2017 Last Minutes Material for Criminal Law

By Judge Marlo Campanilla

1. If the RTC convicted the accused of frustrated homicide where the penalty is prision
mayor, which is not probationable, but the CA reduced the crime to attempted homicide, where
the penalty is prision correccional, which is not probationable, the accused can apply for
probation on the basis of the modified decision. However, if the accused filed a motion for
reconsideration of such modified decision of the CA to claim his innocence, he shall lose the
benefit of probation (PD 968 as amended by RA No. 10707).

2. If the probationer was discharged by reason of compliance of the conditions of

probation, his criminal liability will be extinguished (PD 968 as amended by RA No. 10707) but
not the crime of theft for which he was placed under probation (People vs. Henry Go, G.R. No.
168539, March 25, 2014). If the probationer committed another theft, he shall be considered as
a recidivist. In sum, the first theft not being extinguished by the discharge by reason of
probation shall be considered for purpose of determining if he is a recidivist with respect to the
second theft that he committed.

3. Juan allowed Pedro to enter his house because the latter pretended that he is a
police officer. Pedro stabbed Juan inside his house and robbed him. Since the elements of
robbery by using force upon thing (simulation of authority) and robbery by means of violence
and intimidation are all present, the crime committed is a complex crime under Article 48 of
RPC (Fransdilla vs. People, GR No. 197562, April 20, 2015, Bersamin). But if Juan died due to
the injuries inflicted by Juan, the crime committed is special complex crime of robbery with
homicide, and robbery by using force upon thing committed by reason or on occasion of
robbery shall be integrated into the special complex crime of robbery with homicide (People vs.
Jugueta, G.R. No. 202124, April 05, 2016).

4. If there is wheel conspiracy concerning the series of acts of misappropriation of P360

million, and Pedro was identified as the principal plunder or the hub and the nine (9) other
accused was identified as the spokes, the entire amount of P360 million shall be considered to
determine if the P50-million threshold in plunder has been reached. Hence, Pedro is liable for
plunder. The 9 spokes are also liable for plunder since under the law persons who participated
with the said public officer in the commission of an offense shall likewise be punished for such
offense.

If there is wheel conspiracy concerning the series of acts of misappropriation of P360

million, but none of the 10 accused was identified as the hub or principal plunder, each of
them is only liable for 10% of the P360 million. Since each of them is only liable for P36
million, plunder is no committed since the P50-million threshold had not been reached (GMA
vs. People, G.R. No. 220598, July 19, 2016, Bersamin).

5. The application of the Indeterminate Sentence Law is mandatory to both the Revised
Penal Code and the special laws (Romero vs. People, G.R. No. 171644, November 23, 2011).
However, the Supreme Court, in People vs. Nang Kay, G. R. No. L-3565, April 20, 1951, has
provided an exception. In this case, the accused pleaded guilty to offense where the law
prescribed a penalty of 5 to 10 years imprisonment. The court sentenced the accused to suffer
5 years of imprisonment. The Supreme Court sustained the penalty. Fixing the penalty at the
minimum limit without applying Act No. 4103 is favorable to the accused since the accused
shall be automatically released upon serving 5 years of imprisonment. Applying Act No. 4103
would lengthen the penalty because the indeterminate maximum penalty must be necessarily
more than 5 years (People vs. Arroyo, G.R. No. L-35584-85, February 13, 1982). However, the
Nang Kay principle is not applicable where the crime is punishable under the Revised Penal
Code. The application of ISLAW is always mandatory if the penalty is prescribed by RPC since it
is favorable to the accused. It is favorable to the accused since in fixing the minimum penalty,
the prescribed penalty under the Code shall be lowered by one degree. On the other hand, in
fixing the minimum penalty for offense under special law involved in the Nang Kay case, the
prescribed penalty shall not be lowered (People vs. Judge Lee, Jr, G.R. No. 66859, September
 2017 Last Minutes Material for Criminal Law
By Judge Marlo Campanilla
12, 1984). The Nang Kay principle is not also applicable where the accused does not deserve a
lenient penalty. In Batistis vs. People, G.R. No. 181571, December 16, 2009, the Supreme
Court said the Nang Kay exception is not applicable where there is no justification for lenity
towards the accused since he did not voluntarily plead guilty, and the crime committed is a
grave economic offense because of the large number of fake Fundador confiscated.

6. Accused saw the victim hurting his minor daughters. Angered, accused struck
minor-victim at the back with his hand and slapped his face. Since the accused committed the
act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic
worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent,
the crime committed is not child abuse under RA 7610 but merely slight physical injuries
(Bongalon vs. People, G.R. No. 169533, March 20, 2013, Bersamin). This principle is only
applicable if the accused acted at the spur of the moment.

7. Climbing on top of the naked victim, touching her genitalia and mashing her breasts
are susceptible of double interpretation (People v. Lamahang). His intention is either to rape or
seduce her. Hence, the accused cannot be held liable for attempted rape because intent to have
sex is not clear. He is only liable for acts of lasciviousness (Cruz vs. People, G.R. No. 166441,
October 08, 2014, Bersamin).

8. RPC is not generally applicable to malum prohibitum. However, when a special law,
which punishes malum prohibitum, adopts the technical nomenclature of the penalties in RPC,
the provisions under this Code shall apply (People vs. Simon, G.R. No. 93028, July 29, 1994)
such as: (1) Article 68 on the privilege mitigating circumstance of minority; (2) Article 64 on
application of penalty in its minimum period if there is a confession; and (3) Article 160 on
special aggravating circumstance of quasi-recidivism.

RA No. 7080 and RA No. 10591 adopt the nomenclature of the penalties in RPC. Hence,
minority, confession (Jacaban vs. People, GR No. 184355, March 23, 2015; Malto vs. People,
G.R. No. 164733, September 21, 2007) or quasi-recidivisim shall be considered in plunder and
illegal possession of loose firearm.

Under Section 98 of RA No. 9165, the provisions of RPC shall not apply except in the
case of minor offenders. Hence, if the accused is a minor, privilege mitigating circumstance of
minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No.
199735, October 24, 2012Asiatico vs. People, G.R. No. 195005, September 12, 2011),
confession or quasi-recidivisim (People vs. Salazar, G.R. No. 98060, January 27, 1997) shall be
considered in crime involving dangerous drugs. In this case, life imprisonment shall be
considered as reclusion perpetua. If the accused is an adult, these circumstances shall not be
appreciated.

If the special law (such as RA No. 6235 on hijacking and RA No. 3019 on corruption)
did not adopt the technical nomenclature of penalties in RPC, the latter shall not apply.
Mitigating circumstance of confession shall not be appreciated since the penalty not borrowed
from RPC cannot be applied in its minimum period. The crime has not attempted or frustrated
stage since penalty not borrowed from RPC cannot be graduated one or two degrees lower.

Mitigating circumstance of old age can only be appreciated if the accused is over 70
years old at the time of the commission of the crime under RA No. 3019 and not at the time of
promulgation of judgement (People vs. Reyes, G.R. No. 177105-06, August 12, 2010,
Bersamin). Moreover, this the mitigating circumstance of old age cannot be appreciated in
crime punishable by RA No. 3019 since this law did not adopt the technical nomenclature of
the penalties of the Revised Penal Code.
 2017 Last Minutes Material for Criminal Law
By Judge Marlo Campanilla
9. Novation is not a mode of extinguishing criminal liability but it can extinguish the old
contract, which may be the basis of criminal liability. In estafa through misappropriation,
receiving the property in trust is an element thereof. In sum, contract is an ingredient of this
crime. Novation may convert the contract of trust into creditor-debtor situation, or put doubt
on the true nature of the original transaction (People vs. Nery, G.R. No. L-19567, February 5,
1964). In these situations, the accused will be acquitted for failure to prove the element of
receipt of property in trust. Thus, novation is a defense in estafa through misappropriation
where the contract of agency is converted into sale (Degaos vs. People, GR No. 162826,
October 14, 2013, Bersamin). However, partial payment and promise to pay the balance of
obligation under contract of agency will not convert it into sale. There is no novation since the
obligation of the accused in making a partial payment is not incompatible to the obligation to
give the proceeds of sale of the property under the contract of agency (Degaos vs. People,
supra).

10. Declaration of nullity of the first marriage subsequent to the consummation

of bigamy is not a defense whether the ground for nullity is psychological incapacity
(Mercado vs. Tan, G.R. No. 137110, August 1, 2000) or lack of license and affidavit of
cohabitation (Lasanas vs. People, G.R. No. 159031, June 23, 2014) because this
declaration of nullity of the first marriage subsequent to the consummation of the
crime is not a mode of extinguishing criminal liability.

To avoid criminal liability, the declaration of nullity of the first marriage must
be made previous to the consummation of bigamy, which is required by Article 40 of
the Family Code, which provides: The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void (People vs. Teves, G.R. No. 188775, August 24, 2011). The
requirement under this provision shall be given a retroactive affect for being a
procedural rule (Jarillo vs. People, G.R. No. 164435, June 29, 2010).

However, the principle that one who enters into a subsequent marriage without
first obtaining such judicial declaration is guilty of bigamy is not applicable where the
parties merely signed the marriage contract without marriage ceremony performed by a
duly authorized solemnizing officer. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus, needs no judicial
declaration of nullity. Hence, bigamy is not committed (Morigo vs. People, G.R. No.
145226, February 06, 2004).

11. After the EDSA revolution II, Pedro, Secretary of Justice, demanded money from
Mark with a threat to file criminal case against him in connection with crimes committed by
him in conspiracy with the ousted President. Pedro is not liable for violation of Section 3 (b) of
RA No. 3019, which punishes requesting or receiving money in connection with government
contract or transaction where the public officer has the right to intervene under the law.
Section 3 (b) of RA No. 3019 is limited only to contracts or transactions involving monetary
consideration where the public officer has the authority to intervene under the law. Preliminary
investigation is not a contract or transaction within the contemplated of Section 3 (b). Hence,
requesting or receiving money in connection with a preliminary investigation is not a violation
of this provision. However, Pedro is liable for robbery since threat to prosecute is an
intimidation within the contemplation of Article 294 0f RPC (Justice Secretary Perez, G.R. No.
188165, December 11, 2013, Bersamin). But if Mark gave money to Pedro not because of a
threat to criminally prosecute him but by reason a voluntary agreement for the dismissal of the
case, the crime committed by the latter is direct bribery while the former is liable for corruption
of pubic officer.