Indeterminate Sentence Law by CJ Renato Corona

G.R. No. 173473 – PEOPLE OF THE PHILIPPINES versus BETH TEMPORADA.

Separate Opinion

Jurisprudence shows that there are two schools of thought on the incremental penalty in estafa vis-à-vis the Indeterminate Sentence Law. Under the first school of thought, the minimum term is fixed at prision correccional while the maximum term can reach up to reclusion temporal. This is the general interpretation. It was resorted to in People v. Pabalan,⁹ People v. Benemerito,¹⁰ People v. Gabres¹¹ and in a string of cases.¹²

On the other hand, under the second school of thought, the minimum term is one degree away from the maximum term and therefore varies as the amount of the thing stolen or embezzled rises or falls. It is the line of jurisprudence that follows People v. De la Cruz.¹³ Among the cases of this genre are People v. Romero,¹⁴ People v. Dinglasan¹⁵ and Salazar v. People.¹⁶

The Court is urged in this case to adopt a consistent position by categorically discarding one school of thought. Hence, our dilemma: which of the two schools of thought should we affirm?

The First School of Thought Is
More Favorable To The Accused

Under the Indeterminate Sentence Law, in imposing a sentence, the court must determine two penalties composed of the "maximum" and "minimum" terms, instead of imposing a single fixed penalty.¹⁷ Hence, the indeterminate sentence is composed of a maximum term taken from the penalty imposable under the Revised Penal Code and a minimum term taken from the penalty next lower to that fixed in the said Code.

The maximum term corresponds to "that which, in view of the attending circumstances, could be properly imposed under the rules of the [Revised Penal] Code." Thus, "attending circumstances" (such as mitigating, aggravating and other relevant circumstances) that may modify the imposable penalty applying the rules of the Revised Penal Code is considered in determining the maximum term. Stated otherwise, the maximum term is arrived at after taking into consideration the effects of attendant modifying circumstances.

On the other hand, the minimum term "shall be within the range of the penalty next lower to that prescribed by the [Revised Penal] Code for the offense." It is based on the penalty prescribed by the Revised Penal Code for the offense without considering in the meantime the modifying circumstances.¹⁸

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The Second School Of Thought
And Its Shortcomings

The primary defect of the so-called second school of thought is that it contradicts the in dubio pro reo principle. It also violates the lenity rule. Instead, it advocates a stricter interpretation with harsher effects on the accused. In particular, compared to the first school of thought, it lengthens rather than shortens the penalty that may be imposed on the accused. Seen in its proper context, the second school of thought is contrary to the avowed purpose of the law that it purportedly seeks to promote, the Indeterminate Sentence Law.

The second school of thought limits the concept of "modifying circumstance" to either a mitigating or aggravating circumstance listed under Articles 13 and 14 of the Revised Penal Code. It contends that the respective enumerations under the said provisions are exclusive and all other circumstances not included therein were intentionally omitted by the legislature. It further asserts that, even assuming that the circumstance that more than P22,000 was embezzled may be deemed as analogous to aggravating circumstances under Article 14, the said circumstance cannot be considered as an aggravating circumstance because it is only in mitigating circumstances that analogous circumstances are allowed and recognized.²³ The second school of thought then insists that, since the circumstance that more than P22,000 was involved is not among those listed under Article 14, the said circumstance is not a modifying circumstance for purposes of the Indeterminate Sentence Law.

source:  http://www.lawphil.net/judjuris/juri2008/dec2008/gr_173473rc_2008.html

Leviste walks free, granted parole

FORMER Batangas Gov. Antonio Leviste, who was convicted for homicide in 2009, was released on Friday from the New Bilibid Prisons (NBP) after the his parole application was granted by the Board of Pardons Parole (BPP).

NBP Supt. Venancio Tesoro said Leviste was officially released from jail at 11:20 a.m. after completing some documents required for his release.

The BPP granted Leviste’s application for parole on November 19 along with 34 other prisoner-applicants.

“The board granted his parole after he served his minimum sentence and in consideration of his age, 73,” Tesoro told reporters in an interview.

Leviste was found guilty by the Regional Trial Court in Makati City of shooting to death his aide Rafael de las Alas, during an altercation inside his office in Makati City on January 12, 2007.

He was sentenced to serve a minimum of six years and a maximum sentence of 12 years in January 14, 2009, but it was reduced to just a little under five years after he earned “good conduct time allowance.”

Tesoro said such allowance is earned when a prisoner “has no derogatory conduct and record based on presumed prison rules.”

In 2011 Leviste was caught staying inside his office after he was reported to have “escaped” from prison.

After his rearrest, Leviste has since been kept inside the NBP Maximum Security Compound.

Justice Secretary Leila De Lima, on the other hand, said Leviste was able to meet the requirements to be eligible for parole.

“I also understand that there is no objection from the family of the victim. In fact, I think they joined also the application and that is something important, and it helped in that application for parole,” she said.

But, Parole and Probation Administrator Manuel Co clarified that the granting of parole does not necessarily mean the full restoration of Leviste’s liberty as he has to comply with some conditions or else his parole may be forfeited.

These conditions include reporting  to a parole and probation officer within 15 days after his release; reporting at least once a month in person to the parole and probation officer in the area where he will reside; staying in the same address as approved by the parole and probation regional director; not indulging in any illegal activities; not possessing firearms; not associating with persons or groups engaged in any criminal activities; conducting himself in an orderly manner; if arrested, he shall get in touch with his parole officer within two days; and allowing his parole officer to regularly visit him at his home and/or place of business.

source:  Business Mirror

Rem's Research  

• PRESIDENTIAL DECREE No. 968 July 24, 1976 - 

Section 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.

xxx

Section 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

On the constitutionality of the Anti-VAWC Act

AMIDST THE more controversial and politically charged news of the day, there has been a steady increase of media coverage on cases involving celebrities involved in a special category of cases, more commonly known as “Anti-VAWC” cases or cases of violence against women and children. Anti-VAWC cases are governed by Republic Act No. 9262 (RA 9262).

What is R.A. 9262?

As described by the Supreme Court, RA 9262 is a piece of “landmark legislation.” It was enacted on March 8, 2004 and became effective on March 27 of the same year. Its full title is “The Anti-Violence Against Women and their Children Act of 2004.” R.A. 9262 is a special law that defines acts of violence against women and their children; penalizes such acts; and provides protective measures and remedies. Brought about by the undeniable need for a law to protect women and children from domestic violence, and supported by the advocacy of concerned women’s groups, Congress enacted the said law with the aim of giving women more than a fighting chance in seeking redress in a legal system that was still replete with the patriarchal influence of the past.

R.A. 9262 provides swift temporary remedies and broad permanent ones. Covered by this law are women who are wives or former wives of the offender, those who have or have had a sexual or dating relationship with the offender, and those who have a common child with the offender. Of course, as the title of the law suggests, it also protects the children of these women, whether legitimate or illegitimate.

The coverage of this law is quite expansive. Other than the wife and ex-wife, this law also covers those who, although not married, have had dating relationships. This type of relationship is described in R.A. 9262 as the protected woman and another person being “romantically involved over time and on a continuing basis during the course of the relationship.” R.A. 9262 expressly excludes, “a casual acquaintance or ordinary socialization between two individuals in a business or social context cannot be considered as a dating relationship.” Sexual relations is then defined as “a single sexual act which may or may not result in the bearing of a common child.”

Violence is broadly defined to include physical, sexual, psychological or economic violence. Physical violence is covered, whether it is actual, attempted, threatened or even just placing the woman in fear of the same. Sexual abuse is covered, and it includes acts ranging from rape to making demeaning and sexually suggestive remarks. Psychological abuse could be any act or omission that causes or is likely to cause the mental or emotional suffering of the victim, while economic abuse refers to acts that make or attempt to make a woman financially dependent. All these are remedied and prevented by the issuance of protection orders and may be issued by the court or the Punong Barangay.

Augmenting the provisions of R.A. 9262, is A.M. No. 04-10-11-SC, the “Rule on Violence Against Women and their Children,” issued by the Supreme Court on Oct. 19, 2004. The said rule lays down the venue and procedure for the filing of petitions for protection orders pursuant to R.A. 9262. It likewise enumerates the reliefs available to the offended party when such protection orders are issued, as well as the duties of court and law enforcement officers in handling VAWC cases.

Despite the clear importance of R.A. 9262, its implementation has been difficult. For one, we belong to a culture that has been always been hesitant in dealing with other people’s domestic issues. For another, there had been problems on information dissemination at the barangay level, where it is needed the most.

Other than difficulties in implementation, the validity of R.A. 9262 has been challenged. In a petition filed before the Supreme Court (SC), the question of the constitutionality of R.A. 9262 was deliberated upon and resolved. The validity of the law was assailed on the grounds of being discriminatory, unjust and violative of the equal protection clause enshrined in the Constitution. Said petition was denied by the SC a little less than three months ago, on June 25. In short, the SC upheld the constitutionality of R.A. 9262.

Penned by Associate Justice Estela M. Perlas Bernabe, the SC promulgated a decision in the case of Garcia v. Drilon, docketed as G.R. No. 179267, unanimously confirming the validity of R.A. 9262. In said decision, the SC ruled that the law does not violate the guarantee of equal protection of laws because it rests on substantial distinctions. Backed by the recorded intent of the framers of the law, as well as statistics from the Philippine National Police, the decision recognized the historically unequal power relationship between men and women, and that “women are the usual and most likely victims of violence.” It likewise declared that the enactment of R.A. 9262 “aims to address the discrimination brought about by the biases and prejudices against women,” and that the distinct classification being made between women and men is germane to the purpose of the law. The SC affirmed that R.A. 9262, including the power to issue protection orders ex parte, or without notice and hearing to the respondent, did not violate the due process clause of the Constitution.

As it is, with the clear declaration by the SC, R.A. 9262 is valid and constitutional. This piece of landmark legislation is proof that women and children in this country deserve special protection and their war against violence could be won.

(The author is an Associate of the Angara Abello Concepcion Regala & Cruz Law Offices. He can be contacted at 830-8000 or through e-mail at ccalojado@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and is not offered as and does not constitute legal advice or legal opinion.)

source:  Businessworld

Qualified rape of a mental retardate

Aman was convicted beyond reasonable doubt of the crime of rape punishable under the Revised Penal Code. The victim, a 39-year-old woman, was mentally retarded. She suffered from “moderate mental retardation with a mental age of (6) six years and (8) months and an IQ of (41) forty-one.”
One afternoon, as the victim was standing outside her house and holding her dog, a man approached her and gave her P200.00 to buy some junk food from the sari-sari store. Afterwards, he convinced her to accompany him to his house, located near a cemetery in Caloocan City. Once inside his house, he told the girl to lay down on the floor and remove her clothes. After raping her, he told her to dress herself. To make matters worse, he took her cellphone, and used the money he earned from selling it to buy drinks for his friends who were already drinking outside his house.

During trial, the victim was able to positively identify the man who raped her and clearly communicate what happened to her that day. The accused, of course, denied the rape and said that he was drinking with his friends at the time of occurrence. In addition, he was not aware of the mental state of the accused even if she lived with him for four months in the past. Lastly, the victim’s sole testimony, the accused argued, cannot convict a man for rape beyond reasonable doubt, especially when she was a mental retardate.
The Supreme Court (SC) found the victim’s testimony straightforward, clear, and concise. Also, the victim never wavered in her assertion that the accused raped her. More importantly, the Court held that a mental retardate can be a credible witness so long as she could clearly account and communicate the crime committed -

The fact of AAA’s mental retardation did not impair the credibility of her testimony. Mental retardation per se does not affect credibility. A mentally retarded may be a credible witness. The acceptance of her testimony depends on the quality of her perceptions and the manner she can make them known to the court.

The SC also clarified that under the crime of rape, as provided in Art. 266-A and Art. 266-B of the Revised Penal Code, “when rape is committed by an assailant who has knowledge of the victim’s mental retardation, the penalty is increased to death.” This circumstance must be alleged in the information to change the nature of the offense from simple to qualified rape.

Despite the accused’s denial of knowing about the victim’s mental condition, the SC ruled that he had voluntarily informed the court that the victim had lived with him for four (4) months in his house. Thus, it was logical to assume that the accused was fully aware of victim’s mental condition.

Lastly, when qualified rape is committed and sufficiently proven in court, the penalty provided by law is the death penalty. However, RA No. 9346 has prohibited the imposition of the death penalty. Thus, the SC imposed the penalty of reclusion perpetua without eligibility for parole. Moreover, the Court reiterated the rule that qualified rape entitles the victim to an award of moral and exemplary damages (People v. Rosales, G.R. No. 197537, 24 July 2013, J. Perez).

source:  Manila Times' Column of Benchpress

Exemplary damages in rape cases

A fifty-four year-old man was charged with qualified rape for allegedly having sexual intercourse with his thirteen year-old grandneice. The accused was the brother of the young girl’s paternal grandfather whom she fondly called “Papa.” The granduncle was very close to his brothers family and even lived with them for four months while his house was being built. After the house’s completion, the granduncle moved into his new house along with the grandneice because he had promised to send her to school.

 

She lived with him for three years and it was while she was living with him that she got raped several times. The granduncle threatened to kill his grandneice if she told anyone. Thus, she never did. But eventually, she got pregnant and she could no longer keep her secret. The granduncle initially denied the accusations and even told everyone that a certain Boyet was the father but eventually defended himself by using the sweetheart theory that they were in love and living together as husband and wife.

The trial court found the accused guilty of rape beyond reasonable doubt. The Court of Appeals (CA) modified the trial court’s decision, ruling that only simple rape was commited because the prosecution was not able to prove that the victim was a minor and what was alleged in the information was that the accused was her grandfather and not her granduncle. The CA also ordered him to pay the victim and her family P50,000.00 as civil indemnity and another P50,000.00 as moral damages.

On appeal, the Supreme Court affirmed the CA’s decision of simple rape. It noted that even if the information properly alleged the blood relationship of the accused with the victim, granduncle instead of grandfather, the accused would only be liable for simple rape because a granduncle is a relative of the victim in the fourth civil degree. For blood relationship to be considered a qualifying circumstance, Art. 266-B, par. 5(1), Anti-Rape Law of 1997, provides that the accused must be a relative within the third civil degree.
The SC also awarded exemplary damages to the grandneice, in addition to the civil indemnities and moral damages granted by the lower courts, given the alarming circumstances of the case due to the age of the grandneice and the moral influence and ascendancy the accused had over her. Moreover, facts of the case evidenced that the grandneice treated him like her own father. Citing People v. Rante, the Court held that “exemplary damages can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender.”
In the case at bar, accused-appellant exhibited an extremely appalling behavior in forcing himself upon his thirteen-year old grandniece, threatening to kill her, and even persisted in humiliating her by depicting her as a girl with very loose morals. Accordingly, “to set a public example [and] serve as deterrent to elders who abuse and corrupt the youth,” we hereby award exemplary damages in the amount of P30,000.00 to AAA in accordance with Art. 2229 [of the Civil Code] (People v. Deligero, G.R. No. 189280, 17 April 2013, J. Leonardo-De Castro).

source:  Manila Times' by Benchpress

Miranda Rights Exception

Boston Marathon suspect in no condition yet to be questioned, Boston police chief says

Boston Marathon bombing suspect Dzhokhar Tsarnaev remained in serious condition at a Boston hospital under heavy guard Sunday as investigators continued the long process of looking over motives, methods and possible links.

Tsarnaev, 19, who was taken into custody on Friday and whose older brother, Tamerlan, was killed in a shootout with police, will be questioned by a special team sent in by the FBI, Boston Police Commissioner Ed Davis told “Fox News Sunday.”

“He’s [Dzhokhar] in no condition to be interrogated at this point in time. He’s progressing, though, and we’re monitoring the situation carefully," Davis said.

Massachusetts Gov. Deval Patrick said Saturday afternoon that Dzhokhar Tsarnaev was in serious but stable condition and was probably unable to communicate. Tsarnaev was at Boston's Beth Israel Deaconess Medical Center, where 11 victims of the bombing were still being treated.

"I, and I think all of the law enforcement officials, are hoping for a host of reasons the suspect survives," the governor said after a ceremony at Fenway Park to honor the victims and survivors of the attack. "We have a million questions, and those questions need to be answered."

The twin bombings killed three people and wounded more than 180.

Patrick told NBC on Sunday that surveillance video clearly puts Dzhokhar Tsarnaev at the scene of the attack.
"It does seem to be pretty clear that this suspect took the backpack off, put it down, did not react when the first explosion went off and then moved away from the backpack in time for the second explosion," Patrick said. "It's pretty clear about his involvement and pretty chilling, frankly."

Investigators believe the suspects also were likely planning other attacks based on the cache of weapons uncovered during the Thursday night shootout, according to Davis.

"We have reason to believe, based upon the evidence that was found at that scene -- the explosions, the explosive ordnance that was unexploded and the firepower that they had -- that they were going to attack other individuals," Davis said Sunday on CBS' "Face the Nation". "That's my belief at this point."

Davis added on "Fox News Sunday" that authorities cannot be positive there aren't more explosives that haven't been found, but the people of Boston are safe.

There was no immediate word on when Tsarnaev might be charged and what those charges would be, but a source told Fox News charges wouldn't come Sunday.

But the most serious charge available to federal prosecutors would be the use of a weapon of mass destruction to kill people, which carries a possible death sentence. Massachusetts does not have the death penalty.

A Justice Department official said Friday the government is invoking a seldom-used public safety exception permitting officials to engage in a limited and focused unwarned interrogation of a suspect -- in this case Dzhokhar Tsarnaev -- without first reading him his typically assured Miranda rights. That official, as well as a second, both of whom spoke on the condition of anonymity, says Tsarnaev will be questioned by a special interrogation team for high-value suspects.

The public safety exception not only permits the unwarned questioning of a suspect, but also allows the government to introduce any statement yielded by such interrogation as evidence in court. The exception is triggered when authorities have an objectively reasonable need to protect themselves or the public from a clear and present danger.

However, the exception lasts only 48 hours and should be extended by declaring Tsarnaev a potential enemy combatant, under the Law of War, Republican Sens. Lindsey Graham, South Carolina; John McCain, Arizona; and Kelly Ayotte, New Hampshire, said in a statement Saturday. They were joined by New York Republican Rep. Peter King.

According to media accounts, Tsarnaev and his brother, Tamerlan, were Muslims who recently gravitated to a radical strain of Islam, going so far as to post Anti-American, jihadist videos on social-media sites. Both are thought to have as-yet-unprobed ties to a radical Muslim cleric hellbent on the destruction of the American way of life.

A day-long dragnet for Tsarnaev ended Friday, with police capturing the suspect covered in blood and hiding in a boat in the backyard of a man who called 911 after becoming suspicious of activity on his property.
"We got him," Boston Mayor Tom Menino tweeted moments later, as neighbors gathered to form a gauntlet of cheers while a phalanx of police cars departed the scene.

Police moved in on Dzhokhar Tsarnaev Friday evening after a tip led them to the home on Franklin Street.

Neighbors said they heard more than 30 shots likened to "a roll of firecrackers shooting off." Police swarmed the scene, and several explosions, possibly police concussion grenades, were heard after a robot moved in on the boat. Less than two hours later, at about 9 p.m., the suspect, believed to have been injured in a wild shootout that spanned Thursday night to Friday morning, was being taken to Beth Israel Hospital.

No police were injured when shots were fired by the boat.

Sources told Fox News the shed and the boat had been searched earlier, but a local man noticed a door to it had been opened, saw blood on the tarp and called police.

"It was a call from a resident of Watertown," Watertown Police Chief Edward Deveau said. "We got that call, and we got the guy."

Davis said Tsarnaev was in serious condition and was found "covered with blood." He did not come out from inside the boat willingly, despite the efforts of negotiators, Davis said.

"We assume that those injuries came from the gunfire the night before," Davis said. He also said Tsarnaev did not have any explosives with him when he was taken into custody.

The hiding place was found just moments after police said their hunt for Tsarnaev, one of two radical Muslim brothers suspected in Monday's attack, had gone cold and urged people to "go about your business."
Shortly after the capture was announced, Watertown residents poured out of their homes and lined the streets to cheer police vehicles as they rolled away from the scene.

Celebratory bells rang from a church tower. Teenagers waved American flags. Drivers honked. Every time an emergency vehicle went by, people cheered loudly.

"Tonight, our family applauds the entire law enforcement community for a job well done, and trust that our justice system will now do its job," said the family of 8-year-old Martin Richard, who died in the bombing.
Early in the day, police told residents of several city neighborhoods, especially Watertown, to stay inside. School was canceled, bus and train service suspended and people were even told not to venture out for work. But those restrictions were lifted at the news briefing Friday night about 15 minutes before the gunshots were heard.

The boat Tsarnaev hid under was just outside the tight perimeter where Black Hawk helicopters patrolled the sky and police went door-to-door hunting for him, police said. Police say he and his older brother, Tamerlan Tsarnaev placed the deadly bombs, at least one of which was made from a pressure cooker packed with explosives and shrapnel, at the race, killing three and injuring more than 180. The sibling suspects are from Dagestan, a province in Russia that borders Chechnya, but have been in the U.S. for as much as a decade..
On Thursday night, hours after the radicalized Muslims were fingered by the FBI and their images circulated around the world, they killed a Massachusetts Institute of Technology police officer and carjacked an SUV from a man who later escaped. The brothers led police on a chase through city streets that included a wild shootout that saw some 200 shots fired and the suspects hurling pipe bombs from the SUV. Bizarrely, police discounted earlier reports that the brothers had robbed a 7/11, saying although it had been robbed, and they had been caught on surveillance video, they were not the robbers.

The pursuit went into Watertown, where Tamerlan Tsarnaev, 26, was shot several times in the gunfight. But Dzhokhar Tsarnaev somehow slipped away, running over his already wounded brother as he fled by car, according to two law enforcement officials who spoke to The Associated Press on condition of anonymity. Tamerlan Tsarnaev was pronounced dead at Beth Israel Hospital Deaconess Medical Center Friday morning. But at some point following the shootout and car chase, the younger brother fled by foot, according to State Police, who said Friday night they don't believe he now has access to a car.

During the pursuit, a MBTA transit police officer was seriously injured and transported to the hospital, according to a news release. He was identified as Richard H. Donahue Jr., 33, and was at Mount. Auburn Hospital in critical but stable condition.

The suspects' bloody rampage claimed the life of MIT Police Officer Sean Collier, 26, who was found shot to death in his squad car at 10:20 p.m. Thursday in what Davis termed a "vicious assassination."

Moments after the shooting, the brothers carjacked the Mercedes SUV from Third Street in Cambridge and forced the driver to stop at several bank machines to withdraw money. The driver later told police that the brothers had bragged to him that they were the marathon bombers, law enforcement authorities said.

“The guy was very lucky that they let him go,” Massachusetts State Police spokesman David Procopio said.
It was when police were working to activate the tracking device on the stolen SUV, that other patrol officers spotted it in nearby Watertown, touching off the dramatic chase.

FBI Special Agent Rick Deslauriers said Friday night the FBI pored though thousands of tips, and chased down countless leads in the intense probe following the terror attack on Monday.

"The was a truly intense investigation," Deslauriers said. "As a result of that justice is being served for each of the victims of these crimes."

source:  Fox News

Charges can be filed vs. slanderers

Dear PAO,
A lady went to our house and claimed that she has an affair with my father. She said demeaning and obscene words against him in front of a lot of people. Later, we found out that everything she said were all lies. May she be held criminally liable for her act?
MC

Dear MC,
In recognition of the value of a person’s honor and reputation, our Revised Penal Code makes it criminal the act of a person in publicly and maliciously imputing a crime, vice or defect, whether real or imaginary or the act, omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is already dead. The crimes relating to the uttering of slanderous or defamatory remarks are classified into three: written defamation or libel (Article 355, Revised Penal Code), oral defamation or slander (Article 358, ibid) and defamation by overt acts or slander by deed (Article 359, ibid). These crimes have the following common elements: 1) there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance; 2) that the imputation must be made publicly; 3) that it must be malicious; 4) that the imputation must be directed at a natural or juridical person, or one who is dead; and 5) that the imputation must tend to cause the dishonor, discredit or contempt of the person defamed (Luis B. Reyes, Revised Penal Code, Book II (13th Ed.), page 841).

The lady who went to your house and imputed demeaning and obscene remarks against your father may be held liable for the crime of oral defamation defined and punished under Article 358 of the Revised Penal Code, to wit:
Art. 358. Slander. — Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos.

Oral defamation or slander has been defined as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood (Victorio vs. Court of Appeals, G.R. Nos. L-32836-37 citing 33 Am. Jur. 39). In determining whether the offense committed is serious or slight oral defamation, the sense and grammatical meaning of the utterances and the special circumstances of the case like the social standing or the advanced age of the person defamed are considered (Larobis vs. Court of Appeals, G.R. No. 104189, March 30, 1993).

source:  Manila Times' Column by Atty. Persida Acosta

Small claims cases easier to resolve

Dear PAO,
I have been cheated by a dealer because I was able to buy a vehicle which he represents to have a certificate of public convenience. I later found out that the franchise does not exist. I was advised to file a case for estafa but I do not want to be involved in such a lengthy proceeding. I just want my money back. What may be the best solution to my problem?
Pablo

Dear Pablo,
Estafa is a crime which may be committed by means of false pretenses or fraudulent acts. One of the false pretenses or fraudulent acts constituting estafa is the use of fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. There may be sufficient ground to hold the seller of the vehicle for estafa because he has fraudulently declared that the vehicle he was selling has a certificate of public convenience knowing that such is not existing and that you were induced to buy the said vehicle because of the declaration causing damage on your part (Article 315 par. [2][3], Revised Penal Code). The penalty for estafa depends upon the amount defrauded upon the victim, but the same shall not exceed imprisonment of twenty (20) years, which shall be imposed only upon his conviction in court.

Considering that you do not wish to pursue a criminal case for estafa against the seller of the vehicle, you may just send a demand letter to him for the refund of the price paid. You may also be assisted by the Public Attorney’s Office (PAO) in a conference/mediation which may be conducted between you and the seller in the PAO District Office of the place where you are residing. Upon request for conference, the assisting Public Attorney, after determination of your qualification as client, shall send an invitation to the seller for such a conference to discuss your problem and possibly settle your dispute amicably (Section 4, Rule X, Public Attorney’s Office Operations Manual). You may also claim your refund through the filing of small claim case under A.M. No. 08-8-7-SC (Rule of Procedure for Small Claims Cases) if it does not exceed P100,000. The proceeding under this rule is expedient because the court shall immediately set the hearing. A postponement of the hearing therein may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time, but said party may avail of only one (1) postponement. Moreover, you will not need the assistance of a lawyer since the same is prohibited by the Rules and the Petition/Pleadings are readily available at the Office of the Clerk of Court. After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence and such decision shall immediately be final and unappealable (Sections 17, 19, and 23, A.M. No. 08-8-7-SC).

source:  Manila Times' Column by Atty. Persida Acosta

G.R. Nos. 138874-75: Privileged Mitigating Circumstance of Minority (Art 68, RPC)

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 138874-75             January 31, 2006

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
FRANCISCO JUAN LARRAÑAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERT CAÑO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias ‘TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and JAMES ANDREW UY alias "MM," Appellants.

R E S O L U T I O N

PER CURIAM:

Most jurisdictions recognize age as a barrier to having full responsibility over one’s action.¹ Our legal system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the PRIVILEGED MITIGATING CIRCUMSTANCE OF MINORITY EMBODIED IN ARTICLE 68 OF THE REVISED PENAL CODE -- the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by reason of his age, is presumed to have acted with less discernment. The case at bar is another instance when the privileged mitigating circumstance of minority must apply.

For our resolution is the motion for reconsideration² filed by brothers James Anthony and James Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on the ground that he was a minor at the time the crimes were committed.

A brief review of the pertinent facts is imperative.

On February 3, 2004, we rendered a Decision³ convicting the Uy brothers, together with Francisco Juan Larrañaga, Josman Aznar, Rowen Adlawan, Alberto Caño and Ariel Balansag of the crimes of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape; and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision reads:

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAÑAGA alias ‘PACO;’ JOSMAN AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias ‘ALLAN PAHAK;’ ARIEL BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAÑAGA alias ‘PACO’; JOSMAN AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias ‘ALLAN PAHAK;’ ARIEL BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA;

(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM;

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P150,000.00 as moral damages; and (d) P100,000.00 as exemplary damages.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellency’s pardoning power.

SO ORDERED.

On March 23, 2004, the Uy brothers filed a motion for reconsideration anchored on the following grounds:

I

ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997;

II

THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING.⁴

The issues raised in the above motion being intertwined with those raised by Larrañaga, Aznar, Adlawan, Caño and Balansag in their separate motions for reconsideration, we deemed it appropriate to consolidate the motions. After a painstaking evaluation of every piece and specie of evidence presented before the trial court in response to the movants’ plea for the reversal of their conviction, still we are convinced that the movants’ guilt has been proved beyond reasonable doubt. Thus, in our Resolution dated July 21, 2005, we denied all the motions. However, left unresolved is the issue of James Andrew’s minority.

Hence, this disquisition ^{A long or elaborate essay or discussion on a particular subject.}.

In their motion, the Uy brothers claim that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed. To substantiate such claim, he begs leave and pleads that we admit at this stage of the proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. In the ultimate, he prays that his penalty be reduced, as in the case of his brother James Anthony.

Considering that the entry of James Andrew’s birth in the proffered Certificate of Live Birth is not legible, we required the Solicitor General (a) to secure from the City Civil Registrar of Cotobato, as well as the National Statistics Office, a clear and legible copy of James’ Certificate of Live Birth, and thereafter, (b) to file an extensive comment on the Uy brothers’ motion, solely on the issue of James Andrew’s minority.

On November 17, 2005, the Solicitor General submitted his comment. Attached therewith are clear and legible copies of James’ Certificate of Live Birth duly certified by the Office of the City Civil Registrar of Cotobato and the National Statistics Office. Both documents bear the entry October 27, 1979 as the date of his birth, thus, showing that he was indeed only 17 years and 262 days old when the crimes were committed on July 16, 1997.

Consequently, the Solicitor General recommended that the penalty imposed on James Andrew be modified as follows:

In Criminal Case No. CBU-45303 for the special complex crime of kidnapping and serious illegal detention with homicide and rape, the death penalty should be reduced to reclusion perpetua.

In Criminal Case No. CBU-45304, for the crime of simple kidnapping and serious illegal detention, the penalty of reclusion perpetua should be reduced to twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, similar to the penalty imposed on his brother James Anthony in Criminal Case No. CBU-45303.

The motion is meritorious.

Article 68 of the Revised Penal Code provides:

ART. 68. – Penalty to be imposed upon a person under eighteen years of age. – When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of this Code, the following rules shall be observed:

x x x

2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.⁵ On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.⁶ There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.⁷

Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

SO ORDERED. 

Footnotes

¹ Siegel, Senna, Juvenile Deliquency, Theory, Practice and Law, 7th Edition, at 20.

² Rollo, p. 1789. It was filed on March 23, 2004.

³ G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.

⁴ Rollo, p. 1789. It was filed on March 23, 2004.

⁵ Article 61, par. 1 in relation to Article 71, Scale No. 1 of the Revised Penal Code.

The Indeterminate Sentence Law does not apply to persons convicted of offenses punished with death penalty or life imprisonment. (Section 2) While the exception in Section 2 of the law speak of "life imprisonment," this term has been considered to also mean reclusion perpetua. (Regalado, Criminal Law Conspectus, First Edition, at 207).

⁶ Article 61, par. 2 in relation to Article 71, Scale No. 1 of the Revised Penal Code.

⁷ Reyes, The Revised Penal Code, Book I, 2001 Ed. at 780.