,000.00, and moral damages of ₱25,000.00.4

Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing, among other things,
that even assuming he committed the acts imputed, still there is no evidence showing that the same were
done without the victim’s consent or through force, duress, intimidation or violence upon her. Surprisingly,
when asked to comment on the appeal, the Office of the Solicitor General (OSG), relying heavily on People
v. Abello,5 opined that petitioner should have been convicted only of Acts of Lasciviousness under Article
336 of the Revised Penal Code (RPC) in view of the prosecution’s failure to establish that the lascivious
acts were attended by force or coercion because the victim was asleep at the time the alleged acts were
committed.

On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the OSG. In modifying
the RTC Decision, petitioner was found guilty of Acts of Lasciviousness under Article 336 of the RPC and
was sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to four
(4) years and two (2) months of prision correccional, as maximum. Likewise, he was ordered to pay
₱20,000.00 as civil indemnity and ₱30,000.00 as moral damages.

Petitioner received a copy of CA Decision on July 6, 2012.7 Instead of further appealing the case, he filed
on July 23, 2012 before the CA a manifestation with motion to allow him to apply for probation upon
remand of the case to the RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed
petitioner therein to apply for probation after his sentence was later reduced on appeal by the Supreme
Court.

The CA issued a Resolution on September 3, 2012 denying petitioner’s manifestation with motion.10 It was
ruled that Colinares is inapplicable since petitioner therein raised as sole issue the correctness of the
penalty imposed and claimed that the evidence presented warranted only a conviction for the lesser
offense. Instead, the appellate court viewed as appropriate the case of Lagrosa v. People,11 wherein the
1âwphi1

application for probation was denied because petitioners therein put in issue on appeal the merits of their
conviction and did not simply assail the propriety of the penalties imposed.

Petitioner filed a motion for reconsideration,12 but it was denied in a Resolution13 dated March 13, 2013;
hence, this petition.

The petition should be denied.

At the outset, tracing the evolution of the present Probation Law is warranted in order to better understand
and apply the wisdom of its framers to cases invoking its application.

In this jurisdiction, the concept of probation was introduced during the American colonial period.14 For
juvenile delinquents, Act No. 320315 was enacted on December 3, 1924. It was later amended by Act Nos.
3309,16 3559,17 and 3725.18 As to offenders who are eighteen years old and above, Act No. 422119 was
passed by the legislature and took effect on August 7, 1935. Said Act allowed defendants who are
convicted and sentenced by a Court of First Instance or by the Supreme Court on appeal, except those
who are convicted of offenses enumerated in Section 8 thereof,20 to be placed on probation upon
application after the sentence has become final and before its service has begun.21 However, We declared
in People v. Vera22 that Act No. 4221 is unconstitutional and void as it constitutes an improper and unlawful
delegation of legislative authority to the provincial boards.

During the martial law period, then President Ferdinand E. Marcos issued Presidential Decree (P.D.) No.
96823 on July 24, 1976. Originally, P.D. No. 968 allowed the filing of an application for probation at any time
after the defendant had been convicted and sentenced. Section 4 of which 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 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.24

Later, the filing of an application for probation pending appeal was still allowed when Section 4 of P.D. No.
968 was amended by P.D. No. 125725 on December 1, 1977 by providing that such application may be
made after the defendant had been convicted and sentenced but before he begins to serve his sentence.
Thus:

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.

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.

An order granting or denying probation shall not be appealable.26

On October 5, 1985, Section 4 was subsequently amended by P.D. No. 1990.27 Henceforth, the policy has
been to allow convicted and sentenced defendant to apply for probation within the 15-day period for
perfecting an appeal. As modified, Section 4 of the Probation Law now reads:

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. 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.28

The reason for the disallowance may be inferred from the preamble of P.D. No. 1990, thus:

WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be
entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue
their application for probation when their appeal is eventually dismissed;

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time
and effort, not to mention the huge expenses of litigation, on the part of the State;

WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused
persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant applies for and is granted
probation;

WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay
the administration of justice, but should be availed of at the first opportunity by offenders who are willing to
be reformed and rehabilitated;

WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our probation

system[.]

Observing the developments in our Probation Law, the Court settled in Llamado v. Court of Appeals:29

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 judgment 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. x x x
 xxxx

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.

xxxx

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.
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 the law-making agency could only have intended to refer to the meaning of
those words in the context of procedural law.30

In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was amended precisely to
put a stop to the practice of appealing from judgments of conviction even if the sentence is probationable,
for the purpose of securing an acquittal and applying for the probation only if the accused fails in his
bid.32 The Probation Law "expressly requires that an accused must not have appealed his conviction before
he can avail himself 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."33

Verily, Section 4 of the Probation Law provides that the application for probation must be filed with the trial
court within the 15-day period for perfecting an appeal. The need to file it within such period is intended to
encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves of probation at
the first opportunity.34 If the application for probation is filed beyond the 15-day period, then the judgment
becomes final and executory and the lower court can no longer act on the application for probation. On the
other hand, if a notice of appeal is perfected, the trial court that rendered the judgment of conviction is
divested of any jurisdiction to act on the case, except the execution of the judgment when it has become
final and executory.

In view of the latest amendment to Section 4 of the Probation Law that "no application for probation shall
be entertained or granted if the defendant has perfected an appeal from the judgment of
conviction," prevailing jurisprudence35 treats appeal and probation as mutually exclusive remedies because
the law is unmistakable about it.36 Indeed, the law is very clear and a contrary interpretation would counter
its envisioned mandate. 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.37 To be sure, the remedy of convicted felons who want to avail of the benefits of
probation even after the remedy of an appeal is to go to the Congress and ask for the amendment of the
law. To surmise a converse construal of the provision would be dangerously encroaching on the power of
the legislature to enact laws and is tantamount to judicial legislation.

With due respect, however, to the ponente and the majority opinion in Colinares,38 the application of the
Probation Law in the said case deserves a second hard look so as to correct the mistake in the application
of the law in that particular case and in similar cases which will be filed before the courts and inevitably
elevated to Us like this petition.

To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is allowed by the
Probation Law, albeit erroneously, the accused was deprived of his choice to apply for probation and
instead was compelled to appeal the case. The reprehensible practice intended to be avoided by the law
was, therefore, not present when he appealed the trial court’s decision. Taking into account that the
accused argued in his appeal that the evidence presented against him warranted his conviction only for
attempted, not frustrated, homicide, the majority of the Court opined that the accused had purposely
sought to bring down the impossible penalty in order to allow him to apply for probation.

It was obvious then, as it is now, that the accused in Colinares should not have been allowed the benefit of
probation. As I have previously stated and insisted upon, probation is not a right granted to a convicted
offender; it is a special privilege granted by the State to a penitent qualified offender,39 who does not
possess the disqualifications under Section 9 of P.D. No. 968, as amended.40 Likewise, the Probation Law
is not a penal law for it to be liberally construed to favor the accused.41

In the American law paradigm, probation is considered as an act of clemency and grace, not a matter of
right.42 It is a privilege granted by the State, not a right to which a criminal defendant is entitled.43 In City of
Aberdeen v. Regan,44 it was pronounced that:

The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or
clemency granted to the deserving.

As such, even in the American criminal justice model, probation should be granted only to the deserving or,
in our system, only to qualified "penitent offenders" who are willing to be reformed and rehabilitated.
Corollarily, in this jurisdiction, the wisdom behind the Probation Law is outlined in its stated purposes, 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.45

As I have previously indicated in Colinares, if this Court will adopt as jurisprudential doctrine the opinion
that an accused may still be allowed to apply for probation even if he has filed a notice of appeal, it must be
categorically stated that such appeal must be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by the lower court, which
when corrected would entitle the accused to apply for probation; and

2. When the appeal is merely intended to review the crime for which the accused was convicted and that
the accused should only be liable to the lesser offense which is necessarily included in the crime for which
he was originally convicted and the proper penalty imposable is within the probationable period.

In both instances, the penalty imposed by the trial court for the crime committed by the accused is more
than six years; hence, the sentence disqualifies the accused from applying for probation. The accused
should then be allowed to file an appeal under the afore-stated grounds to seek a review of the crime
and/or penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to modify the
crime and/or the penalty imposed, and the penalty finally imposed is within the probationable period, the
accused should still be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the accused should first file
a motion for reconsideration of the decision of the trial court anchored on the above-stated grounds and
manifest his intent to apply for probation if the motion is granted. The motion for reconsideration will give
the trial court an opportunity to review and rectify any errors in its judgment, while the manifestation of the
accused will immediately show that he is agreeable to the judgment of conviction and does not intend to
appeal from it, but he only seeks a review of the crime and/or penalty imposed, so that in the event that the
penalty will be modified within the probationable limit, he will immediately apply for probation. Without such
motion for reconsideration, the notice of appeal should be denied outright.

The notice of appeal should contain the following averments:

(1) that an earlier motion for reconsideration was filed but was denied by the trial court;

(2) that the appeal is only for reviewing the penalty imposed by the lower court or the conviction should
only be for a lesser crime necessarily included in the crime charged in the information; and

(3) that the accused-appellant is not seeking acquittal of the conviction.

To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction, which
involves a review of the merits of the case and the determination of whether the accused is entitled to
acquittal. However, under the recommended grounds for appeal which were enumerated earlier, the
purpose of the appeal is not to assail the judgment of conviction but to question only the propriety of the
sentence, particularly the penalty imposed or the crime for which the accused was convicted, as the
accused intends to apply for probation upon correction of the penalty or conviction for the lesser offense. If
the CA finds it proper to modify the sentence, and the penalty finally imposed by the appellate court is
within the probationable period, or the crime for which the accused is eventually convicted imposes a
probationable penalty, application for probation after the case is remanded to the trial court for execution
should be allowed.

It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation Law,
which expressly prohibits only an appeal from the judgment of conviction. In such instances, the ultimate
reason of the accused for filing the appeal based on the afore-stated grounds is to determine whether he
may avail of probation based on the review by the appellate court of the crime and/or penalty imposed by
the trial court. Allowing the afore-stated grounds for appeal would give an accused the opportunity to apply
for probation if his ground for appeal is found to be meritorious by the appellate court, thus, serving the
purpose of the Probation Law to promote the reformation of a penitent offender outside of prison.

On the other hand, probation should not be granted to the accused in the following instances:

1. When the accused is convicted by the trial court of a crime where the penalty imposed is within the
probationable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there
is an alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was convicted where the penalty is
within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits granting
an application for probation if an appeal from the sentence of conviction has been perfected by the
accused.

In this case, petitioner appealed the trial court’s judgment of conviction before the CA alleging that it was
error on the part of the RTC to have found him guilty of violating Section 5(b), Article III of R.A. No. 7610.
He argued that the RTC should not have given much faith and credence to the testimony of the victim
because it was tainted with inconsistencies. Moreover, he went on to assert that even assuming he
committed the acts imputed on him, still there was no evidence showing that the lascivious acts were
committed without consent or through force, duress, intimidation or violence because the victim at that time
was in deep slumber. It is apparent that petitioner anchored his appeal on a claim of innocence and/or lack
of sufficient evidence to support his conviction of the offense charged, which is clearly inconsistent with the
tenor of the Probation Law that only qualified penitent offender are allowed to apply for probation. The CA,
therefore, did not err in applying the similar case of Lagrosa v. People46 wherein the protestations of
petitioners therein did not simply assail the propriety of the penalties imposed but meant a profession of
guiltlessness, if not complete innocence.

To be sure, if petitioner intended in the first instance to be entitled to apply for probation he should have
admitted his guilt and buttressed his appeal on a claim that the penalty imposed by the RTC was
erroneous or that he is only guilty of a lesser offense necessarily included in the crime for which he was
originally convicted. Unfortunately for him, he already perfected his appeal and it is late in the day to avail
the benefits of probation despite the imposition of the CA of a probationable penalty.

As regards the CA Decision convicting petitioner of the crime of Acts of Lasciviousness under Article 336 of
the RPC, such conclusion clearly contravenes the law and existing jurisprudence.

Petitioner was charged and convicted by the trial court with violation of Section 5(b), Article III of R.A. No.
7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her by touching her
breast and vagina while she was sleeping. The provision reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution
and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subject to other sexual abus; Provided, That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act
No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lasciviousconduct when the victim is under twelve (12) years of age shall
be reclusion temporal I its medium period; x x x(Emphasis supplied)

The elements of sexual abuse are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to sexual abuse.

3. The child, whether male or female, is below 18 years of age.47

Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse when he or
she indulges in lascivious conduct under the coercion or influence of any adult.48 This statutory provision
must be distinguished from Acts of Lasciviousness under Articles 336 and 339 of the RPC. As defined in
Article 336 of the RPC, Acts of Lasciviousness has the following elements:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived or reason or otherwise unconscious; or

c. When the offended party os under 12 years of age; and

That the offended party is another person of either sex.49

Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of the
offended party done by the same persons and under the same circumstances mentioned in Articles 337
and 338 of the RPC, to wit:

1. if committed against a virgin over twelve years and under eighteen years of age by any person in
public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity,
shall be entrusted with the education or custody of the woman; or

2. if committed by means of deceit against a woman who is single or a widow of good reputation, over
twelve but under eighteen years of age.

Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and under eighteen (18)
years of age shall be liable for:

1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is a virgin and consents to the
lascivious acts through abuse of confidence or when the victim is single or a widow of good
reputation and consents to the lascivious acts through deceit, or;

2. Acts of lasciviousness is not covered by lascivious conduct as defined in R.A. No. 7610. In case the acts
of lasciviousness is covered by lascivious conduct under R.A. No. 7610 and it is done through coercion or
influence, which established absences or lack of consent, the Art.336 of the RPC is no longer applicable

3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the victim to the
lascivious conduct, which was done through the employment of coercion or influence. The offender may
likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18) years and she
is unable to fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.50

Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of another person if the victim did not
consent either it was done through force, threat or intimidation; or when the victim is deprived of reason or
is otherwise unconscious; or by means of fraudulent machination or grave abuse of authority as sexual
assault as a form of rape. However, in instances where the lascivious conduct is covered by the definition
under R.A. No 7610, where the penalty is reclusion temporal medium, and the act is likewise covered by
sexual assault under Article 266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the
offender should be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the law provides
for the higher penalty of reclusion temporal medium, if the offended party is a child victim. But if the victim
is at least eighteen (18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and
not R.A. No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully take care of
herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition, in which case, the offender may still be held liable for sexual abuse under
R.A. No. 7610.

There could be no other conclusion, a child is presumed by law to be incapable of giving rational consent
to any lascivious act, taking into account the constitutionally enshrined State policy to promote the physical,
moral, spiritual, intellectual and social well-being of the youth, as well as, in harmony with the foremost
consideration of the child’s best interests in all actions concerning him or her.51 This is equally consistent
with the with the declared policy of the State to provide special protection to children from all forms of
abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for prevention and
deterrence of and crisis intervention in situations of child abuse, exploitation, and discrimination.52 Besides,
if it was the intention of the framers of the law to make child offenders liable only of Article 266-A of the
RPC, which provides for a lower penalty than R.A. No. 7610, the law could have expressly made such
statements.

As correctly found by the trial court, all the elements of sexual abuse under Section 5(b), Article III of R.A.
No. 7610 are present in the case at bar. 1âwphi1

First, petitioner’s lewd advances of touching the breasts and vagina of his hapless victim constitute
lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and Regulations (IRR) of
R.A. No. 7610:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner
thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether
of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person.53

Second, petitioner clearly has moral ascendancy over the minor victim not just because of his relative
seniority but more importantly due to the presumed presence of mutual trust and confidence between them
by virtue of an existing employment relationship, AAA being a domestic helper in petitioner’s household.
Notably, a child is considered as sexually abused under Section 5(b) of R.A. No. 7610 when he or she is
subjected to lascivious conduct under the coercion or influence of any adult. Intimidation need not
necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues
the free exercise of the will of the offended party.54 The law does not require physical violence on the
person of the victim; moral coercion or ascendancy is sufficient.55 On this point, Caballo v.
People56 explicated:

As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in sexual
intercourse or any lascivious conduct due to the coercion or influence of any adult, the child is
deemed to be a "child exploited in prostitution and other sexual abuse." In this manner, the law is able
to act as an effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation and discrimination
against children, prejudicial as they are to their development.

In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the coercion or
influence of any adult exists when there is some form of compulsion equivalent to intimidation which
subdues the free exercise of the offended party’s free will. Corollary thereto, Section 2(g) of the Rules
on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in
a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist
another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or
incest with children.

To note, the term "influence" means the "improper use of power or trust in any way that deprives a person
of free will and substitutes another’s objective." Meanwhile, "coercion" is the "improper use of x x x power
to compel another to submit to the wishes of one who wields it."57

Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section 3 (a) of
R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those over but unable to
fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition."

The decision of the trial court finding the petitioner guilty of Violation of Section 5(b), Article III R.A. No.
7610 should have been upheld by the CA instead of erroneously adopting the recommendation of the
OSG, which inaccurately relied on People v. Abello.58 In said case, the decisive factor for the acquittal of
the accused was not the absence of coercion or intimidation on the offended party, who was then sleeping
at the time the lascivious act was committed, but the fact that the victim could not be considered as a
"child" under R.A. No. 7610. This Court held that while the twenty-one year old woman has polio as a
physical disability that rendered her incapable of normal function, the prosecution did not present any
testimonial or documentary evidence - any medical evaluation or finding from a qualified physician,
psychologist or psychiatrist - attesting that the physical condition rendered her incapable of fully taking care
of herself or of protecting herself against sexual abuse.

Thus, it is clear that petitioner could not have been entitled to apply for probation in the first place.
Regrettably, since neither the accused nor the OSG questioned the CA Decision, it has attained finality and
to correct the error at this stage is already barred by the right of the accused against double jeopardy.

Based on the above disquisitions, the petitioner should be denied the benefit of the Probation Law and that
the Court should adopt the recommendations above-stated in situations where an accused files an appeal
for the sole purpose of correcting the penalty imposed to qualify him for probation or where he files an
appeal specifically claiming that he should be found guilty of a lesser offense necessarily included with the
crime originally filed with a prescribed penalty which is probationable.

SO ORDERED.
 FIRST DIVISION

G.R. No. 153845. September 11, 2003

EFREN SALVAN y PRESENES,, Petitioner, v. THE PEOPLE OF THE PHILIPPINES, respondent.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court, which seeks to set aside the Order of the
Regional Trial Court, Branch 13 of Malolos, Bulacan, dated February 12, 2002, denying due course to
petitioner Efren Salvans Notice of Partial Appeal, and the Order of the same court, dated June 6, 2002,
denying petitioners Motion for Reconsideration.1 The petition also specifically prays for the issuance of an
Order directing the trial court to give due course to the petitioners Notice of Partial Appeal. 2 cräläwvirt ualib rä ry

Petitioner Efren Salvan, a bus driver, was charged with Reckless Imprudence Resulting in Homicide for the
death of John Barry Abogado, in Criminal Case No. 718-M-00 before the Regional Trial Court of Malolos,
Bulacan, Branch 13.3 At his arraignment, petitioner pleaded guilty to the charge. The trial court then
proceeded to receive evidence to determine the civil liability of petitioner. During the course of the hearing,
petitioner and private complainant Edna Abogado, the mother of the accused, agreed to amicably settle the
civil aspect of the case.4 cräläwvirt uali brä ry

On October 23, 2001, the trial court promulgated its Decision, the decretal portion of which provides:

WHEREFORE, premises considered, this Court finds the accused GUILTY beyond reasonable doubt of the
crime of simple negligence resulting in homicide as per the recitals in the information, punished under the
second paragraph of Article 365 of the Revised Penal Code, and hereby sentences him to suffer the penalty
of six (6) months of arresto mayor. Accused is directed to pay to the heirs of the deceased the net sum of
P100,000.00, representing the difference between the P100,000.00 earlier paid by way of amicable
settlement herein and the sum of:

a) P50,000.00 in actual damages;

b) P50,000.00 in civil indemnity; and

c) P100,000.00 in moral damages.

SO ORDERED.5 crä läwvirtuali brä ry

Petitioner filed a Motion for Partial Reconsideration praying for the deletion of the additional award of
damages.6 He also filed an Application for Probation on the same date.7 On January 28, 2002, the trial court
denied the petitioners Motion for Partial Reconsideration, but gave due course to the petitioners Application
for Probation.8cräläwvi rtua lib räry

Petitioner then filed a Notice of Partial Appeal on February 8, 2002. On February 12, 2002, the trial court
issued the first assailed Order, the dispositive portion of which states:

Considering that the application for probation of the accused was given due course as per the Order of this
Court dated January 28, 2002, and the application for probation is deemed under the law to be a waiver of
the right to appeal, the Notice of Appeal is hereby DENIED due course.

SO ORDERED.9 crä läwvirtuali brä ry

Petitioner filed a Motion for Reconsideration, which was denied on June 6, 2002.10 cräläwvi rtua lib räry

Petitioner is now before us, alleging that:

THE TRIAL COURT ERRED WHEN IT DENIED GIVING DUE COURSE TO ACCUSEDS NOTICE OF PARTIAL
APPEAL EXCLUSIVELY ON THE AWARD OF DAMAGES.11 cräläwvi rtua lib räry

In Rule 41 of the 1964 Rules of Court, the dismissal of appeals was governed by the following provisions:

SEC. 13. Effect of failure to file notice, bond, or record on appeal. Where the notice of appeal, appeal bond or
record on appeal is not filed within the period of time herein provided, the appeal shall be dismissed.

SEC. 14. Motion to dismiss appeal. A motion to dismiss an appeal on any of the grounds mentioned in the
preceding section, may be filed in the Court of First Instance prior to the transmittal of the record to the
appellate court.

Rule 41, Section 13 of the 1997 Rules of Civil Procedure, provides for the grounds to dismiss appeals, to wit:

Sec. 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the
appellate court, the trial court may motu proprio or on motion dismiss the appeal for having been taken out
of time or for non-payment of the docket and other lawful fees within the reglementary period. 12 cräläwvirtual ibrä ry

The above-quoted rule limits the grounds for dismissal of appeals to very specific instances. The filing of an
application for probation is not one of them.

In the parallel case of Ortigas & Company Limited Partnership v. Velasco,13 we held:

His Honor was apparently incognizant of the principle that dismissals of appeals from the judgment of a
Regional Trial Court by the latter are authorized only in the instances specifically set forth in Section 13, Rule
41 of the Rules of Court. The succeeding provision, Section 14 of said Rule 41, provides that (a) motion to
dismiss an appeal may be filed in the (Regional Trial) Court . . . prior to the transmittal of the record to the
appellate court; and the grounds are limited to those mentioned in the preceding section, i.e., Section 13 to
wit: where the notice of appeal, appeal bond, or record on appeal is not filed within the period of time herein
provided . . .

These two (2) sections clearly establish that. . . . (A) trial court may not dismiss an appeal as frivolous, or on
the ground that the case has become moot and academic, such step devolving upon the appellate courts.
Otherwise, the way would be opened for (regional trial) courts . . . to forestall review or reversal of their
decisions by higher courts, no matter how erroneous or improper such decisions should be. 14 cräläwvi rtua lib räry

Although the aforementioned ruling was made in a civil case, we see no reason why the principles
enunciated therein cannot be applied, by analogy, to a criminal case, such as the one at bar. Thus, aside
from its competence to dismiss withdrawn appeals,15 the Regional Trial Courts power to dismiss an appeal is
limited to the instances provided for in Rule 41, Section 13.

Going now to the issue of probation, we recall that the law which governs all matters relating to probation is
Presidential Decree No. 968, commonly known as the Probation Law, as amended by Presidential Decree No.
1990. The provision of the law that is pertinent to the current controversy reads:

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. 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.

Relying solely on the letter of the law, the filing of the application for probation should be deemed a waiver
of the right to appeal. However, in the case of Budlong v. Apalisok,16 we had occasion to rule that the above
provision of the Probation Law clearly provides only for the suspension of the sentence imposed on the
accused by virtue of his application for probation. It has absolutely no bearing on civil liability. This ruling
was clarified in Salgado v. Court of Appeals,17 wherein we ruled 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 intertwining of criminal and civil liability is best understood by analyzing the criminal act itself which, by
its very nature, causes two (2) classes of injury. The first is the social injury produced by the criminal act
which is sought to be repaired thru the imposition of the corresponding penalty and the second is the
personal injury caused to the victim of the crime which injury is sought to be compensated thru indemnity,
which is civil in nature.18 This has been codified in our criminal law, where every person criminally liable for a
felony is also civilly liable.19 Thus, Article 113 of the Revised Penal Code provides that, except in case of
extinction of civil liability, 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 rights, or has not been required to serve the same by reason of amnesty,
pardon, commutation of sentence or any other reason. Furthermore, this principle has found its way into our
rules of criminal procedure, where it is provided that an action for recovery of civil liability is deemed
instituted in the criminal action unless reserved by the offended party.20 And yet it must be remembered that
the civil liability of the accused is not part of the penalty for the crime committed: it is personal to the
victim.21cräläwvirtua lib räry

The Probation Law prohibits a judge from entertaining or granting an application for probation if the
defendant has perfected an appeal from the judgment of conviction. The fact of conviction most certainly
refers to the criminal liability of the accused, as a result of a finding made by a judge that he is guilty of the
crime charged. However, the appeal in this case involved only the civil aspect of the trial courts judgment.
Hence, we see no reason why, between the conjoined criminal and civil aspects of a felony, a line cannot be
drawn marking where the one springs from the other. Even if by definition civil liability ex delicto arises from
the criminal act, once its existence is established, it should be treated separately from the criminal liability.
Indeed there is even categorical statutory basis to state that it subsists despite the extinguishment of the
criminal liability from which it arose. This was the finding in Budlong v. Apalisok and Salgado v. Court of
Appeals.

Thus, we rule that, in an appeal from a judgment of conviction, the criminal liability and the civil liability ex
delicto should be considered independently, each with its own corresponding effects. In the present case, the
law that bars an appeal of the judgment of conviction, as well as its corresponding criminal liability, should
not bar an appeal of the civil aspect of the same judgment.

WHEREFORE, in view of the foregoing, the petition is GRANTED. The Orders of the Regional Trial Court,
Branch 13 of Malolos, Bulacan, dated February 12, 2002, and June 6, 2002 are REVERSED and SET ASIDE.
Let this case be REMANDED to the court of origin which is ORDERED to give due course to the petitioners
Notice of Partial Appeal.

SO ORDERED.
G.R. Nos. 139751-52 January 26, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
NOEL DARILAY, appellant.

DECISION

CALLEJO, SR., J.:

The Spouses Pascual and Gemma Arganda were the parents of five children, the eldest of whom was
Marilyn who was born on October 24, 1988.1 The second child, Ailyn, was born on September 14,
1990.2 The couple and their children resided in Sitio Magrimpong, Sta. Cruz, Tinambac, Camarines
Sur.3 The couple knew the appellant, Noel Darilay, their 15-year-old barriomate because he and his friends
frequented their house.

At 7:30 a.m. on April 19, 1997, Hercules Bon was in the house of his uncle at Magrimpong, Sta. Cruz,
Tinambac, Camarines Sur. At about 8:00 a.m., his cousin, the appellant, arrived. Their friend, Jose Delfino,
also arrived. They had a drinking spree and consumed two bottles of gin. After about thirty minutes, the
appellant left because his father had arrived and was looking for him.4

At about 9:00 a.m., Marilyn and Ailyn were asked by their parents to buy tinapa (dried fish) from a store
about half a kilometer away from their residence. They used a foot path to get to the store. After buying the
dried fish, they walked back home. Momentarily, they saw the appellant emerge from a catmon tree.5 He
struck Ailyn twice with a piece of wood on her back and boxed her on the left side of her face. She felt
excruciating pain on her back and face, and all over her body. She fell unconscious.6 The appellant then
struck Marilyn twice on the back with the piece of wood. He then carried Ailyn to a grassy area and left her
there. When Ailyn regained her bearings, she looked for Marilyn but the appellant and her sister were
nowhere to be found.7

Ailyn then rushed back home and told her mother what happened to her and Marilyn.8 Their neighbor, Allan
Candelaria, then rushed to the farm where Pascual worked as a laborer and informed him of what
happened to his daughters.9 Pascual hurried home and looked for Marilyn in Sitio Magrimpong and within
the vicinity of the river, to no avail. He rushed back home and after a while left again to resume his search
for Marilyn. Again, he failed to find her.10 He searched anew for his daughter with the help of neighbors at
around 1:00 p.m., again to no avail.

At 11:00 a.m. earlier that day, Andres Arganda, the victim’s uncle reported the incident to the police station.
SPO1 Teresito Porteza, SPO1 Ernesto Ablaza and PO3 Antonio Pacardo rushed to the scene.11 With the
help of tanods, they searched for Marilyn in the place where the appellant attacked the girls. About 15
meters away, they found a yellow-and-white-colored dress,12 white panties,13 and a slipper bearing the
name of Marilyn. The dress was torn.14 In the meantime, Bon went back home and was informed that the
appellant was wanted for the injuries of Ailyn and Marilyn. He looked for the appellant and found him in the
house of Jose Delfino.15

While the policemen were conducting their investigation, the appellant arrived accompanied by PO3
Antonio Pacardo. When asked where Marilyn was, he told the police that she was about 30 meters away.
Upon the policemen’s failure to find the girl, the appellant finally told them where Marilyn was and
volunteered to accompany them to the place. The policemen, the appellant and Pascual Arganda then left
and proceeded to Palinao River, at Sitio Palinao, Binalay, Tinambac. They found Marilyn’s body in a grassy
area near bushes and trees along the Palinao River.16 She was lying face down, her legs spread apart and
was completely naked. There was blood on her nose, her mouth, and her vagina. Her hair was disheveled.
Photographer John Francis Madrigal took pictures of Marilyn at the place where she was found.17 The
policemen arrested the appellant and had him detained in jail.

Municipal Health Officer Dr. Salvador V. Betito, Jr., performed an autopsy of the cadaver and prepared a
report thereon which contained the following findings:
 Post-mortem examination findings:

1. Abrasions, multiple, face.

2. Avulsion, 1 cm. x 3 cms., chin.

3. Abrasions, multiple, left and right shoulder and anterior chest wall.

4. Depressed fractures, occipital bone of the head.

5. Abrasions, multiple, posterior chest wall.

Vaginal Examination:

a. Labia majora – blood-stained, slightly prominent and distinctly gaping.

b. Lacerations – big, at six o’clock position.

c. Vaginal canal – reddened, presence of oozing blood.

Conclusions: She had sexual intercourse with a man.

Cause of Death: Internal hemorrhage secondary to depressed fractures of the skull.18

The doctor testified that the most fatal wound inflicted on Marilyn was wound no. 4. He also examined Ailyn
and signed a report stating that the victim sustained the following injuries:

Medical Certificate of Ailyn Arganda

Pertinent Physical Examination Findings:

1. Contusion, occipital aspect of the head.

2. Abrasions, multiple, posterior aspect of the chest.

3. Contusion, left zygomatic aspect of the face.19

The appellant was charged of attempted murder under an Amended Information filed with the Regional
Trial Court of Camarines Sur, Branch 63, docketed as Criminal Case No. RTC’97-202, the accusatory
portion of which reads:

That on or about the 19th day of April 1997, at Sitio Magrimpong, Barangay Sta. Cruz, Municipality
of Tinambac, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, did then and there, willfully, unlawfully and
feloniously commences the commission of a felony directly by overt acts by then and there with
treachery and abuse of superior strength assaulting and hitting with a piece of wood one AILYN
ARGANDA, a seven (7) year old child, who as a consequence thereof, lost consciousness but the
accused was not able to perform all the acts of execution which should have produced the felony
intended by reason of some cause or accident other than his own spontaneous desistance, that is,
due to her tenacity to live and the fact that she was not fatally hit when she was struck with the said
piece of wood, to the damage and prejudice of said offended party.

ACTS CONTRARY TO LAW.20

The appellant was, likewise, charged with rape with homicide in an Amended Information filed in the same
court, docketed as Criminal Case No. RTC’97-201, the accusatory portion of which reads:

That on or about the 19th day of April 1997, at Sitio Magrimpong, Barangay Sta. Cruz, Municipality
of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd design did then and there willfully, unlawfully and
feloniously strike with a piece of wood one Marilyn Arganda, an eight (8) year old child as a
consequence thereof she lost consciousness and when said child victim was thus unconscious or
while hovering between life and death, accused Noel Darilay did then and there willfully, unlawfully
and feloniously in order to satisfy his lust, had carnal knowledge with said child victim by means of
force as a result of which Marilyn Arganda suffered an untimely and cruel death, to the damage
and prejudice of the private offended party.

ACTS CONTRARY TO LAW.21

A joint trial of the two cases thereafter ensued.

On September 5, 1997, the appellant was arraigned, assisted by counsel, and entered a plea of not guilty
to the crimes charged.

The Case for the Appellant

The appellant denied killing and raping Marilyn and attempting to kill Ailyn. He claimed that Hercules Bon
and Jose Delfino hit Ailyn and Marilyn and that it was also them who raped and killed Marilyn. Although he
was present when Bon and Delfino committed the crimes, he could do nothing to prevent them.

The appellant testified that he was 15 years old. He was inveigled by Hercules Bon to indulge and use
rugby in the evening of April 18, 1997. At 7:30 a.m. the next day, April 19, 1997, he was in their house at
Tinambac, Sta. Cruz, Camarines Sur, with his family: his parents, the Spouses Manuel and Julieta Darilay;
and his siblings Christopher, Zarina, Midel, Francia and Shirley. When Bon fetched him, they proceeded to
the house of Jose Delfino, also in Sitio Tinambac, Sta. Cruz, Magrimpong, where they had a drinking
spree. Not content, they went to the riverbank and continued drinking. They were already inebriated.22 They
saw Marilyn and Ailyn pass by on their way to the store of Salvacion San Andres. Bon ordered him and
Delfino to follow the girls. They did as they were told. Ailyn, who was walking ahead of her sister, was
grabbed by Delfino and the appellant, while Bon overtook Marilyn. Delfino then hit Ailyn. The latter fell to
the ground, face down. Delfino and the appellant left Ailyn and went back to where Bon was. The latter
proposed that they bring Marilyn to the other side of the riverbank. The appellant and Delfino agreed. Bon
and Delfino carried Marilyn, while the appellant followed. When they reached their destination, Bon and
Delfino took turns in raping Marilyn.

The appellant testified that he wanted to prevent his companions from assaulting the victim but he was
afraid because Bon and Delfino were armed with bladed weapons.23 Besides, he was already drunk and
much weaker than his companions who had taken illicit drugs.24 He then left the place and went home,
leaving Bon, Delfino and Marilyn behind. Policemen later arrived at their house and arrested and
handcuffed him. He was told that Ailyn had pointed to him as the one who abducted Marilyn. The appellant
insisted that Bon and Delfino were the culprits.25 He was brought to the municipal hall where policemen
forced him to admit raping and killing Marilyn. He denied raping and killing the girl and told the policemen
that Bon and Delfino were the ones who raped and killed her.26 It was he who pointed to the policemen and
also accompanied them to where Marilyn’s body was found.27

After trial, the court rendered judgment convicting the appellant of rape with homicide in Criminal Case No.
RTC’97-201, and attempted murder in Criminal Case No. RTC’97-202. The court appreciated in favor of
the appellant the privileged mitigating circumstance of minority, but sentenced him to reclusion perpetua for
rape with homicide. The decretal portion of the decision reads:

WHEREFORE, the prosecution having proved the guilt of the accused beyond reasonable doubt,
accused Noel Darilay is found guilty of the offense of Rape with Homicide in Crim. Case No.
 RTC’97-201 and guilty of the offense of Attempted Murder in Crim. Case No. RTC’97-202. He is
ordered to suffer the following penalties:

1. In Crim. Case No. RTC’97-201, Rape with Homicide, he is sentenced to suffer the
penalty of Reclusion Perpetua;

2. To pay the heirs of Marilyn Arganda the following:

a. P75,000.00 for her death;

b. P30,000.00 for moral damages;

c. P10,000.00 for exemplary damages;

d. P20,000.00 for actual damages;

3. In Crim. Case No. RTC’97-202, accused is hereby sentenced to suffer the following
penalties:

a. To suffer the penalty of imprisonment of TWO (2) MONTHS and ONE (1) DAY to
FOUR (4) MONTHS of arresto mayor in its medium period;

b. To pay the heirs of Ailyn Arganda the amount of P20,000.00 as moral damages
and to pay the costs.

The accused being a minor, his father Manuel Darilay is hereby ordered to pay the heirs of Marilyn
Arganda and Ailyn Arganda the foregoing civil liabilities under Article 201, P.D. No. 603 as amended (Child
and Youth Welfare Code).

SO ORDERED.28

On appeal, the appellant assails the decision of the trial court contending that:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIMES
OF ATTEMPTED MURDER AND RAPE WITH HOMICIDE WHEN THE GUILT OF THE
ACCUSED-APPELLANT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN NOT APPLYING THE PRIVILEGE[D] MITIGATING

CIRCUMSTANCE OF MINORITY UNDER ARTICLE 68, PAR. 1, OF THE REVISED PENAL CODE
IN CRIMINAL CASE NO. RTC’97-201.

III

THE TRIAL COURT ERRED IN NOT APPLYING THE PROVISIONS OF ARTICLE 192 OF
PRESIDENTIAL DECREE NO. 603.29

The appellant avers that it was physically impossible for him to have raped and killed Marilyn in the vicinity
of the Palinao River. As testified to by SPO1 Teresito Porteza, one has to cross the river, then three-feet
deep and strewn with big stones, to reach the place where Marilyn’s body was found. The appellant
reasoned that since he was only 15 years old at the time, it is inconceivable that he could single-handedly
carry a girl who weighed 18 kilos to a distance of one kilometer, even crossing the three-feet deep river in
the process.

The appellant asserts that all things considered, his testimony that Bon and Delfino carried Marilyn across
the Palinao River and brought her to the other side is believable. He also claims that Ailyn failed to see Bon
and Delfino because they were covered by grasses, the tallest of which were two feet high. Ailyn’s
testimony, that the appellant hit her at the back, is highly improbable considering that the evidence shows
that the appellant approached her head on. The appellant insists that the prosecutor failed to prove that he
raped and killed Marilyn as Ailyn herself admitted that she did not see the appellant rape and kill her sister.
As such, it was a travesty for the trial court to convict him of rape with homicide, relying solely on Ailyn’s
testimony that he struck Marilyn on the back twice with a piece of wood.

The contentions of the appellant do not hold water.

First. SPO1 Porteza declared that the portion of the Palinao river which he and his companions crossed to
reach the place where Marilyn was found "is the ordinary place where people use to pass in going to the
other side of the river."30 If ordinary people cross the river through that portion, there is no reason why the
appellant could not have done the same. In fact, the appellant and the policemen were able to cross the
river without much ado when they went to the place where Marilyn was found.

Second. The appellant testified that he himself crossed the river when Bon and Delfino carried Marilyn,
although he claimed that he merely accompanied them.

Third. The appellant was a young man in the prime of his life while Marilyn was a girl under 12 years old,
only 4 feet tall. It was, thus, not impossible for him to have carried her across the river to the other side and
dump her nearby, under the cover of bushes and trees to prevent her body from being discovered.

Fourth. The trial court gave credence and full probative weight to the testimony of Ailyn. The legal
aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its
assessment of their probative weight, as well as its conclusions, based on its findings are accorded by the
appellate court high respect, if not conclusive effect. The appellant failed to convince the court that the trial
court ignored, misunderstood or misinterpreted cogent facts and circumstances of substance which if
considered will change the outcome of the case. Ailyn testified how the appellant mercilessly waylaid her
and Marilyn as they were on their way home, and that she immediately told her mother that the appellant
had attacked them, and that her sister was nowhere to be found:

Q How is Marilyn related to you?

A She is my sister.

Q Who is older?

A Marilyn.

Q Where were you and your Ate Marilyn when you were asked by your mother to buy tinapa?

A We were still inside the house.

Q Where do you reside?

A Magrimpong.

Q What barrio?

A Tinambac.
Q Did you go with your sister to buy tinapa?

A Yes, sir.

ATTY. TAYER:

Q Objection Your Honor.

PROS. CU:

This is a follow-up question, Your Honor.

COURT:

Already answered.

PROS. CU:

Q Where did you buy tinapa or smoked fish?

A Ate Arlyn (sic).

Q Were you able to buy tinapa?

A Yes, sir.

Q So, after you bought smoked fish, what if anything, did you do next with your Ate Marilyn?

A We went home.

Q While on your way home with your Ate Marilyn, what, if anything, happened?

A Something happened, sir.

ATTY. TAYER:

We will object to that, no basis.

PROS. CU:

What, if anything, happened.

COURT:

What if anything happened when on the way going home? The witness has already answered,
anyway. Proceed.

PROS. CU:

Q You said that while on your way home, something happened. What was this event that
happened?

A Suddenly, Noel Darilay came out from he were (sic).

Q Where did he come from?

A From a catmon tree.

Q When you saw Noel Darilay suddenly came out from a catmon tree, what if anything transpired
next?

A He struck us.

Q What if anything was Noel Darilay holding?

A A wood.

Q Who was the person whom Noel Darilay struck first?

...

COURT:

Witness may answer. Who is the first one?

A I was the one, sir.

PROS. CU:

Q In what portion of your body were you struck at?

A At my back.

Q How many times?

A Two (2) times.

Q Now, after you were struck by Noel Darilay with that piece of wood which he was holding, what if
anything did he do next to you?

A He punched me at my left cheekbone (sic).

Q After you were punched by Noel Darilay, what if anything did he do to Marilyn?

A He also struck Marilyn at her back.

Q And how many times did Noel Darilay strike your Ate Marilyn?

A Twice also, sir.

Q What, if anything, did you feel when you were struck by Noel Darilay with that piece of wood?

A I felt pain all over my body.

Q What about when you were punched by Noel Darilay on your left cheek, what, if anything, did
you feel?

A My face was very painful.

Q After Noel Darilay struck your Ate Marilyn twice also at her back with that piece of wood, what if
anything happened next?

A He threw us on the grassy portion.

Q Who first was carried by Noel Darilay to be thrown in a grassy portion then?

A I was the one, sir.

Q Why were you not able to escape, Ailyn?

A Because my body was very painful.

Q For how long did you find yourself on that state or condition in the place where you were thrown
at?

A Half an hour, sir.

Q Were you able to go back to your house, Ailyn?

A Yes, sir.

Q What time did you go back to your house?

A Around 9:00 o’clock in the morning.

Q Was your Ate Marilyn with you when you went back to your house?

ATTY. TAYER:

Objection, leading.

COURT:

Sustained.

PROS. CU:

Q Were you alone when you went back?

ATTY. TAYER:

Objection, leading.

COURT:

Reform your question.

PROS. CU:

Q Who was with you when you went home?

A I have no companion, sir.

 Q Why, where was, if you know, your Ate Marilyn?

A She was gone and I did not anymore find her.

Q When you arrived at your residence or house, who was the person inside the house?

A My mother, sir.

Q So, what, if anything, did you tell to your mother?

A I told my mother that Noel struck us.

Q Do you know the person of Noel Darilay?

A Yes, sir.31

Despite intense and grueling cross-examination by the appellant’s counsel, Ailyn remained steadfast and
unrelenting.

Fifth. The appellant was merely clutching at straws when he attempted to pin the criminal liability on Bon
and Delfino for the injuries sustained by Ailyn and the rape and death of Marilyn. If, indeed, Bon and
Delfino were involved, Ailyn would have said so when she testified. Moreover, Ailyn identified the appellant
as the only culprit. There is no evidence on record that Ailyn harbored any ill or devious motive to point to
the appellant as the sole perpetrator of the crime, for which the latter could be meted the capital penalty, if
convicted. Hence, Ailyn’s testimony is entitled to full probative weight. We agree with the disquisitions of
the trial court, thus:

These foregoing circumstantial evidence pieced together, points to the accused as the rapist-
murderer of 8-year-old Marilyn Arganda. The testimony of Ailyn Arganda identifying the accused
having struck her and her sister on the very day of April 19, 1997 between 8:30 and 9:00 o’clock in
the morning at Magrimpong, Tinambac, Camarines Sur is consistent with truth considering that it
was even admitted by the accused that about that time, they were following the two (2) sisters.
However, the defense of the accused was that it was Hercules Bon who had struck Marilyn
Arganda while Ailyn Arganda was walking ahead of Marilyn was struck by Jose Delfino. This
statement of the accused is quite unbelievable over the statement of Ailyn Arganda even [if] she
testified that she was so definite that it was accused Noel Darilay who was alone at that time who
struck her and her sister. Ailyn Arganda although she was only 8 years old is a very much qualified
witness despite her tender age because as observed by the court, she was narrating the incident in
a straightforward manner. Because of her tender age, she was asked by the prosecution whether
she knows that she has to tell the truth and nothing but the truth in giving her testimony in court and
she answered, yes, and she even testified that telling a lie is bad. Her testimony was likewise
corroborated by the findings of Dr. Betito who conducted an autopsy examination on the cadaver of
Marilyn Arganda and conducted a medical examination on the injuries of Ailyn Arganda. The
findings of Dr. Betito was that Marilyn Arganda suffered injuries on her head which were fatal and
would cause internal hemorrhage that caused her death while in the physical examination that he
conducted on Ailyn Arganda. Dr. Betito testified that he had found contusion and abrasion on the
back of the head of Ailyn Arganda and also contusion on the left face of Ailyn Arganda. Ailyn
Arganda had testified clearly that she was hit twice by the accused and hit the back of her head
and she was punched hitting her cheek and this was corroborated then by the findings of Dr. Betito.
Likewise, she testified that her sister was also struck hitting her on the head and the findings of Dr.
Betito on the cadaver of Marilyn Arganda was that she had injuries on her head which may be
caused by a hard object. His alibi that he was not the one who had struck Marilyn and Ailyn
Arganda and pointing to Hercules Bon and Jose Delfino is unbelievable considering that Ailyn
Arganda positively identified him to be the one who both (sic) struck her and her sister Marilyn on
April 19, 1997.32
 …

…[T]he testimony of Ailyn Arganda was made in a straightforward manner and all the facts that she has
narrated jibed with the findings of the doctor who conducted the autopsy on the cadaver of Marilyn and
conducted the medical examination on her. Her testimonies even remained the same and she remained
unshaken during the cross-examination. The witness who is of tender age such as Ailyn Arganda is a
credible witness because usually children of tender age cannot be coached and had to tell the truth of what
she had experienced. The court has no doubt as to the truthfulness of the testimony of Ailyn Arganda
which is consistent with common experience in the natural course of things coupled with the fact that it was
corroborated by an expert witness who conducted [an] examination both on Ailyn Arganda herself and on
the cadaver of Marilyn Arganda.

"The testimony of children of sound mind is likely to be more correct and truthful than that of older persons,
so that once established that they have fully understood the character and nature of an oath, their
testimony should be given full credence." (Julio Marco vs. CA and People of the Philippines, G.R. No.
117561, June 11, 1997).33

The Crime Committed by the

Appellant in Criminal
Case No. RTC’97-202

We agree with the ruling of the trial court that the appellant is guilty of attempted murder for the injuries
sustained by Ailyn. Under Article 6 of the Revised Penal Code, there is an attempt to commit a felony when
the offender commences the commission of a felony by direct acts, and does not perform all the acts of
execution by reason of some causes or accident other than his own spontaneous desistance. In People v.
Lizada,34 we held:

…The Supreme Court of Spain, in its decision of March 21, 1892, declared that for overt acts to
constitute an attempted offense, it is necessary that their objective be known and established or
such that acts be of such nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as ground for designation of the
offense.35

For one to be criminally liable for a consummated, frustrated or attempted homicide or murder, there must
be, on the part of the accused, an intent to kill the victim. Intent to kill is an internal act but may be proved
by evidence, inter alia, that the accused used a lethal weapon; the nature, location and number of wounds
sustained by the victim; and by the words uttered by the malefactor before, at the time or immediately after
the infliction of the injuries on the victim.36 In this case, the prosecution proved that the appellant intended
to kill the victim Ailyn because (a) he used a piece of wood; (b) he struck Ailyn twice on the back and
boxed her on the face; (c) he threw her to the ground and dragged her to a grassy area; (d) he left Ailyn all
by herself. There is evidence on record that the injuries sustained by Ailyn were mortal and could have
caused her death. She recovered from her injuries in less than 5 days but not more than 9 days.
Furthermore, the crime was qualified by treachery because Ailyn, who was only 7 years old at the time,
could not defend herself against the appellant’s physical assault. Hence, the appellant is guilty of
attempted murder.

The Crime Committed by the

Appellant in Criminal Case
No. RTC’97-201

The appellant asserts that there was no eyewitness to the rape and killing of Marilyn. He contends that the
prosecution failed to prove that the appellant raped the victim and killed her on the occasion or by reason
of the said rape. He should thus be acquitted of the said crime. For its part, the Office of the Solicitor
General avers that as gleaned from the evidence on record and the findings of the trial court in its decision,
the prosecution adduced circumstantial evidence to prove that the appellant raped the victim and killed her
on the occasion or by reason of said crime. Hence, it asserts, the trial court did not err in convicting the
appellant of the special complex crime of rape with homicide.
We agree with the appellant that the prosecution failed to adduce direct evidence to prove that he raped
and killed Marilyn on the occasion or by reason of the said crime. However, direct evidence is not
indispensable to prove the guilt of the accused for the crime charged; it may be proved by circumstantial
evidence. In People v. Delim,37 we held, thus:

…Circumstantial evidence consists of proof of collateral facts and circumstances from which the
existence of the main fact may be inferred according to reason and common experience. What was
once a rule of ancient practicability is now entombed in Section 4, Rule 133 of the Revised Rules of
Evidence which states that circumstantial evidence, sometimes referred to as indirect or
presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites
concur:

"x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived have been established; and (c) the combination of all the circumstances is such as
to warrant a finding of guilt beyond reasonable doubt."

The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of the accused for the
offense charged. For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the hypothesis that accused is
guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every
other rational hypothesis except that of guilt. If the prosecution adduced the requisite circumstantial
evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to
the accused to controvert the evidence of the prosecution.38

We are convinced that, based on the evidence on record and as declared by the trial court in its decision,
the prosecution adduced circumstantial evidence to prove beyond cavil that it was the appellant who raped
and killed Marilyn on the occasion or by reason of the rape. Hence, he is guilty beyond reasonable doubt of
rape with homicide, a special complex crime.

First. The appellant alone waylaid Ailyn and Marilyn while the two were walking home after buying tinapa.
The appellant hit Ailyn twice with a piece of wood on her back and boxed the left side of her face, rendering
her unconscious. The appellant also struck Marilyn with a piece of wood on the back. After dragging Ailyn
to a grassy area, he left her there.

Second. When Ailyn regained consciousness, Marilyn and the appellant were nowhere to be found.

Third. The torn dress, the pair of panties, and a slipper were found about 15 meters away from where the
two young girls were waylaid by the appellant.

Fourth. The appellant testified that he himself accompanied the policemen and pointed to the place where
Marilyn’s body was dumped, completely naked, with blood oozing from her nose and vagina.

We are convinced that the appellant raped Marilyn about 15 meters from where he had earlier waylaid
Ailyn. He then carried Marilyn across the river where he killed her to prevent her from revealing to the
authorities that she was raped. The appellant hid her body under the bushes and trees to thus prevent
police authorities from discovering that he killed Marilyn. Irrefragably, Marilyn was killed by reason of the
rape. The killing of a child, barely 9 years old, is murder. Nonetheless, the appellant is guilty of rape with
homicide because the latter crime is used in its generic sense.

The Proper Penalties Against the Appellant

As found by the trial court, the appellant was over 9 years but under 15 years old when he committed the
crime. The appellant acted with discernment when he committed the same. Article 6 of the Revised Penal
Code provides that the imposable penalty should be reduced by two degrees. Under Article 335 of the
Revised Penal Code, as amended by Republic Act No. 7659, rape with homicide is punishable by death.
Reducing the penalty by two degrees, the imposable penalty is reclusion temporal, from which the
maximum of the indeterminate penalty should be taken. To determine the minimum of the penalty, it should
be reduced by one degree, which is prision mayor. Applying the indeterminate sentence law and taking into
account how the ghastly crime was committed, the appellant should be sentenced to suffer an
indeterminate penalty of from 6 years and one day of prision mayor in its medium period, as minimum, to
17 years and 4 months of reclusion temporal in its medium period, as maximum.

For attempted murder, the trial court sentenced the appellant to an indeterminate penalty, from 2 months
and one day to 4 months of arresto mayor. The penalty imposed by the trial court is erroneous. The penalty
of consummated murder under Article 248 of the Revised Penal Code, as amended, is reclusion
perpetua to death. The imposable penalty should be reduced by two degrees under Article 68 of the
Revised Penal Code because the appellant is a minor. As reduced, the penalty is reclusion
temporal.39 Reclusion temporal should be reduced by two degrees lower, conformably to Article 51 of the
Revised Penal Code which is prision correccional. This penalty should be reduced by one degree, which
is arresto mayor, to determine the minimum of the indeterminate penalty. Accordingly, the appellant should
be sentenced to a straight penalty of four (4) months. It goes without saying that if the trial court decides to
impose on the accused a penalty of imprisonment of one year or less, it should impose a straight penalty
and not an indeterminate penalty.

Civil Liability for the Crimes

Considering that at the time of the commission of the crime, the appellant was a minor under the parental
authority of his parents, the Spouses Manuel and Julieta Darilay are primarily and directly liable for the
damages sustained by the heirs of the victims Marilyn and Ailyn Arganda.40 Consequently, the Spouses
Manuel and Julieta Darilay are hereby ordered, jointly and severally, in Criminal Case No. RTC’97-201, to
pay to the heirs of the victim Marilyn Arganda, the amount of P100,000.00 as civil indemnity;41 P50,000.00
as moral damages;42 and P28,000.00 as exemplary -damages.43 The prosecution failed to adduce
evidence in support of actual damages; hence, the heirs of the victim are not entitled thereto. They are,
however, entitled to temperate damages in the amount of P25,000.00.44

In Criminal Case No. RTC’97-202, the Spouses Manuel and Julieta Darilay are hereby ordered to pay,
jointly and severally, to Ailyn Arganda, the amount of P25,000.00 as moral damages and P25,000.00 as
exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the appealed decision of the Regional Trial Court of Camarines
Sur, Branch 63, is AFFIRMED WITH MODIFICATION. In Criminal Case No. RTC’97-201, the appellant is
found guilty of rape with homicide under Article 335 of the Revised Penal Code, as amended, and is
hereby sentenced to suffer an indeterminate penalty from six (6) years of prision mayor in its medium
period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium
period, as maximum. The Spouses Manuel and Julieta Darilay, are hereby ordered to pay, jointly and
severally, to the heirs of the victim Marilyn Arganda P100,000.00 as civil indemnity; P50,000.00 as moral
damages; P25,000.00 as exemplary damages; and P25,000.00 as temperate damages.

In Criminal Case No. RTC’97-202, the appellant is found guilty beyond reasonable doubt of attempted
murder under Article 248 in relation to Article 6 of the Revised Penal Code, and is hereby sentenced to
suffer imprisonment of four (4) months. The Spouses Manuel and Julieta Darilay, are ordered to pay, jointly
and severally, to Ailyn Arganda the amount of P25,000.00 as moral damages and P25,000.00 as
exemplary damages.

SO ORDERED.
G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN SIMON y SUNGA, respondent.

The Solicitor General for plaintiff-appellee.

Ricardo M.Sampang for accused-appellant.

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of
Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea
bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of
P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana.1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his
escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained,2 he pleaded not
guilty. He voluntarily waived his right to a pre-trial conference,3 after which trial on the merits ensued and
was duly concluded.

The evidence on record shows that a confidential informant, later identified as a NARCOM operative,
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain
"Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the
3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura
Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the
team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police
authorities and barangay officers thereof. When they reached the place, the confidential informer pointed
out appellant to Lopez who consequently approached appellant and asked him if he had marijuana.
Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon
returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the marked
money amounting to P40.00 as payment. Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the
team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant.
The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep
and he was placed under custodial investigation, with Sgt. Pejoro as the investigator.4

Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez
and the appellant. He also averred that he was the one who confiscated the marijuana and took the
marked money from appellant.5

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away from his
companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his
teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the
custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to
information and to counsel. Appellant, however, orally waived his right to counsel.6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which
appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was
that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz
corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the
correction since they were the ones who were personally and directly involved in the purchase of the
marijuana and the arrest of appellant.7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the
latter's apprehension, and the results were practically normal except for his relatively high blood pressure.
The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again
examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history
of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the
afternoon, appellant came back with the same complaint but, except for the gastro-intestinal pain, his
physical condition remained normal.8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in
question, at around 4:30 p.m., he was watching television with the members of his family in their house
when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they
would just inquire about something from him at their detachment, appellant boarded a jeep with them. He
was told that they were going to Camp Olivas, but he later noticed that they were taking a different route.
While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was
handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when
he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to
affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00
or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro.
Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro.
He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer
endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of
his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m.
There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan
District Hospital at Floridablanca, Pampanga where he was confined for three days.9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca,
Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant
had been suffering from peptic ulcer even before the latter's arrest.10 Also, Dr. Evelyn Gomez-Aguas, a
resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days
due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic
ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body.11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting
appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him
to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The
four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the Government.12

Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in
his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not
declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting
him of a violation of the Dangerous Drugs Act.13

At the outset, it should be noted that while the People's real theory and evidence is to the effect the
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were
merely confiscated subsequently from his possession,14 the latter not being in any way connected with the
sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves.15 In view
thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea
bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal
possession of the other two tea bags which separate offense is not charged herein.16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established.17 To sell means to give, whether for money or any other material consideration.18 It must,
therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of
marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso
bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain
that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The
prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two
tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale
took place and his testimony was amply corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the
former undeniably deserves greater weight and is more entitled to credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is
susceptible to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from the fact that
they are presumed to have regularly performed their official duty.21 Such lack of dubious motive coupled
with the presumption of regularity in the performance of official duty, as well as the findings of the trial court
on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of
having been framed,22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was
caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the
charge, he does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-
Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic
chemist therein,23 confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags
confiscated from appellant were positive for and had a total weight of 3.8 grams of marijuana.24 Thus,
the corpus delicti of the crime had been fully proved with certainty and conclusiveness.25

Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies
of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the
marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the
confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he
signed it as the one who seized the same.26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter
since such is not an element of the offense with which appellant is charged. What is unmistakably clear is
that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the
prosecution committed an error on who actually seized the marijuana from appellant, such an error or
discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the
prosecution evidence as a whole nor reflects on the witnesses' honesty.27 Besides, there was clearly a
mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking
of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as
the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not
powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations.28 This
omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:
 Q: Is it the standard operating procedure of your unit that in conducting
such operation you do not anymore provide a powder (sic) on the object so
as to determine the thumbmark or identity of the persons taking hold of the
object?

A: We were not able to put powder on these denominations because we are

lacking that kind of material in our office since that item can be purchased
only in Manila and only few are producing that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS,
as well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make a request
for that powder because they, themselves, are using that in their own work,
sir.29

The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment
purposes can under no mode of rationalization be fatal to the case of the prosecution because the
Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver,
give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker
in any of such transactions."30 The dusting of said bills with phosphorescent powder is only an evidentiary
technique for identification purposes, which identification can be supplied by other species of evidence.

Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to
witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he
was not reported to or booked in the custody of any barangay official or police authorities.31 These are
absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by
a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the
contrary, the police enforcers having caught appellant in flagrante delicto, they were not only authorized
but were also under the obligation to effect a warrantless arrest and seizure.

Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection
with his apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that "suspect was arrested
for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags
of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same
manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he
acknowledged the confiscation of the marked bills from him.33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's
conformance to these documents are declarations against interest and tacit admissions of the crime
charged. They were obtained in violation of his right as a person under custodial investigation for the
commission of an offense, there being nothing in the records to show that he was assisted by
counsel.34 Although appellant manifested during the custodial investigation that he waived his right to
counsel, the waiver was not made in writing and in the presence of counsel,35 hence whatever incriminatory
admission or confession may be extracted from him, either verbally or in writing, is not allowable in
evidence.36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate
a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from
his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven.
The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the
selling transaction37 which happens the moment the buyer receives the drug from the seller.38 In the present
case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of
doubt.
Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger.39 We take
this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as
in this case, belongs to that class of crimes that may be committed at any time and in any place.40 It is not
contrary to human experience for a drug pusher to sell to a total stranger,41 for what matters is not an
existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and
delivery of the marijuana leaves.42 While there may be instances where such sale could be improbable,
taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of
how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars
are not present in this case.

Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers
which caused him to escape from Camp Olivas the night he was placed under custody.43 This he asserts to
support his explanation as to how his signatures on the documents earlier discussed were supposedly
obtained by force and coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not
only proceed from the mouth of a credible witness but must be credible in itself such as the common
experience and observation of mankind can approve as probable under the circumstances.44 The evidence
on record is bereft of any support for appellant's allegation of maltreatment. Two doctors, one for the
prosecution45 and the other for the defense,46 testified on the absence of any tell-tale sign or indication of
bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his
abdominal pain was his peptic ulcer from which he had been suffering even before his arrest.47 His own
brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer.48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for
not divulging the same to his brother who went to see him at the camp after his arrest and during his
detention there.49 Significantly, he also did not even report the matter to the authorities nor file appropriate
charges against the alleged malefactors despite the opportunity to do so50 and with the legal services of
counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a
pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and
premeditated for the NARCOM agents were determined to arrest him at all costs.51 Premeditated or not,
appellant's arrest was only the culmination, the final act needed for his isolation from society and it was
providential that it came about after he was caught in the very act of illicit trade of prohibited drugs.
Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court.
However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective
December 31, 1993,52 which supervenience necessarily affects the original disposition of this case and
entails additional questions of law which we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this
effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known
as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of

Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
 xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is hereby amended to read as follows:

Sec. 20. Application of Penalties, Confiscation and Forfeiture of the

Proceeds or Instrument of the Crime. — The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if the dangerous drugs involved is in
any of the following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing quantities, the
penalty shall range from prision correccional to reclusion
perpetua depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a
total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags,
the initial inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code,53 it has long been settled that by
force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given
retrospective effect to crimes punished by special laws.54 The execution in said article would not apply to
those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more
of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification.55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved
nor invoked in the present case, a corollary question would be whether this court, at the present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That
issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity
of penal laws in so far as they are favorable to persons accused of a felony, would be
useless and nugatory if the courts of justice were not under obligation to fulfill such duty,
irrespective of whether or not the accused has applied for it, just as would also all
provisions relating to the prescription of the crime and the penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic Act
No. 7659 has already become final and executory or the accused is serving sentence thereunder, then
practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought
to the judicial authorities for relief under a writ of habeas corpus.56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation
and craftsmanship.

As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the
penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any
person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport
any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if
what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is
less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by
reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750
grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The
same error has been committed with respect to the other prohibited and regulated drugs provided in said
Section 20. To harmonize such conflicting provisions in order to give effect to the whole law,57 we hereby
hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities
stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion
perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be
construed in a manner favorable to the accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the
imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides
that the penalty shall be taken from said range "depending upon the quantity" of the drug involved in the
case. The penalty in said second paragraph constitutes a complex one composed of three distinct
penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation, the Code
provides that each one shall form a period, with the lightest of them being the minimum, the next as the
medium, and the most severe as the maximum period.58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine
which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its
specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug
subject of the criminal transaction.59 Accordingly, by way of exception to Article 77 of the Code and to
subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties
shall be considered as a principal imposable penalty depending on the quantity of the drug involved.
Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of
the total complex penalty will have to be imposed separately as determined by the quantity of the drug
involved, then the modifying circumstances can be used to fix the proper period of that component penalty,
as shall hereafter be explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition
thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in
its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be
respectively the bases for allocating the penalty proportionately among the three aforesaid periods
according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be
imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty
is reclusion perpetua to death.60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision
correccional is consequently indicated but, again, another preliminary and cognate issue has first to be
resolved.

4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the
Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken
from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other
circumstances modifying criminal liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses
under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code
cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals
that the reason therefor was because the special laws involved provided their own specific penalties for the
offenses punished thereunder, and which penalties were not taken from or with reference to those in the
Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for
the minimum, medium or maximum periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to determine the period of the penalty in
accordance with the rules in Article 64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation
of penalties by degrees could not be given supplementary application to special laws, since the penalties in
the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the
former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the
former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special
law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished under
a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical
nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties
native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical
sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this
later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as
amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof
pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating
circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for
offenses under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but differently from
the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty
or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years
but without division into periods or any technical statutory cognomen. This is the special law contemplated
in and referred to at the time laws like the Indeterminate Sentence Law61 were passed during the American
regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder
shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for
instance, Commonwealth Act No. 30362 penalizing non-payment of salaries and wages with the periodicity
prescribed therein, provided:

Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of
this Act, shall prima facie be considered a fraud committed by such employer against his
employee or laborer by means of false pretenses similar to those mentioned in article three
hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and
shall be punished in the same manner as therein provided.63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the
penalties as technically named and understood in the Revised Penal Code. These are exemplified by
Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may
involve prision mayor, reclusion temporal, reclusion perpetua or death.

Another variant worth mentioning is Republic Act No. 6539

(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months
and not more than 17 years and 4 months, when committed without violence or intimidation of persons or
force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with
violence against or intimidation of any person, or force upon things; and life imprisonment to death, when
the owner, driver or occupant of the carnapped vehicle is killed.

With respect to the first example, where the penalties under the special law are different from and are
without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of
the rules for the application of penalties under said Code or by other relevant statutory provisions based on
or applicable only to said rules for felonies under the Code. In this type of special law, the legislative
intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true
that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion
temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do
not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily
apply to Republic Act No. 6539 and special laws of the same formulation.

On the other hand, the rules for the application of penalties and the correlative effects thereof under the
Revised Penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal
code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the
Code the corresponding application to said special laws, in the absence of any express or implicit
proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial
truncation of an integrated system of penalties under the Code and its allied legislation, which could never
have been the intendment of Congress.

In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64,
paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that —

We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct
from and unrelated to the Revised Penal Code. From the nature of the penalty
imposed which is in terms of the classification and duration of penalties as prescribed in the
Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws,
the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised
Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be
subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . .
Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to
Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent
pronouncement:

. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code
shall be "supplementary" to special laws, this Court held that where the special law
expressly grants to the court discretion in applying the penalty prescribed for the offense,
there is no room for the application of the provisions of the Code . . . .

The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit
grant of discretion to the Court in the application of the penalty prescribed by the law. In
such case, the court must be guided by the rules prescribed by the Revised Penal Code
concerning the application of penalties which distill the "deep legal thought and centuries of
experience in the administration of criminal laws." (Emphasis ours.)66
Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in
and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason
should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances
apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for
graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they
would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of
modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be
considered and applied only if they affect the periods and the degrees of the penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the
penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article
71, are the stage of execution of the crime and the nature of the participation of the accused. However,
under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no
aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged
mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees,
or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of
the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to
avoid anomalous results which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed
in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow
the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and public
censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine
the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such
graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this
reason that the three component penalties in the second paragraph of Section 20 shall each be considered
as an independent principal penalty, and that the lowest penalty should in any event be prision
correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res
magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have
efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse
should now be the concern of and is accordingly addressed to Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before
us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which
would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of
imprisonment.68 The more important aspect, however, is how the indeterminate sentence shall be
ascertained.

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the
Revised Penal Code, states that "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." We hold that
this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the
preceding illustrations, such that it may be said that the "offense is punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under
special laws was necessary because of the nature of the former type of penalties under said laws which
were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be
no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as
is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore
provided, this rule applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified
under the rule of contemporanea expositio.69

We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted
the penalties under the Revised Penal Code in their technical terms, hence with their technical signification
and effects. In fact, for purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and
Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a
special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine
the minimum, we must apply the first part of the aforesaid Section 1 which directs that "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 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."
(Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the hornbook
maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its
construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the
phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with
death penalty or life imprisonment," we have held that what is considered is the penalty
actually imposed and not the penalty imposable under the law,70 and that reclusion perpetua is likewise
embraced therein although what the law states is "life imprisonment".

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the
principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of
historical interpretation, as explicated by the antecedents of the law and related contemporaneous
legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as
supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the
indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense.
Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to
harmonize laws with laws, which is the best mode of interpretation.71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally
interpreted in favor of the accused.72 The "minimum" sentence is merely a period at which, and not before,
as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his
sentence outside of his confinement.73 It does not constitute the totality of the penalty since thereafter he
still has to continue serving the rest of his sentence under set conditions. That minimum is only the period
when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be
denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he
has served the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a
minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which
is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal
Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto
mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even
involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo
against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he
should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto
mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof.

SO ORDERED.
PERALTA, J.:
The lone issue for resolution in this petition for certiorari under Rule 65 of the
1997 Revised Rules of Civil Procedure (Rules) with prayer for the issuance of
preliminary injunction and/or temporary restraining order is the applicability of
Section 6, Rule 39 of the Rules in criminal cases. Specifically, does a trial court
have jurisdiction to grant a motion for execution which was filed almost twenty
(20) years after the date of entry of judgment? In his Orders dated December 3,
2009[1] and January 4, 2010,[2] respondent Judge Delano F. Vi11aruz of the
Regional Trial Court (RTC), Roxas City, Branch 16, held in the affirmative.[3] We
sustain in part.

The Facts

On June 19, 1987, a Decision[4] was promulgated against petitioners in Criminal

Case Nos. 1773, 1774 and 1775, the dispositive portion of which states:

WHEREFORE, and in view of the foregoing considerations, this court finds the
[accused] Rodolfo Basilonia, Leodegario Catalan, and John "Jojo" Basilonia,
GUILTY BEYOND REASONABLE DOUBT, as principals in Criminal Case No.
1773 for the murder of Atty. Isagani Roblete on September 15, 1983 in Roxas
City, Philippines, defined under Article 248 of the Revised Penal Code of the
Philippines, without any aggravating or mitigating circumstance, and sentences
the said [accused] to suffer an indeterminate sentence of 12 years, 1 month and 1
day of reclusion temporal as minimum, to 20 years, and 1 day of reclusion
temporal as maximum, and the accessory penalties thereto; to pay and
[indemnify], jointly and severally, the heirs of the deceased Atty. Isagani Roblete
the sum of 1!32,100.00 representing funeral expenses, tomb, burial, and
expenses for wake; the sum of 1!30,000.00 as indemnity for the death of Atty.
Isagani Roblete; the amount of lost income cannot be determined as the net
income of the deceased cannot be ascertained; and to pay the costs of suit.
[Accused] Vicente Catalan and Jory Catalan are ACQUITTED for lack of
evidence.

In Criminal Case No. 1775 for Frustrated Murder, this court finds the accused
John "Jojo" Basilonia GUlLTY BEYOND REASONABLE DOUBT of the crime of
Frustrated Homicide, as principal, committed against the person of Rene
Gonzales on September 15, 1983, defined under Article 249, in relation to
Articles 6 and 50 of the Revised Penal Code and sentences the said accused to
suffer an indeterminate sentence of 2 years, 4 months and 1 day of prision
[correccional] as minimum, to 6 years, and 1 day of prision mayor as maximum;
and to pay the costs. [Accused] Rodolfo Basilonia, Leodegario Catalan, Vicente
Catalan and Jory Catalan are ACQUITTED for lack of evidence.

In Criminal Case No. 1774 for Illegal Possession of Firearm, all [accused] are
ACQUITTED for insufficiency of evidence.

SO ORDERED.[5]

Petitioners filed a Notice of Appeal on July 30, 1987, which the trial court
granted on August 3, 1987.[6]

On January 23, 1989, the Court of Appeals (CA) dismissed the appeal for failure
of petitioners to file their brief despite extensions of time given.[7]

The Resolution was entered in the Book of Entries of Judgment on September

18, 1989.[8] Thereafter, the entire case records were remanded to the trial court
on October 4, 1989.[9]

Almost two decades passed from the entry of judgment, on May 11, 2009,
private respondent Dixon C. Roblete, claiming to be the son of the deceased
victim, Atty. Roblete, filed a Motion for Execution of Judgment.[10]

He alleged, among others, that despite his request to the City Prosecutor to file a
motion for execution, the judgment has not been enforced because said
prosecutor has not acted upon his request.

Pursuant to the trial court's directive, the Assistant City Prosecutor filed on May
22, 2009 an Omnibus Motion for Execution of Judgment and Issuance of
Warrant of Arrest.[11]

On July 24, 2009, petitioners filed before the CA a Petition for Relief of
Judgment praying to set aside the June 19, 1987 trial court Decision and the
January 23, 1989 CA Resolution.[12] Further, on September 1, 2009, they filed
before the trial court a Manifestation and Supplemental Opposition to private
respondent Roblete's motion.[13]

The trial court granted the motion for execution on December 3, 2009 and
ordered the bondsmen to surrender petitioners within ten (10) days from notice
of the Order. The motion for reconsideration[14] filed by petitioners was denied
on January 4, 2010.

Due to petitioners' failure to appear in court after the expiration of the period
granted to their bondsmen, the bail for their provisional liberty was ordered
forfeited on January 25, 2010.[15] On even date, the sheriff issued the writ of
execution.[16]
 The Court's Ruling

The determination of whether respondent trial court committed grave abuse of

discretion amounting to lack or excess of jurisdiction in granting a motion for
execution which was filed almost twenty (20) years after a judgment in a
criminal case became final and executory necessarily calls for the resolution of
the twin issues of whether the penalty of imprisonment already prescribed and
the civil liability arising from the crime already extinguished. In both issues,
petitioners vehemently assert that respondent trial court has no more
jurisdiction to order the execution of judgment on the basis of Section 6, Rule 39
of the Rules.

We consider the issues separately.

Prescription of Penalty

With respect to the penalty of imprisonment, Act No. 3815, or the Revised Penal
Code (RPC)[17] governs. Articles 92 and 93 of which provide:

ARTICLE 92. When and How Penalties Prescribe. - The penalties imposed by
final sentence prescribe as follows:

1. Death and reclusion perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of
arresto mayor, which prescribes in five years;
4. Light penalties, in one year.

ARTICLE 93. Computation of the Prescription of Penalties.- The period of

prescription of penalties shall commence to run from the date when the culprit
should evade the service of his sentence, and it shall be interrupted if the
defendant should give himself up, be captured, should go to some foreign
country with which this Government has no extradition treaty, or should
commit another crime before the expiration of the period of prescription.

As early as 1952, in Infante v. Provincial Warden of Negros Occidental,[18] the

Court already opined that evasion of service of sentence is an essential element
of prescription of penalties. Later, Tanega v. Masakayan, et al.[19] expounded
on the rule that the culprit should escape during the term of imprisonment in
order for prescription of penalty imposed by final sentence to commence to run,
thus:

x x x The period of prescription of penalties- so the succeeding Article 93

provides - "shall commence to run from the date when the culprit should evade
the service of his sentence."

What then is the concept of evasion of service of sentence? Article 157 of the
Revised Penal Code furnishes the ready answer. Says Article 157:

ART. 157. Evasion of service of sentence. - The penalty of prision

correccional in its medium and maximum periods shall be imposed upon any
convict who shall evade service of his sentence by escaping during the term of
his imprisonment by reason of final judgment. However, if such evasion or
escape shall have taken place by means of unlawful entry, by breaking doors,
windows, gates, walls, roofs, or floors, or by using picklocks, false keys, disguise,
deceit, violence or intimidation, or through connivance with other convicts or
employees of the penal institution, the penalty shall be prision correccional in its
maximum period.

Elements of evasion of service of sentence are: (1) the offender is a convict by

final judgment; (2) he "is serving his sentence which consists in deprivation of
liberty"; and (3) he evades service of sentence by escaping during the term of his
sentence. This must be so. For, by the express terms of the statute, a convict
evades "service of his sentence" by "escaping during the term of his
imprisonment by reason of final judgment." That escape should take place while
serving sentence, is emphasized by the provisions of the second sentence of
Article 157 which provides for a higher penalty if such "evasion or escape shall
have taken place by means of unlawful entry, by breaking doors, windows, gates,
walls, roofs, or floors, or by using picklocks, false keys, disguise, deceit, violence
or intimidation, or through connivance with other convicts or employees of
the penal institution, * * *" Indeed, evasion of sentence is but another
expression of the term "jail breaking."
A dig into legal history confirms the views just expressed. The Penal Code of
Spain of 1870 in its Article 134 - from whence Articles 92 and 93 of the present
Revised Penal Code originated- reads:

"Las penas impuestas por sentencia firme prescriben: Las de muerte y cadena
perpetua, a los veinte años.

***

Las leves, al año.

El tiempo de esta prescripcion comenzara a correr desde el dia en que se
notifique personalmente al reo la sentencia firme, o desde el quebrantamiento
de la condena, si hubiera esta comenzado a cumplirse. * * *"
Note that in the present Article 93 the words "desde el dia en que se notifique
personalmente al reo la sentencia firme", written in the old code, were deleted.
The omission is significant. What remains reproduced in Article 93 of the
Revised Penal Code is solely "quebrantamiento de Ia condena". And,
"quebrantamiento" or "evasion" means escape. Reason dictates that one can
escape only after he has started service of sentence.

Even under the old law, Viada emphasizes, where the penalty consists of
imprisonment, prescription shall only begin to run when he escapes from
confinement. Says Viada:

"El tiempo de la prescripcion empieza a contarse desde el dia en que ha tenido

Iugar la notificacion personal de la sentencia firme al reo: el Codigo de 1850 no
expresaba que la notificacion hubiese de ser personal, pues en su art. 126 se
consigna que el termino de Ia prescripcion se cuenta desde que se notifique la
sentencia, causa de la ejecutoria en que se imponga le pena respectiva. Luego
ausente el reo, ya no podra prescribir hoy Ia pena, pues que Ia notificacion
personal no puede ser sup/ida por Ia notificacion hecha en estrados. Dada la
imprescindible necesidad del requisito de la notificacion personal, es obvio que
en las penas que consisten en privacion de libertad solo podra existir Ia
prescripcion quebrantando el reo Ia condena, pues que si no se hallare ya preso
preventivamente, debera siempre procederse a su encerrarniento en el acto de
serle notificada personalmente la sentencia."
We, therefore, rule that for prescription of penalty of imprisonment imposed by
final sentence to commence to run, the culprit should escape during the term of
such imprisonment.[20]

Following Tanega, Del Castillo v. Hon. Torrecampo[21] held that one who has
not been committed to prison cannot be said to have escaped therefrom. We
agree with the position of the Solicitor General that "escape" in legal parlance
and for purposes of Articles 93 and 157 of the RPC means unlawful departure of
prisoner from the limits of his custody.

Of more recent vintage is Our pronouncements in Pangan v. Hon.

Gatbalite,[22] which cited Tanega and Del Castillo, that the prescription of
penalties found in Article 93 of the RPC applies only to those who are convicted
by final judgment and are serving sentence which consists in deprivation of
liberty, and that the period for prescription of penalties begins only when the
convict evades service of sentence by escaping during the term of his sentence.
Applying existing jurisprudence in this case, the Court, therefore, rules against
petitioners. For the longest time, they were never brought to prison or placed in
confinement despite being sentenced to imprisonment by final judgment.
Prescription of penalty of imprisonment does not run in their favor. Needless to
state, respondent trial court did not commit grave abuse of discretion in
assuming jurisdiction over the motion for execution and in eventually granting
the same.

Extinction of Civil Liability

The treatment of petitioners' civil liability arising from the offense committed is
different.

Elementary is the rule that every person criminally liable for a felony is also
civilly liable.[23] We said in one case:

It bears repeating that "an offense as a general rule causes two (2) classes of
injuries - the first is the social injury produced by the criminal act which is
sought to be repaired thru the imposition of the corresponding penalty and the
second is the personal injury caused to the victim of the crime which injury is
sought to be compensated thru indemnity, which is civil in nature." (Ramos v.
Gonong, 72 SCRA 559). As early as 1913, this Court in US. v. Heery (25 Phil.
600) made it clear that the civil liability of the accused is not part of the penalty
for the crime committed. It is personal to the victim. x x x.

Under Article 112 of the RPC, civil liability established in Articles

100,[25] 101,[26] 102,[27] and 103[28] of the Code shall be extinguished in the same
manner as other obligations, in accordance with the provisions of the Civil Law.
Since the Civil Code is the governing law, the provisions of the Revised Rules of
Civil Procedure, particularly Section 6, Rule 39 thereof, is applicable. It states:

Section 6. Execution by motion or by independent action. - A final and

executory judgment or order may be executed on motion within five (5) years
from the date of its entry. After the lapse of such time, and before it is barred by
the statute of limitations, a judgment may be enforced by action. The revived
judgment may also be enforced by motion within five (5) years from the date of
its entry and thereafter by action before it is barred by the statute of limitations.
(6a)

Section 6, Rule 39 of the Rules must be read in conjunction with

Articles 1144 (3) and 1152 of the Civil Code, which provide:

Art. 1144. The following actions must be brought within ten years from the time
the right of action accrues:

xxxx

(3) Upon a judgment

Art. 1152. The period for prescription of actions to demand the fulfillment of
obligations declared by a judgment commences from the time the judgment
became final.

Based on the foregoing, there are two (2) modes of enforcing a final and
executory judgment or order: through motion or by independent action.

These two modes of execution are available depending on the timing when the
judgment creditor invoked its right to enforce the court's judgment. Execution
by motion is only available if the enforcement of the judgment was
sought within five (5) years from the date of its entry. On the other
hand, execution by independent action is mandatory if the five-year prescriptive
period for execution by motion had already elapsed. However, for execution by
independent action to prosper - the Rules impose another limitation - the action
must be filed before it is barred by the statute of limitations which, under the
Civil Code, is ten (10) years from the finality of the judgment.[29]

An action for revival of judgment is not intended to reopen any issue affecting
the merits of the case or the propriety or correctness of the first
judgment.[30] The purpose is not to re-examine and re-try issues already decided
but to revive the judgment; its cause of action is the judgment itself and not the
merits of the original action.[31] However, being a mere right of action, the
judgment sought to be revived is subject to defenses and counterclaims like
matters of jurisdiction and those arising after the finality of the first judgment or
which may have arisen subsequent to the date it became effective such as
prescription, payment, or counterclaims arising out of transactions not
connected with the former controversy.[32]

Once a judgment becomes final, the prevailing party is entitled as a matter of

right to a writ of execution the issuance of which is the trial court's ministerial
duty, compellable by mandamus.[33] Yet, a writ issued after the expiration of the
period is null and void.[34] The limitation that a judgment be enforced by
execution within the stated period, otherwise it loses efficacy, goes to the very
jurisdiction of the court. Failure to object to a writ issued after such period does
not validate it, for the reason that jurisdiction of courts is solely conferred by law
and not by express or implied will of the parties.[35]

Nonetheless, jurisprudence is replete with a number of exceptions wherein the

Court, on meritorious grounds, allowed execution of judgment despite non-
observance of the time bar. In Lancita, et al. v. Magbanua, et al.[36] it was held:

In computing the time limited for suing out an execution, although there is
authority to the contrary, the general rule is that there should not be included
the time when execution is stayed, either by agreement of the parties for a
definite time, by injunction, by the taking of an appeal or writ of error so as to
operate as a supersedeas, by the death of a party, or otherwise. Any interruption
or delay occasioned by the debtor will extend the time within which the writ may
be issued without scire facias. x x x.[37]

Thus, the demands of justice and fairness were contemplated in the following
instances: dilatory tactics and legal maneuverings of the judgment obligor which
redounded to its benefit;[38] agreement of the parties to defer or suspend the
enforcement of the judgment;[39] strict application of the rules would result in
injustice to the prevailing party to whom no fault could be attributed but
relaxation thereof would cause no prejudice to the judgment obligor who did not
question the judgment sought to be executed;[40] and the satisfaction of the
judgment was already beyond the control of the prevailing party as he did what
he was supposed to do.[41] Essentially, We allowed execution even after the
prescribed period elapsed when the delay is caused or occasioned by actions of
the judgment debtor and/or is incurred for his benefit or advantage.[42]

In the instant case, it is obvious that the heirs of Atty. Roblete did not file a
motion for execution within the five-year period or an action to revive the
judgment within the ten-year period. Worse, other than the bare allegation that
the judgment has not been enforced because the public prosecutor has not acted
on the request to file a motion for execution, no persuasive and compelling
reason was presented to warrant the exercise of Our equity jurisdiction.
Unfortunately for private respondent Roblete, the instant case does not fall
within the exceptions afore-stated. It cannot be claimed that the delay in
execution was entirely beyond their control or that petitioners have any hand in
causing the same.[43] As regards the civil aspect of a criminal case is concerned, it
is apt to point that —
Litigants represented by counsel should not expect that all they need to do is sit
back and relax, and await the outcome of their case. They should give the
necessary assistance to their counsel, for at stake is their interest in the case.
While lawyers are expected to exercise a reasonable degree of diligence and
competence in handling cases for their clients, the realities of law practice as
well as certain fortuitous events sometimes make it almost physically impossible
for lawyers to be immediately updated on a particular client's case.[44]

Aside from the civil indemnity arising from the crime, costs and incidental
expenses of the suit are part of the judgment and it is incumbent upon the
prevailing party in whose favor they are awarded to submit forthwith the
itemized bill to the clerk of court.[45] Manifestly, the heirs of Atty. Roblete failed
to do so. Their indifference, if not negligence, is indicative of lack of interest in
executing the decision rendered in their favor. To remind, the purpose of the law
in prescribing time limitations for executing judgments or orders is to prevent
obligors from sleeping on their rights.[46] Indeed, inaction may be construed as a
waiver.[47]

To close, the Court cannot help but impress that this case could have been
averted had the lower court been a competent dispenser of justice. It is
opportune to remind judges that once a judgment of conviction becomes final
and executory, the trial court has the ministerial duty to immediately execute
the penalty of imprisonment and/or pecuniary penalty (fine). A motion to
execute judgment of conviction is not necessary. With respect to the penalty of
imprisonment, the trial court should cancel the bail bond and issue a warrant of
arrest, if the accused is not yet under detention. If the convicted accused is
already under detention by virtue of the warrant of arrest issued, the trial court
should immediately issue the corresponding mittimus or commitment order for
the immediate transfer of the accused to the National Penitentiary to serve his
sentence, if the penalty imposed requires the service of sentence in the National
Penitentiary. The commitment order should state that an appeal had been filed,
but the same had been withdrawn/dismissed/decided with finality.

If aside from the penalty of imprisonment the penalty of fine is likewise

imposed, the trial court should issue at once an order requiring the payment of
fine within a reasonable period of time and, in case of nonpayment and
subsidiary imprisonment is imposed, he should likewise serve the subsidiary
imprisonment. If, however, the penalty is only fine and the judgment has
become final and executory, an order should be issued by the trial court at once
for the payment of the fine. And in case of non-payment, the bail bond
previously issued for his provisional liberty should be cancelled and a warrant of
arrest should be issued to serve the subsidiary imprisonment, if there is any.

In cases where the accused is a detention prisoner, i.e., those convicted of capital
offenses or convicted of non-capital offenses where bail is denied, or refused to
post bail, a mittimus or commitment order should be immediately issued after
the promulgation of judgment by the trial court as long as the penalty imposed
requires the service of sentence in the National Penitentiary. The filing of a
motion for reconsideration, motion for new trial, or notice of appeal should not
stop the lower court from performing its ministerial duty in issuing the
commitment order, unless a special order has been issued by the Court in
specific cases - to the effect that the convicted accused shall remain under
detention in the provincial jail or city jail while the motion is being heard or
resolved.

In so far as the civil liability arising from the offense is concerned, a motion for
execution should be filed in accordance with Section 6, Rule 39 of the Rules and
existing jurisprudence.

WHEREFORE, the foregoing considered, the instant petition

for certiorari is PARTIALLY GRANTED. The Orders dated December 3,
2009 and January 25, 2010 of Presiding Judge Delano F. Villaruz, Regional
Trial Court, Roxas City, Branch 16, are AFFIRMED IN PART only insofar as
to the execution of the penalty of imprisonment is concerned. Let the records of
this case be REMANDED to the trial court for the immediate issuance
of mittimus, pursuant to OCA Circular No. 40-2013, in relation to OCA Circular
No. 4-92-A.

The Office of the Court Administrator is hereby DIRECTED to conduct an

investigation on the possible culpability of those responsible for the
unreasonable delay in the execution of the judgment of conviction.

SO ORDERED.
G.R. No. 210801

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALVIN CENIDO y PICONES and REMEDIOS CONTRERAS y CRUZ, Accused-Appellants.

RESOLUTION

PERLAS-BERNABE, J.:

On July 7, 2014, the Court rendered its Resolution1 (July 7, 2014 Resolution) in this case finding accused-
appellants Alvin Cenido y Picones and Remedios Contreras y Cruz (Remedios; collectively, accused-
appellants) guilty beyond reasonable doubt of Illegal Sale and Possession of Prohibited Drugs, the
dispositive portion of which reads:

WHEREFORE, the Court ADOPTS the findings of fact and conclusions of law in the July 31, 2013
Decision of the [Court of Appeals] in CA-G.R. CR-H.C. No. 05333 and AFFIRMS said Decision finding
accused-appellants Alvin Cenido y Picones and Remedios Contreras y Cruz GUILTY beyond reasonable
doubt of Illegal Sale and Possession of Prohibited Drugs, respectively, sentencing: (a) Alvin
Cenido y Picones to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 for violation of
Section 5, Article II of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs
Act of 2002[";] and (b) Remedios Contreras y Cruz to suffer the indeterminate penalty of twelve (12) years
and one (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of P300,000.00 for
violation of Section 11, Article II of the same Act.

SO ORDERED.2

On August 12, 2014, accused-appellants jointly moved for reconsideration3 thereof, which the Court denied
with finality in its Resolution4 dated December 1,2014. 1âw phi1

Meanwhile, on April 11, 2014, the Court received a Letter5 dated April 10, 2014 from the Correctional
Institution for Women informing the Court of the death of one of the accused-appellants in this case,
Remedios, on March 7, 2014.6 In a Resolution7 dated September 9, 2015, the Court required the
Superintendent of the Correctional Institution for Women to furnish the Court with a certified true copy of
Remedios's death certificate and, in compliance thereto, the same was submitted by Officer-In-Charge
Elsa Aquino-Alabado on February 11,2016.8 As Remedios's death transpired before the promulgation of
the Court's July 7, 2014 Resolution in this case, i.e., when her appeal before the Court was still pending
resolution, her criminal liability is totally extinguished in view of the provisions of Article 89 of the Revised
Penal Code which states:

Art. 89. How criminal liability is totally extinguished. – Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor
is extinguished only when the death of the offender occurs before final judgment;

xxxx

In People v. Amistoso,9 the Court explained that the death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as his civil liability ex delicto.10 Consequently, Remedios's death on
March 7, 2014 renders the Court's July 7, 2014 Resolution irrelevant and ineffectual as to her, and is
therefore set aside. Accordingly, the criminal case against Remedios is dismissed.

WHEREFORE, insofar as accused-appellant Remedios Contreras y Cruz is concerned, the Resolutions

dated July 7, 2014 and December 1, 2014 of the Court are hereby SET ASIDE and Criminal Case Nos. 10-
037 and 10-038 before the Regional Trial Court of Binangonan, Rizal are DISMISSED, in view of her
demise.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 183445 September 14, 2011

OFFICE OF THE PRESIDENT and PRESIDENTIAL ANTI-GRAFT COMMISSION, Petitioners,

vs.
CALIXTO R. CATAQUIZ, Respondent.

DECISION

MENDOZA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
January 31, 2008 Decision1 and the June 23, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP
No. 88736 entitled "Calixto R. Cataquiz v. Office of the President and Concerned Employees of the
LLDA (CELLDA)," which reversed and set aside the Amended Resolution3 dated February 10, 2005 of the
Office of the President (OP).

The Facts

Respondent Calixto R. Cataquiz (Cataquiz) was appointed as General Manager of the Laguna Lake
Development Authority (LLDA) on April 16, 2001.4

On April 1, 2003, a majority of the members of the Management Committee and the rank-and-file
employees of the LLDA submitted to then Department of Environment and Natural
Resources (DENR) Secretary Elisea G. Gozun (Secretary Gozun) their Petition for the Ouster of Cataquiz
as LLDA General Manager5 on the grounds of corrupt and unprofessional behavior and management
incompetence.

In response, Secretary Gozun ordered the formation of an investigating team to conduct an inquiry into the
allegations against Cataquiz. The results of the fact-finding activity were submitted in a Report6 dated May
21, 2003 in which it was determined that respondent may be found guilty for acts prejudicial to the best
interest of the government and for violations of several pertinent laws and regulations. Consequently, the
investigating team recommended that the case be forwarded to the Presidential Anti-Graft
Commission (PAGC) for proper investigation.

In her Memorandum7 for the President dated May 23, 2003, Secretary Gozun reported that there is prima
facie evidence to support some accusations against Cataquiz which may be used to pursue an
administrative or criminal case against him. It was further noted that respondent lost his leadership
credibility. In light of these, she recommended that Cataquiz be relieved from his position and that he be
investigated by PAGC.

On June 6, 2003, in a letter8 to then President Gloria Macapagal-Arroyo (President Arroyo), the Concerned
Employees of the Laguna Lake Development Authority (CELLDA), a duly organized employees union of
the LLDA, expressed their support for the petition to oust Cataquiz and likewise called for his immediate
replacement.

Thereafter, CELLDA formally filed its Affidavit Complaint9 dated September 5, 2003 before PAGC charging
Cataquiz with violations of Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act),
Executive Order (E.O.) No. 292 (The Administrative Code) and R.A. No. 6713 (Code of Conduct and
Ethical Standards for Public Officials and Employees), to wit:
Violation of Section 3(e) of Republic Act 3019 in relation to Section 46 b(8) and (27), Chapter VI, Book V of
EO 292.

a. That respondent directly transacted with 35 fishpen operators and authorized [the] payment of
fishpen fees based on negotiated prices in violation of LLDA Board Resolution No. 28, Series of
1996 as alleged.

b. That respondent allegedly approved additional fishpen areas in the Lake without the approval of
the Board and in violation of the existing Zoning and Management Plan (ZOMAP) of the Laguna de
Bay that allows a carrying capacity of 10,000 hectares [of] fishpen structures in the lake based on
scientific and technical studies.

c. That respondent allegedly condoned or granted reductions of fines and penalties imposed by the
Public Hearing Committee, the duly authorized adjudicatory body of the LLDA. The condonation
was allegedly without the concurrence of LLDA Board of Directors.

d. That respondent allegedly caused the dismissal of some cases pending with the LLDA without
the concurrence of the Public Hearing Committee.

e. That on June 4, 2002, respondent allegedly appropriated and disbursed the amount of Five
Hundred Thousand Pesos (₱500,000.00) from LLDA funds and confidential funds without any
authority from the Department of Budget and Management.

f. That respondent allegedly contracted the services of several consultants without prior written
concurrence from the Commission on Audit.

g. That on December 19, 2001, respondent allegedly appropriated and disbursed LLDA funds for
the grant of gifts to indigent residents of San Pedro, Laguna. Said appropriation is not within the
approved budget neither was it sanctioned by the Board of Directors, as alleged.

h. That respondent allegedly allowed a Taiwanese company identified as Phil-Tai Fishing and
Trade Company to occupy and utilize certain portions of LLDA facilities located at Km. 70,
Barangay Bangyas, Calauan, Laguna without any contract nor authority from the LLDA Board.

i. That respondent allegedly authorized the direct procurement of fish breeders from Delacon
Realty and Development Corporation without the required bidding in accordance with COA rules
and regulations.

Violation of Section 7(d) of Republic Act 6713:

a. That respondent allegedly solicited patronage from regulated industries in behalf of RVQ Productions,
Inc. for the promotion of its film entry to the 2002 Metro Manila Film Festival entitled "Home Alone the
Riber."

Violation of Section 5(a) of Republic Act 6713:

a. That respondent allegedly failed to act promptly and expeditiously on official documents, requests,
papers or letters sent by the public or those which have been processed and completed staff work for his
appropriate action.10

On December 5, 2003, PAGC issued a Resolution11 recommending to the President that the penalty of
dismissal from the service with the accessory penalties of disqualification for re-employment in the public
service and forfeiture of government retirement benefits be imposed upon Cataquiz.
Thereafter, on December 8, 2003, Cataquiz was replaced by Fatima A.S. Valdez, who then assumed the
position of Officer-in-Charge/General Manager and Chief Operating Officer of the LLDA by virtue of a letter
of appointment dated December 3, 2003 issued by President Arroyo.12

In its Decision13 dated June 29, 2004, the OP adopted by reference the findings and recommendations of
PAGC. The dispositive portion thereof reads:

WHEREFORE, as recommended by the PAGC, respondent Calixto R. Cataquiz, is hereby DISMISSED

FROM THE SERVICE, with the accessory penalties of disqualification from re-employment to government
service and forfeiture of retirement benefits, effective immediately upon receipt of this order.

SO ORDERED.

Aggrieved, Cataquiz filed his Motion for Reconsideration and/or for New Trial14 dated August 4, 2004,
arguing that: (1) prior to the issuance by the PAGC of its Resolution and by the OP of its Decision, he was
already removed from office, thereby making the issue moot and academic; and (2) he cannot be found
guilty for violating a resolution which was foreign to the charges against him or for acts which did not
constitute sufficient cause for his removal in office, as shown by acts and documents which subsequently
became available to him, entitling him to a new trial.

On February 10, 2005, the OP issued an Amended Resolution,15 imposing on Cataquiz the penalties of
disqualification from re-employment in the government service and forfeiture of retirement benefits, in view
of the fact that the penalty of dismissal was no longer applicable to him because of his replacement as
General Manager of the LLDA.

Cataquiz elevated his case to the CA via a petition for review16 dated March 2, 2005, raising the same
issues presented in his Motion for Reconsideration and/or New Trial before the OP.

The CA promulgated its Decision on January 31, 2008, which reversed and set aside the Amended
Resolution of the OP. In so resolving, the CA reasoned that the accessory penalties of disqualification from
employment in the government service and forfeiture of retirement benefits could no longer be imposed
because the principal penalty of dismissal was not enforced, following the rule that the accessory penalty
follows the principal penalty. The CA also agreed with Cataquiz that he could not be held liable for a
violation of Board Resolution No. 68 of the LLDA, which when examined, was found not to be related to
fishpen awards. If at all, the applicable rule would be Board Resolution No. 28, as suggested by Cataquiz
himself. Said resolution though would be an invalid basis because it was not approved by the President
pursuant to Section 4(k) of R.A. No. 4850 (An Act Creating the Laguna Lake Development Authority).
Finally, the CA found that the offenses charged against Cataquiz under R.A. No. 4850 constituted acts that
were within his authority as general manager of the LLDA to perform.

Not in conformity, the OP and the PAGC (petitioners) filed this petition for review.

After the submission of respondent’s comment17 and the petitioners’ reply,18 Cataquiz filed an Urgent
Motion for Judicial Notice19 dated August 13, 2009 urging the Court to take judicial notice of the
Resolution20 rendered by the Office of the Ombudsman (Ombudsman) on November 30, 2004 which
recommended the dismissal of the charges against him for violation of R.A. No. 3019.

The Issues

Petitioners cite the following errors as grounds for the allowance of the petition:

I.

The Court of Appeals gravely erred when it reversed in toto the findings of the OP and PAGC
without stating clearly and distinctly the reasons therefor, which is contrary to the Constitution and
the Rules of Court; the findings of the Court of Appeals are conclusions without citation of specific
evidence on which they are based.

II.

The Court of Appeals erred because its judgment is based on a misapprehension of facts;

III.

The Court of Appeals erred when it went beyond the issues of the case;

IV.

The findings of the Court of Appeals are contrary to the findings of the OP, PAGC and DENR Fact
Finding Committee, [and]

V.

The OP and PAGC correctly found respondent to be unfit in public service, thus it did not err in
imposing the accessory penalties of disqualification from employment in the government service
and forfeiture of retirement benefits.21

Cataquiz, on the other hand, submits the following arguments in his Memorandum:22

I.

The dismissal by the Ombudsman of the cases against the respondent under the same set of facts
further constitute the law of the case between the parties which necessitates the dismissal of this
appeal and further supports the correctness of the decision of the Court of Appeals.

II.

The Court of Appeals did not commit any error when it reversed the amended resolution of the
petitioner Office of the President.23

The issues can be condensed into four essential questions:

(1) Whether the CA made an incorrect determination of the facts of the case warranting review of
its factual findings by the Court;

(2) Whether the dismissal by the Ombudsman of the charges against Cataquiz serves as a bar to
the decision of the OP;

(3) Whether Cataquiz can be made to suffer the accessory penalties of disqualification from re-
employment in the public service and forfeiture of government retirement benefits, despite his
dismissal from the LLDA prior to the issuance by the PAGC and the OP of their decision and
resolution, respectively; and

(4) Whether Cataquiz can be charged with a violation of Board Resolution No. 28, despite the
clerical error made by the PAGC in indicating the Board Resolution number to be No. 68.

The Court’s Ruling

The Court finds merit in the petition.

Findings of fact of the appellate court can be reviewed

As a general rule, only questions of law can be raised in a petition for review on certiorari under Rule 45 of
the Rules of Court.24 Since this Court is not a trier of facts, findings of fact of the appellate court are binding
and conclusive upon this Court.25 There are, however, several recognized exceptions to this rule, namely:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case, and the
same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which
they are based;

(9) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs, are
not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record.26 [Emphases supplied]

In this case, the findings of the CA are contrary to those of PAGC which recommended Cataquiz’ dismissal
for violating Section 3(e) of R.A. No. 3019, in relation to Section 46(b)(27), Chapter 6, Subtitle A, Title I,
Book V of E.O. 292. Likewise, the Investigating Team of the DENR also agreed that there exists evidence
that could sustain a finding of respondent’s violation of several laws and regulations.

The result of PAGC’s investigation, however, was simply brushed aside by the CA, without citing any
evidence on which its findings were based. In ignoring the meticulous discussion of PAGC’s conclusions
and in absolving Cataquiz from any wrongdoing, the CA cavalierly declared as follows:

The petitioner likewise presented to us in support of his petition the argument that he had sufficient
authority to do what had been complained against him. We have examined the charges against the
provisions of R.A. No. 4850 and we found that the said acts could be sustained because they were within
his powers as general manager of the Laguna Lake Development Authority as implied from express
powers granted to him by the law. Moreover, the records of the Authority show that transactions resulting
into contracts in the Authority’s trading activities have been done by previous general managers of the
Authority even without prior approval by the board. Ordinary corporate practices likewise point out to the
fact that a general manager, having the general management and control of its business and affairs, has
implied and apparent authority to do acts or make any contracts in its behalf falling within the scope of the
ordinary and usual business of the company, especially so when, relative to a contract that the petitioner
had entered into with Phil-Tai Fishing and Trade Company, the Office of the Government Corporate
Counsel had formally acceded thereto.27

As plain as that, without any analysis of the evidence on record or a comprehensive discussion on how the
decision was arrived at, the CA absolved Cataquiz of the acts he was accused of committing during his
service as General Manager of the LLDA.
Section 14, Article VIII of the 1987 Constitution mandates that decisions must clearly and distinctly state
the facts and the law on which it is based. Decisions of courts must be able to address the issues raised by
the parties through the presentation of a comprehensive analysis or account of factual and legal findings of
the court.28 It is evident that the CA failed to comply with these requirements. PAGC, in its Resolution dated
December 5, 2003, discussing each of the twelve allegations against Cataquiz, determined that he should
be dismissed from the government service and that he could be held liable under Section 3(e) of R.A. No.
3019, in relation to Section 46(b)(27), Chapter 6, Subtitle A, Title I, Book V of E.O. No. 292, to wit:

R.A. No. 3019

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.

E.O. No. 292

Section 46. Discipline: General Provisions.

xxx

(b) The following shall be grounds for disciplinary action:

xxx

(27) Conduct prejudicial to the best interest of the service

The one-paragraph pronouncement of the CA that Cataquiz had authority to perform the acts complained
of is grossly insufficient to overturn the determination by PAGC that he should be punished for acts
prejudicial to the LLDA committed during his service as General Manager of the said agency. It should be
emphasized that findings of fact of administrative agencies will not be interfered with and shall be
considered binding and conclusive upon this Court provided that there is substantial evidence to support
such findings.29 Substantial evidence has been defined as "that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion"30 or "evidence commonly accepted by
reasonably prudent men in the conduct of their affairs."31

After a diligent review of the evidence presented and the pleadings filed, this Court finds that there is
substantial evidence to justify the conclusion of PAGC that Cataquiz should be punished with the penalty of
dismissal, along with its accessory penalties, for committing acts prejudicial to the best interest of the
government and for giving undue advantage to a private company in the award of fishpens. Thus, the
PAGC was correct when it wrote:

I.

[I]n the first allegation, respondent Cataquiz impliedly admitted his direct transaction with 35 fishpen
operators and the payment of fishpen fees without conducting a public bidding. In respondent’s defense,
he raised the invalidity of Board Resolution No. 68 [sic] which provides for guidelines in public bidding for
fishpen areas. Respondent argued that Board Resolution No. 68 [sic] is an unreasonable exercise of the
Board’s legislative power since public bidding has never been intended by RA 4850, the enabling law of
LLDA.
The Commission finds the contention of the respondent bereft of merit. Section 25-A of RA 4850
authorizes the Board to "formulate, prescribe, amend and repeal rules and regulations to govern the
conduct of business of the Authority" and it is the function of the respondent in his capacity as General
Manager "to implement and administer the policies, programs and projects approved by the Board"
pursuant to Section 26 (b) of RA 4850. While it is true that a Board Resolution draws life from the enabling
statute, the Commission cannot find any inconsistency between the former and the latter. The Board
Resolution No. 68 [sic] is still within the bounds of RA 4850 and is germane to its purpose in promoting a
balanced growth of the Laguna Lake. Thus, the validity of the questioned Resolution stands. It becomes
now the duty of the respondent to implement the Resolution and not to question its legality nor disregard it.

In the case at hand, respondent’s act of not giving credence to the Board Resolution resulted to undue
prejudice to the best interest of the public service considering that the Authority incurred Revenue loss
from the direct transaction of respondent Cataquiz amounting to Seven Hundred Fifty Five Thousand
Seven Hundred Pesos ₱755,700.00.

The presumption that the official duty has been regularly performed was overcome by the fact that the
government was deprived of much needed revenue as a result of the act committed by respondent
Cataquiz.

xxxx

III.

The Commission finds that the act of respondent Cataquiz in condoning penalties and reducing the
fines imposed by the Public Hearing Committee (PHC) of the LLDA has no basis in law. The premise of the
respondent citing Section 26 (b) giving him the executive prerogative and Section 4 (a) justifying the
condonation and reduction is misplaced. A careful examination of the aforementioned provisions would
reveal that Section 26 (b) does not vest the respondent the executive prerogative. Said provision gives him
the authority to execute and administer the policies, plans, programs and projects approved by the Board.
There is no showing that the condonation of penalties and reduction of fines has been approved by the
Board. Section 26 (b) is clear in its terms that before respondent executes any policy, program or project,
the same has to be approved by the Board. Thus, there is no executive prerogative to speak of.

The Commission agrees with the contention of the complainant that Section 4 (d) refers to additional power
and function of the Authority and not to the respondent. Of equal importance is that Section 4 (d) does not
confer him the authority to condone penalties nor reduce fines. Said provision is referring to Orders
requiring the discontinuance of pollution. When the law is clear it needs no further interpretation.

The contention of respondent Cataquiz that there is nothing in Section 25-A that states that the approval of
the Board is necessary has no leg to stand on. Same provision gives the Board the implied power "to do
such other acts and perform such other functions as may be necessary to carry out the provisions of this
Charter."

In relation to this is Section 31 of RA 4850 that gives the Board the authority to create such other divisions
and positions as may be deemed necessary for the efficient, economic and effective conduct of the activity
of the Authority.

The findings of the PHC, although a recommendatory body, must be accorded great respect. The penalties
imposed by the PHC cannot be substituted by the respondent without any basis and the latter cannot
simply claim that he has the sole authority to condone penalties and reduce fines.

Evidently respondent’s act of condonation of penalties and reduction of fines was uncalled for. Thus, his
act resulted to undue prejudice to the best interest of the service and will set a dangerous precedent to the
justice system of the government.

IV.
In the same vein, the dismissal of the pending case against Twenty First Century Resources Inc. by the
respondent has no basis in law. Section 26 of RA 4850 clearly enumerates the powers and functions of
respondent, to wit:

"xxx.

a. Submit for consideration of the Board the policies and measures which he believes to be
necessary to carry out the purposes and provisions of this Act;

b. Execute and administer the policies, plan, programs and projects approved by the Board;

c. Direct and supervise the operation and internal administration of the Authority. The General
Manager may delegate certain administrative responsibilities to other officers of the Authority
subject to the rules and regulations of the Board;

d. Appoint officials and employees below the rank of division heads to positions in the approved
budget upon written recommendation of the division head concerned using as guide the standard
set forth in the Authority’s merit system;

e. Submit quarterly reports to the Board on personnel selection, placement and training;

f. Submit to the NEDA an annual report and such other reports as may be required, including the
details of the annual and supplemental budgets of the Authority;

g. Perform such other functions as may be provided by law."

From the aforementioned section, nowhere can the Commission find any grant of power to adjudicate in
favor of respondent Cataquiz and the latter cannot hide under the cloak of ‘managerial prerogative’ absent
any law that justifies his act of dismissing the case. To reiterate, the dismissal of the case against Twenty
First Century is an act clearly prejudicial to the best interest of the service. Consequently, the Authority was
deprived of a committed service to the government and this fact cannot be overlooked upon by the
Commission.

xxxx

VI.

The contract of service for consultancy duly signed by the respondent and the legal consultants of LLDA is
not in accordance with Section 212 of the Government Accounting and Auditing Manual (GAAM) 86 which
provides that:

"Payment of public funds of retainer fees of private law practitioners who are so hired and employed
without the prior written concurrence and acquiescence by the Solicitor General of the Government
Corporate Counsel, as the case may be, as well as the written concurrence of the Commission on Audit,
shall be disallowed in audit and the same shall be a personal liability of the official concerned."

The contention of the respondent that the LLDA Administrative Section failed to advise him regarding the
requisites laid down by law cannot stand. Occupying an executive position, respondent is required to
exercise diligence in the highest degree in the performance of his duties. Respondent cannot pass
responsibility to other Division which in the first place, he has supervision and control of, pursuant to
Section 31 of RA 4850. Supervision as defined is the overseeing or the power or authority of an officer to
see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may
take such action or step as prescribed by law to make them perform their duties. Control on the other hand,
is the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the
performance of his duties and to substitute the judgment of the former for that of the latter. There is
therefore a given authority to the respondent by law to regulate the acts of the Administrative Division and
respondent cannot simply evade responsibility by invoking the shortcomings of his subordinates. In signing
the contract, without verifying compliance of existing laws, respondent falls short of the required
competence expected of him in the performance of his official functions. Incompetence, has been defined
as ‘lack of ability, legal qualification or fitness to discharge the required duty; want of physical or intellectual
or moral fitness.’

xxxx

VIII.

The Commission finds that the transaction entered into by the respondent and Phil-Tai Fishing and Trade
Company is violative of Section 3 (e) of RA 3019. The elements of Section 3 (e) are as follows:

1. The accused is a public officer discharging official administrative, or judicial functions or private
persons in conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or in
relation to his public position;

3. The public officer acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and

4. His action caused undue injury to the Government or any private party or gave any party any
unwarranted benefit, advantage or preference.

Applying the first element, respondent Cataquiz is a public officer within the legal term of RA 3019 which
provides that "Public officer includes elective and appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exempt from service receiving compensation, even
nominal from the government xxx." Clearly, respondent is a public officer discharging official functions in
transacting with Phil-Tai to occupy and utilize portions of LLDA facilities locate (sic) at Km. 70 Brgy.
Bangyas, Calauan, Laguna.

Relating to the second element in the instant case, respondent in the exercise of his official duties allowed
Phil-Tai to use the LLDA facility without the concurrence of the Board of Directors of LLDA where the
corporate powers of the Authority lies as explicitly provided in Section 16 of RA 4850.

Applying the third element, respondent Cataquiz acted with manifest partiality when by reason of his office
he allowed Phil-Tai to occupy the LLDA facility without any contract and without the approval of the Board
of Directors. The privilege granted was by virtue of a joint venture proposal which was never authorized by
the Board as admitted by the respondent in his position paper. In fact the proposal is still awaiting
resolution from the board. Partiality is synonymous with "bias" which excites a disposition to see and report
matters as they are wished for rather than as they are.

Manifest means "obvious to the understanding, evident to the mind, not obscure or hidden and is
synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident and self-evident."

There was manifest partiality when respondent Cataquiz entered a transaction with Phil-Tai disregarding
the requirements set forth by RA 4850 which requires the approval of the Board. Worse, the joint venture
proposal by Phil-Tai which was accepted by the respondent took place without any contract at all. The
contention of the respondent that Phil-Tai is only given the authority to conduct a preliminary study and
including the technical survey and Pilot testing at the aforesaid facility for the purpose of determining its
structural integrity and commercial viability cannot prevail over the records available at hand.

The findings of DENR officials in their ocular inspection on May 13, 2003 would disclose that Phil-Tai is in
actual possession of the LLDA facility and personally witnessed the actual harvesting of tilapia from the
fishpond owned by LLDA. The report of DENR officials contains that the act of the respondent is prejudicial
to the interest of the government mainly because there was no contract executed between LLDA and Phil-
Tai.

Moreover, the Memorandum from the Division Chief III Jose K. Cariño III of the Community Development
Division would reveal that Phil-Tai is introducing exotic aquatic species in one of the earthen ponds at
LLDA Calauan Complex. RA 8550 otherwise known as the Philippine Fisheries Code of 1998 provides that
the introduction of foreign crustaceans such as crayfish in Philippine waters without a sound ecological,
biological and environmental justification based on scientific studies is prohibited. There is, therefore, an
unwarranted act by Phil-Tai which is prejudicial to the government.

Applying the fourth element in the case at bar, respondent Cataquiz gave Phil-Tai unwarranted benefit,
advantage or preference when he entertained the joint venture proposal without any consideration. In fact,
as stated in respondent’s position paper, LLDA was assured by Phil-Tai that in the event the agreement
does not materialize, it will remove all its equipment without damage to the LLDA aqua culture facilities. Be
it noted that the assurance was not made in writing.

Respondent refused to discern the adverse consequences of the joint venture proposal considering that no
available remedy was left to the government in case of untoward incidents that may arise. The transaction
entered into is at most unenforceable because the agreements therein was (sic) not put into writing. The
transaction cannot be tolerated by the Commission and the unwarranted benefit that Phil-Tai is enjoying
deserves much consideration because it puts the government into a very disadvantageous situation.

xxxx

X.

The Commission finds that the promotion of the film entry of RVQ Productions by respondent Cataquiz
does not offend Section 7 (d) of RA 6713 which provides as follows:

"Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor,
entertainment, loan or anything of monetary value from any person in the course of their official duties, or
in connection with any operation being regulated by, or any transaction which may be affected by the
functions of their office."

There was no undue solicitation of patronage of the film considering that the tickets sold are voluntary
participation of interested employees. In fact, no monetary consideration was received nor accepted by the
respondent.

Of important consideration, however, is the use of government vehicles in the delivery of movie tickets and
the collection of payments thereof to different industrial establishments. Respondent Cataquiz in his official
capacity as the General Manager of LLDA, approved the use of government vehicles and drivers for the
promotion of the movie.

The impropriety of using government property in favor of a (sic) RVQ Production, a private entity cannot be
countenanced as this is prejudicial to the best interest of the service. The very purpose of the use of the
government property has not been properly served. 32 [Underscoring supplied]

xxxx

The dismissal of the criminal case against

Respondent does not bar the finding
of administrative liability.

Cataquiz claims that the dismissal by the Ombudsman of the case against him constitutes the law of the
case between him and the OP which necessitates the dismissal of the petition before this Court.
At the outset, the Court would like to highlight the fact that Cataquiz never raised this issue before the CA,
despite having had ample time to do so. The records show that the Ombudsman promulgated its resolution
on November 30, 2004, more than three months prior to the filing by the respondent of his petition before
the CA on March 2, 2005.33 Nevertheless, he only chose to mention this after the CA had rendered its
decision and after the submission of his comment on the petition at bench. This is evidently a desperate
effort on his part to strengthen his position and support the decision of the CA exonerating him from any
administrative liability. The Court has consistently ruled that issues not previously ventilated cannot be
raised for the first time on appeal.34 Otherwise, to consider such issues and arguments belatedly raised by
a party would be tantamount to a blatant disregard of the basic principles of fair play, justice and due
process.35 Therefore, this issue does not merit the attention of the Court.

Even if the Court were to overlook this procedural lapse, Cataquiz’ argument would still fail. The
Ombudsman Resolution dated November 30, 2004 recommending the dismissal of the charges against
him pertains only to the criminal case against him and not the administrative case, which is the subject
matter of the case at bench. As can be gleaned from the Resolution, the charges referred to by the
Ombudsman were for respondent’s alleged violation of Section 3(b) and (c) of R.A. No. 3019 or for
malversation of public funds and fraud against the public treasury.36

It is a basic rule in administrative law that public officials are under a three-fold responsibility for a violation
of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and
administratively liable for the same act.37 Obviously, administrative liability is separate and distinct from
penal and civil liability.38 In the case of People v. Sandiganbayan,39 the Court elaborated on the difference
between administrative and criminal liability:

The distinct and independent nature of one proceeding from the other can be attributed to the following:
first, the difference in the quantum of evidence required and, correlatively, the procedure observed and
sanctions imposed; and second, the principle that a single act may offend against two or more distinct and
related provisions of law, or that the same act may give rise to criminal as well as administrative liability.40

Accordingly, the dismissal of the criminal case by the Ombudsman does not foreclose administrative action
against Cataquiz.41 His absolution from criminal liability is not conclusive upon the OP, which subsequently
found him to be administratively liable. The pronouncement made by the Ombudsman cannot serve to
protect the respondent from further administrative prosecution. A contrary ruling would be unsettling as it
would undermine the very purpose of administrative proceedings, that is, to protect the public service and
uphold the time-honored principle that a public office is a public trust.42

Respondent can be imposed with

the accessory penalties.

Removal or resignation from office is not a bar to a finding of administrative liability.43 Despite his removal
from his position, Cataquiz can still be held administratively liable for acts committed during his service as
General Manager of the LLDA and he can be made to suffer the corresponding penalties. The subsequent
finding by the OP that Cataquiz is guilty of the charges against him with the imposition of the penalty of
dismissal and its corresponding accessory penalties is valid.

It cannot be disputed that Cataquiz was a presidential appointee.44 As such, he was under the direct
disciplining authority of the President who could legitimately have him dismissed from service. This is
pursuant to the well-established principle that the President’s power to remove is inherent in his power to
appoint.45 Therefore, it is well within the authority of the President to order the respondent’s dismissal.

Cataquiz argues that his removal has rendered the imposition of the principal penalty of dismissal
impossible. Consequently, citing the rule that the accessory follows the principal, he insists that the
accessory penalties may no longer be imposed on him.46

The respondent is mistaken.

In the case of In Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia
Serafico,47 despite the resignation from government service by the employee found guilty of grave
misconduct, disgraceful and immoral conduct and violation of the Code of Conduct for Court Personnel,
thereby making the imposition of the penalty of dismissal impossible, this Court nevertheless imposed the
accessory penalties of forfeiture of benefits with prejudice to re-employment in any branch or
instrumentality of government.

Similarly instructive is the case of Pagano v. Nazarro, Jr.48 where the Court held that:

The instant case is not moot and academic, despite the petitioner’s separation from government service.
Even if the most severe of administrative sanctions – that of separation from service – may no longer be
imposed on the petitioner, there are other penalties which may be imposed on her if she is later found
guilty of administrative offenses charged against her, namely, the disqualification to hold any government
office and the forfeiture of benefits.49

Based on the foregoing, it is clear that the accessory penalties of disqualification from re-employment in
public service and forfeiture of government retirement benefits can still be imposed on the respondent,
notwithstanding the impossibility of effecting the principal penalty of dismissal because of his removal from
office.

PAGC’s typographical error

can be corrected.

One of the charges against Cataquiz is for directly transacting with 35 fishpen operators and authorizing
payment of fishpen fees based on negotiated prices, in contravention of the directive of Board Resolution
No. 28, which requires the conduct of a public bidding. The PAGC Resolution dated December 5, 2003,
recommending the dismissal of Cataquiz erroneously indicated that he violated Board Resolution No. 68,
instead of No. 28.50 The CA then sustained his contention that he could not be found guilty for violating
Board Resolution No. 68 of the LLDA because such resolution was not related to fishpen awards and that
his right to due process was violated when the OP found him guilty of violating the said resolution. It further
added that even if the respondent was charged with acting in contravention with Board Resolution No. 28,
the said resolution would be invalid for not having been duly approved by the President.

Petitioners, however, claim that it was merely a typographical or clerical error on the part of PAGC which
was unfortunately adopted by the OP.51 Cataquiz apparently will not be unduly prejudiced by the correction
of the PAGC resolution. In the counter-affidavit he filed before the PAGC, he was able to exhaustively
argue against the allegation that he had violated Board Resolution No. 28.52 Hence, he cannot feign
ignorance of the true charges against him.

In this regard, the Court agrees with the petitioners.

It is clear from the pleadings submitted before PAGC – particularly in the Affidavit Complaint filed by
CELLDA against Cataquiz and in the Counter-Affidavit submitted by the latter – that the resolution referred
to as having been violated by the respondent was Board Resolution No. 28, and not No. 68, as was
erroneously indicated in the PAGC Resolution. Thus, pursuant to the rule that the judgment should be in
accordance with the allegations and the evidence presented,53 the typographical error contained in the
PAGC Resolution can be amended. Clerical errors or any ambiguity in a decision can be rectified even
after the judgment has become final by reference to the pleadings filed by the parties and the findings of
fact and conclusions of law by the court.54

A careful perusal of the PAGC’s discussion on the violation of the questioned board resolution discloses
that PAGC was undoubtedly referring to Board Resolution No. 28 which approved the policy guidelines for
public bidding of the remaining free fishpen areas in Laguna de Bay, and not Resolution No. 68 which had
nothing at all to do with fishpen awards. Therefore, the reference to Board Resolution No. 68, instead of
Board Resolution No. 28, in the PAGC Resolution is unmistakably a typographical error on the part of
PAGC but, nonetheless, rectifiable.
Moreover, the respondent’s counter-affidavit shows that he had knowledge of the fact that he was being
charged with violation of Board Resolution No. 28. He even argued that the said resolution was an invalid
and illegal administrative rule. His position was that the resolution issued by the Board of Directors of LLDA
was an unreasonable exercise of its legislative power because the enabling law of LLDA, R.A. No. 4850,
did not require the public bidding of free fishpen areas.55 Then, in his motion for reconsideration before the
OP, he argued that the resolution was invalid because it was never approved by the President, contrary to
Section 4(k) of R.A. No. 4850 (as amended by Presidential Decree No. 813) which provides:

(K) For the purpose of effectively regulating and monitoring activities in Laguna de Bay. The Authority
1âw phi 1

shall have exclusive jurisdiction to issue new permit for the use of the lake waters for any projects or
activities in/or affecting the said lake including navigation, construction, and operation of fishpens, fish
enclosures, fish corrals and the like, and to impose necessary safeguards for lake quality control and
management and to collect necessary fees for said activities and projects: Provided, That the fees
collected for fisheries may be shared between the Authority and other government agencies and political
subdivisions in such proportion as may be determined by the President of the Philippines upon
recommendation of the Authority’s Board: Provided further, That the Authority’s Board may determine new
areas of fishery development or activities which it may place under the supervision of the Bureau of
Fisheries and Aquatic Resources taking into account the overall development plans and programs for
Laguna de Bay and related bodies of water: Provided, finally, That the Authority shall subject to the
approval of the President of the Philippines promulgate such rules and regulations which shall
govern fisheries development activities in Laguna de Bay which shall take into consideration among
others the following: socio-economic amelioration of bona-fide resident fishermen whether individually or
collectively in the form of cooperatives, lakeshore town development, a master plan for fish construction
and operation, communal fishing ground for lakeshore town residents, and preference to lakeshore town
residents in hiring laborers for fishery projects. [Emphasis supplied]

Regrettably, the CA sustained the respondent’s argument. A careful examination of the abovementioned
law shows that presidential approval is only required for rules and regulations which shall govern fisheries
development activities in Laguna de Bay. The question then is whether Board Resolution No. 28 falls under
that category of rules subject to approval by the President. The answer is in the negative.

The Revised Laguna de Bay Zoning and Management Plan56 allocated 10,000 hectares of the lake surface
areas for fishpen operators. In the event that the area would not be fully occupied after all qualified
operators had been assigned their respective fishpen areas, the residual free areas would be opened for
bidding to other prospective qualified applicants. Accordingly, Board Resolution No. 28 simply set forth the
guidelines for the public bidding of the remaining free fishpen areas in Laguna de Bay.57 It did not require
presidential approval because it did not regulate any fisheries development activities. Hence, the
questioned resolution cannot be declared invalid on the basis of the CA’s ratiocination that the resolution
lacked the approval of the President.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET
ASIDE and another judgment entered reinstating the June 29, 2004 Decision of the Office of the President,
as amended by its February 10, 2005 Amended Resolution.

SO ORDERED.
 SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 196390 September 28, 2011

PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), Petitioner,

vs.
RICHARD BRODETT AND JORGE JOSEPH, Respondents.

DECISION

BERSAMIN, J.:

Objects of lawful commerce confiscated in the course of an enforcement of the Comprehensive Dangerous
Drugs Act of 2002 (Republic Act No. 9165)that are the property of a third person are subject to be returned
to the lawful ownerwho is not liable for the unlawful act. But the trial court may not release such objects
pending trial and before judgment.

Antecedents

On April 13, 2009, the State, through the Office of the City Prosecutor of Muntinlupa City,charged
RichardBrodett (Brodett) and Jorge Joseph (Joseph) with a violation of Section 5, in relation to Section
26(b), of Republic Act No. 91651 in the Regional Trial Court (RTC) in MuntinlupaCity,docketed as Criminal
Case No. 09-208,the accusatory portion of the information for which reads as follows:

That on or about the 19th day of September 2008, in the City of Muntinlupa, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and
mutually helping and aiding each other, they not being authorized by law, did then and there wilfully,
unlawfully, and feloniously sell, trade, deliver and give away to another, sixty (60) pieces of blue-colored
tablets with Motorala (M) logos, contained in six (6) self-sealing transparent plastic sachets with recorded
total net weight of 9.8388 grams, which when subjected to laboratory examination yielded positive results
for presence of METHAMPHETAMINE, a dangerous drug.2

Also on April 16, 2009, the State, also through the Office of the City Prosecutor of Muntinlupa City, filed
another information charging only Brodett with a violation of Section 11 of R.A. No. 9165, docketed as
Criminal Case No. 09-209, with the information alleging:

That on or about the 19th day of September 2008, in the City of Muntinlupa, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and
there, wilfully, unlawfully, and feloniously have in his possession, custody and control the following:

a. Four (4) yellow tablets with Playboy logos and ten (10) transparent capsules containing white
powdery substance contained in one self-sealing transparent plastic sachet having a net weight of
4.9007 grams, which when subjected to laboratory examination yielded positive results for
presence of METHYLENE DIOXYMETHAMPHETAMINE (MDMA), commonly known as "Ecstasy",
a dangerous drug;

b. Five (5) self-sealing transparent plastic sachets containing white powdery substance with total
recorded net weight of 1.2235 grams, which when subjected to laboratory examination yielded
positive results for presence of COCCAINE, a dangerous drug;

c. Five (5) self-sealing transparent plastic sachets containing white powdery substance, placed in a
light-yellow folded paper, with total recorded net weight of 2.7355 grams, which when subjected to
laboratory examination yielded positive results for presence of COCCAINE, a dangerous drug;
 d. Three (3) self-sealing transparent plastic sachets containing dried leaves with total recorded net
weight of 54.5331 grams, which when subjected to laboratory examination yielded positive results
for presence of TETRAHYDROCANNABINOL, a dangerous drug.3

In the course of the proceedings in the RTC, on July 30, 2009, Brodett filed a MotionToReturn Non-Drug
Evidence. He averred that during his arrest, Philippine Drug Enforcement Agency (PDEA) had seized
several personal non-drug effects from him,including a 2004 Honda Accord car with license plate no. XPF-
551;and that PDEArefused to return his personal effects despite repeated demands for their return. He
prayed that his personal effects be tendered to the trial court to be returned to himupon verification.4

On August 27, 2009, the Office of the City Prosecutor submitted its Comment and
Objection,5 proposingthereby that the delivery to the RTC of the listedpersonal effects for safekeeping, to
be held there throughout the duration of the trial, would be to enable the Prosecution and the Defense to
exhaust their possible evidentiary value. The Office of the City Prosecutor objected to the return of the car
because it appeared to be the instrument in the commission of the violation of Section 5 of R.A. No. 9165
due to its being the vehicle used in the transaction of the sale of dangerous drugs.

On November 4, 2009, the RTC directedthe release of the car, viz:

WHEREFORE, the Director of PDEA or any of its authorized officer or custodian is hereby directed to: (1)
photograph the abovementioned Honda Accord, before returning the same to its rightful owner Myra S.
Brodett and the return should be fully documented, and (2) bring the personal properties as listed in this
Order of both accused, Richard S. Brodett and Jorge J. Joseph to this court for safekeeping, to be held as
needed.

SO ORDERED.6

PDEA moved to reconsider the order of the RTC, but its motion was denied on February 17, 2010 for lack
of merit, to wit:

WHEREFORE,premises considered, the Motion for Reconsideration is hereby DENIED for lack of merit.
The Order of the Court dated November 4, 2009 is upheld.

SO ORDERED.7

Thence, PDEA assailed the order of the RTC in the Court of Appeals (CA) by petition for certiorari,
claiming that the orders of the RTC were issued in grave abuse of discretion amounting to lack or excess
of jurisdiction.

On March 31, 2011, the CA promulgated its Decision,8 dismissing the petition for certiorari thusly:

xxxx

Here it is beyond dispute that the Honda Accord subject of this petition is owned by and registered in the
name of Myra S. Brodett, not accused Richard Brodett. Also, it does not appear from the records of the
case that said Myra S. Brodett has been charged of any crime, more particularly, in the subject cases of
possession and sale of dangerous drugs. Applying Section 20 of the law to the dispute at bar, We therefore
see no cogent reason why the subject Honda Accord may not be exempted from confiscation and
forfeiture.

xxxx

We thus cannot sustain petitioner’s submission that the subject car, being an instrument of the offense,
may not be released to Ms. Brodett and should remain in custodia legis. The letters of the law are plain and
unambiguous. Being so, there is no room for a contrary construction, especially so that the only purpose of
judicial construction is to remove doubt and uncertainty, matters that are not obtaining here. More so that
the required literal interpretation is consistent with the Constitutional guarantee that a person may not be
deprived of life, liberty or property without due process of law.

WHEREFORE, the instant petition is DENIED and consequently DISMISSED for lack of merit.

SO ORDERED.9

Hence, PDEA appeals.

Issues

Essentially,PDEA asserts that the decision of the CAwas not in accord with applicable laws and the
primordial intent of the framers of R. A. No. 9165.10 It contends that the CA gravely erred in its ruling; that
the Honda Accord car, registered under the name of Myra S. Brodett (Ms.Brodett), had been seized from
accused Brodettduring a legitimate anti-illegal operation and should not be released from the custody of
the law;that the Motion to Return Non-Drug Evidencedid not intimate or allege that the car had belonged to
a third person; and that even if the car had belonged to Ms. Brodett, a third person, her ownership did not
ipso facto authorize its release, because she was under the obligation to prove to the RTC that she had no
knowledge of the commission of the crime.

In hisComment,11 Brodettcounters that the petitioner failed to present any question of law that warranted a
review by the Court;that Section 20 of R. A. No. 9165 clearly and unequivocally states that confiscation and
forfeiture of the proceeds or instruments of the supposed unlawful act in favor of the Government may be
done by PDEA, unless such proceeds or instruments are the property of a third person not liable for the
unlawful act; that PDEA is gravely mistaken in its reading that the third person must still prove in the trial
court that he has no knowledge of the commission of the crime; and that PDEA failed to exhaust all
remedies before filing the petition for review.

The decisive issue is whether or not the CA erred in affirming the orderfor the release of the car to
Ms.Brodett.

Ruling

The petition is meritorious.

Applicable laws and jurisprudence on releasing

property confiscated in criminal proceedings

It is not open to question thatin a criminal proceeding, the court having jurisdiction over the offense has the
power to order upon conviction of an accusedthe seizure of (a) the instruments to commit the crime,
including documents, papers, and other effects that are the necessary means to commit the crime; and (b)
contraband, the ownership or possession of which is not permitted for being illegal. As justification for the
first, the accused must not profit from his crime, or must not acquire property or the right to possession of
property through his unlawful act.12 As justification for thesecond, to return to the convict from whom
thecontraband was taken, in one way or another,is not prudent or proper, because doing so will give rise to
a violation of the law for possessing the contraband again.13 Indeed, the court having jurisdiction over the
offense has theright to dispose of property used in the commission of the crime, such disposition being an
accessory penalty to be imposed on the accused, unless the property belongs to a third person not liable
for the offense that it was used as the instrument to commit.14

In case of forfeiture of property for crime, title and ownership of the convict are absolutely divested and
shall pass to the Government.15 But it is required that the property to be forfeited must be before the court
in such manner that it can be said to be within its jurisdiction.16
According to the Rules of Court, personal property may be seized in connection with a criminal offense
either by authority of a search warrant or as the product of a search incidental to a lawful arrest. If the
search is by virtue of a search warrant, the personal property that may be seized may be that which is the
subject of the offense; or that which has been stolen or embezzled and other proceeds, or fruits of the
offense; orthat which has been used or intended to be used as the means of committing an offense.17 If the
search is an incident of a lawful arrest, seizure may be made of dangerous weapons or anything that may
have been used or may constitute proof in the commission of an offense.18 Should there be no ensuing
criminal prosecution in which the personal property seized is used as evidence, its return to the person
from whom it was taken, or to the person who is entitled to its possession is but a matter of
course,19 except if it is contraband or illegal per se. A proper court may order the return of property held
solely as evidence should the Government be unreasonably delayed in bringing a criminal
prosecution.20 The order for the disposition of such property can be made only when the case is finally
terminated.21

Generally, the trial court is vested with considerable legal discretion in the matter of disposing of property
claimed as evidence,22 and this discretion extends even to the manner of proceeding in the event the
accused claims the property was wrongfully taken from him.23 In particular, the trial court has the power to
return property held as evidence to its rightful owners, whether the property was legally or illegally seized
by the Government.24 Property used as evidence must be returned once the criminal proceedings to which
it relates have terminated, unless it is then subject to forfeiture or other proceedings.25

II

Order of release was premature and made

in contravention of Section 20, R.A. No. 9165

It is undisputed that the ownership of the confiscated car belonged to Ms. Brodett, who was not charged
either in connection with the illegal possession and sale of illegal drugs involving Brodett and Joseph that
were the subject of the criminal proceedings in the RTC, or even in any other criminal proceedings.

In its decision under review, the CA held as follows:

A careful reading of the above provision shows that confiscation and forfeiture in drug-related cases
pertains to "all the proceeds and properties derived from the unlawful act, including but not limited to,
money and other assets obtained thereby, and the instruments or tools with which the particular unlawful
act was committed unless they are the property of a third person not liable for the unlawful act." Simply put,
the law exempts from the effects of confiscation and forfeiture any property that is owned by a third person
who is not liable for the unlawful act.

Here, it is beyond dispute that the Honda Accord subject of this petition is owned by and registered in the
name of Myra S. Brodett, not accused Richard Brodett. Also, it does not appear from the records of the
case that said Myra S. Brodett has been charged of any crime, more particularly, in the subject cases of
possession and sale of dangerous drugs. Applying Section 20 of the law to the dispute at bar, We therefore
see no cogent reason why the subject Honda Accord may not be exempted from confiscation and
forfeiture.

Basic is the rule in statutory construction that when the law is clear and unambiguous, the court has no
alternative but to apply the same according to its clear language. The Supreme Court had steadfastly
adhered to the doctrine that the first and fundamental duty of courts is to apply the law according to its
express terms, interpretation being called only when such literal application is impossible. No process of
interpretation or construction need be resorted to where a provision of law peremptorily calls for
application.

We thus cannot sustain petitioner’s submission that the subject car, being an instrument of the offense,
may not be released to Ms. Brodett and should remain in custodia legis. The letters of the law are plain and
unambiguous. Being so, there is no room for a contrary construction, especially so that the only purpose of
judicial construction is to remove doubt and uncertainty, matters that are not obtaining here. More so that
the required literal interpretation is not consistent with the Constitutional guarantee that a person may not
be deprived of life, liberty or property without due process of law.26 (emphases are in the original text)

The legal provision applicable to the confiscation and forfeiture of the proceeds or instruments of the
unlawful act, including the properties or proceeds derived from illegal trafficking of dangerous drugs and
precursors and essential chemicals,is Section 20 of R.A. No. 9165, which pertinently providesas follows:

Section 20.Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the
Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and
Essential Chemicals. – Every penalty imposed for the unlawful importation, sale, trading, administration,
dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled
precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs,
and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs
including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the
government, of all the proceeds derived from unlawful act, including, but not limited to, money and other
assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed,
unless they are the property of a third person not liable for the unlawful act, but those which are not of
lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this
Act.

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all
the assets and properties of the accused either owned or held by him or in the name of some other
persons if the same shall be found to be manifestly out of proportion to his/her lawful income: Provided,
however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5)
days upon order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom,
which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be
in custodialegis and no bond shall be admitted for the release of the same.

The proceeds of any sale or disposition of any property confiscated or forfeited under this Section shall be
used to pay all proper expenses incurred in the proceedings for the confiscation, forfeiture, custody and
maintenance of the property pending disposition, as well as expenses for publication and court costs. The
proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against
illegal drugs.27

There is no question, for even PDEA has itself pointed out, that the text of Section 20 of R. A. No.
9165relevant to the confiscation and forfeiture of the proceeds or instruments of the unlawful act is similar
to that ofArticle 45 of the Revised Penal Code, which states:

Article 45.Confiscation and Forfeiture of the Proceeds or Instruments of theCrime. – Every penalty imposed
for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government,
unless they be the property of a third person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.

The Court has interpreted and applied Article 45of the Revised Penal Codein People v. Jose,28 concerning
the confiscation and forfeiture of the car used by the four accused when they committed theforcible
abduction with rape, although the car did not belong to any of them, holding:

xxx Article 45 of the Revised Penal Code bars the confiscation and forfeiture of an instrument or tool used
in the commission of the crime if such "be the property of a third person not liable for the offense," it is the
sense of this Court that the order of the court below for the confiscation of the car in question should be set
aside and that the said car should be ordered delivered to the intervenor for foreclosure as decreed in the
judgment of the Court of First Instance of Manila in replevin case. xxx29

Such interpretation is extended by analogy to Section 20, supra. To bar the forfeiture of the tools and
instruments belonging to a third person,therefore, there must be an indictment charging such third person
either as a principal, accessory, or accomplice. Less than that will not suffice to prevent the return of the
tools and instruments to the third person, for a mere suspicion of that person’s participation is not sufficient
ground for the court to order the forfeiture of the goods seized.30

However, the Office of the City Prosecutorproposed throughits Comment and Objection submitted on
August 27, 2009 in the RTC31 that the delivery to the RTC of the listed personal effects for safekeeping, to
be held there throughout the duration of the trial, would be to enable the Prosecution and the Defenseto
exhaust their possible evidentiary value. The Office of the City Prosecutor further objected to the return of
the car because it appeared to bethe vehicle used in the transaction of the sale of dangerous drugs, and,
as such, was the instrument in the commission of the violation of Section 5 of R.A. No. 9165.

On its part, PDEA regards the decision of the CA to be not in accord with applicable laws and the
primordial intent of the framers of R. A. No. 9165,32 and contends that the car should not be released from
the custody of the law because it had been seized from accused Brodett during a legitimate anti-illegal
operation. It argues that the Motion to Return Non-Drug Evidencedid not intimate or allege that the car had
belonged to a third person; and that even if the car had belonged to Ms. Brodett, a third person, her
ownership did not ipso facto authorize its release, because she was under the obligation to prove to the
RTC that she had no knowledge of the commission of the crime. It insists that the car is a property in
custodialegis and may not be released during the pendency of the trial.

We agree with PDEA and the Office of the City Prosecutor.

We note that the RTC granted accusedBrodett’sMotion To Return Non-Drug Evidence on November 4,
2009 when the criminal proceedings were still going on, and the trial was yet to be completed. Ordering the
release of the car at that pointof the proceedings was premature, considering that the third paragraph of
Section 20, supra, expressly forbids the disposition, alienation, or transfer of any property, or income
derived therefrom, that has been confiscated from the accused charged under R.A. No. 9165 during the
pendency of the proceedings in the Regional Trial Court.Section 20 further expressly requires that such
property or income derived therefrom should remain in custodialegis in all that time and that no bond shall
be admitted for the release of it.

Indeed, forfeiture, if warrantedpursuant to either Article 45 of the Revised Penal Code and Section 20 of
R.A. No. 9165, would be a part of the penalty to be prescribed. The determination of whetheror not the car
(or any other article confiscated in relation to the unlawful act) would be subject of forfeiture could be made
only when the judgment was to be rendered in the proceedings. Section 20 is also clear as to this.

The status of the car (or any other article confiscated in relation to the unlawful act) for the duration of the
trial in the RTCas being in custodialegisisprimarily intended to preserve it as evidence and to ensure its
availability as such. To release it before the judgment is rendered is to deprive the trial court and the
parties access to it as evidence. Consequently, that photographs were ordered to be taken of the car was
not enough, for mere photographs might not fill in fully the evidentiary need of the Prosecution. As such,
the RTC’s assailed orders were issued with grave abuse of discretion amounting to lack or excess of
jurisdiction for being in contravention with the express language of Section 20 of R.A. No. 9165.

Nonetheless, the Court need not annul the assailed orders of the RTC, or reverse the decision of the CA. It
appears thaton August 26, 2011 the RTC promulgated its decision on the merits in Criminal Case No. 09-
208 and Criminal Case No. 09-209, acquitting both Brodettand Joseph and further ordering the return to
the accused of all non-drug evidence except the buy-bust money and the genuine money,because:

The failure of the prosecution therefore to establish all the links in the chain of custody is fatal to the case
at bar. The Court cannot merely rely on the presumption of regularity in the performance of official function
in view of the glaring blunder in the handling of the corpus delicti of these cases. The presumption of
regularity should bow down to the presumption of innocence of the accused. Hence, the two (2) accused
BRODETT and JOSEPH should be as it is hereby ACQUITTED of the crimes herein charged for Illegal
Selling and Illegal Possession of Dangerous Drugs.

WHEREFORE, premises considered, for failure of the prosecution to prove the guilt of the accused beyond
reasonable doubt, RICHARD BRODETT y SANTOS and JORGE JOSEPH y JORDANA are ACQUITTED
of the crimes charged in Criminal Case Nos. 09-208 and 09-209.

The subject drug evidence are all ordered transmitted to the Philippine Drug Enforcement Agency (PDEA)
for proper disposition. All the non-drug evidence except the buy bust money and the genuine money are
ordered returned to the accused.

The genuine money used in the buy bust operation as well as the genuine money confiscated from both
accused are ordered escheated in favor of the government and accordingly transmitted to the National
Treasury for proper disposition. (emphasis supplied)33

The directive to return the non-drug evidence hasovertaken the petition for review as to render further
action upon it superfluous. Yet, the Court seizes the opportunity to perform its duty to formulate guidelines
on the matter of confiscation and forfeiture of non-drug articles, including those belonging to third persons
not liable for the offense, in order to clarify the extent of the power of the trial court under Section 20 of
R.A. No. 9165.34 This the Court must now do in view of the question about the confiscation and forfeiture of
non-drug objects being susceptible of repetition in the future.35 1âwphi1

We rule that henceforth the Regional Trial Courts shall comply strictly with the provisions of Section 20 of
R.A. No. 9165, and should not release articles, whether drugs or non-drugs, for the duration of the trial and
before the rendition of the judgment, even if owned by a third person who is not liable for the unlawful act.

IN VIEW OF THE FOREGOING, the petition for review isDENIED.

The Office of the Court Administrator is directed to disseminate this decision to all trial courts for their
guidance.

SO ORDERED.
DEL CASTILLO, J.:
In an Information dated September 21, 1987, Wilson Suitos (Wilson Vic Suitos
(Vic), Alvaro Suitos (Alvaro) and appellant Victoriano Villar @ Boy (appellant),
were charged with the murder of Jesus Ylarde. The case was docketed as
Criminal Case No. T-846.

Among the accused, Alvaro was the first to be apprehended and tried. In a
Decision[1] dated August 12, 1988, the Regional Trial Court (RTC) of Lingayen,
Pangasinan, Branch 38, found Alvaro guilty of murder.[2] Alvaro appealed all the
way to this Court docketed as G.R. No. 95951. On March 24, 1993, this Court
rendered its Decision[3] affirming his conviction, thus:

From the foregoing, the conviction of appellant must be upheld.

After reviewing the records of the case, We find that a modification in the
indemnity awarded is in order. Actual damages were proved in the amount of
P11,575 and not P20,000.00 as found by the trial court. In determining the loss
of earning capacity of 49[-]year old Ylarde, We use the formula for life
expectancy adopted in Davila v. CA: 2/3 x (80-49) = life expectancy of 20 years.
This figure is multiplied by the annual net income of the deceased (P16,000)
equivalent to P320,000 to fix the amount of loss of earning capacity. Death
indemnity in the amount of P50,000.00 is also awarded.

The award of indemnity to the heirs of Jesus Ylarde is modified and accused is
hereby ordered to pay: actual damages in the amount of P11,575; death
indemnity in the amount of P50,000.00; loss of earning capacity in the amount
of P320,000.00; and moral damages in the amount of P20,000.00 without
subsidiary imprisonment in case of insolvency.

WHEREFORE, the decision appealed from is hereby AFFIRMED subject to the

modifications stated above. Costs against the accused-appellant.

SO ORDERED.[4]

Apprehended next was Wilson who pleaded not guilty during his
arraignment.[5] On January 30, 1996, the RTC rendered its Decision[6] likewise
finding him guilty of murder.[7] Wilson appealed his conviction. On March 31,
2000, this Court, in G.R. No. 125280 rendered its Decision,[8] disposing thus:
WHEREFORE, the assailed Decision of the trial court of Lingayen, Pangasinan,
finding accused-appellant WILSON SUITOS GUILTY of MURDER and ordering
him to indemnify, jointly and severally with his co-accused Alvaro Suitos, the
heirs of the deceased the sum of P11,575.00 for actual damages, P320,000.00
for loss of earnings of the victim and P50,000.00 for death indemnity is
AFFIRMED with the MODIFICATION that the amount of moral damages is
increased to P50,000.00. Costs against accused-appellant.

SO ORDERED.[9]

Next to be. apprehended and tried was appellant.

Ruling of the Regional Trial Court

On arraignment, appellant entered a plea of not guilty.[10] Trial on the merits

thereafter ensued. In a Decision[11] dated August 8, 2008, the RTC convicted
appellant of murder based on the eyewitness accounts of the victim's daughters.
Juvy Ylarde (Juvy) testified that at around 6 o'clock in the evening of September
5, 1987, she and her father were sitting in front of their store in Umingan,
Pangasinan, when Alvaro, Wilson and appellant suddenly emerged from the ice
cream parlor located in front of their store. Alvaro shot her father first hitting
the latter on his forehead and causing him to fall down. Although the first shot
proved fatal, Wilson and appellant still fired shots at the victim. Thereafter, the
trio fled from the crime scene followed by Vic who was driving a tricycle. Vivian
Ylarde corroborated her sister's testimony. She claimed that at the time of the
shooting, she was studying inside their store when several shots rang out.

The RTC did not believe appellant's alibi that he was in Cubao, Quezon City at
the time of the incident for being uncorroborated and self-serving, and
especially in view of his positive identification by the deceased's daughters. The
RTC also considered appellant's flight. It noted that although he knew of the
charge against him as early as 1987, appellant did not surrender; instead, he
went into hiding and was apprehended only after almost 18 years. Finally, the
RTC held that the killing was qualified by treachery.

The dispositive portion of the RTC Decision reads:

WHEREFORE, premises considered, accused VICTORIANO VILLAR @ Boy is

hereby found GUILTY beyond reasonable doubt of murder qualified by
treachery under Art. 248 of the Revised Penal Code. He is hereby sentenced to
suffer the penalty of reclusion perpetua, and is ordered to indemnify, jointly and
severally with his co-accused Alvaro Suitos and Wilson Suitos, the heirs of the
deceased Jesus Ylarde the sum of P11,575.00 as actual damages, P320,000.00
for loss of earnings of the victim, P50,000.00 for death indemnity and
P50,000.00 for moral damages. Costs against the accused.

SO ORDERED.[12]

Ruling of the Court of Appeals

In his brief filed before the CA, appellant contended that the prosecution failed
to prove that he conspired with Alvaro and Wilson. He argued that based on the
testimony of Juvy, appellant pointed his gun at her (Juvy) not at the victim;
however, when he fired, it was the victim who was hit.

The CA however found appellant's contentions without merit. In its January 31,
2012 Decision,[13] the CA affirmed the RTC's judgment in full. It concurred in the
findings of the RTC that there was conspiracy among the assailants, i.e., - they
simultaneously emerged from the ice cream store; successively shot the victim;
and fled from the crime scene together. The CA also disregarded appellant's alibi
that he was in Quezon City at the time of the shooting for being uncorroborated
and self-serving, and in view of his positive identification by the deceased's
daughters. Moreover, his unexplained flight (and hiding for 18 years) was
considered an indication of guilt. The CA also found the qualifying circumstance
of treachery to have attended the killing.

The dispositive portion of the assailed CA Decision reads as follows:

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby

DENIED. The assailed Decision dated August 8, 2008 of the Regional Trial
Court (RTC), Lingayen, Pangasinan, Branch 38, is hereby AFFIRMED in toto.

SO ORDERED.[14]

Hence, this appeal. In a Resolution[15] dated October 10, 2012, we required the
parties to submit their Supplemental Briefs. However, both parties opted not to
file their briefs.

The appeal lacks merit.

The courts below correctly found appellant guilty of murder. It has been
sufficiently established that appellant, in conspiracy with his co-accused,
treacherously shot and killed the victim, Jesus Ylarde. The Court, in G.R. No.
95951 and G.R. No. 125280 had already found his co-accused -Alvaro and
Wilson - guilty of murder. Appellant was thus properly sentenced to suffer the
penalty of reclusion perpetua. Moreover, appellant is not eligible for parole
pursuant to Section 3 of Republic Act No. 9346, An Act Prohibiting the
Imposition of Death Penalty in the Philippines.

Anent the damages awarded, we find the award of moral damages in the amount
of P50,000.00 correct. However, the award of civil indemnity must be increased
from P50,000.00 to P75,000.00 in line with prevailing jurisprudence.
Moreover, the heirs of the deceased are entitled to an award of exemplary
damages in the amount of P30,000.00. As regards the award of actual damages
in the amount of P11,575.00, the same must be modified. As we held in People
vs. Villanueva,[16] "when actual damages proven by receipts during the trial
amount to less than P25,000.00, as in this case, the award of temperate
damages of P25,000.00 is justified in lieu of actual damages of a lesser amount."
Thus, we delete the award of P11,575.00 as actual damages; in lieu thereof, we
grant temperate damages in the amount of P25,000.00. In addition, all damages
awarded shall earn interest at the rate of 6% per annum from date of finality of
this judgment until fully paid.

However, the RTC and the CA erred in the award of loss of earning capacity.
Records show that the widow of the deceased testified that her husband "has a
net income of P16,000.00 a year as farmer, sari-sari store owner, driver and
operator of two tricycles and caretaker of Hacienda Bancod."[17] Thus, lost
earnings in the amount of P320,000.00 was awarded computed as follows: "2/3
x (80-49)=life expectancy of 20 years . . . multiplied by the annual net income of
the deceased (PI 6,000.00), equivalent to P320,000.00."[18] However, it is also
on record that the widow of the deceased subsequently testified that "before his
death, her husband earns P50.00 a day as tricycle driver and P150.00 from their
sari-sari store and had a net income of P4,000.00 a month. As a farmer her
husband produces 270 cavans of palay a year with a price of P135.00 a cavan
weighing 50 kilos."[19]

Preliminarily, we note that the indemnity for lost earnings was erroneously
computed. It is already settled jurisprudence that "the formula that has gained
acceptance over time has limited recovery to net earning capacity; x x x
[meaning], less the necessary expense for his own living."[20] Here, the
computation for lost income of P16,000.00 did not take into consideration the
deceased's necessary expenses.

Moreover, it was explained in Da Jose v. Angeles[21] that -

Under Article 2206 of the Civil Code, the heirs of the victim are entitled to
indemnity for loss of earning capacity. Compensation of this nature is awarded
not for loss of earnings, but for loss of capacity to earn. The indemnification for
loss of earning capacity partakes of the nature of actual damages which must be
duly proven by competent proof and the best obtainable evidence thereof. Thus,
as a rule, documentary evidence should be presented to substantiate the claim
for damages for loss of earning capacity. By way of exception, damages for loss
of earning capacity may be awarded despite the absence of documentary
evidence when (1) the deceased is self-employed and earning less than the
minimum wage under current labor laws, in which case, judicial notice may be
taken of the fact that in the deceased's line of work no documentary evidence is
available; or (2) the deceased is employed as a daily wage worker earning less
than the minimum wage under current labor laws.

Corollarily, we also held in OMC Carriers, Inc. v. Nabua[22] that -

For one to be entitled to actual damages, it is necessary to prove the actual

amount of loss with a reasonable degree of certainty, premised upon competent
proof and the best evidence obtainable by the injured party. Actual damages are
such compensation or damages for an injury that will put the injured party in
the position in which he had been before he was injured. They pertain to such
injuries or losses that are actually sustained and susceptible of measurement. To
justify an award for actual damages, there must be competent proof of the actual
amount of loss. Credence can be given only to claims which are duly supported
by receipts.

Finally, in People v. Gonza,[23] we declared that -

Finally, the trial court was correct in not awarding damages for lost earnings.
The prosecution merely relied on Zenaida Mortega's self-serving statement, that
her husband was earning P5,000 per month as a farmhand. Compensation for
lost income is in the nature of damages and requires due proof of the amount of
the damages suffered. For loss of income due to death, there must be unbiased
proof of the deceased's average income. Also, the award for lost income refers to
the net income of the deceased, that is, his total income less average expenses.
In this case, Zenaida merely gave a self-serving testimony of her husband's
income. No proof of the victim's expenses was adduced; thus, there can be no
reliable estimate of his lost income.

In fine, it is settled that the indemnity for loss of earning capacity is in the form
of actual damages; as such, it must be proved by competent proof, "not merely
by the self-serving testimony of the widow."[24] By way of exception, damages for
loss of earning capacity may be awarded in two instances: 1) the victim was self-
employed and receiving less than the minimum wage under the current laws25
and no documentary evidence available in the decedent's line of business; and,
2) the deceased was employed as a daily wage worker and receiving less than the
minimum wage.[26] Here, the award for loss of earning capacity lacks basis. For
one, the widow of the deceased gave conflicting testimonies. At first, she
testified that her husband "has a net income of P16,000.00 a year as farmer,
sari-sari store owner, driver and operator of two tricycles and caretaker of
Hacienda Bancod."[27] Next, she claimed that "before his death, her husband
earns P50.00 a day as tricycle driver and P150.00 from their sari-sari store and
had a net income of P4,000.00 a month. As a farmer her husband produces 270
cavans of palay a year with a price of P135.00 a cavan weighing 50
kilos."[28] Aside from giving inconsistent statements, the amounts mentioned
were arbitrary and were not proved to be below the prescribed minimum wage.
Plainly, this case does not fall under any of the exceptions exempting the
submission of documentary proof. To reiterate, "[ajctual damages, to be
recoverable, must not only be capable of proof, but must actually be proved with
a reasonable degree of certainty. Courts cannot simply rely on speculation,
conjecture or guesswork in determining the fact and amount of damages. To
justify an award of actual damages, there must be competent proof of the actual
amount of loss, credence can be given only to claims which are duly supported
by receipts."[29] In fine, the award of loss of earning capacity must be deleted for
lack of basis.

ACCORDINGLY, we ADOPT the findings of the trial court as affirmed by the

Court of Appeals. The assailed January 31, 2012 Decision of the Court of Appeals
in CA-G.R. CR H.C. No. 03517 finding appellant Victoriano Villar @
Boy GUILTY beyond reasonable doubt of the crime of murder
is AFFIRMED with MODIFICATIONS that appellant is not eligible for
parole pursuant to Section 3 of Republic Act No. 9346, An Act Prohibiting the
Imposition of Death Penalty in the Philippines; the award for loss of earning
capacity is deleted for lack of basis; the award of civil indemnity is increased to
P75,000.00; appellant is ordered to pay exemplary damages in the amount of
P30,000.00; the award of actual damages is deleted; in lieu thereof, temperate
damages in the amount of P25,000.00 is awarded; and all damages awarded
shall earn interest at the rate of 6% per annum from date of finality of this
judgment until fully paid.

SO ORDERED.
G.R. No. L-27191 February 28, 1967

ADELAIDA TANEGA, petitioner,

vs.
HON. HONORATO B. MASAKAYAN, in his capacity as Judge of the Court of First Instance of Rizal,
Branch V, and the CHIEF OF POLICE OF QUEZON CITY, respondents.

Ramon V. Sison for petitioner.

Office of the Solicitor General for respondents.

RESOLUTION

SANCHEZ, J.:

Pressed upon us in this, an original petition for certiorari and prohibition, is the problem of when
prescription of penalty should start to run. The controlling facts are:

Convicted of slander by the City Court of Quezon City petitioner appealed. Found guilty once again by the
Court of First Instance,1 she was sentenced to 20 days of arresto menor, to indemnify the offended party,
Pilar B. Julio, in the sum of P100.00, with the corresponding subsidiary imprisonment, and to pay the costs.
The Court of Appeals affirmed.2 We declined to review on certiorari.3 Back to the Court of First Instance of
Quezon City, said court, on January 11, 1965, directed that execution of the sentence be set for January
27, 1965. On petitioner's motion, execution was deferred to February 12, 1965, at 8:30 a.m. At the
appointed day and hour, petitioner failed to show up. This prompted the respondent judge, on February 15,
1965, to issue a warrant for her arrest, and on March 23, 1965 an alias warrant of arrest. Petitioner was
never arrested. 1äwphï1.ñët

Then, on December 10, 1966, petitioner, by counsel, moved to quash the warrants of arrest of February
15, 1965 and March 23, 1965. Petitioner's ground: Penalty has prescribed.

On December 19, 1966, the respondent judge ruled that "the penalty imposed upon the accused has to be
served", rejected the plea of prescription of penalty and, instead, directed the issuance of
another alias warrant of arrest. Hence, the present petition.

Arresto menor and a fine of P100.00 constitute a light penalty.4 By Article 92 of the Revised Penal Code,
light penalties "imposed by final sentence" prescribe in one year. The period of prescription of penalties —
so the succeeding Article 93 provides — "shall commence to run from the date when the culprit should
evade the service of his sentence".5

What then is the concept of evasion of service of sentence Article 157 of the Revised Penal Code furnishes
the ready answer. Says Article 157:

ART. 157. Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment 6 by reason of final judgment. However, if such evasion or escape shall
have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs or floors, or by using picklocks, false keys,
disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall
be prision correccional in its maximum period.

Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he
"is serving his sentence which consists in deprivation of liberty"; and (3) he evades service of sentence
by escaping during the term of his sentence.7 This must be so. For, by the express terms of the statute, a
convict evades "service of his sentence", by "escaping during the term of his imprisonment by reason of
final judgment." That escape should take place while serving sentence, is emphasized by the provisions of
the second sentence of Article 157 which provides for a higher penalty if such "evasion or escape shall
have taken by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors or by
using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other
convicts or employees of the penal institution, ... "8 Indeed, evasion of sentence is but another expression
of the term "jail breaking".9

A dig into legal history confirms the views just expressed. The Penal Code of Spain of 1870 in its Article
134 — from whence Articles 92 and 93 of the present Review Penal Code originated — reads:

Las penas impuestas por sentencia firme prescriben:

Las de muerte y cadena perpetua, a los veinte años.

xxx xxx xxx

Las leves, al año.

El tiempo de esta prescripcion comenzara a correr desde el dia en que se notifique personalmente
al reo la sentencia firme, o desde el quebrantamiento de la condena si hubiera esta comenzado a
cumplirse. x x x

Note that in the present Article 93 the words "desde el dia en que se notifique personalmente al reo la
sentencia firme", written in the old code, were deleted. The omission is significant. What remains
reproduced in Article 93 of the Revised Penal Code is solely "quebrantamiento de la condena". And,
"quebrantamiento" or evasion means escape.10 Reason dictates that one can escape only after he has
started service of sentence.

Even under the old law, Viada emphasizes, where the penalty consists of imprisonment, prescription shall
only begin to run when he escapes from confinement. Says Viada:

El tiempo de la prescripcion empieza a contarse desde el dia en que ha tenido lugar la notificacion
personal de la sentencia firme al reo: el Codigo de 1850 no expresaba que la notificacion hubiese
de ser personal, pues en su art. 126 se consigna que el termino de la prescripcion se cuenta
desde que se notifique la sentencia, causa de la ejecutoria en que se imponga la pena
respectiva. Luego ausente el reo ya no podra prescribir hoy la pena, pues que la notificacion
personal no puede ser suplida por la notificacion hecha en estrados. Dada la imprescindible
necesidad del requisito de la notificacion personal, es obvio que en las penas que consisten en
privacion de libertad solo porda existir la prescripcion quebrantando el reo la condena pues que si
no se hallare ya preso preventivamente, debera siempre procederse a su encerramiento en el acto
de serle notifirada personalmente la sentencia.11

We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence
to run, the culprit should escape during the term of such imprisonment.

Adverting to the facts, we have here the case of a convict who — sentenced to imprisonment by final
judgment — was thereafter never placed in confinement. Prescription of penalty, then, does not run in her
favor.

For the reasons given, the Court resolved to dismiss the petition for certiorari and prohibition. No costs. So
ordered.
G.R. No. 207949

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARMANDO DIONALDO y EBRON, RENATO DIONALDO y EBRON, MARIANO GARIGUEZ,
JR. y RAMOS, and RODOLFO LARIDO y EBRON, Accused-Appellants.

RESOLUTION

PERLAS-BERNABE, J.:

On July 23, 2014, the Court rendered its Resolution1 in this case finding accused-appellants Armando
Dionaldo y Ebron, Renato Dionaldo y Ebron (Renato), Mariano Gariguez, Jr. y Ramos, and Rodolfo Lari
do y Ebron (accused-appellants) guilty beyond reasonable doubt of the special complex crime of
Kidnapping for Ransom with Homicide, the dispositive portion of which reads:

WHEREFORE, the appeal is DISMISSED. The Decision dated February 15, 2013 of the Court of Appeals
in CA-G.R. CR-H.C. No. 02888 is hereby AFFIRMED with the MODIFICATION that all the accused-
appellants herein are equally found GUILTY of the special complex crime of Kidnapping for Ransom with
Homicide, and are sentenced to each suffer the penalty of reclusion perpetua, without eligibility for parole,
and to pay, jointly and severally, the family of the kidnap victim Edwin Navarro the following amounts: (1)
PI00,000.00 as civil indemnity; (2) PI00,000.00 as moral damages; and (3) Pl00,000.00 as exemplary
damages, all with interest at the rate of six percent (6%) per annum from the date of finality of judgment
until fully paid.

SO ORDERED.

Accused-appellants collectively moved for reconsideration2 thereof, which the court denied with finality in
it’s Resolution3 dated September 24, 2014.

On even date, the Court received a letter4 from the Bureau of Corrections dated September 16, 2014
informing Us of the death of one of the accused-appellants in this case, Renato, on June I 0, 2014, as
evidenced by the Certificate of Death5 attached thereto. As Renato's death transpired before the
1âw phi1

promulgation of the Court's July 23, 2014 Resolution in this case, i.e., when his appeal before the Court
was still pending resolution, his criminal liability is totally extinguished in view of the provisions of Article 89
of the Revised Penal Code which states:

Art. 89. How criminal liability is totally extinguished. - Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final judgment;

xxxx

In People v. Amistoso,6 the Court explained that the death of the accused pending appeal of his conviction
extinguishes his criminal liability, as well as his civil liability ex delicto.7 Consequently, Renato's death on
une 10, 2014 renders the Court's July 23, 2014 Resolution irrelevant and ineffectual as to him, and is
therefore set aside. Accordingly, the criminal case against Renato is dismissed.

WHEREFORE, the Resolutions dated July 23, 2014 and September 24, 2014 of the Court are hereby SET
ASIDE and Criminal Case No. C-68329 before the Regional Trial Court of Caloocan City, Branch 129
is DISMISSED insofar as accused-appellant RENATO DIONALDO y EBRON is concerned, in view of his
demise.

SO ORDERED.
 G.R. No. 214865, August 19, 2015

ROSVEE C. CELESTIAL, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO JR., J.:

Nature of the Case

This treats of the Petition for Review on Certiorari1 under Rule 45 of the Rules of Court seeking the reversal of the
April 28, 2014, July 17, 20142 and October 10, 20143 Resolutions of the Court of Appeals (CA) in CA-G.R CR No.
35962, which dismissed petitioner's appeal for her failure to file the required appellant's brief. Said dismissal
effectively affirmed her conviction by the trial court of six counts of qualified theft through falsification of
commercial documents.

The Facts

Petitioner Rosvee Celestial was employed by Glory Philippines as its "Accounting-in-Charge." As such, she handles
the company's bank transactions and accounting ledgers. She was terminated in 2006 when it was discovered that
she made anomalous withdrawals from the company's dollar account.

According to Akihiro Harada, the president of Glory Philippines, petitioner's modus was to prepare and ask him to
sign withdrawal slips allegedly to pay for company expenses. Afterwards, petitioner would photocopy the signed
slips and submit the said copies for the company's documentation. Later, she would insert additional figures in the
originally signed forms to be able to withdraw an amount higher than what was intended, keeping for herself the
excess amount and the duplicate original of the form. It was only when Harada noticed the discrepancies between
the photocopied slips and the actual amounts withdrawn that he discovered petitioner's criminal acts. As
extrapolated from the records, the amounts stated in the withdrawal slips are as follows:4 redarclaw

Date of June 1, June 9, June 26, June 30, June 30, July 11,
Withdrawa 2006 2006 2006 2006 2006 2006
l
Photocopy $39.40 $511.00 $345.20 $8,800.00 $103.61 $483.00
of the
Withdrawa
l Slip
Duplicate $10,039.40 $5,511.00 8,345.20 $18,800.00 $3,103.61 $15,483.00
of the
Withdrawa
l Slip
Discrepanc $10,000.0 $5,000.0 $8,000.0 $10,000.0 $3,000.0 $15,000.0
y 0 0 0 0 0 0
Thereafter, Glory Philippines lodged a criminal complaint against petitioner for qualified theft. Finding probable
cause to file charges against petitioner, the Assistant Provincial Prosecutor of Cavite City then filed six (6)
Informations with the Regional Trial Court (RTC), Cavite City, Branch 16, indicting her with six (6) counts of
qualified theft through falsification of commercial documents, docketed as Criminal Case Nos. 94-07 up to 99-07.

On June 25, 2013, the RTC rendered a Decision5 convicting petitioner, thus: Lawl ibra ryofCRAlaw

WHEREFORE, premises considered, the Court finds the accused ROSVEE CELESTIAL y CALDEJON guilty beyond
reasonable doubt in Criminal Case Nos. 94-07 to 99-07 of the crime of six (6) counts of Qualified Theft through
Falsification of Commercial Documents and is hereby sentenced to suffer the penalty of imprisonment consisting
of TWENTY (20) years of Reclusion Temporal for Each Count.

SO ORDERED. Aggrieved, petitioner elevated the case to the CA via notice of appeal.
On November 28, 2013, petitioner received a copy of the CA Notice dated November 20, 2013,6 directing her to file
an appellant's brief within thirty (30) days from receipt thereof. On December 27, 2013, petitioner's former
counsel, Atty. Bernard Paredes, moved for a thirty-day extension, or until January 26, 2014, within which to
comply. Counsel would later on inform petitioner that he prayed for another extension of until February 26, 014 to
file the appellant's brief.7
reda rclaw

Allegedly unknown to petitioner, the CA, on April 28, 2014, issued a Resolution, which considered petitioner's
appeal abandoned and dismissed for failure to file her appellant's brief. The fallo of the Resolution reads: Law lib raryofCRAlaw

It appearing from the CMIS Verification Report dated April 14, 2014 that accused-appellant and her counsel de
parte failed to file the required appellant's brief despite a total extension of 60 days or until February 26, 2014
granted, by the Court, pursuant to Section 8 of Rule 124 of the Revised Rules on Criminal Procedure, the instant
appeal is considered ABANDONED and accordingly DISMISSED.

SO ORDERED.8
Petitioner then claimed that she was surprised to have received, on August 6, 2014, a copy of the CA Resolution
dated July 17, 20149 with attached Notice of Entry of Judgment.10 The Resolution, in part, reads: Lawlibra ryofCRAlaw

Considering the CMIS Verification dated My 11, 2014 that NO Motion for Reconsideration or Supreme Court petition
was filed, the Resolution dated April 28, 2014 has attained finality on May 28, 2014. Let said Resolution now be
ENTERED in the Book of Entries of Judgments.
This prompted petitioner to file, on August 22, 2014, an Omnibus Motion,11 moving for (1) reconsideration of the
July 17, 2014 Resolution, and (2) leave of court for the attached appellant's brief to be admitted. Petitioner averred
that she never personally received a copy of the April 28, 2014 Resolution that considered her appeal abandoned
and dismissed; that her former counsel, Atty. Paredes, was grossly and inexcusably negligent in handling her case;
that the reviewing court may still allow for an extension of time since no motion to dismiss had been filed; that
substantial justice demands that she be given another opportunity to file her brief.

Unfortunately for petitioner, the CA, unswayed by her arguments, dismissed the Omnibus Motion through the
assailed October 10, 2014 Resolution. Hence, the instant recourse.

The Issue

Petitioner prays that the rulings of the CA be reversed on the following grounds: Law lib raryofCRAlaw

I. IT IS RESPECTFULLY SUBMITTED THAT PETITIONER SHOULD NOT BE BOUND BY THE GROSS AND
INEXCUSABLE NEGLIGENCE OF HER COUNSEL. THE ENDS OF JUSTICE WILL BE BEST SERVED IF
PETITIONER'S APPEAL BEFORE THE COURT OF APPEALS BE REOPENED AND PETITIONER BE GIVEN THE
OPPORTUNITY TO VENTILATE HER ARGUMENTS AND EVIDENCE THEREIN, CONSIDERING THAT HER
FAILURE TO FILE HER APPELLANT'S BRIEF WAS DUE TO REASONS BEYOND HER CONTROL. TO OUTRIGHT
DENY PETITIONER HER RIGHT TO APPEAL WILL RESULT IN THE DEPRIVATION OF PETITIONER'S LIFE AND
LIBERTY; AND

II. PETITIONER HAS MERITORIOUS GROUNDS IN FIER APPEAL BEFORE THE COURT OF APPEALS THAT
SHOULD [HAVE BEEN VENTILATED] AND HEARD DURING THE APPELLATE PROCEEDINGS12

Verily, the main issue for consideration herein boils down to whether not the CA erred in dismissing the case for
petitioner's failure to file her appellant's brief.

In its Comment,13 the Office of the Solicitor General (OSG), for the People, countered that the right to appeal is a
statutory privilege that may be lost if the party who seeks to avail the same does not comply with the requirements
of the rules. Citing Section 8, Rule 124 of the Rules of Court, the OSG further argued that the CA is granted the
discretion to dismiss an appeal for failure to prosecute, such as when the appellant fails to file the required
brief.14 Finally, the OSG invoked the doctrine of immutability of judgments and averred that the dismissal of
petitioner's appeal had already attained finality and may no longer be recalled or modified.15 reda rclaw

The Court's Ruling

The petition is unmeritorious.

The CA's dismissal of the appeal for

failure to prosecute was in order

Section 8, Rule 124 of the Rules of Court pertinently provides: Law lib raryofCRAlaw

SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. - The Court of Appeals may, upon motion of
the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails
to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de
officio.
As aptly observed by the CA, petitioner's claim that she was not personally informed of the dismissal of the appeal
deserves scant consideration. Fundamental is the rule that notice to counsel is notice to the client.16 When a party
is represented by a counsel in an action in court, notices of all kinds, including motions and pleadings of all parties
and all orders of the court must be served on his counsel.17 reda rc law

In the case at bar, it cannot be disputed that Atty. Paredes represented petitioner in the proceedings before the
CA. And based on the registry return receipt, counsel received a copy of the April 28, 2014 Resolution on May 12,
2014.18 Thus, the CA complied with the procedural requirement under Section 8, Rule 124 and no violation of
petitioner's right to notice of the dismissal can be attributed to the appellate court.

Furthermore, the oft-cited doctrine is that the negligence of counsel binds his client.19 This is based on the rule that
any act performed by a counsel within the scope of his general or implied authority is regarded as an act of his
client. While, truly, there are situations where the Court can relax procedural rules, such exceptions do not obtain
in the extant case.

Under the factual backdrop of this case, We find the failure to file the appeal brief inexcusable. First, the handling
lawyer, Atty. Paredes, was undoubtedly at fault. Even with the benefit of two (2) thirty-day (30-day) extensions,
counsel, nevertheless, still failed to comply with the CA's directive. Second, petitioner herself was likewise
negligent since, as she admitted, Atty. Paredes informed her that the deadline for the second extension was until
February 26, 2014.20 It is then baffling why petitioner took no action to ensure compliance with the CA Notice to
file her appellant's brief from the time she followed up the case to the date of the deadline, and even thereafter
until the April 28, 2014 Resolution was promulgated. Absolutely nothing appeared to have been done in the
interim, not even in terms of noting that no appeal brief had been filed. Thus, the petitioner simply took too long to
rectify its mistake; by the time that she acted, it was simply too late.21 From these circumstances, the CA cannot in
any way be said to have erred in dismissing the appeal.

The proper penalty

Notwithstanding the denial of the petition, We find cogent reason to lift the Entry of Judgment issued by the CA and
modify the penalty imposed by the trial court. The demand of substantive justice calls for this approach.
Pertinently, Arts. 309 and 310 of the Revised Penal Code (RPC) provide: Lawlib raryofCR Alaw

Article 309. Penalties. - Any person guilty of theft shall be punished by: Lawl ibra ryofCRAlaw

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than
12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the
penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of
the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may
be.

2. The penalty of prision correctional in its medium and maximum periods, if the value of the thing stolen is more
than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correctional in its minimum and medium periods, if the value of the property stolen is
more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correctional in its minimum period, if the value of the property
stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated
in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such
value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not
over 5 pesos, 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.

Article 310. Qualified theft. - The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or
with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of
coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken
on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance, (emphasis added)
In ascertaining the proper penalty, We are guided by Our pronouncement in People v. Mercado:22 redarc law

First, We get the value of the property stolen as determined by the tr al court, to wit: Lawlib ra ryofCRAlaw

Crim. 99-07 98-07 95-07 97-07 94-07 96-07

Case No.
Withdraw June 1, June 9, June 26, June 30, June 30, July 11,
al Date 2006 2006 2006 2006 2006 2006
Stolen $10,000.0 $5,000.00 $8,000.00 $10,000.00 $3,000.00 $15,000.00
Amount 0
Amount in P P265,785.0 P425,256.0 P531,570.0 P159,471.0 P785,970.0
Pesos 23 531,570.0 0 0 0 0 0
0

Second, We determine the imposable base penalty under Art. 309 of the RPC. Here, since the totality of the stolen
amounts for each case exceeds P22,000.00, the imposable base penalty for each count, as per Art. 309 (1),
is prision mayor in its minimum and medium periods to be imposed in the maximum period, which is eight (8)
years, eight (8) months and one (1) day to ten (10) years of prision mayor, had the crime charged been simple
theft.24
redarc law

Third, since the value of the stolen goods exceeds P22,000.00, We compute for the additional years of maximum
imprisonment under Art. 309 (1) by deducting P22,000.00 from each case, and by subsequently dividing each
difference by P10,000.00, disregarding any remainder amount. This would yield the following results: Lawl ibra ryofCRAlaw

Grim. 99-07 98-07 95-07 97-07 94-07 96-07

Case No.
Stolen P531,570.0 P265,785.0 P425,256.0 P531,570.0 P159,471.0 P785,970.0
Amount in 0 0 0 0 0 0
Pesos
Less 509,570.0 243,785.0 403,256.0 509,570.0 137,471.0 763,970.0
P22,000.0 0 0 0 0 0 0
0
Divided 50 24 40 50 13 76
By
P10,000.0
0
Fourth, We add the maximum of the base penalty to the above-determined quotient to arrive at the maximum
imprisonment term imposable had the crime committed been simple theft: Lawlib raryofCR Alaw

Grim. Case No. 99-07 98-07 95-07 97-07 94-07 96-07

Maximum of 10 years 10 years 10 years 10 years 10 years 10 years
Base Penalty
Additional 50 24 40 50 13 76
Years to the
Maximum
Penalty
Maximum 60 years 34 years 50 years 60 years 23 years 86 years
Penalty
Fifth, the maximum imprisonment term should not exceed the 20-year cap under Art. 309 (1), and any
imprisonment term in excess of the cap should be disregarded. In this case, since all sums exceeded 20 years, the
proper penalty - the maximum period adverted to in Art. 309 (1) - would have been 20 years of reclusion
temporal, before the application of the indeterminate sentence law, for each count, had petitioner been convicted
of simple theft.

Sixth, the penalty for qualified theft is two degrees higher than that for simple theft. Under Art. 25 of the RPC, two
(2) degrees higher than reclusion temporal- the penalty following reclusion perpetua - is death.25 Be that as it may.
Art. 74 of the RPC, provides: Lawlib ra ryofCRAlaw

ART. 74. Penalty higher than reclusion perpetua in certain cases. --

In cases in which the law prescribes a penalty higher than another given penalty, without specifically designating
the name of the former, if such higher penalty should be that of death, the same penalty and the
accessory penalties of Article 40, shall be considered as the next higher penalty.
Applying the aforequoted provision, the penalty of death cannot be :ted on herein petitioner, regardless of whether
or not the imposition of capital punishment has been suspended. This is so because the penalty of death was not
specifically prescribed as an imposable penalty under Art. 309 (1) of the RPC.Two degrees higher than reclusion
temporal, the next higher penalty than reclusion perpetua, would then still be reclusion perpetua, with the
accessory penalties of death under Art. 40 of the RPC.26 redarcla w

Jurisprudence, moreover, teaches that when the penalty of death cannot be imposed pursuant to Art. 74, the
period of imprisonment should be fixed at forty (40) years of reclusion perpetua. Otherwise, there would be no
difference at all between reclusion perpetua imposed as the penalty next higher in degree and reclusion
perpetua imposed as the penalty fixed by law.27 The proper penalty to be imposed in this case, therefore, is forty
(40) years of reclusion perpetua, with the accessory penalties of death, for each count of qualified theft.28 redarclaw

Lastly, since petitioner is convicted of six (6) counts of qualified theft through falsification of commercial documents
with corresponding six (6) penalties of forty (40) years of reclusion perpetua, Art. 70 of the RPC on successive
service of sentences shall apply. As provided: Law lib raryofCRAlaw

Article 70. Successive service of sentence. -

xxx

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.

Such maximum period shall in no case exceed forty years.

Therefore, in spite of the six (6) penalties of forty (40) years of reclusion perpetua, petitioner shall only suffer
imprisonment for a period not exceeding 40 years. A downward modification of the penalty imposed by the RTC is
then in order.

WHEREFORE, in light of the foregoing, the Court rules as follows: Lawlib ra ryofCRAlaw

a. The instant petition is hereby DENIED for lack of merit, and; chanRoblesvi rtua lLawl ib rary

b. The Entry of Judgment in CA-G.R CR No. 35962 is LIFTED. The June 25, 2013 Decision of the Regional
Trial Court, Cavite City, Branch 16 in Criminal Case Nos. 94-07 up to 99-07, as effectively confirmed by
the Court of Appeals, is hereby AFFIRMED with MODIFICATION to read as follows: Lawlib ra ryofCRAlaw

WHEREFORE, premises considered, the Court finds the accused ROSVEE CELESTIAL y
CALDEJON guilty beyond reasonable doubt in Criminal Case Nos. 94-07 to 99-07 of the crime of six (6)
counts of Qualified Theft through Falsification of Commercial Documents and is hereby sentenced to suffer
the penalty of imprisonment consisting of six (6) penalties of reclusion perpetua, with the accessory
penalties provided in Art. 40 of the RPC. But with the application of Art. 70 of the RPC, accused-
appellant shall suffer the penalty of imprisonment for a period not exceeding 40 years.

SO ORDERED.