CRIMINAL LAW 1

Note: A person who was sentenced to destierrro cannot apply for probation because such
penalty does not involve imprisonment or fine. (PD 1990)

Suprema Legis Reviews 3. When to file.

The accused must file a Petition for Probation within the period for
SPECIAL PENAL LAWS appeal. If the decision of conviction has become final and executory, the accused is
barred from filing a Petition for Probation. (Pablo Francisco vs. C.A., GR No. 108747, 6 April
1995)
BY: PROF. ROLAND YSRAEL R. ATIENZA
Professor; Lecturer; Legal Officer
4. Effect of filing of Petition for Probation.

Probation Law (P.D. No. 968 as amended by PD 990)
1. Probation 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.
2. Disqualified Offenders.
a. Those sentenced to serve a maximum term of imprisonment of more than six years;
b. Those convicted of subversion or any crime against the national security or public order;
c. Those who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or fine of not less than two
hundred pesos;
d. Those who have been once on probation;
e. Those who are already serving sentence at the time the substantive provisions of this
decree became applicable [3 Jan. 1978] pursuant to Section 33 hereof. (Section 9, PD 968)
f. Those convicted for selling drugs under RA 9165 - Except minors who are
first time offenders (Section 24, RA 9165);
g. Those convicted of violations of election law;
h. Those convicted for malicious reporting under the Anti-Money Laundering
Law (Section 14[c], RA 9160)
Upon filing of petition for probation, the court shall suspend the execution
of sentence. (Section 4 of PD 968 as amended by PD 990, 05 October 1985)
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 (Vicoy vs.
People, GR No. 138203, 03 July 2002). Further, no application for probation shall be
entertained or granted if the accused has perfected an appeal from the
judgment of conviction (Lagrosa vs. People, GR No.152044, 03 July 2003).
A judgment of conviction becomes final when the accused files a Petition for
Probation. However, the judgment 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 judgment of conviction. (Heirs of Francisco Abueg vs. CA,
219 SCRA 78)
5. Order denying Probation is not appealable; Although an order denying
probation is not appealable, the accused may file a petition for CERTIORARI from
said order. (Heirs of Francisco Abueg vs. CA; Section 4 of P.D. 1990, 05 October 1985)
6. Rules on travel. A probationer who desires to travel outside the jurisdiction of
the city or provincial probation officer:

Atty. Roland Ysrael R. Atienza | Special Penal Laws


a. For not more than 30 days, the permission of the parole and probation officer
must be sought;
b. If more than 30 days, aside from the permission of the parole and probation
officer, the permission of the court must likewise be sought.
7. Mandatory condition of probation.
a. To present himself to the probation officer concerned for supervision within 72
hours from receipt of said order, and;
b. To report to the probation officer at least once a month during the period of
probation.
8. Period of probation.
a. If the probationer has been sentenced to an imprisonment of not more than one
year, the probation shall not exceed two years;
b. In all other cases, not to exceed six years;
c. 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.
9. Court Order required for final discharged (Termination of Probation).
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 vs. Martinez, G.R. 67301, 29 January
1990)
Anti-Fencing Law (P.D. No. 1612)
1. Elements of Fencing.
a. A crime of robbery or theft has been committed;
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b. The accused, who is not a principal or accomplice in the commission of the
crime of robbery of 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;
c. 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
d. There is, on the part of the accused, intent to gain for himself or for another.
(Tan vs. People, GR No. 1343298, August 1999; Capili vs. CA, 15 August 2000)
2. Prima facie evidence of Fencing.
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. (Section 5)
Note: Presentation of sales invoice or receipt provides proof of a legitimate
transaction which is disputable. In the case of Ong vs. People the Court held that
the defense of legitimate transaction is disputable and has in fact been disputed in
this case. The validity of the issuance of the receipt was disputed, and the
prosecution was able to prove that Gold Link and its address were fictitious. Ong
failed to overcome the evidence presented by the prosecution and to prove the
legitimacy of the transaction. Thus, he was unable to rebut the prima facie
presumption under section 5 of P.D. 1612. (Jaime Ong y Ong v. People of the Philippines, G.R.
No. 190475, 10 April 2013)
Obstruction of Justice (PD No. 1829)
1. Obstruction of Justice; defined.
It is an act of knowingly or willfully [1] obstructing, [2] impeding,
[3] frustrating or [4] delaying the apprehension of suspects and the
investigation and prosecution of criminal cases. The term refers to the acts
punished under Presidential Decree No. 1829, otherwise known as the Decree
Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders.
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

2. Acts punishable.
The law [Section 1, par. C] covers the following acts of any person who
knowingly or willfully [1] obstructs, [2] impedes, [3] frustrates or [4] delays
the apprehension of suspects, and the investigation and prosecution of criminal
cases.
Note: Failure to comply with the provisions under Chapter IV of the Cybercrime
Prevention Act (RA 10175), specifically the orders of the law enforcement authorities
to produce data evidence is considered obstruction of justice and punished by
imprisonment of prision correctional, max and/or fine of 100, 000.00 for each and
every non-compliance (Section 20, RA 10175)
3. Obstruction of Justice absorbed in the crime of rebellion.
In a case for Obstruction of Justice filed against Sen. Juan Ponce Enrile, he
allegedly accommodated Col. Gregorio Honasan by giving him food and comfort on 1
December 1989 in his house. Knowing that Colonel Honasan is a fugitive from
justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or
apprehended. The Supreme Court ruled that Sen. Enrile could not be separately
charged under PD 1829, as this is absorbed in the charge of rebellion already filed
against Sen. Enrile. Thus: x x x the intent or motive is a decisive factor. If Senator
Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel
Honasan simply because the latter is a friend and former associate, the motive for the
act is completely different. But if the act is committed with political or social
motives that are in furtherance of rebellion, then it should be deemed to form
part of the crime of rebellion instead of being punished separately. (Sen. Juan
Ponce Enrile vs. Judge Omar Amin, GR No. 93335, 13 September 1990)
4. Safeguarding Constitutional rights is not obstruction of justice.
In a case involving the investigation of the death of student, Dennis
Venturina of Sigma Rho Fraternity, certain officials of the University of the
Philippines (UP) were charged for violating Section 1, par. C of PD 1829. The UP
officers objected to the warrantless arrest of the students, Taparan and Narag of
CRIMINAL LAW 3
Scintilla Juris Fraternity by NBI agents. According to the Supreme Court, the police
had no ground for the warrantless arrest. The UP Officers, therefore, had a right to
prevent the arrest of the students at the time because their attempted arrest was
illegal. The need to enforce the law cannot be justified by sacrificing
constitutional rights. (Roger Posadas vs. Ombudsman, G.R. No. 131492, 29 September 2000)
Comprehensive Dangerous Drugs Act of 2002 (RA No. 9165)
1. Acts punishable (13 acts).
A. IMPORTATION OF DANGEROUS DRUGS (Section 4)
1. Importation of any dangerous drug, regardless of the quantity and purity
involved, including any and all species of opium poppy or any part thereof or
substance derived therefrom even for floral, decorative and culinary
purposes; [unless authorized by law]
2. Importation of any controlled precursor and essential chemical; [regulatory
powers on importation of dangerous drugs and controlled precursor are transferred from
Dangerous Drugs Board (RA 6425) to PDEA under RA 9165]
3. Importation of any dangerous drug and/or controlled precursor and essential
chemical through the use of a diplomatic passport, diplomatic facilities or any
other means involving his/her official status intended to facilitate the unlawful
entry;
4. Organizing, managing or acting as a financier of [importer] or any of the
illegal activities penalized [under Section 4 of the law];
5. Acting as protector/coddler of any of the illegal activities penalized [under
Section 4 of the law].
B. SELLING DANGEROUS DRUGS (Section 5)
1. Sale, trading, administration, dispensation, distribution, and transportation of
any controlled precursor and essential chemical, or acting as broker in such
transaction;
2. Use by drug pushers of minors or mentally incapacitated individuals as
runners, couriers and messengers, or in any other capacity directly connected
to the trade of dangerous drugs and/or controlled precursor and chemicals;
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

3. Acting as a protector/coddler of [drug pusher] or any violator of [Section 5 of
the law].
The maximum penalty is imposed if selling is done within 100 meters from school.
C. MAINTENANCE OF DRUG DEN (Section 6)
1. Maintenance of a Den, Dive or Resort where any dangerous drug is used or
sold in any form;
2. Maintenance of a Den, Dive or Resort where any controlled precursors and
essential chemicals is used or sold in any form;
3. Acting as protector/coddler of a maintainer of a Den, Dive, or Resort.
Den proven to be where drugs or controlled precursor are used or sold can be shut down and
declared by the LGU as public nuisance and can be abated under the law (section 52, IRR)
D. WORKING AND VISITING DRUG DEN (Section 7)
Employees and visitors of the foregoing Den, Dive or Resort are penalized.
[Employees must be aware of the nature of the place. For non-employees, must knowingly visits
the place despite knowing its nature as a den.]
E. MANUFACTURE OF DANGEROUS DRUGS (Section 8)
1. Manufacture of Dangerous Drugs and/or controlled precursors and
essential chemicals;
2. Acting as protector/coddler of such manufacturer;
F. CHEMICAL DIVERSION (Section 9)
Illegal chemical diversion of controlled precursor and essential chemicals.
[Acts of repacking, labeling, re-labeling, or concealment of such transaction through fraud,
destruction of documents, fraudulent use of permits, mis-declaration, use of front companies or
mail fraud, are usually done by manufacturer or importer. Clandestine illegal drugs laboratories
are direct product of chemical diversion.]
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G. MANUFACTURE OR DELIVERY of equipment, instrument, apparatus, and
other paraphernalia for dangerous drugs and/or controlled precursor and
essential chemicals (Section 10);
H. POSSESSION OF DANGEROUS DRUGS (Section 11-14)
1. Possession of Drug (Section 11);
2. Possession of equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs (Section 12); [prima facie of evidence of use
under section 15]
3. Possession of dangerous drugs during parties, social gatherings or meetings
(Section 13); [at least gathering of two persons]
4. Possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs, during parties, social gathering or meetings (Section 14); [in
the proximate company of at least two persons]
I. USE of dangerous drugs (Section 15);
[Penalty for the first offense is minimum six (6) months rehabilitation to one year as recommended by
the Board; on the second offense, imprisonment. Under Sec. 58-59, a drug dependent who is not
rehabilitated or who escape from treatment and rehabilitation may be prosecuted under Section 15,
and suffer imprisonment, but credited with the number of days of rehabilitation/confinement]
J. CULTIVATION or CULTURE of plants classified as dangerous drugs or are
sources thereof (Section 16); [land used may be escheated in favor of the state]
K. MAINTENANCE AND KEEPING OF ORIGINAL RECORDS OF
TRANSACTION on dangerous drugs and/or controlled precursors and essential
chemicals (section 17); [Failure to maintain and keep records of transaction of regulated
drugs or controlled precursor entails additional penalty of revocation of license to practice profession,
in case of practitioner or of the business, in case of manufacturer, seller, importer, distributor, dealer
or retailer]
L. UNNECESSARY prescription AND UNLAWFUL prescription of dangerous
drugs (Sections 18-19); [In unnecessary, the offender is authorized to make prescription but he
made it to a person whose physical or psychological condition does not require such; hence the
penalty of revocation of license. In unlawful, the offender is not authorized to make prescriptions]
M. Conspiracy or attempt (Section 26) to commit the following unlawful acts:
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

1. Importation of any dangerous drugs and/or controlled precursor and essential
chemical (Section 4);
2. Sale, trading, administration, dispensation, delivery, distribution, and
transportation of any dangerous drug and/or controlled precursor and
essential chemical (Section 5);
3. Maintenance of a den, dive, or resort where dangerous drugs is used in any
form (Section 6);
4. Manufacture of any dangerous drug and/or controlled precursor and essential
chemical (Section 8); and
5. Cultivation or culture of plants which are sources of dangerous drugs (Section
16).
N. PLANTING OF EVIDENCE. Planting any dangerous drug and/or controlled
precursor and essential chemicals, regardless of quantity and purity, shall suffer
the penalty of death [now reclusion perpetua]. (Section 29 of RA No. 9165)
O. VIOLATING REGULATIONS issued by Dangerous Drugs Board. (Section 32)
[The Board is empowered to enact quasi-penal rules termed as REGULATIONS, violation of which
entails penalty of imprisonment of 6 months to 4 years]
P. Issuance of FALSE OR FRAUDULENT DRUG TEST result. (Section 37)
[Additional penalty of revocation of license to professional practitioner who are personnel of drug
testing centers or hospitals]
2. Elements of illegal possession of dangerous drugs.
a. appellants were in possession [actual or constructive] of an item or an object
identified to be a prohibited or regulated drug;
b. such possession is not authorized by law, and;
c. the appellants were freely and consciously aware of being in possession of the
drug. (Animus possidendi)
In this case, the evidence of the corpus delicti must be established beyond
reasonable doubt. (People vs. Paterno Lorenzo, G.R. No. 184760, 23 April 2010; People vs. Joel
Gaspar, G.R. No. 192816, 06 July 2011)
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The crime is malum prohibitum, hence, lack of criminal intent or good
faith does not exempt appellants from criminal liability. Mere possession of a
regulated drug without legal authority is punishable under the Dangerous Drugs Act.
(People vs. Tiu 405 SCRA 280, 01 July 2003)
3. Element in the sale of prohibited drugs; Elements for prosecution.
a. the identity of the buyer and the seller, the object and consideration; and
b. the delivery of the thing sold and payment therefor. (People vs. Arnel S. Clarite,
G.R. No. 187157, 15 February 2012)
In a prosecution for sale of illicit drugs, any of the following will not
exculpate the accused:
a. that facilities for the commission of the crime were intentionally placed in his
way; or
b. that the criminal act was done at the solicitation of the decoy or poseur-buyer
seeking to expose his criminal act; or
c. that the police authorities feigning complicity in the act were present and
apparently assisted in its commission. (People vs. Simpresueta M. Seraspe, G.R. No.
180919, 9 January 2013)
Note: Presentation of buy-bust money, not required; except when there
are material inconsistencies in the testimonies of the prosecution witness and the
non-presentation of the buy-bust money raise reasonable doubts about the
occurrence of a buy-bust operation. (People v. Balag-ey)
Presentation of a confidential informant, not always required; except
when the appellant vehemently denies selling prohibited drugs; and when there
are material inconsistencies in the testimonies of the arresting officers (People vs.
Zheng Bai Hui, GR No. 127580, 22 August 2000). However, where the informant is the
only eyewitness to the illegal transaction, his testimony is essential and
non-presentation of the informant is fatal to the prosecutions cause. Only
when the testimony of the informant is considered absolutely essential in
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

obtaining the conviction of the culprit should the need to protect his security be
disregarded. (People vs. Noel Bartolome y Bajo, G.R. No. 191726, 6 February 2013)
4. Mandatory procedure in the seizure and custody of drugs.
The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the:
a. accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel;
b. a representative from the media;
c. a representative from the Department of Justice (DOJ); and
d. any elected public official,
who shall be required to sign the copies of the inventory and be given a copy
thereof. (Section 21, par. 1, Article II of R.A. No. 9165; DOJ Circular No. 3, 19 January 2009)
Physical inventory is a document where the searching officers shall make
an [1] entry of the approximate quantity of the drugs and other items seized; the [2]
names and positions of witnesses; and the [2] person subject of the search. The
conduct of the physical inventory shall likewise be photographed.
Note: Chain of Custody Rule or the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment, from the time of seizure/confiscation until presentation in court for destruction
requires the "marking" of the seized items - to truly ensure that they are the same items
that enter the chain and are eventually the ones offered in evidence --- should be done [1] in
the presence of the apprehended violator [2] immediately upon confiscation. (Section
1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 ).
While testimony about a perfect chain is not always the standard because it is
almost always impossible to obtain; an unbroken chain of custody becomes
indispensable and essential [1] when the item of real evidence is not distinctive and is not
really identifiable, or [2] when its condition at the time of testing or trial is critical, or [3] when
a witness has failed to observe its uniqueness. The same standard likewise obtains in case the
evidence is susceptible to alteration, tampering, contamination and even substitution and
exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration
CRIMINAL LAW 6
or tampering - without regard to whether the same is advertent or otherwise not - dictates
the level of strictness in the application of the chain of custody rule. (Lopez vs. People,
G.R. 172953, 30 April 2008)
5. Venues of the physical inventory and photography of the seized items.
a. In seizures covered by search warrants, the physical inventory and
photograph must be conducted in the place where the search warrant
was served;
b. In case of warrantless seizures such as a buy- bust operation, the physical
inventory and photograph shall be conducted at the nearest police station
or office of the apprehending officer/team, whichever is practicable;
however, nothing prevents the apprehending officer/team from
immediately conducting the physical inventory and photography of the
items at the place where they were seized. ( People vs. Salvador Sanchez, GR No.
175832, 15 October 2008)
Comprehensive Firearms and Ammunition Law (RA 10591)
1. Prohibited Acts.
a. Unlawful acquisition or possession of firearms and ammunition (Section 28);
b. Use of Loose Firearm in the Commission of a Crime (Section 29);
c. Willfully or knowingly allowing any of the firearms owned by juridical entity to be used
by any person or persons found guilty of using loose firearm in the commission of the
crime (Section 30);
d. Willfully or knowingly allowing any employees/members of a juridical entity to use
unregistered firearm or firearms without any legal authority to be carried outside of their
residence in the course of their employment (Section 30);
e. Carrying firearms without permit to carry (PTCFOR). Any person who is licensed to
own a firearm but who shall carry the registered firearm outside his/her residence
without any legal authority shall be liable (Section 31);
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

f. Unlawfully engaging in the manufacture, importation, sale or disposition of a
firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool
or instrument used or intended to be used by the same person in the manufacture of a
firearm, ammunition, or a major part thereof (Section 32);
g. Engage or participating in arms smuggling (Section 33);
h. Tampering, obliterating or altering [of firearms identification] without authority
the barrel, slide, frame, receiver, cylinder, or bolt assembly, including the name of the
maker, model, or serial number of any firearm, OR replacing without authority the
barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or
peculiar identifying characteristics essential in forensic examination of a firearm or light
weapon (Section 34);
i. Use of imitation firearm in the commission of a crime [considered as real firearms]
(Section 35);
j. Violating the rule on Custodia Legis for seized firearms during the pendency of the
case (Section 36);
k. Willfully and maliciously inserting; placing, and/or attaching, directly or indirectly,
through any overt or covert act, any firearm, or ammunition, or parts thereof in the
person, house, effects, or in the immediate vicinity of an innocent individual for the
purpose of implicating or incriminating the person, or imputing the commission of any
violation of RA 10591 to said individual [Planting of evidence] (Section 37);
l. Failure to notify lost or stolen firearm or light weapon to PNP-FEO within 30 days
from discovery (Section 40);
m. Transferring possession of any firearm to any person who has not yet obtained or
secured the necessary license or permit [Illegal transfer of firearms] (Section 41);
n. Facilitating the registration of a firearm through fraud, deceit, misrepresentation or
submission of falsified documents committed by public officers [Illegal registration of
firearms] (Section 41, 3rd par.)
Note: Explosives under PD 1866, as amended by RA 8294:
a. Unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand
grenade(s), rifle grenade(s), and other explosives, including but not limited to
CRIMINAL LAW 7
'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of
producing destructive effect on contiguous objects or causing injury or death to any
person (Section 3 PD 1866);
b. Unlawfully repack, alter or modify the composition of any lawfully manufactured
explosives (Section 6, PD 1866)
2. New rules in possession and use of loose firearms.
a. The use of a loose firearm, when inherent in the commission of a crime
punishable under the Revised Penal Code or other special laws, shall be
considered as an aggravating circumstance.
b. If the crime committed with the use of a loose firearm is penalized by
the law with a maximum penalty which is lower than that prescribed in the
preceding section for illegal possession of firearm, the penalty for illegal
possession of firearm shall be imposed in lieu of the penalty for the crime
charged
c. If the crime committed with the use of a loose firearm is penalized by
the law with a maximum penalty which is equal to that imposed under the
preceding section for illegal possession of firearms, the penalty of prision mayor
in its minimum period shall be imposed in addition to the penalty for the crime
punishable under the Revised Penal Code or other special laws of which he/she
is found guilty.
d. If the use of loose firearm is in furtherance of, or incident to, or in connection
with the crime of rebellion of insurrection, or attempted coup d etat,
such violation shall be absorbed as an element of the crime of rebellion or
insurrection, or attempted coup d etat.
e. If the crime is committed by the person without using the loose firearm,
such possession of loose firearm shall be considered as a distinct and separate
offense.
3. Illegal Possession; Elements.
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law
 CRIMINAL LAW 8

a. The existence of the subject firearm; a. That there is an actual taking of the vehicle;
b. The fact that the accused who owned or possessed it does not have the b. That the offender intends to gain from the taking of the vehicle;
license or permit to possess the same. (People vs. Castillo, GR 131592-93, 15 c. That the vehicle belongs to a person other than the offender himself;
February 2000) d. That the taking is without the consent of the owner thereof; or the taking
was committed by means of violence against or intimidation of persons, or by
Note: The essence of the crime of illegal possession is the possession, whether using force upon things. (People vs. Garcia; GR No. 138470, 01 April 2003)
actual or constructive, of the subject firearm, without which there can be no
conviction for illegal possession. 3. Qualified carnapping.

In People vs. Narvasa, the Court ruled that the firearm itself may not be It becomes qualified when in the course of the commission or on
presented as evidence. Its existence can be established by testimony. (People vs. occasion of the carnapping, the owner, driver or occupant of the carnapped
Feliscimo Narvasa, et.al., GR No. 128618, 16 November 1998 citing People vs. Arsenio Ferrera, GR L- vehicle is killed or raped.
66965, 18 June 1987)
Penalty: Reclusion perpetua to death. (People vs. Lobitania, GR No. 142380, 05 September 2002)
Ownership is not essential element of illegal possession of firearms
and ammunition. What the law requires is merely possession which includes not only
Anti-Alias Law (CA No. 142), as amended by RA No. 6085
actual possession but also constructive possession of the subjection of the thing to
ones control and management. (People vs. Reynaldo Cruz, GR No. 76728, 03 August 1988)
1. Alias defined.
4. Loose firearm; defined.
An Alias is name or names by a person used by a person or intended to be
a. unregistered firearm; used by him publicly and habitually usually in business transactions in addition to
b. an obliterated or altered firearm; his real name by which he is registered at birth or baptized the first time or substitute
c. firearm which has been lost or stolen; name authorized by a competent authority.
d. Illegally manufactured firearms;
A mans name is simply the sound or sounds by which he is commonly
e. Registered firearms in the possession of an individual other than the licensee; designated by his fellows and by which they distinguish him but sometimes a man
f. Those with revoked licenses in accordance with the rules and regulations.
is known by several different names and these are known as aliases. ( Cesario Ursua vs.
Court of Appeals, G.R. No. 112170, 10 April 1996)
Anti-Carnapping Law (R.A. No. 6539)
There must be a sign or indication that the user intends to be known by
1. Carnapping is the taking, with intent to gain, of a motor vehicle belonging to this name (the alias) in addition to his real name from that day forth for the
another without the latters consent, or by means of violence against or intimidation use of alias to fall within the prohibition contained in C.A. No. 142 as amended.
of persons, or by using force upon things. (Izon vs. People, GR No. L-51370, 31 August 1981) (People vs. Estrada, G.R. Nos. 164368-69, 2 April 2009)

2. Elements of Carnapping. 2. Instances when a second name can be used.

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

 CRIMINAL LAW 9

a. As pseudonym solely for literary, cinema television, radio or other
entertainment purposes and in athletic events where the use of pseudonym is
a normally accepted practice;
b. When the use of the second name or alias is judicially authorized and
duly recorded in the proper local civil registry;
c. The use of a fictitious name or a different name belonging to a single
person in a single instance without any sign or indication that the user
intends to be known by this name in addition to his real name from that day
forth. (Cesario Ursua vs. CA, ibid.)
Note: No person having been baptized with a name different from that with which he was registered at
birth in the local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or
any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent
himself in any public or private transaction or shall sign or execute any public or private
document without stating or affixing his real or original name and all names or aliases or
pseudonym he is or may have been authorized to use. (Section 3)
5. Use of alias publicly is essential.
In order to be held liable for a violation of CA No. 142, the user of the alias
must have held himself out as a person who shall publicly be known under that other
name. x x x the use of the alias, to be considered public, must be made
openly, or in an open manner or place, or to cause it to become generally
known.
guaranteed privacy and secrecy effectively negate a conclusion that the transaction
was done publicly or with the intent to use the alias publicly (People vs. Estrada, ibid.).
Access Devices Regulation Act (RA No. 8484)
1. Access device - Any card, plate, code, account number, electronic serial number,
personal identification number, or other telecommunication service, equipment, or
instrumental identifier, or other means of account access that can be used to
obtain money, good, service or any other thing of value or to initiate
transfer of funds (other than transfer originated solely by paper instrument).
3. Purpose of the law.
The law seeks to address the issue of fraud in the issuance and use
of access devices, especially credit cards to protect the rights and define the
liabilities of parties in such commercial transactions by regulating its issuance and
use. (Section 2)
Fraud may be committed by:
a. The issuer by making false or vague information in the application or
solicitation to open credit card accounts;
b. The applicant or holder by fraudulently misrepresents himself by giving
wrong identity, false profession or employment, or bloated income.

It follows that the use of alias in private or confidential transactions is 4. Credit Card application and solicitation requirement; Disclosure.
not violation of the law as held by SC in the case of Estrada: x x x We have
consistently ruled that bank deposits under R.A. No. 1405 (the Secrecy of Bank An access device issuers or card issuers are required to disclose either in
Deposits Law) are statutorily protected or recognized zones of privacy. Given the writing or orally in any application or solicitation to open a credit card
private nature of Estradas act of signing the documents as Jose Velarde account, the following:
related to the opening of the trust account, the People cannot claim that
there was already a public use of alias when Ocampo and Curato witnessed the a. Annual percentage rate;
signing. We need not even consider here the impact of the obligations imposed by b. Annual and other fees;
R.A. No.1405 on the bank officers; what is essentially significant is the privacy c. Balance calculation method;
situation that is necessarily implied in these kinds of transactions. This statutorily d. Cash advance fee; and
e. Over the limit fee. (Section 4)

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

 CRIMINAL LAW 10

6. Rule in case of loss access device.

As an exception, the disclosure requirement may not be applied when
the solicitation or application is made trough telephone, provided: The holder must notify the issuer of the access device of the details and
circumstances of such loss upon knowledge of the loss. Full compliance with such
a. No annual or periodic fee is imposed; procedure would absolve the access device holder of any financial liability from
b. No telephone solicitation fee, unless the consumer signifies acceptance by fraudulent use of the access device from the time the loss or theft is reported to the
using the card; issuer. (Ermitano vs. C.A., G.R. No. 127246, 21 April 1999; Section 15 RA 8484)
c. Disclosure of information required in writing within 30 days;
d. Consumer is informed of no obligation to accept the card or account, unless Hazing Regulation Act (RA No. 8049)
the latter accept by using the card. (Section 6)
1. Hazing defined; exception.
In sum, the above omission is made punishable if the following elements
occur:
An initiation rite or practice as a prerequisite for admission into membership
in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in
a. there is an application or solicitation;
some embarrassing or humiliating situations such as forcing him/her to do menial,
b. such application or solicitation should include the information required by RA
silly, foolish and similar tasks or activities or otherwise subjecting him/her to physical
8484; and
or psychological suffering or injury.
c. failure on the part of the issuer to disclose such information.
The physical, mental and psychological testing and training
Failure on the part of the issuer to fulfill the disclosure requirement will
procedure and practices to determine and enhance the physical, mental
result in [1] suspension or [2] cancellation of its authority to issue credit and psychological fitness of prospective regular members of the Armed Forces of
cards, after due notice and hearing, by BSP, the SEC and such other government
the Philippines and the Philippine National Police as approved by the secretary of
agencies. (Section 8)
National Defense and the National Police Commission duly recommended by the Chief
of Staff, Armed Forces of the Philippines and the Director General of the Philippine
5. Prohibited act of access device holder.
National Police shall not be considered as hazing [for purposes of this act].
An access device holder may be penalized when he/she fraudulently
2. Who are liable.
applied for such device. An access device fraudulently applied by means of any
access device that was applied for or issued on account of the use of falsified
a. The officers and members of the fraternity, sorority or organization who
document, false information, fictitious identities and addresses, or any form of false
actually participated in the infliction of physical harm shall be liable as principals;
pretense or misrepresentation. In this act element of fraud is indispensible. b. Other person who actually participated in the hazing;
c. The owner of the place where the hazing is conducted shall be liable as an
Thus, the [1] use, [2] trafficking in, [3] possession, and [4] inducing, enticing accomplice, when he/she has actual knowledge of the hazing conducted therein
or in any manner allowing one to use access device fraudulently applied for are
but failed to take any action to prevent the same from occurring;
considered unlawful.
d. If the hazing is held in the home of one of the officers of members of the
fraternity, sorority, group, or organization, the parent shall be held liable as

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

 CRIMINAL LAW 11

principals when they have actual knowledge of the hazing conducted therein but The commission by any person of an act punishable under any of
failed to take any action to prevent the same from occurring; the following provisions of the Revised Penal Code:
e. The school authorities including faculty members who consent to the
hazing or who have actual knowledge thereof, but failed to take any action to i. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine
prevent the same from occurring shall be punished as accomplices for the acts Waters);
of hazing committed by the perpetrators; ii. Article 134 (Rebellion or Insurrection);
f. The officers, former officers or alumni of the organization, group, fraternity iii. Article 134-a (Coup dtat), including acts committed by private persons;
or sorority who actually planned the hazing although not present when the acts iv. Article 248 (Murder);
constituting the hazing were committed shall be liable as principals; v. Article 267 (Kidnapping and Serious Illegal Detention);
g. Officers or members of an organization, group, fraternity or sororitys vi. Article 324 (Crimes Involving Destruction),
adviser who is present when the acts constituting the hazing were committed
and failed to take any action to prevent the same from occurring shall be liable or under
as a principal.
i. Presidential Decree No. 1613 (The Law on Arson);
3. Written notice required before the conduct of hazing. ii. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control
Act of 1990);
No-hazing or initiation rites in any from or manner by a fraternity, sorority or iii. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
organization shall be allowed without prior written notice to the school authorities or iv. Republic Act No. 6235 (Anti-Hijacking Law);
head of organization seven (7) days before the conduct of such initiations . v. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974);
and,
The written notice shall indicate: vi. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal
and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms,
a. the period of the initiation activities which shall not exceed three (3) days; Ammunitions or Explosives),
b. the names of those to be subjected to such activities;
c. an undertaking that no physical violence be employed by anybody during such thereby sowing and creating a condition of widespread and extraordinary
initiation rites. (Section 2) fear and panic among the populace, in order to coerce the government to
give in to an unlawful demand. (Southern Hemisphere Engagement network Inc., et.al. vs.
Note: The head of the school or organization or their representatives must assign at least 2 Anti-Terrorism Council, G.R. No. 178552, 05 October 2010)
representatives of the school or organization, as the case may be, to be present during the
initiation to see to it that no physical harm of any kind shall be inflicted upon a recruit, Note: The law punishes conspiracy to commit terrorism. The basic principle in
neophyte or applicant. (Section 3) conspiracy is that the act of one is the act of all.

Human Security Act of 2007 (RA No. 9372) 2. Elements of the crime of terrorism.

1. Terrorism defined. (Section 3) a. The commission of one or more of the crimes specified [in Section 3];

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law


b. That sows and creates a condition of widespread and extraordinary
fear and panic among the populace;
c. For the purpose of coercing the government to give in to an unlawful demand.
Note: Penalty for the crimes of terrorism and conspiracy to commit terrorism.
a. The penalty for the crime of terrorism is 40 years of imprisonment without benefit
of parole. [Note: This is a new penalty not recognized by the Revised Penal Code.];
b. The penalty for conspiracy to commit terrorism is also 40 years of imprisonment
without the benefit of parole.
c. The penalty for accomplices is 17 years, 4 months and 1 day to 20 years of
imprisonment.
d. The penalty for accessories is 10 years and 1 day to 12 years of imprisonment.
3. Exception to the anti-wiretapping law.
The government can place suspects under surveillance, or tap into their
private conversations and communications, if authorized by the authorizing
division of the Court of Appeals.
Penalty: Imprisonment of between 10 years and 1 day to 12 years. (Section 7)
The subject of surveillance or wiretapping will only be informed of the
surveillance or wiretapping if no case is filed against him or her. If the applicant fails
to notify the subject of surveillance or wiretapping in writing within 30 days from the
expiration of the operation, he or she shall be punished with imprisonment of
between 10 years and 1 day to 12 years.
4. Government may examine bank deposits and finances, and seize,
sequesters or freeze assets of persons suspected or charged if authorized
by CA
Note: Any person who knowingly furnishes false testimony, forged document or
spurious evidence in any investigation or hearing under the law. (Section 47, RA 9372)
Anti-Graft and Corrupt Practices Act (R.A. No. 3019)
CRIMINAL LAW 12
1. Graft and corrupt acts or practices. (Section 3)
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 party, 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;
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;
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

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. Directly or indirectly having financial 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.
Note: A public officer [as well as a private person in conspiracy] may be charged for violation
of RA 3019 in addition to a felony under the RPC for the same delinquent act, subsequently or
simultaneously. (Section 3, par.1)
The same act constitute violations of Section 7[b] of RA 6713, under the first
[1st] paragraph which is accepting employment in a private enterprise and the third [3rd]
paragraph which is recommending other person(relative) for employment in a private
enterprise.
CRIMINAL LAW 13
2. Elements of Section 3 [e]; proof of the following facts.
A. Two ways to commit violation of Sec. 3[e].
In catena of cases, the Supreme Court has held that there are two (2) ways
by which a public official violates section 3(e) of R.A. 3019 in the performance of
his functions, namely:
a. By causing undue injury to any party, including the government;
b. By giving any private party any unwarranted benefits, advantage or
preference. (Catindig v. People, GR 183141, 18 September 2009)
By mode of commission, it may be committed either:
a. By dolo, as when the accused acted with evident bad faith or manifest
partiality, or
b. By culpa, as when the accused committed gross inexcusable negligence.
(Jovito C. Plameras v. People, G.R. No. 187268, 4 September 2013)
Thus, the essential elements of section 3[e] are as follows:
a. The accused must be a public officer discharging administrative, judicial or
official functions;
b. He must acted with [1] manifest partiality, [2] evident bad faith OR [3]
gross inexcusable negligence; and
c. His action [1] caused any undue injury to any party, including the
government, OR [2] gave any private party unwarranted benefits, advantage
or preference in the discharge of his functions. ( Dr. Roger Posadas and Dr. Rolando
Dayco v. Sandiganbayan, G.R. Nos. 168951& 169000, 17 July 2013)
In the first mode, the undue injury to private complainant [or to the
Government] must be established. In Antonio Sanchez case, the SC ruled that the failure of
the petitioner, as the city engineer of Cebu, to validate the ownership of the land on which the
canal was to be built because of his unfounded belief that it was public land constitutes gross
inexcusable negligence which caused damage to private complainant. As a result, complainant
lost income from the sale of the palm leaves when the tree was cut and she also lost control
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

and use of a part of her land occupied by the constructed canal therein. (Antonio B. Sanchez v.
People, G.R. No. 187340, 14 August 2013)
To be found guilty under the second mode, it suffices that the accused has given
unjustified favor or benefit to another, in the exercise of his official, administrative and judicial
functions. The element of damage is not required for violation of section 3(e) under
the second mode. (Isabelo A. Braza v. Sandiganbayan [1st Division], GR 195032, 20 February 2013)
B. Violation of Section 3(e) includes all public officers including those that do not
issue license, permit or concession. (Buencamino Cruz v. Sandiganbayan, et.al. citing
Mejorada doctrine, GR 134493, 16 August 2005)
In the case of Mejorada the High Court ruled, thus:
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. (Arturo Mejorada v. Sandiganbayan, GR L-51065-72, 30 June 1987)
3. Elements of Section 3 [g].
a. The offender is a public officer;
b. Who enters into a contract or transaction on behalf of the government;
c. The contract or transaction is grossly and manifestly disadvantageous
to the government. (Ofelia Caunan vs. People, et al. /Joey Marquez v.
Sandiganbayan, et al. GR 181999 &182001-04/182020-24, 2 September 2009)
Note: The existence of the contract or transaction must be proved. When the contract
subject of the complaint was already rescinded when the complaint was filed, there is no
longer any contract to speak of. The contract after rescission became in contemplation of law,
non-existent, as if no contract was ever executed. (Duterte v. Sandiganbayan, GR 130191, 27 April
1998)
4. Preventive suspension (Section 13)
A. Purposes of preventive suspension.
CRIMINAL LAW 14
1. To preserve the integrity of the prosecution of the accused public officer;
2. Prevent the accused public officer from intimidating or influencing witnesses
or tampering with documentary evidence;
3. To avoid further acts of malfeasance in the office (Gov. Antonio M. Bolastig v.
Sandiganbayan, GR 110503, 4 August 1994)
B. Preventive suspension of accused public officer is mandatory, but not automatic;
courts are allowed to determine the validity of the information.
It is settled that once a court determines that the information charging a
public officer with an offense under [1] RA No. 3019 or [2] Title 7, Book II of the
Revised Penal Code, or any [3] other offense involving fraud upon
government or public funds or property is valid, it is bound to issue an order of
preventive suspension of the accused public officer as a matter of course.
The order of suspension pendente lite, while mandatory in nature, is
by no means automatic or self-operative, before such suspension is imposed, a
determination as to the validity of the information must first be made in a pre-
suspension hearing. There is no hard and fast rule as to the conduct of such
hearing. (Bustillo vs. Sandiganbayan; 496 SCRA 321, 07 April 2006)
The purpose of a 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 and dismiss the case, or correct any part of the proceedings which
impairs its validity (Segovia v. Sandiganbayan, ibid).
C. The maximum period of preventive suspension is ninety (90) days. As
held in the case of Bolastig vs. Sandiganbayan.
However, preventive suspension of local elective officials shall only
be for sixty (60) days. (Rios vs. Sandiganbayan, GR No. 129913, 26 September 1997)
Note: In the event that several administrative cases are filed against an elective official, he
cannot be preventively suspended for more than ninety (90) days within a single year on the
same ground or grounds existing and known at the time of the first suspension. (Section 63[b],
LGC)
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

D. Previous administrative suspension is not a bar for a preventive
suspension under a criminal proceedings. (Villasenor, et.al. v. Sandiganbayan, GR
180700, 4 March 2008)
E. Approve Leave of Absence not a bar to preventive suspension. (Quintin
Doromal vs. Sandiganbayan, GR 85468; 7 September 1989)
5. The act of refunding the amount subject of the prosecution does not
absolve the offender from criminal liability. (Cruz vs. Sandiganbayan, GR No. 134493,
16 August 2005, 467 SCRA 52)
6. Statements of assets; other disclosures, and Divestment [RA 6713].
The Code of Conduct and Ethical Standards for Public Officials and
Employees, in more detailed manner, requires filing of [1] Statement of Assets,
Liabilities and Net worth (SALN); and [2] Disclosure of Business Interest and
Financial Connections:
a. Within 30 days after assumption of office;
b. On or before April 30 of every year, thereafter;
c. Within 30 days after separation from service (Section 8).
Moreover, public officers should [1] resign from his position in a private
enterprise, within 30 days from assumption of office or [2] divest from his
interest therein, within 60 days, whenever conflict of interest arises (Section 9).
Persons who serve the Government in [1] honorary capacity, [2]
laborers and [3] casual or temporary workers ARE NOT REQUIRED. (Exempt
from filing SALN, Disclosure and Divestment)
Note:
a.
A public officer who willfully [not by mistake] made false or untruthful statements on
any matter required to be stated or declared [therein] under oath, can be charged with
PERJURY under Article 183, RPC.
b.
CRIMINAL LAW 15
Anti-Plunder Law (R.A. No. 7080 as amended by RA 7659) RA 9346
1. Crime of Plunder.
Is the act of amassing, accumulating or acquiring ill-gotten wealth
through a combination or series of overt or criminal acts [as described in Section 1(d) of the
law],in the aggregate amount or total value of at least fifty million pesos
(P50,000,000.00)
Note:
Combination refers to at least 2 acts falling under different categories of
enumeration (e.g. Raid on public treasury and fraudulent conveyance of assets belonging to the national
government).
Series requires that there must be two or more overt or criminal acts falling under
the same category of enumeration (e.g. Misappropriation, malversation and raid on public treasury).
Pattern consist of at least a combination of series of overt or criminal acts directed
towards a common purpose or goal which is to enable the public officer to amass, accumulate
or acquire ill-gotten wealth (Estrada v. Sandiganbayan, GR No. 148560, 19 November 2001).
2. Who commit the Crime of Plunder; penalties
Any public officer who, by [1] himself or in connivance with members of his
[2] family, [3] relatives by affinity or consanguinity, [4] business associates, [5]
subordinates or [6] other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts [as described in
Section 1(d) of the law] (Definition of Ill-gotten Wealth), in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00).
3. Elements of the crime of plunder.
The offender is public officer acting by himself or in connivance with
members of his family, relatives by consanguinity or affinity, business associates,
subordinate or other persons;
The offender amasses, accumulates or acquires ill-gotten wealth;
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

c. The aggregate amount or total value of the ill-gotten wealth must be at least
fifty million;
d. Such ill-gotten wealth was acquired by the offender directly or indirectly
through dummies, nominees, agents, subordinates and/or business associates by
any combination or series of the means or similar schemes provided in Section
1[d], sub-pars. [1] to [6];
4. Ill-gotten wealth defined (Section 1[d]).
Ill-gotten wealth means any asset, property, business enterprise or material
possession of any person [within the purview of Section Two (2) of the law], acquired by him
directly or indirectly through dummies, nominees, agents, subordinates and/or
business associates by any combination or series of the following means or similar
schemes:
a. Through misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury; [misappropriating public funds]
b. By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned; [receiving kickbacks in connection with a
government contract]
c. By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or -controlled corporations and their subsidiaries; [illegal
conveyance or disposition of government assets]
d. By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including promise of future
employment in any business enterprise or undertaking; [ getting shares of stock,
equity or a promise of future employment in a business undertaking]
e. By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
CRIMINAL LAW 16
particular persons or special interests; [establishing agricultural, industrial or
commercial monopolies] or
f. By taking undue advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines. [Using his
position to enrich himself at the expense of the Filipino People]
Note:
The foregoing acts or schemes to acquire ill-gotten wealth are only predicate
acts of the crime of plunder and detailed allegations of such schemes in the
information, which can also be violations of the RPC and other special penal law,
should not be understood as allegations charging separate criminal offenses
independent of the crime of plunder. (Serapio v. Sandiganbayan, et.al., GR 148468, 28 January
2003)
Anti-Money Laundering Act of 2001 (R.A. No. 9160, as amended)
1. Money Laundering, defined.
Money laundering is a crime whereby the proceeds of an unlawful activity as
[defined in the law] are transacted, thereby making them appear to have originated
from legitimate sources. (Section 4)
Note: The original AMLA, Republic Act (R.A.) No. 9160, was passed in 2001 and was amended
by:
1. R.A. No. 9194 which took effect on 23 March 2003
2. R.A. No. 10167 (amending sec. 10 and 11) which took effect on 6 July 2012
3. R.A. No. 10365 which took effect on 19 April 2013. This amendatory law:
a. expanded the definition of the crime of money laundering;
b. [Included some Designated Non-financial Businesses and Professions (DNFBPs) as
covered persons;]
c. [Increased the predicate crimes (unlawful activities) to money laundering;]
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

d. [Granted AMLC the authority to require the Land Registration Authority and all its
Register of Deeds to submit real estate transactions in excess of Php500,000.00 and
related documents;]
e. [Revised freezing mechanism;]
f. Introduced forfeiture of equal value to that of the proceeds of an unlawful activity;
g. Imposed monetary and criminal penalty on covered persons, its directors, officers or
personnel who knowingly participate in the commission of money laundering;
h. Prohibited discrimination in the implementation of the law; and
i. Prohibited intervention in the Bureau of Internal Revenue affairs.
2. Modes of committing the crime of money laundering, committed by any
person.
a. transacts said monetary instrument or property;
b. converts, transfers, disposes of, moves, acquires, possesses or uses said
monetary instrument or property;
c. conceals or disguises the true nature, source, location, disposition,
movement or ownership of or rights with respect to said monetary instrument
or property;
d. attempts or conspires to commit money laundering offenses referred to
in paragraphs (a), (b) or (c);
e. aids, abets, assists in or counsels the commission of the money
laundering offenses referred to in paragraphs (a), (b) or (c) above; and
f. Performs or fails to perform any act as a result of which he facilitates the
offense of money laundering referred to in paragraph (a), (b) or (c) above.
g. Money laundering is also committed by any covered person who, knowing that
a covered or suspicious transaction is required under this Act to be reported
to the Anti-Money Laundering Council (AMLC), fails to do so.
Note: [ ] Items (b), (c), (d), and (e) are new additions to the law. (Section 4, RA 10365)
3. Covered transaction, defined.
It is a transaction in cash or other equivalent monetary instrument involving a
total amount in excess of Five hundred thousand pesos (PhP 500,000.00) within
one (1) banking day. (Section 1, RA 9194)
CRIMINAL LAW 17
4. Suspicious transactions (Section 2, RA 9194)
5. Unlawful activity (Section 3, RA 9194)
6. Other prohibited acts.
a. Malicious reporting.
It is the reporting or filing completely unwarranted or false
information relative to money laundering transaction against any person,
done with malice or in bad faith.
The offender here is not entitled to probation. (Section 14[c], RA 9160, as
amended by Section 9, RA 9194).
b. Breach of confidentiality.
In reporting covered and suspicious transactions to the AMLC,
covered persons/institutions and their officers, employees, and/or
representatives shall not be deemed to have violated RA 1405 ( Bank Secrecy
Law), RA 6426 (Foreign Currency Deposit Act), RA 8791 (General Banking Law of
2000) and other similar law, but prohibited to communicate any
information relative thereto to any other person. The publisher,
reporter or writer shall be criminally liable if such information was made
through media. (Section 14[d], RA 9160, as amended by Section 9, RA 9194)
Covered persons as well as their officers and employers are
prohibited from communicating to any person or entity including
the media the transactions has been reported or about to be reported
to the AMLC. (Section 7 amending section 9, RA 10365)
Note: Covered persons shall exclude lawyers and accountants acting as independent legal
professionals in relation to information concerning their clients or where disclosure of
information would compromise client confidences or the attorney-client relationship. (Section 1
amending Sec. 3[a], RA 10365)
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

9. Provisional remedies in the enforcement of the AMLA.
a. Freeze order.
It is aimed at preserving monetary instruments or property in any way
deemed related to unlawful activities as defined in the AMLA. The owner of such
monetary instruments or property would thus be inhibited from utilizing the same for
the duration of the freeze order. To make such freeze order anteceded by a judicial
proceeding with notice to the account holder would allow for or lead to the
dissipation of such funds even before the order could be issued.
This provisional remedy may be done ex parte, without notice and hearing
before the Court of Appeals. The freeze order shall be effective immediately and the
period of the freeze order is dependent on the circumstances of the case,
but shall not exceed 6 months. If no case is filed against the owner of the asset
frozen within the period determined by the court, the freeze order shall be deemed
ipso facto lifted. In any case, the CA should act on the petition to freeze within 24
hours. (Section 6 amending sec. 7, RA 10365)
The power of the AMLC to apply for a freeze order before the Court of
Appeals now includes monetary instruments or properties alleged to be
laundered as well as instrumentalities used in or intended for use in any unlawful
activity. (RA 10365)
b. Bank inquiry order.
The AMLC may inquire into or examine any particular deposit or investment
with any banking institution or non-bank financial institution upon order of any
competent court in cases of violation of this Act, when it has been established that
there is probable cause that the deposits or investments are related to an unlawful
activities as defined in Sec. 3(I) of the law or a money laundering offense under [Sec.
4.]
This provisional remedy cannot be done without notice and hearing,
except that no court order shall be required in cases involving unlawful activities
defined in Sections 3(I)1, (2) and (12). (Section 8, RA 9194)
CRIMINAL LAW 18
Further, to ensure compliance with the law, the Bangko Sentral ng Pilipinas
may inquire into or examine any deposit or investment with any banking institution or
non-bank financial institution when the examination is made in the course of a
periodic or special examination, in accordance with the rules of examination of the
BSP. (As an exception to the Bank Secrecy Law)
The authority to inquire into or examine the main account and the
related accounts shall comply with the requirements of Article III, Sections
2 and 3 of the 1987 Constitution. [Section 21, RA 10365] (Republic of the Philippines vs.
Eugenio, G.R. No. 174629, 14 February 2008)
10. Prohibition against Political Harassment - No case for money laundering
may be filed against and no assets shall be frozen, attached or forfeited to the
prejudice of a candidate for an electoral office during an election period. (Section
16, RA 9160)
11. Non-intervention in BIR affairs Nothing in the law nor in related
antecedent laws or existing agreements shall be construed to allow the AMLC to
participate in any manner in the operations of the BIR. (Section 20, RA 10365)
Law on Secrecy of Bank Deposits (R.A. No. 1405)
1. Coverage. It covers all deposits in whatever nature in banks or banking
institutions in the Philippines including investments bonds issued by the
Government, and its political subdivisions and instrumentalities. (Section 2)
3. Prohibited Acts.
a. To examined, inquired, or looked into any bank deposits and/or
investment bonds committed by any person, government official or
employee; (Section 2)
b. To disclose to any person information about a bank deposit or
investment bonds committed by any official or employee of banking
institution. (Section 3)
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

Penalty: Imprisonment of not more than five (5) years or a fine note exceeding twenty
thousand pesos, or both, at the discretion of the court.
4. Four exceptions to Bank Secrecy Law.
a. When there is a written permission of the depositor;
b. In cases of impeachment; or
c. When there is court order in cases of bribery or dereliction of duty; or
d. When the money deposited or invested is the subject matter of litigation.
Other exemptions:
a. When there is a court order in cases of plunder.
In the case of Jingoy Estrada v. Sandiganbayan the SC expanded the
application of exemption under the law to plunder case. In this case where
Petitioner Ejercito questioned the examination of his [trust and savings] bank
accounts; hence, he move to quash the subpoena duces tecum. The SC ruled
that such accounts are no longer protected by RA 1405, there being two
exceptions to the said law applicable to his case, namely: [1] in cases of bribery
or dereliction of duty and [2] in cases where account is subject matter of
litigation. The exception applies because the plunder case against
President Estrada is analogous to bribery or dereliction of duty and
because the money deposited in petitioners account is said to form
part of the subject matter of the same plunder case against his father.
(Jose Ejercito v. Sandiganbayan, GR 157294-95, 30 November 2006)
b. In cases filed against unexplained wealth.
Cases of unexplained wealth under Section 8 of RA 3019 can
be considered as another exemption. The said law provides that in cases
of unexplained wealth bank deposits shall be taken into consideration,
notwithstanding any provision of the law to the contrary.
c. In cases of reporting of covered transaction to the AMLC under RA 9160.
CRIMINAL LAW 19
Reporting covered transactions to the AMLC, covered institutions and
their officers, employees, and/or representatives shall not be deemed to
have violated RA 1405 (Bank Secrecy Law), RA 6426 (Foreign Currency Deposit Act),
RA 8791 (General Banking Law of 2000) and other similar law, but prohibited to
communicate it to any other person. (Section 9[c])
5. Secrecy of foreign currency deposits under RA 6426; exception.
All foreign currency deposits are considered of an absolutely
confidential nature. In no instance shall foreign currency deposits be examined,
inquired or looked into by any person, government official, bureau or office whether
judicial or administrative or legislative, or any other entity whether public or private,
except [only] upon the written permission of the depositor. (Section 8, RA No.
6426 - Foreign Currency Deposit Act)
Foreign currency deposits shall be exempt from attachment,
garnishment, or any other order or process of any court, legislative body,
government agency or any administrative body whatsoever. (Section 8, R.A. No. 6426,
as amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977)
Note:
Reading of the provision of the law [RA 6426], it provides two protection for depositors:
[1] foreign currency deposits cannot be examined, inquired or looked into by any person,
government official, bureau or office whether judicial or administrative or legislative, or any
other entity whether public or private, and [2] it is exempt from attachment,
garnishment, or any other order or process of any court, legislative body, government
agency or any administrative body.
Penalty: Imprisonment of not less than one year nor more than five years or a fine of not less
than five thousand pesos nor more than twenty-five thousand pesos, or both such fine and
imprisonment at the discretion of the court. (Section 10, RA No. 6426, as amended)
Anti-Torture Act of 2009 (RA No. 9745)
1. Coverage. The law punishes [1] torture and [2] other cruel, inhuman, and
degrading punishment or suffering under any circumstance, committed by
person in authority or agent of person in authority. (Section 2)
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

It also prohibits [1] secret detention places, [2] solitary confinement, [3]
incommunicado, and [4] other similar form of detention where torture may be carried
out with impunity. (Section 7)
Note: One of the most important elements of the offense is that the victim is under custodial
investigation. (See section 12 par.2, Article III of the 1987 Constitution)
2. Torture defined.
Torture is the intentional infliction of pain or suffering, whether physical,
psychological or mental, committed by a person in authority or agent of a
person in authority, or at the latters instigation or acquiescence.
Torture refers to:
1. An ACT by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person [except, pain or suffering arising only from,
inherent in or incidental to lawful sanctions];
2. for PURPOSES of:
a. obtaining from the victim information or a confession;
b. punishing for an act the victim or a third person has committed or is
suspected of having committed; or
c. intimidating or coercing the victim or a third person; or
d. for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a person in authority or agent of a person in authority
3. The pain or suffering is inflicted by a PERSON IN AUTHORITY OR AGENT
OF A PERSON IN AUTHORITY or it was made at the [1] instigation of or
with the [2] consent or acquiescence of the latter. ( Section 3[a])
Note: Other Cruel, Inhuman And Degrading Treatment Or Punishment (OCIDTOP) refers to
a deliberate and aggravated treatment or punishment not enumerated as acts of
torture [under section 4], inflicted by a person in authority or agent of a person in authority
CRIMINAL LAW 20
against a person under his custody, which attains a level of severity causing suffering, gross
humiliation or debasement to the latter. (Section 3[b])
The assessment of the level of severity shall depend on all the
circumstances of the case, including the duration of the treatment or punishment, its
physical and mental effects and, in some cases, the sex, religion, age and state of health of the
victim. (Section 5)
3. Forms of torture.
1. Physical torture. - It is a form of treatment or punishment inflicted by a
person in authority or agent of a person in authority upon another in his/her
custody that causes severe pain, exhaustion, disability or dysfunction of one
or more parts of the body. (Section 4[a])
2. Psychological or mental torture. - It is an act committed by a person in
authority or agent of a person in authority which are calculated to affect or
confuse the mind and/or undermine a person's dignity and morale. (Section
4[b])
Note: The doctrine of fruit of the poisonous tree does not apply to perpetrator of torture.
Any confession, admission or statement obtained as a result of torture shall not be invoked as
evidence in any proceedings, EXCEPT against a person accused of torture as evidence that
said confession, admission or statement was made. (Section 7)
The Doctrine of Command Responsibility makes the immediate commanding
officer or senior public official liable to the crime of torture or OCIDTOP for any act or
omission, or negligence committed that led, assisted, abetted or allowed, directly or
indirectly, the commission of the crime by his subordinates; or if he has knowledge of or,
owing to the circumstances at the time, should have known that acts of torture or OCIDTOP
shall be committed, is being committed, or has been committed by his subordinates or by
others within his area of responsibility and, despite such knowledge, did not take preventive or
corrective action either before, during or immediately after its commission, when he has the
authority to prevent or investigate allegations of torture or OCIDTOP but failed to prevent or
investigate allegations of such act, whether deliberately or due to negligence. ( Section 13 [3])
Anti-Wiretapping Act (RA No.4200)
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

1. Prohibited acts.
It shall be unlawful for any person, not being authorized BY ALL THE
PARTIES to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear, intercept,
or record such communication or spoken word by using a device commonly known as
a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.
The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense
[under Section 1 of the Act]. It is not required that before one can be regarded as a
violator, its substance as well as its communication to a third person should be
professed. (Ramirez vs. C.A., GR No. 93833, 28 September 1995)
2. Device or arrangement defined.
It refers to instruments whose installation or presence cannot be presumed
by the party or parties being overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping, intercepting, or recording a
telephone conversation.
3. Wiretapping is allowed; when.
a. Authorized by a written order of the Court
b. In cases involving the crimes of treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy
and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping as defined by the Revised
Penal Code, and violations of Commonwealth Act No. 616, punishing
espionage and other offenses against national security.
Such written order shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he
may produce and a showing:
CRIMINAL LAW 21
a. That there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being committed or
is about to be committed: Provided, however, That in cases involving the
offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, and inciting to sedition,
such authority shall be granted only upon prior proof that a rebellion or acts
of sedition, as the case may be, have actually been or are being committed;
b. That there are reasonable grounds to believe that the evidence that will
be obtained are essential to the conviction of any person for, or to the
solution of, or to the prevention of, any of such crimes; and
c. That there are no other means readily available for obtaining such
evidence. (Section 3, RA No. 4200)
Note: See Section 7 [Surveillance of suspects and interception and recording of
communication] of the Human Security Act of 2007 (R.A. No 9372).
4. Wiretapped evidence; inadmissible in any proceeding.
Any communication or spoken word, or the existence, contents, substance,
purport, effect, or meaning of the same or any part thereof, or any information
therein contained, obtained or secured by any person in violation [of this Act] shall
not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation. (Section 4, RA No. 4200)
5. Overhearing through telephone extension; no violation.
The Supreme Court held that the use of a telephone extension for the
purpose of overhearing a private conversation without authorization did not violate
R.A. 4200 because a telephone extension devise was neither among those
device(s) or arrangement(s) enumerated therein, following the principle that
penal statutes must be construed strictly in favor of the accused. ( Gaanan vs. IAC,
1986, 145 SCRA 112)
Anti-Sexual Harassment Act of 1995 (RA No. 7877)
1. Elements of sexual harassment.
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

a. The employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person has authority,
influence or moral ascendancy over another;
b. The authority, influence or moral ascendancy exist in a working, education or
training environment; and
c. The employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, or any other person having authority, influence, or
moral ascendancy makes a demand, request or requirement of a sexual
favor.
2. Casual buss on the cheek, not sexual harassment.
A mere casual buss on the cheek [as a form of greetings during festive or special
occasions] is not sexual harassment under R.A. No. 7877. (Aquino vs. Acosta, A.M. CTA-01-1,
02 April 2002)
Note: The acts of the complainant must be square with the behavior of one who has
been sexually harassed, for the normal reaction of a victim of sexual harassment would be
to avoid the harasser or decline his invitations after being offended. (Aquino v. Acosta; See also
Digitel Telecom Phils vs. Mariquit Soriano, GR 166039, 26 June 2006)
Anti-Trafficking in Persons Act of 2003 (RA No. 9208, as amended by RA 10364)
1. Trafficking in persons, defined.
It is the recruitment, [obtaining, hiring, providing, offering]
transportation, transfer, [maintaining] or harboring, or receipt of persons
with or without the victims consent or knowledge, within or across national
borders by means of threat or use of force, or other forms of coercion, abduction,
fraud, deception, abuse of power or of position, taking advantage of the vulnerability
of the person, or, the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person for the purpose of
exploitation which includes at a minimum, the exploitation or the prostitution of
others or other forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs. (As amended by Section 3, RA 10364)
CRIMINAL LAW 22
Note: The recruitment, transportation, transfer, harboring or receipt of a child for the
purpose of exploitation shall also be considered as trafficking in persons even if it does not
involve any of the means set forth in the preceding paragraph.
2. Elements of trafficking in persons.
a. ACT/S the single act, series of acts, or a combination of acts of [1]
recruitment, [2] obtaining, [3] hiring, [4] providing, [5] offering, [6]
transportation, [7 transfer, [8] maintaining or [9] harboring, or [10]
receipt of persons [with or without the victims consent or knowledge
etc. (Complete list under section 4);
b. MEANS - by means of [1] threat or use of force, or other forms of coercion,
[2] abduction, [3] fraud, [4] deception, [5] abuse of power or of position, [6]
taking advantage of the vulnerability of the person, or [7] the giving or
receiving of payments or benefits to achieve the consent of a person having
control over another person. (not required if the trafficked person is a
child);
c. EXPLOITIVE PURPOSE of [1] prostitution, [2] pornography, [3] sex
tourism, [4] sexual exploitation, [5] forced labor, [6] slavery, [7] involuntary
servitude [8] debt bondage, or [9] removal or sale of organs.
The act must be achieved by one of the means and both must be linked to
achieving the exploitive purpose.
Note: If anyone of the purpose of the three elements is absent, then the situation may not
involve trafficking in person as defined under R.A. No. 9208. However, it may still be a criminal
violation that can be prosecuted under the applicable provision of the RPC and other special
penal laws.
4. Prohibited acts (As amended by RA 10364).
a. Acts of trafficking in persons (Section 4);
b. Attempted trafficking in persons (Section 4-A);
c. Accomplice Liability (Section 4-B);
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

d. Accessories liability (Section 4-C)
e. Acts that promote trafficking in persons (Section 5)
f. Qualified trafficking (Section 6)
g. Violation of confidentiality (Section 7)
h. Use of trafficked persons for prostitution (Section 11)
i. Urging trafficked victims to abandon their complaint (Section 17-C, 3RD par.)
Note: Trafficking in Persons under Sections 3(a) and 4 of RA 9208 is not only limited to
transportation of victims, but also includes the act of recruitment of victims for
trafficking. In Hadja Lalli case when all the three accused [Aringoy, Lalli and Relampagos]
conspired and confederated with one another to illegally recruit Lolita [victim] to become a
prostitute in Malaysia, it follows that they are also guilty beyond reasonable doubt of the crime
of Qualified Trafficking in Persons committed by a syndicate under RA 9208 because the crime
of recruitment for prostitution also constitutes trafficking.
When an act or acts violate two or more different laws and constitute two different
offenses, a prosecution under one will not bar a prosecution under the other. The
constitutional right against double jeopardy only applies to risk of punishment twice for the
same offense, or for an act punished by a law and an ordinance. In the case of People vs. Lalli
the accused were convicted of both Qualified Trafficking in person and Illegal Recruitment. No
double jeopardy as conviction is for different offenses. (People vs. Hadja Lalli, ibid.)
Anti-Violence against Women and their Children Act (RA No. 9262)
1. Violence against women and their children refers to any act or a series of
acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty; (Section 3a)
2. Prohibited Acts.
A. Physical violence refers to acts that include bodily or physical harm; ( Section
3a[A])
CRIMINAL LAW 23
B. Sexual violence (Section 3a[B])
C. Psychological violence or those acts or omissions causing or likely to cause
mental or emotional suffering of the victim. (Section 3a[C])
D. Economic abuse that make or attempt to make a woman financially dependent
(Section 3a[D])
E. Battering, assault, coercion, harassment or arbitrary deprivation of
liberty against women and their children. (Section 5)
3. Elements of violence against women through harassment. (Section 5 (h)[5])
a. The offender has or had a sexual or dating relationship with the offended
woman;
b. The offender, by himself or through another, commits an act or series of
acts of harassment against the woman; and
c. The harassment alarms or causes substantial emotional or psychological
distress to her.
Note: There is commission of the crime of violence against women through harassment when
a former boyfriend sent to the girl a picture of a naked woman, not her, but with her
face on it. That one act of sending an offensive picture is considered a form of harassment.
Hence, a single act of harassment, which translates into violence, would be enough to violate
RA 9262. The object of the law is to protect women and children. (Rustan P. Ang v. CA and Irish
Sagud, GR 182835, 20 April 2010)
Notably, while it is required that the offender has or had a sexual or dating
relationship with the offended woman for RA 9262 to be applicable, it is not indispensable that
the act of violence be a consequence of such relationship. It is immaterial whether the
relationship had ceased for as long as there is sufficient evidence showing the past
or present existence of such relationship between the offender and the victim when
the physical harm was committed. (Karlo Angelo Dabalos y San Diego v. Regional Trial Court,
Branch 59, Angeles City, et al, G.R. No. 193960, 7 January 2013)
4. Battered woman, defined.
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

It refers to a scientifically defined pattern of psychological and
behavioral symptoms found in women living in battering relationships as a
result of cumulative abuse. (Section 3c)
The battered woman syndrome is characterized by the cycle of
violence, which has three phases:
a. The tension-building phase;
b. The acute battering incident; and
c. The tranquil, loving (or at least, non-violent) phase.
Note: Tension-building phase is where minor battering occurs characterized by verbal,
physical abuse or other form of hostile behavior. The woman tries to pacify the batterer
but his placatory/passive behavior legitimizes her belief that the man has the right to abuse
her. At some point, violence spiral out of control and leads to acute battering incident.
Acute battering incident is characterized by brutality, destructiveness, and
sometimes, death. The battered woman deems this incident as unpredictable, yet also
inevitable. At this stage, the woman has a sense of detachment from the attack and the
terrible pain. Acute battering incidents are often very savage and out of control, that
bystanders or interveners likely to get hurt.
The tranquil, loving phase (after acute battering ends) is where the couple
experience profound relief. The batterer may show a tender and nurturing behavior
towards his partner.
Victim-survivors who are found by the courts to be suffering from battered woman
syndrome do not incur any criminal and civil liability notwithstanding the absence of any
of the elements for justifying circumstances of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was suffering from
battered woman syndrome at the time of the commission of the crime, the courts shall be
assisted by expert psychiatrists/ psychologists. (Section 26, RA 9262) (See: People vs.
Marivic Genosa, G.R. 135981, 29 September 2000; and GR No. 135982, 15 January 2004 )
5. Protection Order. Petition for protection order must be:
CRIMINAL LAW 24
a. in writing;
b. signed; and
c. Verified under oath by the applicant.
It may be filed, by the victim or others in her behalf, as an independent
action or as incidental relief in any civil or criminal case the subject matter or issues
thereof partakes of violence [as described under the law.] (Section 11)
The provisions of the protection order shall be enforced by law
enforcement agencies. (Section 8)
B. The reliefs granted under a protection order serves the purpose of:
a. safeguarding the victim from further harm;
b. minimizing any disruption in the victim's daily life; and
c. Facilitating the opportunity and ability of the victim to independently
regain control over her life.
C. Types of Protection Order.
a. Barangay Protection Order (BPO) issued by the Punong Barangay. Follow
the rules on venue under Section 409 of the Local Government Code of 1991.
(Section 10)
b. Temporary Protection Order (TPO) - order issued by the court on the date
of filing of the application after ex parte determination that such order should
be issued;
c. Permanent Protection Order (PPO) - order issued by the court after notice
and hearing.
Note: Issuance of a BPO or pendency of its application does not preclude an application for
TPO and PPO. (Section 10)
An application for a TPO or PPO may be filed in the RTC, MTC, MCTC with territorial
jurisdiction over the place of residence of the petitioner: Provided, however, if a family court
exists in the place of residence of the petitioner, the application shall be filed with that court.
TPO and PPO shall be enforceable anywhere in the Philippines. (Section 12)
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law
 CRIMINAL LAW 25

6. Prohibited defense. b. Any act by deeds or words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being;
The following are not a valid defense for the offender:
c. Unreasonable deprivation of his basic needs for survival, such as food
a. Being under the influence of alcohol; and shelter; or
b. Being under the influence of any illicit drug, or
c. Being under the influence of any other mind-altering substance. d. Failure to immediately give medical treatment to an injured child
resulting in serious impairment of his growth and development or in his
Note: The offender is not limited to male gender as long as the victim is a woman or her permanent incapacity or death.
child because the law speaks of commission of the offense by any person or through
another if not personally. In one case the SC applying Art. 10 of RPC upheld the issuance of 2. Prohibited acts.
Protective Order against the parents-in-law [parents of the husband offender] citing allegations
of conspiracy of the parents with their child in committing acts of harassment against the
A. Exploiting children in prostitution and other sexual abuse; (Section 5)
offended woman. (Sharica Mari L. Go-Tan vs. Sps. Perfecto C. Tan and Juanita L. Tan, GR
168852, 30 September 2008)
B. Attempt to commit child prostitution under the following circumstances:

Anti-Child Abuse Law of 1992 (RA No. 7610, as amended) a. when any person who, not being a relative of a child, is found alone with the
said child inside the room or cubicle of a house, an inn, hotel, motel, pension
1. Definition of terms. (Section 3) house, apartelle or other similar establishments, vessel, vehicle or any other
hidden or secluded area under circumstances which would lead a reasonable
A. Children - refers to person below eighteen (18) years of age or those over person to believe that the child is about to be exploited in prostitution and
but are unable to fully take care of themselves or protect themselves from other sexual abuse;
abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition. (People vs. Optana, GR No. 133922, 12 February 2001) b. when any person is receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments. ( Section 6)
Note: In the case where a victim of acts of lasciviousness, who is 21 years old but
contracted polio when she was still 7 years old, was not considered a child under RA
C. Child trafficking or engaging in trading and dealing with children including, but
7610. In this case there was no proof that the victims physical disability prevented
not limited to, the act of buying and selling of a child for money, or for any other
her from resisting the offenders attack. (People vs. Heracleo Abello, GR 151952, 25 March
consideration, or barter; (Section 7)
2009)

B. Child abuse - refers to the maltreatment, whether habitual or not, of the D. Attempt to Commit Child Trafficking under the following circumstances:
child which includes any of the following:
a. When a child travels alone to a foreign country
without valid reason therefor and without clearance
a. Psychological and physical abuse, neglect, cruelty, sexual abuse and
issued by the Department of Social Welfare and Development
emotional maltreatment;

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law


or written permit or justification from the child's parents or
legal guardian;
b. When a person, agency, establishment or child-caring
institution recruits women or couples to bear children
for the purpose of child trafficking; or
c. When a doctor, hospital or clinic official or employee, nurse,
midwife, local civil registrar or any other person simulates
birth for the purpose of child trafficking; or
d. When a person engages in the act of finding children
among low-income families, hospitals, clinics, nurseries, day-
care centers, or other child-during institutions who can be
offered for the purpose of child trafficking. (Section 8)
E. Hiring, employing, using, persuading, inducing or coercing a child to perform in
obscene exhibitions and indecent shows, whether live or in video, or to
model in obscene publications or pornographic materials or selling or distributing
the said materials; (Section 9)
F. Committing acts of neglect, abuse, cruelty or exploitation and other
Conditions Prejudicial to the Child's Development; (Section 10)
G. Maintaining an establishment promoting or facilitating child prostitution and
other sexual abuse, child trafficking, obscene publications and indecent shows,
and other acts of abuse. (Section 11)
An establishment shall be deemed to promote or facilitate child
prostitution and other sexual abuse, child trafficking, obscene
publications and indecent shows, and other acts of abuse if the acts
constituting the same occur in the premises of said establishment or in violation
of the Revised Penal Code, as amended.
An enterprise such as a sauna, travel agency, or recruitment agency which:
[1] promotes the aforementioned acts as part of a tour for foreign tourists; [2]
exhibits children in a lewd or indecent show; [3] provides child masseurs for
adults of the same or opposite sex and said services include any lascivious
conduct with the customers; or [4] solicits children or activities constituting the
CRIMINAL LAW 26
aforementioned acts shall be deemed to have committed the acts penalized
[under the law].
H. Engaging the child to work without a work permit from the DOLE and
employment and observance of the requirement provided under Section 12 of
R.A. No. 7610, as amended.
Note: No person shall employ child models in all commercials or advertisements
promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts and
violence. (Section 14)
3. Person liable for Child Prostitution and other sexual abuse. (Section 5)
A. Those who engage in or promote, facilitate or induce child prostitution
which include, but are not limited to, the following:
a. Acting as a procurer of a child prostitute;
b. Inducing a person to be a client of a child prostitute by means
of written or oral advertisements or other similar means;
c. Taking advantage of influence or relationship to procure a
child as prostitute;
d. Threatening or using violence towards a child to engage him as a
prostitute; or
e. Giving monetary consideration, goods or other pecuniary
benefit to a child with intent to engage such child in prostitution.
Note: Paragraph [a] essentially punishes acts pertaining to or connected with
child prostitution. It contemplates sexual abuse of a child exploited in
prostitution. In other words, under paragraph [a], the child is abused
primarily for profit. (People vs. Dina Dulay, GR 193854, 24 September 2012)
B. Those who commit the act of sexual intercourse of lascivious conduct
with a child exploited in prostitution or subject to other sexual abuse. ( Section 5b)
Note: When the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be:
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

Provided, That the penalty for lascivious conduct when the victim is under twelve (12)
years of age shall be reclusion temporal in its medium period;
C. Those who derive profit or advantage [from a child exploited in prostitution or
subject to other sexual abuse], whether as manager or owner of the
establishment where the prostitution takes place, or of the sauna, disco, bar,
resort, place of entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the license has been
issued to said establishment. (Section 5c)
Note: Children exploited in prostitution and other sexual abuse are those who for
money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulges in sexual intercourse or lascivious conduct.
In the case of People vs. Cabalquinto, the Court upheld the rule on confidentiality by
refraining from posting in its Internet Web Page the full text of decisions in cases
involving child sexual abuse in response to a letter from a mother of a child abuse victim
addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the
Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the
best interest of the child must prevail over public access to information and pleaded that her
daughters case, as well as those of a similar nature, be excluded from the Web Page.
The Court further resolved that they shall withhold the real name of the victim-
survivor and shall use fictitious initials instead to represent her. Likewise, the
personal circumstances of the victims-survivors or any other information tending to establish or
compromise their identities, as well those of their immediate family or household members,
shall not be disclosed. (People vs. Melchor Cabalquinto, GR 167693, 19 September 2006)
4. Elements of sexual abuse. (Section 5[b], Article III)
a. The accused commits the act of sexual intercourse or lascivious conduct;
b. The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse; and
c. The child, whether male or female, is below 18 years of age.
Note:
A. Proof of all the elements, necessary for conviction.
CRIMINAL LAW 27
In the case of People v. Fragante the Court ruled that all the elements of sexual
abuse are present in that case: First, appellants repeated touching, fondling, and sucking of
AAAs breasts and inserting his finger into AAAs vagina with lewd designs undoubtedly
constitute lascivious conduct under Section 2[h] of the Implementing Rules and Regulations of
Republic Act No. 7610. Second, appellant, as a father having moral ascendancy over his
daughter, coerced AAA to engage in lascivious conduct, which is within the purview of sexual
abuse. Third, AAA was below 18 years old at the time of the commission of the offense based
on her testimony, which was corroborated by her birth certificate presented during the trial.
(People v. Ernesto A. Fragante, G.R. No. 182521, 9 February 2011)
B. When the victim is not a child exploited in prostitution; Section 5[b] still applies.
Section 5[b], Article III of R.A. 7610 punishes sexual intercourse or lascivious
conduct not only with a child exploited in prostitution but also with a child subjected to
other sexual abuse. It covers not only a situation where a child is abused for profit but also
one in which a child, through coercion, intimidation or influence, engages in sexual
intercourse or lascivious conduct. (People vs. Doney Gaduyon y Tapispisan, G.R. No. 181473, 11
November 2013)
However, if the victim is under twelve (12) years of age, the perpetrators should not
be prosecuted for sexual abuse but for statutory rape under Art. 266-A. Otherwise, the
offender should be charged with either sexual abuse under Sec. 3b, RA 7610 or rape under
Article 266-A, RPC; but cannot be charged of both crimes for the same act because it
may violate his rights against double jeopardy. (People vs. Jover Matias, GR 186469, 13 June
2012)
It follows, therefore, that consensual sexual intercourse or even acts of
lasciviousness with a minor who is [12 years old or older] could constitute a violation of
Section 5[b] of R.A. No. 7610. For Section 5[b] punishes sexual intercourse or lascivious
conduct not only with a child exploited in prostitution but also with a child subjected to other
sexual abuse.
Moreover, for consensual sexual intercourse or lascivious conduct with a minor, who
is not exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. No.
7610, [1] persuasion, [2] inducement, [3] enticement or [4] coercion of the child must be
present. (People vs. CA and Gaspar Olayon, GR 171863, 20 August 2008)
C. Acts considered as sexual abuse or lascivious conduct.
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

A child is deemed subject to other sexual abuse when the child is the victim of
lascivious conduct under the coercion or influence of any adult.
Sexual abuse includes the employment, use, persuasion, inducement, enticement
or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or
lascivious conduct or the molestation, prostitution, or incest with children. (People vs. Doney
Gaduyon y Tapispisan, ibid.)
Lascivious conduct means the [1] intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or [2] the introduction
of any object into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person, [3] bestiality, [4] masturbation, [5] lascivious exhibition of the
genitals or pubic area of a person. (Section 32, Article XIII, RA 7610 IRR)
In lascivious conduct under the coercion or influence of any adult, there must be
some form of compulsion equivalent to intimidation which subdues the free exercise of the
offended partys free will. (Jojit Garingarao vs. People, G.R. No. 192760, 20 July 2011)
In People vs. Bonaagua the Court found the accused [Ireno] committed lascivious
acts against the victim [her daughter] by touching her breasts and licking her vagina and
the lascivious or lewd acts were committed against her, who was 8 years old at the time as
established by her birth certificate. Thus, the CA correctly found accused guilty of Acts of
Lasciviousness under Section 5 [b] of R.A. No. 7610. (People vs. Ireneo Bonaagua, GR 188897,
6 June 2011)
In People vs. Sumingwa, the Court found the appellant therein guilty of four (4)
counts of acts of lasciviousness under Section 5[b] of R.A. No. 7610 for rubbing his penis
against the victims vagina, fondling her breasts, and forcing her to hold his penis.
(People vs. Sumingwa, G.R. No. 183619, 13 October 2009)
In Navarrete vs. People, the Court affirmed the therein accuseds conviction for
acts of lasciviousness in relation to Section 5[b] of R.A. No. 7610 for poking the victims
vagina with a cotton bud. (Clement John Ferdinand M. Navarrete vs. People, GR 147913, 31
January 2007)
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In People v. Candaza, the Court also affirmed the therein accuseds conviction for
acts of lasciviousness under Section 5[b] of R.A. No. 7610 for kissing the lips, mashing the
breasts, and licking the vagina of the victim. (People vs. Candaza, 524 Phil. 589 [2006])
Similarly, in Amployo v. People, the Court found the appellant guilty of violation of
Section 5[b] of R.A. No. 7610 for touching the victims breasts. (Amployo vs. People, 496 Phil.
747 [2005])
5. Other acts of abuse. (Section 10)
The following are considered other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's Development:
a. Committing any other acts of child abuse, cruelty or exploitation or
being responsible for other conditions prejudicial to the child's
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended;
b. Keeping or having in company a minor, twelve (12) years or under or who
in ten (10) years or more his junior in any public or private place, hotel, motel,
beer joint, discotheque, cabaret, pension house, sauna or massage parlor,
beach and/or other tourist resort or similar places, except: when such person
is related within the fourth degree of consanguinity or affinity or any bond
recognized by law, local custom and tradition or performing an act of a social,
moral or legal duty;
c. Inducing, delivering or offering a minor to any one prohibited under RA
7610 to keep or have in his company a minor as provided in the preceding
paragraph. If the perpetrator is the ascendant, stepparent or guardian of the
minor, the penalty is higher including loss of parental authority over the minor;
d. Allowing any person to take along with him any minor to any
prohibited places aforementioned. The person liable are the owner,
manager or one entrusted with the operation of any public or private place of
accommodation, whether for occupancy, food, drink or otherwise, including
residential places, with a penalty of imprisonment and fine including loss of
license to operate such a place or establishment;
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

e. Using, coercing, forcing or intimidating a street child or any other
child to [1] beg or use begging as a means of living; [2] act as conduit or
middlemen in drug trafficking or pushing; or [3] Conduct any illegal activities.
Note: In People vs. CA and Olayon and People vs. Rayon the Court ruled that Section 10
refers to acts of child abuse prejudicial to the childs development other than child prostitution
and other sexual abuse [under Section 5], attempt to commit child prostitution [under Section
6], child trafficking [under Section 7], attempt to commit child trafficking [under Section 8],
and obscene publications and indecent shows [under Section 9]. x x x sexual abuse [as
defined under Section 5] is a completely distinct and separate offense from child
abuse [as defined under Section 10]. (People vs. CA and Gaspar Olayon, GR 171863, 20 August
2008 and People v. Patricio Rayon, Sr. GR 194236, 30 January 2013)
6. Exceptional cases where a child may be employed; Requirements.
A. When a child works directly under the sole responsibility of his parents
or legal guardian and where [1] only members of the employer's family are
employed: Provided, however, That his [2] employment neither endangers his
life, safety and health and morals, nor impairs his normal development:
Provided, further, That the [3] parent or legal guardian shall provide the said
minor child with the prescribed primary and/or secondary education; or
B. When a child's employment or participation in public & entertainment or
information through cinema, theater, radio or television is essential: Provided,
[1] The employment contract concluded by the child's parent or guardian, with
the express agreement of the child concerned, if possible, and the [2] approval
of DOLE: Provided, That the following requirements in all instances are
strictly complied with:
a. The employer shall ensure the protection, health, safety, morals and
normal development of the child;
b. The employer shall institute measures to prevent the child's exploitation or
discrimination taking into account the system and level of remuneration,
and the duration and arrangement of working time;
CRIMINAL LAW 29
c. The employer shall formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for training and
skill acquisition of the child;
d. The employer shall first secure, before engaging such child, a work
permit from the DOLE which shall ensure observance of the above
requirement. (Section 12, Article VIII of RA 7610, as amended by RA 7658)
Juvenile Justice and Welfare Act of 2006 (RA No. 9344)
A. Child in conflict with the law refers to a child who is alleged, accused of, or
adjudged as, having committed an offense under Philippine Laws.
B. Diversion refers to an alternative, child-appropriate process of determining the
responsibility and treatment of a child in conflict with the law on the basis of
his/her social, cultural, economic, psychological or educational background
without resorting to formal court proceedings.
C. Diversion Program refers to the program that the child in conflict with the
law is required to undergo after he/she is found responsible for an offense
without resorting to formal court proceedings.
D. Intervention refers to a series of activities which are designed to address
issues that caused the child to commit an offense. It may take the form of an
individualized treatment program which may include counseling, skills training,
education, and other activities that will enhance his/her psychological, emotional,
and psycho-social well-being.
2. Minimum Age of Criminal Responsibility; rule.
A child fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the child shall be
subjected to an intervention program.
A child above fifteen (15) years but below eighteen (18) years of age
shall likewise be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment.
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

If the child acted with discernment, proceed with diversion
program/measures.
The exemption from criminal liability does not include exemption from
civil liability.
Discernment is the moral capacity to know what is right from what is wrong
and the realization of the consequences of his acts.
If the child acted without discernment - Not criminally liable but [1] Civilly
liable; and [2] will be committed to the custody of his parents, the latter being
required to submit progress reports on the development of the minor.
Note: The child in conflict with the law shall enjoy the presumption of minority.
He/She shall enjoy all the rights of a child in conflict with the law until he/she is
proven to be 18 years old or older.
5. System of Diversion (Diversion program/ measures).
a. Where the imposable penalty for the crime committed is not more than
six (6) years imprisonment:
The law enforcement officer or Punong Barangay with the assistance
of the local social welfare and development officer or other members of the LCPC
shall conduct [1] mediation, [2] family conferencing and conciliation and, [3]
where appropriate, adopt indigenous modes of conflict resolution in accordance
with the best interest of the child with a view to accomplishing the objectives of
restorative justice and the formulation of a diversion program. The child and
his/her family shall be present in these activities.
b. In victimless crimes where the imposable penalty is not more than six
(6) years imprisonment:
The local social welfare and development officer shall meet
with the child and his/her parents or guardians for the development of the
appropriate diversion and rehabilitation program, in coordination with the BCPC.
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c. Where the imposable penalty for the crime committed exceeds six (6)
years imprisonment:
Diversion measures may be resorted to only by the court. (Section
23) Where the maximum penalty imposed by law for the offense with which the
child in conflict with the law is charged is imprisonment of not more than
twelve (12) years, regardless of the fine or fine alone regardless of the
amount, and before arraignment of the child in conflict with the law, the court
shall determine whether or not diversion is appropriate. (Diversion measures)
3. Contract of Diversion.
The diversion program shall be effective and binding if accepted by the
parties concerned. The acceptance shall be in writing and signed by the parties
concerned and the appropriate authorities.
The local social welfare and development officer shall supervise the
implementation of the diversion program.
The diversion proceedings shall be completed within forty-five (45) days.
The period of prescription of the offense shall be suspended until the completion of
the diversion proceedings but not to exceed forty-five (45) days.
The child shall present himself/herself to the competent authorities that
imposed the diversion program at least once a month for reporting and evaluation of
the effectiveness of the program.
Failure to comply with the terms and conditions of the contract of
diversion, as certified by the local social welfare and development officer, shall give
the offended party the option to institute the appropriate legal action.
4. Offenses not applicable to children.
Persons below eighteen (18) years of age shall be exempt from prosecution
for the crime of:
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

c.
a. vagrancy and prostitution under Article 202 of the Revised Penal Code;
b. mendicancy under Presidential Decree No. 1563; and
c. sniffing of rugby under Presidential Decree No. 1619.
Prosecution of foregoing offenses is inconsistent with the United Nations
Convention on the Rights of the Child; but said offender shall undergo appropriate
counseling and treatment program.
Note: Vagrancy is no longer punishable under the law, however, prostitutes remains to be
defined and penalized under Article 202 of the Revised Penal Code (Act No. 3815). All pending
cases on vagrancy shall be dismissed upon effectivity of RA 10158. (Act decriminalizing Vagrancy;
Signed into law, 27 March 2012)
Anti-Child Pornography Act of 2009 (RA No. 9775)
1. Definition of terms. (Section 3)
a. Child - refers to a person below eighteen (18) years of age or over, but is
unable to fully take care of himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition.
For the purpose of this Act, a child shall also refer to:
i. A person regardless of age who is presented, depicted or portrayed
as a child ; and
ii. Computer-generated, digitally or manually crafted images or graphics of a
person who is represented or who is made to appear to be a child.
b. Child pornography - refers to any representation, whether [1] visual, [2] audio,
or [3] written combination thereof, by electronic, mechanical, digital, optical,
magnetic or any other means, of child engaged or involved in real or simulated
explicit sexual activities.
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Child pornography materials - refers to the means and methods by which
child pornography is carried out.
As to form:
A. Visual depiction - which includes not only images of real children
but also digital image, computer image or computer-generated image
that is indistinguishable from that of real children engaging in an explicit
sexual activity. Visual depiction shall include:
a. undeveloped film and videotapes;
b. data and/or images stored on a computer disk or by electronic means
capable of conversion into a visual image;
c. photograph, film, video, picture, digital image or picture, computer image
or picture, whether made or produced by electronic, mechanical or
other means;
d. drawings, cartoons, sculptures or paintings depicting children;
e. other analogous visual depiction;
B. Audio representation of a person who is or is represented as being
a child and who is engaged in or is represented as being engaged in
explicit sexual activity, or an audio representation that advocates,
encourages or counsels any sexual activity with children. Such
representation includes audio recordings and live audio transmission
conveyed through whatever medium including real-time internet
communications;
C. Written text or material that advocates or counsels explicit sexual
activity with a child and whose dominant characteristic is the
description, for a sexual purpose, of an explicit sexual activity with a child.
As to content:
It includes representation of a person who is, appears to be,
or is represented as being a child, the dominant characteristic of which is
the depiction, for a sexual purpose, of:
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

a. the sexual organ or the anal region, or a representation thereof;
b. the breasts, or a representation of the breasts, of a female person.
d. Explicit sexual activity - refers to actual or simulated:
i. Sexual intercourse or lascivious act including, but not limited to, contact
involving genital to genital, oral to genital, anal to genital or oral to anal,
whether between persons of the same or opposite sex;
ii. Bestiality;
iii. Masturbation;
iv. Sadistic or masochistic abuse;
v. Exhibition of the genitals, buttocks, breast, pubic area and/or anus; or
vi. Use of any object or instrument for lascivious acts.
e. Grooming - refers to the act of preparing a child or someone who the offender
believes to be a child for sexual activity or sexual relationship by communicating
any form of child pornography. It includes online enticement or enticement
through any other means.
f. Luring - refers to the act of communicating, by means of a computer system,
with a child or someone who the offender believes to be a child for the purpose
of facilitating the commission of sexual activity or production of any form of child
pornography.
g. Pandering - refers to the act of offering, advertising, promoting, representing or
distributing through any means any material or purported material that is
intended to cause another to believe that the material or purported material
contains any form of child pornography, regardless of the actual content of the
material or purported material.
Note: The NTC issued Memorandum Circular Number 01-01-2014, dated 30 January
2014 providing guidelines for Internet Service Providers (ISPs) in the implementation of the
Anti-Child Pornography Act of 2009 (RA 9775). All ISPs are required to install programs or
software that will block access or filter websites that carry child pornography
materials. They shall submit at least three (3) programs or software to the Inter-Agency
CRIMINAL LAW 32
Council against Child Pornography (IACACP) for evaluation. If the IACACP does not interpose
any objection within five (5) days from submission, the ISPs shall acquire any of the programs
or software in the list submitted and install the same within 120 days. Further, ISPs are
secured from any liability arising from their blocking or filtering of the identified pornographic
websites.
Commission of the foregoing prohibited acts are punishable under the
Cybercrime Prevention Act (RA 10175) if committed online. However, charging the
offender under both laws, i.e. ACPA and CCPA, is tantamount to double jeopardy. Section
4[c][2] merely expands the ACPAs scope so as to include identical activities in cyberspace.
ACPAs definition of child pornography already covers the use of electronic, mechanical,
digital, optical, magnetic or any other means of publication. (Jose Jesus M. Disini, Jr.et.al. v.
Secretary of DOJ, GR 203335, et.al, 18 February 2014)
Anti-Photo and Video Voyeurism Act of 2009 (RA No. 9995)
1. Photo or video voyeurism; defined.
It is [1] the act of taking photo or video coverage of a person or group
of persons performing sexual act or any similar activity or of capturing an image of
the private area of a person or persons without the latters consent, under
circumstances in which such person/s has/have a reasonable expectation of privacy,
or [2] the act of selling, copying, reproducing, broadcasting, sharing,
showing or exhibiting the photo or video coverage or recordings of such sexual
act or similar activity through VCD/DVD, internet, cellular phones and similar means
or device without the written consent of the person/s involved, notwithstanding that
consent to record or take photo or video coverage of same was given by such person.
(Section 3[d])
Penalty: Imprisonment of three (3) years to seven (7) years, or a fine of P100, 000 to P500,
000, or both. Public officer can be likewise held administratively liable; and foreigner can be
immediately deported after serving sentence. (Section 5)
2. Prohibited Acts. (Section 4)
a. To take photo or video coverage of a person or group of persons performing
[1] sexual act or any similar activity or to capture an [2] image of the private
Atty. Roland Ysrael R. Atienza I Notes in Criminal Law
 CRIMINAL LAW 33

area of a person/s such as the naked or undergarment clad genitals, pubic area,
buttocks or female breast without the consent of the person/s involved and under
circumstances in which the person/s has/have a reasonable expectation of
privacy.
b. To copy or reproduce, or to cause to be copied or reproduced, such photo or
video or recording of sexual act or any similar activity with or without
consideration.
c. To sell or distribute, or cause to be sold or distributed, such photo or video or
recording of sexual act, whether it be the original copy or reproduction thereof.
d. To publish or broadcast, or cause to be published or broadcast, whether in
print or broadcast media, or show or exhibit the photo or video coverage or
recordings of such sexual act or any similar activity through VCD/DVD, internet,
cellular phones and other similar means or device.
Note: In the last three instances [letter b, c, d] it is immaterial if consent to record or take
photo or video coverage of the same was given by such person/s; to be held liable what is
important is that selling, copying, reproducing, broadcasting, sharing, showing or
exhibiting was done without written consent of the person involved.
3. Elements of taking video and photo.
b. The content of which are videos of sexual act or activity or image of
victims private area taken under circumstances wherein the victim has
reasonable expectation of privacy.
c. It was made through VCD/DVD internet, cellular phones and other
similar means or device;
d. It was made without the victims consent;
Note: Even if there was consent to the taking of the photo, if there is no consent to the
copying, sharing or exhibition, then the offending party would still be liable.
5. Reasonable expectation of privacy means circumstances in which a
reasonable person would believe that:
a. he/she could disrobe in privacy, without being concerned that an
image or a private area of the person was being captured; or
b. a private area of the person would not be visible to the public,
regardless of whether that person is in a public or private place.
Private area of a person means the naked or undergarment [1] clad
genitals, [2] pubic area, [3] buttocks or [4] female breast of an individual.
Even if theres an undergarment (e.g., brief or panty) covering the private
parts, it is still covered by the law.

a. Offender took photo and video;

b. What was taken are videos of sexual act or activity or image of victims
private area;
c. The photo or video was taken under the circumstances wherein the victim
has reasonable expectation of privacy;
d. It was taken without the victims consent;

4. Elements of selling, copying, reproducing, broadcasting, sharing,

showing or exhibiting the photo or video.

a. Offender sell, copy, reproduce, broadcast, share, show or exhibit the

photo and video;

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law

 CRIMINAL LAW 34

Atty. Roland Ysrael R. Atienza I Notes in Criminal Law