ZX EBA IIOD ae came. ae BAR REVIEW CENTER Beet nee Opocvnrcecace + Keettonags COED io tP™. CRIMINAL LAW NOTES (By: Victoria C. Garcia, Professor) RA9165 + The elements of Section 15, RA 9165 ate: (1) the accused was apprehended or arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he used'a dangerous drug, The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article I} of RA965. ‘The phrase “a person apprehended or arrested” cannot literally mean any person apprehended or arrested for any crime, The plirase must be read in-context and understood in consonance with R.A. 9165, Section 15 comprehends persons arrested or apprehended for unlawfulacts listed under Article Af ofthe law. CRA MN6@, To make the provision applicable to all persons arrested or apprehended for any crime not listed under Article 11 is tantamount to unduly expanding its meaning. Note that accused appellant here was arrested In the alleged act of extortion Furthermore, making the phrase “a person apprehended or arrested” in Section 15 applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but fr all other crimes, i tantamount to a mandatory ding testing ofall persons apprehended or arrested for any crime. To overextend the application of this provision would run counter to our pronouncement in Social justice Soclety v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, to wit To impose mandatory drug testing on the accused Is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case ‘would violate a person's right to privacy guaranteed under Sec. 2, Art I! of the Constitution. Worse stil, the accused persons are veritably forced to incriminate themselves. (Dela Cruz vs. People GR#200748 July 23, 2014) ransport” as used under the Dangerous Drugs Act means “to carry or convey from one place to another.” It was ‘well established during trial that Morilla was driving the ambulance following the lead of Mayor Mitra, who was driving 2 Starex van going to Manila g-methamphetamine Redrochloride is malum prohibitum sins punished as an offense under a special law. The fact of transportation of the sacks containing dangerous drugs need not be ‘ccompanied by proof of criminal intent, motive or knowledge. In a similar case of People v.Libnao, this Court upheld the conviction for llegal transportation of marijuana of Ulbnap and Nunga, who were caught carrying a bag full of marijuana Teaves when they were flagged down on beard a passing trieyele at a checkpoint. (People vx. Morilla GR#109833, February 52014) RA2262 . ‘The act of denying support to a child under Section 5(e)(2) and (i).of RA, No. 9262 is a continuing affense, which ‘started in 1995 but is still ongoing at present, Accordingly, the crime charged in the instant case has clearly not prescribed. (Del Socorro vs. Brinkman Van Wilsem GR4193707 December 10, 2014) 3 Section 6 of RA 9262 rea SECTION 6. Périalties.- The crime of violence against women and their children, under Section S hereof shall be punished according to the following rules: {0 Acts falling under Section 5(h) and Section 5) shall be punished by prision mayor. If the acts are committed while the woman or child is pregnant or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in the section. In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than (One hundred thousand pesos (PLOC,000.00) but not more than three hundred thousand pesos (300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court For this crime, pregnancy or the presence of the woman's child are aggravating circumstances which increase the Imposable penalty. Either circumstance aggravates the accused's liability and automatically raises his penalty to the iaximum period of the penalty prescribed, per Section 6 of RA 9262. (Dinampling vs. People” GR. No, 199522 June 22, 2015) RAze10 a Section 3 of Republic Act No. 7610 defines child abuse thusly’ xXx (h) “Child abuse” refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty. sexual abuse and emotional maltreatment; (2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child asa human being: (3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or 4 [ABRC2036,Special Lecture Notes in Criminal Law/Atty. Garcia(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his ‘growth and development or in his permanent incapacity or death. +o0« the physical pain experienced by the victim had been aggravated by an emotional trauma that caused him to stop going to school altogether out of fear ofthe petitioner, compelling his parents to transfer him to another school where he had to adjust again. Such established circumstances proved beyond reasonable doubt that the petitioner was guilty of child abuse by deeds that degraded and demeaned the intrinsic worth and dignity of Michael Ryan as a human being, (Rosaldes vs. People GR#173988 October 8, 2014) * it needs to be restated, too, that the mere act of committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prokibitwm, an evil that is proscribed and was duly alleged in the Information against petitioner. Above all, Its quite clear by specific provision of Section’ Article of RA. No: 7610 that when the victim is under 12 years of age, the perpetrators shall be prosecuted under the RPC, but the penalty is that which Is provided in RA. No. 7610, Petitioner's submission that he ‘cannot be penalized under RA. No. 7610 because the Information failed to indicate its applicability. is, therefore, without merit (Imbo vs. People G.R. No. 197712 April 20, 2015) RAg0s9 7 ‘The crime of hazing is thus committed when the following essential elements are established: (1) a person is placed in some embarrassing or humiliating situation or subjected to physical or psychological suffering or injury; and (2) these acts were employed as a prerequisite for the person's admission or entry into an organization. In the crime of hazing, the crucial ingredient distinguishing it from the crimes against persons defined under Title Eight of the Revised Penal Code is the infliction by a person of physical or psychological suffering on_another_in furtherance of the latter's adinission or entry into an organization. (People vs. Bayabos, etal, GR#171222 February 16, 2015) BP22 . Ina line of cases, the Court has emphasized the importance of proof of receipt of such notice of dishonor, although ‘not as an element of the offense, but as a means to establish that the issuer of a check was aware of Insufficiency of funds ‘when he issued the check and the bank dishonored it, in relation to the second element of the offense and Section 2 of BP. 22, (Campos vs. People & FWCC GR#187401 September 17, 2014) * The fact that the issuer of the check had already paid the value of the dishonored check after having received the subpoena from the Office of the Prosecutor should have foréstalled the filing of the Information in court. The spirit of the law which, for B.P. Blg. 22, is the protection of the credibility and stability ofthe banking system, would not be served by penalizing people who have evidently made amends for their mistakes and made restitution for damages even before charges have been filed against them. In effect, the payment of the checks before the filing of the {informations has already attained the purpose ofthe law. ‘To avoid any confusion, the Court's ruling in this case should be welt differentiated from cases where the accused is charged with estafa under Article 315, par.2{(d) ofthe Revised Penal Code, where the fraud is perpetuated by postdating aa check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount ofthe check. In said case of estafa, damage and deceit are the essential elements of the offense, and the check is merely the accused's tool in committing fraud. In such a case, paying the, value ofthe dishonored check will not free the accused from criminal liability. te will merely satisfy the civil liability ofthe crime but not the criminal liability. (Lim vs People GR#190834 December 3, 2014) ‘RESISTANCE & DISOBEDIENCE * The two key elements of resistance and serious disobedience punished under Art;151jof the'RPC are: (1) That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; and {2) That the offender resists or seriously disobeys such person or his agent. There can be no quibble that P/Insp. Aguilar ‘and bis apprehending team are persons in authority or agents of a person in authority manning a legal checkpoint. But ‘surely petitioner's act of exercising one's right against unreasonable searches to be conducted in the middle of the night ‘cannot, in context, be equated to disobedience let alone resisting a awful order in contemplation of Art. 151 of the RPC. AS has often been said, albeit expressed differently and under dissimilar circumstances, the vitality of democracy ies not in the rights it guarantees, but in the courage of the people to assert and use them whenever they are ignored or worse infringed. (Sydeco vs People GR#202692 November 12, 2014) FAILURE TO RENDER AN ACCOUNT . ‘The question has been settled in Manlangit v. Sandiganbayan where we ruled that prior demand to liquidate is mot necessary to hold an accountable officer lable for violation of Article 218 of the Revised Penal Code. Since petitioner received the subject cash advance sometime in 1994, he was, thus, required to liquidate the same on or before January 20, 1995. Further, to avold liability under Article 218, he should have liquidated the cash advance within two months from the time it was due, or on or before March 20, 1995. In the case at bar, petitioner liquidated the subject cash advance only on June 4, 2001. Hence, as correctly found by the Sandiganbayan, petitioner was liable for violation of Article 218 because it took him over six years before settling his accounts. (Lumaulg vs. People GR#166680 July 7, 2014) BAPE cases * It is obvious that th 2 {ABRC2016 Special Lecture Notes in Criminal Law/Atty. Garciaof lasciviousness, Attempted rape is committed, therefore, when the “touching” of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis capable of consummating the sexual act touching the external genitalia ofthe female. Without such showing, only the felony of acts of lasciviousness is committed. (Cruz vs. People GR¥166441 October 8, 2014) ‘ * By self the fact that the offended party in arape case is a mental retardate does not call for the imposition of the death penalty, unless knowledge by the offender of such mental disability is specifically alleged and adequately proved bs ‘the prosecution. For the Anti-Rape Law of 1997, now embodied in Article 266-B ‘of the Revised Penal Code (RPC) expressly provides that the death penalty shall also be imposed if the crime of rape is committed with the qualifying circumstance of *(40) when the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime’ Said knowledge x xx qualifies rape as a_heinous offense. Absent said Circumstance, which must be proved by the prosecution beyond reasonable doubt, the conviction of appellant for qualified rape under Art. 266-B (10), RPC, could not be sustained, although the offender may be held liable for simple rape and sentenced to reclusion perpetua. x x x x (People vs. Obogne GR#199740 March 24, 2014) * ‘The circumstances in the present case, however, are far different from the Aarom:Case. Here, we quote with approval the observations of the Court of Appeals, which affirmed that of the tral court to wit: ‘We agree with the trial court that the [herein appellant] should be convicted of three (3) counts of rape. it appears from the facts that the appellant thrice succeeded in inserting his penis into the private part of AAA. The three (3) penetrations occurred one after the other at an Interval of five (3) Iinutes wherein the appellant would rest after satiating his lust upon his victim and, after he has regained his strength, he would again rape AAA. Hence, it can be clearly inferred from the foregoing that when the appellant decided to commit those separate and distinct acts of sexual assault upon AAA, he ‘was not motivated by a single impulse, hut rather by several criminal Intent. Hence, his conviction for three (3) counts of rape is indubitable. ‘This Court sustains the findings of both lower courts that, indeed, the three insertions into AAA were In satiation of successive but distinct criminal carnality. Therefore, the appellant's conviction for three counts of rape is proper. (People vs. Lucena: GR#190632February26-2014) . It is unmistakable that RA, No, 8353 penalizes the crime without regard to the rapist's legal relationship with his victim. Clearly, it Is now acknowledged that rape, as a form of sexual violence, exists within marriage. A man who penetrates her wife without her consent or against her will commit sexual violence upon her. [As above discussed, the definition of rape In Sectiof2: of RIA. Nai78353 pertains to: (a) rape, as traditionally, known; (b) sexual assault; and {¢) marital rape or that where the victim is the perpetrator’s own spouse. The single definition for all three forms of the crime shows that the law does not distinguish between rape committed in wedlock and those committed without a marriage. Hence, the law affords protection to women raped by their husband and those raped by any other man alike. (People vs Jumawan GR#187495 April 1, 2014) + Avictim need not identify what was inserted into his or her genital or anal orifice for the court to find that rape through sexual assault was committed: ‘We find it inconsequential that “AAA” could not specifically identify the particular instrument or object that was Inserted into her genital. What is important and relevant is that Indeed something was inserted into her vagina. To require "AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the fundamental tenets of due process. (Ricalde vs. People GR#211002 January 21, 2015) ‘ROBBERY . ‘The complex crime of robbery in an Inhabited house by armed persons and robbery with violence against or intimidation of persons was committed when the accused, who held firearms, entered the residential house of the vietims -and inflicted injury upon the victims in the process of committing the robbery. Hence, the penalty is that imposed for the ‘robbery in an inhabited house, the more:serious crime. All the accused are liable because the act of one is the act of all (Fransailla vs, People G.R. No. 197562 April 20, 2015) + A special complex crime of robbery with homicide takes place when a homicide is committed elther by reason, or ‘on the occasion, of the robbery. A conviction requires certitude that the robbery is the main’ purpose, and [the] objective of the malefactor and the killing is merely incidental to the robbery. ‘but the killing may occur before, during or after the robbery.” Homicide is sald to have been committed by reason or on ‘occasion of robbery if, for instance, it was committed: (a) to facilitate the robbery or the escape of the culprit; (6) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or (d) to ‘eliminate witnesses in the commission of the crime. (People vs. Baluce GR#212932 January 21, 2015) . ‘When a homicide takes place by reason of or on the occasion of the robbery, all those who took part shall be guilty of the special complex crime of robbery with homicide whether they actually participated in the killing, unless there is proof that there was an endeavor to prevent the killing. (People vs. Orosco GR#209227 March 25, 2015) ‘QUALIFIED THEET + ‘The circumstance of grave abuse of confidence that made the same as qualified theft was also proven. Accused- appellant herself testified that as a cashier, her functions and responsibilities include billings and collections from their gents and making of deposits and withdrawals in behalf of Private Complainant. Moreover, when. the payment for the purchase orders or gift checks becomes due, she would fll up the four (4) blank checks given by the sub-guarantor with the knowledge and consent of Private Complainant. It is beyond doubt that an employes like a cashier who comes into '3 JABRC2O16 Special Lecture Notes in Criminal Law/Atty. Garciah as in the instant case. (People vs. Nielles GR#200308 February 23, 2015) ; It is clear that all the elements of Qualified Theft are present in these cases. Cabilig took money from WPESLAL and its depositors by taking advantage of her position. Her intent to gain is clear in the use of a carefully planned and deliberately executed scheme to commit the theft. Grave abuse of confidence, as ‘that might create a high degree of confidence between them which the ‘between the appellant and the offended party appellant abused." (People vs. Cahilig GR#199208 July 30, 2014) ESIAEA * No specific type of proof is required to show that there was demand. Demand need not even be formal; it may be verbal. The specific word “demand need not even be used to show that it has indeed been made upon the person charged, since even a mere query as to the whereabouts ofthe money [inthis case, property], would be tantamount to a demand, AS expounded in Asejo v. People: ‘With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus: When the law does not qualify, We should not ‘qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and oral demand. ‘Thus, the failure of the prosecution to present a written demand as evidence is not fatal. (Corpuz vs People GR#180016 April 29, 2014) * ‘Thus, the elements of Syndicated Estafa ae: (q) Estafa or other forms of swindling, as defined in Articles 315 and 316.0f the: RPC, is committed; (b) the Estafa or swindling is committed by a syndicate of five (5) or more persons: and (<) ddefraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)” or farmers’ associations, or of funds solicited by corporations/ associations from the general public. (People vs. Tibayan GR4209655 January 14, 2015; Hao vs. People GR#183345 September 17, 2014) . ‘The estafa under Article’315(2)(d) may be committed, therefore, when: (1) the offender has postdated or issued a ccheck in payment of an obligation contracted at the time of the postdating or issuance; (2) at the time of postdating or issuance of said check, the offender has no funds in the bank, or the funds deposited are not sufficient to cover the amount of the check; and (3) the payee has been defrauded. The deceit should be the efficient cause of the defraudation, and should either be prior to, or simultaneous with, the act of the fraud. (People vs. Villanueva GR#163662 February 25, 2015) * The guilt of the petitioner for four counts of estafa through falsification of a commercial document was established beyond reasonable doubt. As a bank teller, she took advantage of the bank depositors who had trusted in her fenough to leave their passbooks with her upon her instruction. Without their knowledge, however, she filled out ‘withdrawal slips that she signed, and misrepresented to her fellow bank employees that the signatures had been verified Jn due course. Her misrepresentation to her co-employees enabled her ta receive the amounts stated in the withdrawal slips. She thereby committed two crimes, namely: eta/a, by defrauding BPI Family Savings, her employer, n the various ‘sums withdrawn from the bank accounts of Matuguina and Cornejo; and falsification ofa commercial document, by forging the signatures of Matuguina and Cornejo:in the withdrawal slips to make it appear that the depositor concerned had signed the respective slips in order to enable her to withdraw the amounts. the estafa would not h consummated without the falsification of th (De Castro vs. People, etal. GR#171672 February 2, 2015) ILLEGAL MARRIAGE * [Article 352:of the RPC penalizes an authorized solemnizing officer who shall perform or authorize any illegal marriage ceremony. The elements of this crime are as follows: (1) authority of the solemnizing officer; and (2) his performance of an illegal marriage ceremony. In the present case, the petitioner admitted that he has authority to solemnize a marriage. Hence, the only issue to be resolved is whether the alleged “blessing” by the petitioner is tantamount to the performance of an “illegal marriage ceremony” which is punishable under Article 352 of the RPC, as amended ex In the present case, the petitioner admitted that he knew that the couple had no marriage license, yet he ‘conducted the “blessing” of thelr relationship. Undoubtedly, the petitioner conducted the marriage ceremony despite knowledge that the essential and formal requirements of martiage set by law were lacking, The marriage ceremony, therefore, was illegal. The petitioner's knowledge of the absence of these requirements negates his defense of good faith. (Ronulo vs. People GR#162438, july 2, 2014) ‘SUBSIDIARY CIVIL LIABILITY OF THE EMPLOYER * tmetiminal prosecutions, the civil actlon for the recovery of civil Uability that is deemed instituted with the criminal action refers only to that arising from the offense charged. Its puzzling, therefore, how the RTC and the CA could hhave adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity. had not been charged along with Dr, Solidum, The lower courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of jurisdiction. ‘4 1aBRC2016 Special Lecture Notes in Criminal Law/Atty. GarciaForone, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not respected from the outset, The RTC and the CA should have been alert to this fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would enforce the constitutional guarantee of due process of law. “Moreaver, Ospital ng Maynila could be held civilly liable only when subsidiary lability would be properly ‘enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here, The Conditions for subsidiary liabillty to attach to Ospltal ng Maynila should first be complied with, Best, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry.” ‘The term industry means any department or branch of art, occupation or business, especially one that employs labor and capital, and Is engaged in industry. However, Ospital ng Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in charitable and humanitarian work. Secondly, assuming that Ospital ng Maynila was ‘engaged in industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, ‘thirdly, assuming that civil liability was adjudged against Dr. Solidum as an employee (which did not happen here). the ‘execution against him was unsatisfied due to his being insolvent (Solidum vs. People GR#192123 March 10, 2014) ‘ARTICLE 100 + Our law recognizes two kinds of acquittal, with different effects on the civil lability of the accused. Eirst is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission. There being no delic, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court. “The second instance is an acquittal based on reasonable doubt on the guilt ofthe accused. In this case, even ifthe guilt of the accused has not been satisfactorily established, he is not exempt from civil lability which may be proved by preponderance of evidence only. (Daluraya vs. Oliva GR¥210148 December 8, 2014) Good Luck to All 2016 Bar Examinees We Are Praying for Your Success God Bless From: ABRC Family victoriacgarcia BAR2016-crimspecialecnotes (for:AlbanoBarReviewCenter) '5 [ABRC2016 Special Lecture Notes in Criminal Law/AXty. Garcia