NDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No.

4225) WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION OF THE INDETERMINATE SENTENCE LAW Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua. (People v. Aquino; GR 125906, Jan. 16, 98) APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED In the case of People vs. Gabres, the Court has had occasion to so state that Under the Indeterminate Sentence Law, the maximum term of the penalty shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum shall be within the range of the penalty next lower to that prescribed for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . . . (People v. Saley; GR 121179, July 2, 98) INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG CASES: 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. 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. 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 the effect punished by and under the Revised Penal Code. (People v Martin Simon)

WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT APPLICABLE; a. Offenses punished by death or life imprisonment. b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117). d. Those convicted of piracy (Art. 122). e. Habitual delinquents (Art. 62, par. 5). f. Those who escaped from confinement or those who evaded sentence. g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359). h. Those whose maximum period of imprisonment does not exceed one year. i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law. j. those offenses or crimes not punishable by imprisonment such as distierro and suspension. RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE SENTENCE Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De Guzman) NATURE OF PENALTY OF RECLUSION PERPETUA In People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that despite the amendment of Article 27 of the Revised Penal Code, reclusion perpetua remained an indivisible penalty. Hence, the penalty does not have any minimum, medium and maximum period. Hence, there is no such penalty of medium period of reclusion perpetua. (People versus Tiburcio Baculi, 246 SCRA) IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN FINALITY Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime of rape and the accused did not appeal, does the judgment become final and executory? No, such judgment is null and void because it imposed a non-existent penalty. Hence, the court may nevertheless correct the penalty imposed on the accused, that is, reclusion perpetua, it is merely performing a duty inherent in the court. (People versus Nigel Gatward, GR No. 119772-73, February 7, 1997) DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE IMPRISONMENT The penalty of reclusion perpetua is different from life imprisonment. The former carries with it accessory penalties, whereas life imprisonment does not carry with it any accessory penalties; reclusion perpetua is that provided for under the Revised Penal Code and under crimes defined by special laws using the nomenclature under the Revised Penal Code ; life imprisonment is that provided for violations of the Revised Penal Code. Reclusion Perpetua may be reduced by one or two degrees while life imprisonment cannot be so reduced. (People -vs- Rolnando Madriaga, GR No. 82293, July 23, 1992.)

WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION PERPETUA Reclusion perpetua has accessory penalties while life imprisonment does not. However, life imprisonment does not have a fixed duration or extent while reclusion perpetua has a duration of from twenty years and one day to forty years. life imprisonment may span the natural life of the convict. (People -versus- Rallagan, 247 SCRA 537) RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGE WHEN IMPOSED AS PENALTY Where the law violated provides for the penalty of reclusion perpetua, impose the said penalty and not the penalty of life imprisonment. Where the law imposes the penalty of life imprisonment, do not impose reclusion perpetua. (People -vs- Rolando Madriaga, 211 SCRA 698) THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING INDIVISIBLE There we also said that if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. The imputed duration of thirty (30) years of reclusion perpetua, therefore, only serves as the basis for determining the convicts eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People -vs- Aspolinar Raganas, et al., GR No. 101188, October 12, 1999) RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE THE PENALTY BEING LIFE IMPRISONMENT Where the accused committed qualified violation of PD 704 (fishing with the use of explosives), the imposable penalty for which is life imprisonment to death. If the accused is entitled to a mitigating circumstance of voluntary surrender, the court should impose life imprisonment applying, in a suppletory character, Articles 13 and 63 of the Revised Penal Code. (People -vs- Priscilla Balasa, GR No. 106357, September 3, 1998) ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO EITHER FULL OR OF HIS PREVENTIVE IMPRISONMENT If, during the trial, the accused was detained but, after trial, he was meted the penalty of reclusion perpetua, he is still entitled to the full credit of his preventive imprisonment because Article 29 of the Revised Penal Code does not distinguish between divisible and indivisible penalties. (People -vs- Rolando Corpuz, 231 SCRA 480) QUALIFIED THEFT QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF AMOUNT INVOLVED IS OVER P22,000.00 Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is prision mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the penalty for the crime shall be two (2) degrees higher than the specified in Article 309 of the Code. Under Article 74 of the Revised Penal Code, the penalty higher by one degree than another given penalty, and if such higher penalty is death, the penalty shall be reclusion perpetua of forty (40) years with the accessory penalties of death under Article 40 of the Revised Penal Code. The accused shall not be entitled to pardon before the lapse of forty (40) years. (People -vs- Fernando Canales, 297 SCRA 667) THE PROBATION LAW (P.D. 968) AND ITS AMENDMENTS

PROBATION, ITS MEANING A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the Court and under the supervision of a probation officer. PURPOSES OF PROBATION: 1. 2. 3. to promote the correction and rehabilitation of an offender by providing him with personalized community based treatment; to provide an opportunity for his reformation and reintegration into the community to prevent the commission of offenses.

SUBMISSION OF PETITION AND TIME OF FILING OFPETITION The petition or application for probation must be filed directly with the Court which sentenced the accused within 15 days from date of promulgation of the decision convicting the accused, or in short within the period to appeal otherwise the judgment shall become final and the accused shall be deemed to have waived his right to probation. EFFECT OF FILING OF PETITION FOR PROBATION Upon filing of petition for probation, the court shall suspend the execution of sentence. Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal and in case an appeal is made immediately after conviction, a filing of petition for probation still within the period to appeal, that is within fifteen days from date of promulgation shall be deemed a withdrawal of the appeal. PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSED-PETITIONER? If the accused, prior to the promulgation of decision of conviction is out on bail, he may be allowed on temporary liberty under his bail filed in said case; If he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post a bond, on recognizance of a responsible member of a community who shall guarantee his appearance whenever required by the court. IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS? The custodian must be asked to explain why he should not be cited for contempt for failing to produce the probationer when required by the court; Summary hearing will be held for indirect contempt, and if custodian cannot produce the petitioner, nor to explain his failure to produce the petitioner, the custodian on recognizance shall be held in contempt of court. WHAT IS A POST SENTENCE INVESTIGATION REPORT? It is a report of the Parole and Probation Officer after conducting post sentence investigation and interviews containing the circumstances surrounding the offense for which the petitioner was convicted. The findings should be drawn from the court records, police records, statement of defendants, the aggrieved party and other persons who may know the petitioner and all other matters material to the petition. It will also include the psychological and social information regarding the probationer; evaluation of the petitioner; suitability for probation; his potential for rehabilitation; and may include the program for supervision and suggested terms of conditions of probation and a recommendation either to deny or grant the probation. WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?

To present himself to the probation officer concerned for supervision within 72 hours from receipt of said order and to report to the probation officer at least once a month during the period of probation. WHAT ARE THE OTHER CONDITIONS OF PROBATION?

1. 2. 3.

cooperate with a program of supervision; meet his family responsibilities; devote himself to a specific employment and not to charge said employment without prior written approval of the probation officer; 4. comply with a program of payment of civil liability to the victim of his heirs; 5. undergo medical, psychological or psychiatric examination and treatment and/or enter and remain in a specific institution, when required for that purposes; 6. pursue a prescribed secular study or vocational training; 7. attend or reside in a facility established for instruction or recreation of persons on probation; 8. refrain from visiting houses of ill-repute; 9. abstain from drinking intoxicating beverages to excess; 10. permit the probation officer or an authorized social worker to visit his home and place of work; 11. reside at premises approved by the court and not to change his residence w/o prior written approval; and 12. satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience. RULES ON OUTSIDE TRAVEL OF PROBATIONER A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer for not more than 30 days, the permission of the parole and probation officer must be sought. If for more than thirty (30) days, aside from the permission of the parole and probation officer, the permission of the court must likewise be sought. EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION If the accused appeals his conviction for the purpose of totally reversing his conviction, he is deemed to have waived his right to probation. The rule that if the accused appeals his conviction only with respect to the penalty, as he believes the penalty is excessive or wrong, as the penalty is probationable, and the appellate court sustains the accused may still apply for probation, has already been abandoned. An appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to probation, has already been abandoned. An appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to probation. CONFIDENTIALITY OF RECORDS OF PROBATION The investigation report and the supervision and history of a probationer obtained under PD No. 968 and under these rules shall be privileged and shall not be disclosed directly or indirectly to anyone other than the probation administration or the court concerned the court which granted the probation or where the probation was transferred may allow the probationer to inspect the aforesaid documents or his lawyer, whenever such disclosure may be desirable or helpful to them. Any government office may ask for the records of probation from the court for its official use or from the administrator. Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. The penalty of imprisonment ranging from six months and one day to six years and a fine ranging from hundred to six thousand pesos shall be imposed upon any person who violates Section 17 hereof. MODIFICATION OF CONDITION OR PERIOD OF PROBATION

The court, on motion, or motu propio may modify the conditions of probation or modify the period of probation as circumstances may warrant. WHO ARE DISQUALIFIED TO UNDERGO PROBATION

Those sentenced to serve a maximum term of imprisonment of more than six years. Those convicted of any offense against the security of the state; Those who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one moth and one day and/or a fine of not less than P200.00; Those who have been once on probation under the provisions of this decree. Those convicted of RA 9156. Those convicted of violation of election laws.

PERIOD OF PROBATION

If the probationer has been sentenced to an imprisonment of not more than one year, the probation shall not exceed two years; In all other cases, not to exceed six years; In case the penalty is fine, the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment.

AMENDMENT TO SECTION 4 OF PD 968: 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.

Thus, a person who was sentenced to destierro cannot apply for probation. Reason: it does not involved imprisonment or fine. (PD 1990)
JURISPRUDENCE UNDERLYING PHILOSOPHY OF PROBATION The underlying philosophy of probation is indeed one of liberality towards the accused. It is not served by a harsh and stringent interpretation of the statutory provisions. Probation is a major step taken by our Government towards the deterrence and minimizing of crime and the humanization of criminal justice. In line with the public policy behind probation, the right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. Appeal and probation spring from the same policy considerations of justice, humanity, and compassion. (Yusi v Morales, 4/28/83) PROBATION IS NOT A RIGHT BUT A PRIVILEGE Probation is a mere privilege and its grant rests solely upon the discretion of the court. As aptly noted in U.S. vs. Durken, this discretion is to be exercised primarily for the benefit of organized society and only

incidentally for the benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83). Even if a convicted person is not included in the list of offenders disqualified from the benefits of a decree, the grant of probation is nevertheless not automatic or ministerial, (Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a petition for probation may be denied by the Court. MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION. The main criterion laid down by the Probation law in determining who may be granted probation is based on the penalty imposed and not on the nature of the crime. By the relative lightness of the offense, as measured by the penalty imposed, more than by its nature, as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom, as the more dangerous type of criminals should be. Hence, in the case at bar, the first reason given by the respondent judge for his denial of the petition for probation that, probation will depreciate the seriousness of the offense committed would thus be writing into the law a new ground for disqualifying a first-offender from the benefits of probation. (Santos v. CruzPano, 1/17/83) TIMELINESS OF FILING APPLICATION FOR PROBATION The accused must file a Petition for Probation within the period for appeal. If the decision of conviction has become final and executory, the accused is barred from filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95). ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI Although an order denying probation is not appealable, the accused may file a motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78) EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT A judgment of conviction becomes final when the accused files a petition for probation. However, the judgement is not executory until the petition for probation is resolved. The filing of the petition for probation is a waiver by the accused of his right to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra). MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS PROBATIONABLE . Evidently, the law does not intend to sum up the penalties imposed but to take each penalty, separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for each crime committed on each date of each case, as alleged in the information(s), and in each of the four (4) informations, he was charged with having defamed the four (4) private complainants on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable. (Francisco v. CA; 4/16/95) REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IMPRISONMENT FOR PROBATION. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrongdoing but because of the gravity and serious consequences of the offense they might further commit. The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation

VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE PROBATION Drug-pushing, as a crime, has been variously condemned as an especially vicious crime, one of the most pernicious evils that has ever crept into our society. For those who become addicted to it not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society, while peddlers of drugs are actually agents of destruction. The deserve no less than the maximum penalty [of death]. There is no doubt that drug-pushing is a crime which involves moral turpitude and implies every thing which is done contrary to justice, honesty, modesty or good morals including acts of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted rule of right and duty between man and man. Indeed nothing is more depraved than for anyone to be a merchant of death by selling prohibited drugs, an act which, as this Court said in one case,often breeds other crimes. It is not what we might call a contained crime whose consequences are limited to that crime alone, like swindling and bigamy. Court and police records show that a significant number of murders, rapes, and similar offenses have been committed by persons under the influence of dangerous drugs, or while they are high. While spreading such drugs, the drug-pusher is also abetting, through his agreed and irresponsibility, the commission of other crimes. The image of the judiciary is tarnished by conduct, which involves moral turpitude. While indeed the purpose of the Probation Law (P.D. No. 968, as amended) is to save valuable human material, it must not be forgotten that unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. The reform and rehabilitation of the probationer cannot justify his retention in the government service. He may seek to reenter government service, but only after he has shown that he is fit to serve once again. It cannot be repeated too often that a public office is a public trust, which demands of those in its service the highest degree of morality. (OCA v. Librado 260 SCRA 624, 8/22/96) PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM PROBATION IN CERTAIN CASES Petitioner Arthur M. Cuevas, Jr.s discharge from probation without any infraction of the attendant conditions therefor and the various certifications attesting to his righteous, peaceful and civic-oriented character prove that he has taken decisive steps to purge himself of his deficiency in moral character and atone for the unfortunate death of Raul I. Camaligan. The Court is prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of the youth to be rash, temerarious and uncalculating. Let it be stressed to herein petitioner that the lawyers oath is not a mere formality recited for a few minutes in the glare of flashing cameras and before the presence of select witnesses. Petitioner is exhorted to conduct himself beyond reproach at all times and to live strictly according to his oath and the Code of Professional Responsibility. And, to paraphrase Mr. Justice Padillas comment in the sister case of Re: Petition of Al Argosino To Take The Lawyers Oath, Bar Matter No. 712, March 19, 1997, [t]he Court sincerely hopes that Mr. Cuevas, Jr., will continue with the assistance he has been giving to his community. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society. (In Re: Cuevas, Jr.; 1/27/98) EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF COURT REQUIRED The mere expiration of the period for probation does not, ipso facto, terminate the probation. Probation is not co-terminus with its period, there must be an order from the Court of final discharge, terminating the probation. If the accused violates the condition of the probation before the issuance of said order, the probation may be revoked by the Court (Manuel Bala v. Martinez, 181 SCRA 459). ANTI-FENCING LAW OF 1979 (PD NO. 1612) DEFINITION Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows or should

be known to him, or to have been derived from the proceeds of the crime of robbery or theft. (DizonPamintuan vs. People, GR 111426, 11 July 94). BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW Presidential Decree No. 1612 or commonly known as the Anti-Fencing Law of 1979 was enacted under the authority of therein President Ferdinand Marcos. The law took effect on March 2, 1979. The Implementing Rules and Regulations of the Anti-Fencing Law were subsequently formulated and it took effect on June 15, 1979. THE PURPOSE OF ENACTING PD 1612 The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government and private properties. With the existence of ready buyers, the business of robbing and stealing have become profitable. Hence, a law was enacted to also punish those who buy stolen properties. For if there are no buyers then the malefactors could not profit from their wrong doings. WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. A Fence includes any person, firm, association corporation or partnership or other organization who/ which commits the act of fencing. WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES: The person liable is the one buying, keeping, concealing and selling the stolen items. If the fence is a corporation, partnership, association or firm, the one liable is the president or the manager or the officer who knows or should have know the fact that the offense was committed. The law provide for penalty range for persons convicted of the crime of fencing. Their penalty depends on the value of the goods or items stolen or bought:

A.

The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

B. C.

The penalty of prision correccional in its medium and maximum periods, if the value of the property robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos; The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than 200 pesos but not exceeding 6,000 pesos;

D.

The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property involved is over 50 but not exceeding 200 pesos;

E. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding
50 pesos.

F. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.

RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND GOODS The law requires the establishment engaged in the buy and sell of goods to obtain a clearance or permit to sell used second hand items, to give effect to the purpose of the law in putting an end to buying and selling stolen items. Failure of which makes the owner or manager liable as a fence. The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell used or secondhand items. It provided for the definition of the following terms:

Used secondhand article shall refer to any goods, article, items, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used. Unlicensed dealer/supplier shall refer to any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or of supplying the articles defined in the preceding paragraph; Store, establishment or entity shall be construed to include any individual dealing in the buying and selling used secondhand articles, as defined in paragraph hereof; Buy and Sell refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons; Station Commander shall refer to the Station Commander of the Integrated National Police within the territorial limits of the town or city district where the store, establishment or entity dealing in the buying and selling of used secondhand

PROCEDURE FOR SECURING PERMIT/CLEARANCE The Implementing Rules provided for the method of obtaining clearance or permit. No fee will be charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be punished as a fence, that may result to the cancellation of business license.

1.

The Station Commander shall require the owner of a store or the President, manager or responsible officer in having in stock used secondhand articles, to submit an initial affidavit within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after the period covered, which shall contain: a. complete inventory of such articles including the names and addresses from whom the articles were acquired.

b. Full list of articles to be sold or offered for sale including the time and place of sale c. Place where the articles are presently deposited. The Station Commander may, require the submission of
an affidavit accompanied by other documents showing proof of legitimacy of acquisition.

2.

Those who wish to secure the permit/clearance, shall file an application with the Station Commander concerned, which states:

a. name, address and other pertinent circumstances b.

article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired.

c. Include the receipt or document showing proof of legitimacy of acquisition.

3.

The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions:

a.

if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall cause the publication of the notice, at the expense of the one seeking clearance/permit, in a newspaper of general circulation for two consecutive days, stating:

articles acquired from unlicensed dealer or supplier the names and addresses of the persons from whom they were acquired that such articles are to be sold or offered for sale to the public at the address of the store, establishment or other entity seeking the clearance/permit.

4.

If there are no newspapers in general circulation, the party seeking the clearance/permit shall, post a notice daily for one week on the bulletin board of the municipal building of the town where the store, firm, establishment or entity is located or, in the case of an individual, where the articles in his possession are to be sold or offered for sale.

5. 6.

If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit sought. If before expiration of the same period for the publication of the notice or its posting, it shall appear that any of the articles in question is stolen property, the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed. Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station Commander concerned to advise/notify the Commission on Audit of the case and comply with such procedure as may be proper under applicable existing laws, rules and regulations.

7. The Station Commander shall, within seventy-two (72) hours from receipt of the application, act thereon
by either issuing the clearance/permit requested or denying the same. Denial of an application shall be in writing and shall state in brief the reason/s thereof.

8. Any party not satisfied with the decision of the Station Commander may appeal the same within 10 days
to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director. The decision of the Director can still be appealed top the Director-General, within 10 days, whose decision may be appealed with the Minister (now Secretary) of National Defense, within 15 days, which decision is final. PRESUMPTION Mere possession of any good, article, item, object or anything fo value which has been the subject of robbery or thievery, shall be prima facie evidence of fencing. ELEMENTS A crime of robbery or theft has been committed; The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; The accused knows or should have known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

1.

There is, on the part of the accused, intent to gain for himself or for another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94)

As regards the first element, the crime of robbery or theft should have been committed before crime of fencing can be committed. The person committing the crime of robbery or theft, may or may not be the same person committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. In People vs. Lucero there was first a snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City, where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing Law. However, in this case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him. The second element speaks of the overt act of keeping, buying, receiving, possessing, acquiring, concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton Bond. The accused known or should have known that the goods were stolen. As pointed out in the case of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma engage in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing. This requires more than ordinary case and caution in dealing with customers. As noted by the trial court: . . . the Court is not inclined to accept the accuseds theory of buying in good faith and disclaimer of ever seeing, much more, buying the other articles. Human experience belies her allegations as no businessman or woman at that, would let go of such opportunities for a clean profit at the expense of innocent owners. The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates and G.I. pipes were found displayed on petitioners shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96) In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road, Makati. The said stereo was bought from Wynns Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person. On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect that the said items were products of theft. The last element is that there is intent to gain for himself or for another. However, intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable by special laws are called acts mala prohibita. The rule on the subject is that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial. Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. It is the act itself which constitutes the offense and not the motive or intent. Intent to gain is a mental state, the existence if which is demonstrated by the overt acts of the person. The mental state is presumed from the

commission of an unlawful act. (Dunlao v. CA) again, intent to gain is a mental state, the existence of which is demonstrated by the overt acts of person, as the keeping of stolen items for subsequent selling. A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612 The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. (supra) MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING Since Sec. 5 of PD NO. 1612 expressly provides that mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing it follows that the accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption does not offend the presumption of innocence enshrined in the fundamental law. DISTINCTION BETWEEN FENCING AND ROBBERY The law on fencing does not require the accused to have participation in the criminal design to commit or to have been in any wise involved in the commission of the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. (People v De Guzman, GR 77368). Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything. On the other hand, fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or shall be known to him, to have been derived from the proceeds of the crime of robbery or theft. FENCING AS A CRIME INVOLVING MORAL TURPITUDE. In violation of the Anti-Fencing Law, actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Dela Torre v. COMELEC 07/05/96) Moral turpitude can be derived from the third element accused knows or should have known that the items were stolen. Participation of each felon, one being the robber or the thief or the actual perpetrators, and the other as the fence, differs in point in time and degree but both invaded ones peaceful dominion for gain. (Supra) Both crimes negated the principle of each persons duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. This signifies moral turpitude with moral unfitness. In the case of Dela Torre, he was declared disqualified from running the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification under Sec. 40 of the Local Government Code, of persons running for elective position -Sec. 40 Disqualifications (a) Those sentenced by final judgement for an offense involving moral turpitude Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing. ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING

PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should he known to him to have been derived from the proceeds of the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97) PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-FENCING The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97) BATAS PAMBANSA BLG. 22 BOUNCING CHECKS LAW ACTS PUNISHABLE:

1. any person who makes or draws and issues any check to apply on account or for value, knowing at the
time of issue that he does not have sufficient funds in or credit with the drawee bank, for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds, or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment.

2.

Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from date appearing thereon, for which reason, it is dishonored by the drawee bank. HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22 To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. (Gutierrez v Pallatao; 8/8/98) NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the drawer of the check that the same was dishonored, if the same is presented within ninety days from date of issuance, and upon notice the drawer has five days within which to make arrangements for the payment of the check or pay the same in full. DUTY OF THE DRAWEE BANK The drawee bank has the duty to cause to be written, printed or stamped in plain language thereon, or attached thereto the reason for the drawees dishonor or refusal to pay the same. If the drawee bank fails to do so, prosecution for violation of BP 22 may not prosper. RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT

The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not. AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is presented to the bank and the same was dishonored due to insufficiency of funds. CHECKS ISSUED IN PAYMENT OF INSTALLMENT Checks issued in payment for installment covered by promissory note and said checks bounced, the drawer is liable if the checks were drawn against insufficient funds, especially that the drawer, upon signing of the promissory note, closed his account. Said check is still with consideration. (Caram Resources v. Contreras) In this case, the Judge was even held administratively liable. CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE: A check drawn against a dollar account in a foreign country is still violative of the provisions of BP 22 so long as the check is issued, delivered or uttered in the Philippines, even if the same is payable outside of the Philippines (De Villa v. CA) GUARANTEE CHECKS, DRAWER, STILL LIABLE The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it is malum prohibitum. In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of certain equipment, even knowing that he has no funds or insufficient funds in the bank is not liable, if the lessor of the equipment pulled out the loaned equipment. The drawer has no obligation to make good the check because there is no more deposit to guaranty. ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION AND PURPOSE OF THE LAW The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not prerequisite for conviction. The agreement surrounding the issuance of the checks need not be first locked into, since the law has provided that the mere issuance of any kind of check; regardless of the intent of the parties, i.e., whether the check is intended merely to serve as guarantee or deposit, but which checks is subsequently dishonored, makes the person who issued the check liable. (Lazaro vs CA, et al., GR 105461). CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF BP 22? Yes. Paragraph 2 of Section 1 of BP 22 provides: The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason, it is dishonored by the drawee bank. RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE

In the case of De la Cruz vs. Concepcion this Court declared: Mere errors in the appreciation of evidence, unless so gross and patent as to produce an inference of ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant and immaterial in an administrative proceeding against him. No one, called upon to try facts or interpret the law in the process of administering justice, can be infallible in his judgment. All that is expected of him is that he follow the rules prescribed to ensure a fair and impartial hearing, assess the different factors that emerge therefrom and bear on the issues presented, and on the basis of the conclusions he finds established, with only his conscience and knowledge of the law to guide him, adjudicate the case accordingly. (Gutierrez v Pallatao; Adm. Matter #RTJ-95-1326, July 8, 1998) DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22 In the crime of estafa, deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks Law, on the other hand, the elements of deceit and damage are neither essential nor required. Rather, the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and, (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without valid reason, ordered the bank to stop payment. (Uy v Court of Appeals, GR 119000, July 28, 1997) JURISDICTION IN BP 22 CASES In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 the determinative factor (in determining venue) is the place of the issuance of the check. However, it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga.

And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically alleges that the crime was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below.
This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held: Besides, it was held in People v. Hon. Manzanilla, supra, that as violation of the bad checks act is committed when one makes or draws and issues any check [sic] to apply on account or for value, knowing at the time issue that he does not have sufficient funds or having sufficient funds in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank, knowledge is an essential ingredient of the offense charge. As defined by the statute, knowledge, is, by itself, a continuing eventuality, whether the accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R (688). Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs. Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The allegation in the information under consideration that the offense was committed in Baguio City is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City.

In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to the second error wherein the petitioner asserted that the checks were issued as a guarantee only for the feeds delivered to him and that there is no estafa if a check is issued in payment of a pre-existing obligation, the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition all-embracing. (Ibasco vs CA, 9/5/96) ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22 Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment is an essential element of the offense. There is a prima facie presumption of the existence of this element from the fact of drawing, issuing or making a check, the payment of which was subsequently refused for insufficiency of funds. It is important to stress, however, that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim Lao v CA; 6/20/97) WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her signature to the checks involved in this case, at the time the same were issued, and even at the time the checks were subsequently dishonored by the drawee bank. The scope of petitioners duties and responsibilities did not encompass the funding of the corporations checks; her duties were limited to the marketing department of the Binondo branch. Under the organizational structure of Premiere Financing Corporation, funding of checks was the sole responsibility of the Treasury Department. (Lim Lao v CA; 6/20/97 LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. The notice of dishonor may be sent by the offended party or the drawee bank. The trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted testimony of Ocampo (t)hat the checks bounced when presented with the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the corporation was in distress. The Court of Appeals affirmed this factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA; 6/20/97) ANTI-GRAFT & CORRUPT PRACTICES ACT (RA NO 3019) ANTI-GRAFT AND CORRUPT PRACTICES ACT Corrupt practices of public officers. (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. 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. ( f ) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. ( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. UNEXPLAINED WEALTH, MEANING Prima facie evidence of and dismissal due to unexplained wealth. If in accordance with the provisions of RA 1379, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal.

Note: Unsolicited gifts or presents of small or insignificant value shall be offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage shall be exempted from the provision of this act. MEANING OF CAUSING UNDUE INJURY The act of giving any private party any unwarranted benefit, advantage or preference is not an indispensable element of causing any undue injury to any part, although there may be instances where both elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93). In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender in causing undue injury does not refer only to those who are in charge of giving permits, licenses or concessions but all acts of public officers or employees which have caused undue injury to others. ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019

the offender is a public officer; the said officer has neglected or has refused to act without sufficient justification after due demand or request has been made upon him; reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; such failure to so act is for the purpose of obtaining directly or indirectly from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party or discriminating against another. Coronado v Sandiganbayan.

PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD FAITH, OR INEXCUSABLE NEGLIGENCE Sec. 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. VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING FACTS, VIZ:

the accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; the public officer committed the prohibited act during the performance of his official duty or in relation to his public position; the public officer acted with manifest partiality evident bad faith or gross, inexcusable negligence; and his action caused undue injury to the government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING. Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared unlawful. Its reference to any public officer is without distinction or qualification and it specifies the acts declared

unlawful. We agree with the view adopted by the Solicitor General that the last inclusion of officers and employees of offices or government corporations which, under the ordinary concept of public officer may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting license or permits or other concessions. (Mejorada v Sandiganbayan, 151 SCRA 399). SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO DETERMINE WHETHER INFORMATION IS VALID OR NOT It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to suspend any public officer against whom a valid information charging violation of this law, Book II, Title 7 of the RPC, or any offense involving fraud upon government or public funds or property is filed in court. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. All that is required is for the court to make a finding that the accused stands charged under a valid information for any of the above-described crimes for the purpose of granting or denying the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103).In the same case, the Court held that as applied to criminal prosecutions under RA 3019, preventive suspension will last for less than ninety (90) days only if the case is decided within that period; otherwise, it will continue for ninety (90) days. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998) PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS TERM Judge Monzons contention denying complainants Motion for Suspension because offenses committed during the previous term (is) not a cause for removal during the present term is untenable. In the case of Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court held that the rule is that a public official cannot be removed for administrative misconduct committed during a prior term since his re-election to office operates as a condonation of the officers previous misconduct committed during a prior term, to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases . . . Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that The ruling, therefore, that when the people have elected a man to office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any refers only to an action for removal from office and does not apply to a criminal case Clearly, even if the alleged unlawful appointment was committed during Maghirangs first term as barangay chairman and the Motion for his suspension was only filed in 1995 during his second term, his re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998) RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE LIABILITY BUT NOT HIS CRIMINAL LIABILITY As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly ruled that the re-election of a public official extinguishes only the administrative, but not the criminal, liability incurred by him during his previous term of office, thus: The ruling, therefore, that when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any refers only to an action for removal from office and does not apply to criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the

Constitution, it is only the President who may grant the pardon of a criminal offense. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998) PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019 It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition thereof is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for a speedy determination of the issues involved in the case. The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. The accused should be given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do not constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his mandatory suspension from office under Section 13 of the Act; or that the information is subject to quashal on any of the grounds set out in Rule 117 of the Rules of Court. But once a proper determination of the validity of the information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. The court has no discretion, for instance, to hold in abeyance the suspension of the accused official on the pretext that the order denying the latters motion to quash is pending review before the appellate courts. (Segovia v. Sandiganbayan; GR 124067, Mar. 27, 1998) GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA 187), we have set out the guidelines to be followed by the lower courts in the exercise of the power of suspension under Section 13 of the law, to wit: (c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section 13 of said Act, it may be briefly stated that upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information, and thereafter hand down its ruling, issuing the corresponding order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. (d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary investigation, the act for which he stands charged do not constitute a violation of the provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act, or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. The mandatory suspension decreed by the act upon determination of the pendency in court or a criminal prosecution for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits. (Segovia v. Sandiganbayan) WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA 3019

- 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. To hold a person liable under this section, the concurrence of the following elements must be established beyond reasonable doubt by the prosecution: (1) That the accused is a public officer or a private person charged in conspiracy with the former; (2) That said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; (3) That he or she causes undue injury to any party, whether the government or a private party; and - That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence. (Llorente v. Sandiganbayan; GR 122166, Mar. 11, 1998) MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019 Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd Series 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. In Jacinto, evident bad faith was not appreciated because the actions taken by the accused were not entirely without rhyme or reason; he refused to release the complainants salary because the latter failed to submit her daily time record; he refused to approve her sick-leave application because he found out that she did not suffer any illness; and he removed her name from the plantilla because she was moonlighting during office hours. Such actions were measures taken by a superior against an erring employee who studiously ignored, if not defied, his authority. (Llorente v. Sandiganbayan) WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019 It would appear that petitioners failure or refusal to act on the complainants vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]: (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of undue injury. Thus, its elements are: 1) The offender is a public officer; 2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him;

3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and 4) Such failure to so act is for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another. However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his constitutional right to due process. (Llorente v. Sandiganbayan) SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS On the other hand, we find merit in petitioners second assigned error. The Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days. (Rios v. Sandiganbayan; GR 129913, Set. 26, 1997) APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the laws command that he shall be suspended from office pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. (Doromal v. Sandiganbayan; GR 85468, Sepr. 7, 1989) UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS AND A GROUND TO DISMISS After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. (Tatad v. Sandiganbayan) DEATH PENALTY LAW (RA 7659) PROSTITUTES CAN BE A VICTIM OF RAPE As to the suggestion that ANALIZA was a prostitute, that alone, even if it be conceded, cannot absolve him of his liability for rape. First, prostitutes can be victims of rape. (People v. Alfeche) REASON WHY DWELLING IS AN AGGRAVATING CIRCUMSTANCE Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy the law accords to human abode. The dwelling need not be owned by the victim. Thus, in People v. Basa, dwelling was appreciated, although the victims were killed while sleeping as guests in the house of another. As aptly stated in People v. Balansit: [O]ne does not lose his right of privacy where he is offended in the house of another because as [an] invited guest [or a housemaid as in the instant case], he, the stranger, is sheltered by the same roof and protected by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, home to him. He is entitled to respect even for that short moment. (People v. Alfeche)

WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. 15 OF THE RPC Clearly then, the father-daughter relationship in rape cases, or between accused and Relanne, in this case, has been treated by Congress in the nature of a special circumstance which makes the imposition of the death penalty mandatory. Hence, relationship as an alternative circumstance under Article 15 of the Revised Penal Code, appreciated as an aggravating circumstance, should no longer be applied in view of the amendments introduced by R.A. No. 7659. It may be pointed, however, that without the foregoing amendment, relationship would still be an aggravating circumstance in the crimes of rape (Article 335) and acts of lasciviousness (Article 336). 57 If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal Code, the penalty imposable on accused then would not be death, but merely reclusion perpetua for, assuming that Relannes testimony in court would have confirmed what she narrated in her sworn statement (Exhibit C), no circumstance then attended the commission of the rape which could bring the crime under any provision of Article 335 which imposes a penalty higher than reclusion perpetua or of reclusion perpetua to death. (People v. Manyuhod, Jr.) WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT CONSIDERED AN ASCENDANT UNDER RA 8353 AND RA 7659 The trial court has thus held incorrectly in considering appellant, who is legally married to Roxans natural grandmother, as among those named in the enumeration. Appellant is merely a step-grandparent who obviously is neither an ascendant nor a step-parent of the victim. In the recent case of People vs. Atop, 24 the Court rejected the application of the mandatory death penalty to the rape of a 12-year old victim by the common-law husband of the girls grandmother. The Court said: It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. Courts must not bring cases within the provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them. Any reasonable doubt must be resolved in favor of the accused. (People v. Deleverio) RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO SAME OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION PERPETUA Since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect upon the accused have, as to him, a retroactive effect, the penalty imposable upon the accused should be reclusion perpetua and not life imprisonment. (People v. Latura) JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to a private party or his family, not to punish in the name of the state. The dawning of civilization brought with it both the increasing sensitization throughout the later generations against past barbarity and the institutionalization of state power under the rule of law. Today every man or woman is both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty to serve the common weal and defend and preserve society. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and punish illegal

acts that may be committed by its own subjects, the executive agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance with these laws. Although penologists, throughout history, have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. (People v. Echeg