PRE-WEEK AND LAST MINUTE LECTURE IN REMEDIAL LAW (2019 BAR)

BY:
ATTY. SALVADOR N. MOYA II, LL.M.

-- CRIMINAL PROCEDURE --

GENERAL PRINCIPLES

Q.1. What is the rule in archiving criminal cases?

A.1. In the case of Marcos vs. Cabrera-Faller (815 SCRA 285, 24 January 2017)(En Banc)[Per
Curiam], it was defined as: The archiving of cases is a generally acceptable measure designed to shelve cases
but is done only where no immediate action is expected.1 A.C. No. 7-A-92 enumerated the circumstances when
a judge may order the archiving of a criminal case as follows:

(a) If after the issuance of the warrant of arrest, the accused remains at large for six (6) months
from the delivery of the warrant to the proper peace officer, and the latter has explained the reason why the
accused was not apprehended; or

(b) When proceedings are ordered suspended for an indefinite period because:

(1) the accused appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead intelligently, or to undergo trial, and
he has to be committed to a mental hospital;

(2) a valid prejudicial question in a civil action is invoked during the pendency of the criminal
case unless the civil and the criminal cases are consolidated; and

(3) an interlocutory order or incident in the criminal case is elevated to, and is pending
resolution/decision for an indefinite period before a higher court which has issued a temporary restraining order
or writ of preliminary injunction; and

(4) when the accused has jumped bail before arraignment and cannot be arrested by his
bondsman.

PROBLEM:

The accused Layag was convicted for (2) counts of Qualified Rape by Sexual Assault, and one (1) count of
Acts of Lasciviousness.

The Supreme Court affirmed the decision of the trial court and the Court of Appeals. An Entry of
Judgment was issued on 14 October 2015 declaring that the Resolution dated 3 August 2015 had already become
final and executory. However, the Supreme Court received a letter dated 18 July 2016 from the Bureau of
Corrections that the accused appellant died on 30 July 2015 as evidenced by the Certificate of Death attached
thereto.

Q.2 Can the case be reopened without violating the doctrine of immutability of final judgment?
Explain.

A.2. Yes. In People vs. Layag (806 SCRA 190, 17 October 2016)(First Division)[Perlas-Bernabe, J.],
citing the case of Bigler vs. People,7 it was held that: In light of the foregoing circumstances, the Court is
constrained to reopen the case despite the finality of the 3 August 2015 Resolution. The Court explained that it
has the power to relax the doctrine of immutability of judgment if, inter alia, there exists a special or compelling
circumstance warranting the same.

1
Republic of Philippines vs. Express Telecommunication Co., Inc., 424 Phil. 372 (2002).
 2

In this case, Layag's death which occurred prior to the promulgation of the Resolution dated August 3,
2015 - a matter which the Court was belatedly informed of - clearly shows that there indeed exists a special or
compelling circumstance warranting the re-examination of the case despite its finality.

Thus, there is a need to reconsider and set aside said Resolution and enter a new one dismissing the
criminal cases against Layag. Under prevailing law and jurisprudence, Layag's death prior to his final
conviction by the Court renders dismissible the criminal cases against him. Article 89 (1) of the Revised Penal
Code provides that criminal liability is totally extinguished by the death of the accused

JURISDICTION

JURISDICTION OF THE SANDIGANBAYAN

Q.3. Which court has the jurisdiction to try and decide cases for violations of R.A. No. 9165 if the
accused has a salary grade of 27 and above? Explain.

A.3. In the case of De Lima vs. Guerrero (843 SCRA 1, 20 October 2017)(En Banc)[Velasco, Jr., J.],
the High Court ruled: It is the RTC. The exclusive original jurisdiction over violations of RA 9165 is not
transferred to the Sandiganbayan whenever the accused occupies a position classified as Grade 27 or higher,
regardless of whether the violation is alleged as committed in relation to his office. The power of the
Sandiganbayan to sit in judgment of high-ranking government officials is not omnipotent. The Sandiganbayan's
jurisdiction is circumscribed by law and its limits are currently defined and prescribed by RA 10660, 2 which
amended Presidential Decree No. 1606.

JURISDICTION OF THE COURT OF TAX APPEALS

Q.4. Which court has jurisdiction over a petition for certiorari to review the DOJ resolution in
preliminary investigations involving tax and tariff offenses? Explain.

A.4. In the case of Bureau of Customs vs. Devanadera (770 SCRA 1, 8 September 2015)(En Banc)
[Peralta, J.], it was held that: The CTA has original jurisdiction over a petition for certiorari to review the DOJ
resolution in preliminary investigations involving tax and tariff offenses. By virtue of Section 1, Article VIII of
the 1987 Constitution, vesting judicial power in the Supreme Court and such lower courts as may be established
by law, to determine whether or not there has been a grave abuse of discretion on the part of any branch or
instrumentality of the Government, in relation to Section 5(5), Article VIII thereof, vesting upon it the power to
promulgate rules concerning practice and procedure in all courts, the Court thus declares that the CA's original
jurisdiction over a petition for certiorari assailing the DOJ resolution in a preliminary investigation involving
tax and tariff offenses was necessarily transferred to the CTA pursuant to Section 7 of R.A. No. 9282, and that
such petition shall be governed by Rule 65 of the Rules of Court, as amended. Accordingly, it is the CTA, not
the CA, which has jurisdiction over the petition for certiorari assailing the DOJ resolution of dismissal of the
BOC's complaint-affidavit against private respondents for violation of the TCCR.

JURISDICTION OF THE REGIONAL TRIAL COURTS

Q.5. What is the duty of the RTC if the accused public officer or employee inadvertently failed to
or wrongly designate the proper court in the Notice of Appeal?

A.5. In the case of Dizon vs. People (G.R. No. 227577, January 24, 2018)(Second Division)[Perlas-
Bernabe, J.], it was held that: The RTC should transmit the records to the Sandiganbayan pursuant to P.D. No.
1606 as amended by R.A. No. 10660. Jurisprudence dictates that it is the duty of the trial court judge to properly
transmit the records to the proper appellate court.

In Dizon, the High Court further said that: Petitioner did not specify that his appeal be taken to the CA.
This was precisely because it was not even his duty to designate to which court his appeal should be taken. Case
law states that in the notice of appeal, it is not even required that the appellant indicate the court to which its
appeal is being interposed. The requirement is merely directory and failure to comply with it or error in the court
indicated is not fatal to the appeal,3 as it should be in this case.

2
An Act Strengthening Further the Functional and Structural Organization of the Sandiganbayan, Further Amending
Presidential Decree No. 1606, as Amended, and Appropriating Funds Therefor. Approved on 16 April 2015.
3
Heirs of Pizarro, Sr. vs. Consolacion, 244 Phil. 187 (1988).
 3

In the case of Ulep vs. People,4 the Supreme Court held that it was the trial court which was duty
bound to forward the records of the case to the proper forum. Thus, in Ulep, the Court granted the plea of the
accused therein to remand the case to the RTC for transmission to the Sandiganbayan.

Q.6. Section 9, R.A. No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of
1995, provides that:

SEC. 9. Venue.– A criminal action arising from illegal recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the offense was committed or where the offended party actually
resides at the time of the commission of the offense: Provided, That the court where the criminal action is first
filed shall acquire jurisdiction to the exclusion of other courts: Provided, however, that the aforestated provisions
shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this
Act.

Is the provision unconstitutional for being violative of the rules on venue that criminal cases shall be
instituted in the place where the crime was committed? Explain.

A.6. No. In the case of Sto. Tomas vs. Salac (685 SCRA 245, 13 November 2012)(En Banc)[Abad, J.],
it was held that: Section 9, R.A. No. 8042 is constitutional. There is nothing arbitrary or unconstitutional in
Congress fixing an alternative venue for violations of Section 6 of R.A. 8042 that differs from the venue
established by the Rules on Criminal Procedure. Indeed, Section 15(a), Rule 110 of the latter Rules allows
exceptions provided by laws. Thus: SEC. 15. Place where action is to be instituted.— (a) Subject to existing laws,
the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was
committed or where any of its essential ingredients occurred.

Section 9 of R.A. 8042, as an exception to the rule on venue of criminal actions, is consistent with
that law’s declared policy5 of providing a criminal justice system that protects and serves the best interests of
the victims of illegal recruitment.

JURISDICTION OF THE REGIONAL TRIAL COURT DESIGNATED AS SPECIAL FAMILY COURTS

Q.7. What is the jurisdiction of the RTC designated as Special Family Court over violations of R.A.
No. 7610 involving minors?

A.7. In the case of People vs. Dela Torre-Yadao (685 SCRA 264, 13 November 2012)(En Banc)[Abad,
J.],6 it was held that: Section 5 of R.A. 8369 vests the family court with jurisdiction over violations of R.A. 7610
which provides: The Family Courts shall have exclusive original jurisdiction to hear and decide the following
cases: xxx Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than
nine (9) years of age, or where one or more of the victims is a minor at the time of the commission of the offense:
Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability
which the respondent may have incurred.

Q.8. Will the Family Court still have jurisdiction if the minor victim is already dead?

A.8. It has no more jurisdiction. The case can now be handled by the regular RTC’s. In vesting in
family courts exclusive original jurisdiction over criminal cases involving minors, the law but seeks to protect
their welfare and best interests. For this reason, when the need for such protection is not compromised, the Court
is able to relax the rule. In several cases,7 for instance, the Court has held that the CA enjoys concurrent
jurisdiction with the family courts in hearing petitions for habeas corpus involving minors.

In People vs. Dela Torre-Yadao, the two minor victims, for whose interests the people wanted the
murder cases moved to a family court, are dead. As respondents aptly point out, there is no living minor in the
murder cases that require the special attention and protection of a family court. In fact, no minor would appear as

4
597 Phil. 580 (2009).
5
Par. d and e.
6
This case, which involves the alleged summary execution of suspected members of the Kuratong Baleleng Gang, was once
again brought before the Supreme Court but this time questioning, among other things, the trial court's findings of absence
of probable cause and its dismissal of the criminal actions. See Lacson vs. The Executive Secretary, 361 Phil. 251 (1999);
People vs. Lacson, 432 Phil. 113 (2002); People vs. Lacson, 448 Phil. 317 (2003).
7
Madriñan vs. Madriñan, 527 SCRA 487 (12 July 2007); Thornton vs. Thornton, 480 Phil. 224 (2004).
 4

party in those cases during trial since the minor victims are represented by their parents who had become the
real private offended parties.

Q.9. What must be alleged in the Information in order that the criminal offenses committed by
government officers and employees fall within the jurisdiction of the Sandiganbayan?

A.9. In the case of De Lima vs. Guerrero(843 SCRA 57, 10 October 2017)(En Banc)[Velasco, Jr., J.],
the separate concurring and dissenting opinion of Madam Justice Perlas-Bernabe states that: Case law holds
that as long as the offense charged in the information is intimately connected with the office and is alleged to
have been perpetrated while the accused was in the performance, though improper or irregular, of his official
functions, there being no personal motive to commit the crime and had the accused would not have
committed it had he not held the aforesaid office, the accused is held to have been indicted for 'an offense
committed in relation' to his office.8 In Crisostomo vs. Sandiganbayan,9 this Court illumined that a public officer
commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper
or irregular manner, his official functions and he cannot commit the offense without holding his public office. In
such a case, there is an intimate connection between the offense and the office of the accused. If the information
alleges the close connection 'between the offense charged and the office of the accused, the case falls within
the jurisdiction of the Sandiganbavan. 10

JURISDICTION OF THE MTC, METC, MCTC

Q.10. Which court has jurisdiction to try and decide a case of falsification of public document?

A.10. In the case of People vs. Atienza (716 SCRA 84, 12 February 2017)(Second Division)[Perlas-
Bernabe, J.], it was held that: Falsification of Public Document under Article 172(1) of the RPC, which is
punishable by prision correccional in its medium and maximum periods (or imprisonment for 2 years, 4 months
and 1 day to 6 years) and a fine of not more than P5,000.00, falls within the exclusive jurisdiction of the
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts pursuant to Section 32(2)
of Batas Pambansa Bilang 129, otherwise known as the Judiciary Reorganization Act of 1980, as amended by
RA 7691.

Q.11. Can the issue of jurisdiction be raised even for the first time on appeal?

A.11. Yes. Jurisdiction over the subject matter is conferred only by the Constitution or the law and
cannot be acquired through a waiver or enlarged by the omission of the parties or conferred by the acquiescence
of the court. The rule is well-settled that lack of jurisdiction over the subject matter may be raised at any stage of
the proceedings. Hence, questions of jurisdiction may be cognizable even if raised for the first time on appeal.11

Q.12. How can the court acquire jurisdiction in criminal cases?

A.12. In order for the courts to acquire jurisdiction in criminal cases, the offense should have been
committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of
the court. If the evidence adduced during the trial shows that the offense was committed somewhere else,
the court should dismiss the action for want of jurisdiction. 12 It is fundamental that the place where the crime
was committed determines not only the venue of the action but is an essential element of jurisdiction. 13
(Evangelista vs. People, 620 SCRA 134, 5 May 2010.)

Q.13. Can the court disregard the findings of the preliminary investigation which was conducted
upon its order? Explain.

A.13. Yes. There is nothing procedurally improper on the part of the trial court in disregarding the
result of the preliminary investigation it itself ordered. Judicial action on the motion to quash Information rests in
the sound exercise of judicial discretion. In denying the motion, the trial court just followed the jurisprudential

8
Rodriguez vs. Sandiganbayan, 468 Phil. 374 (2004), citing People vs. Montejo, 108 Phil. 613 (1960).
9
495 Phil. 718 (2005).
10
People vs. Montejo, supra.
11
See Republic vs. Bantigue Point Development Corporation, 668 SCRA 158 (14 March 2012).
12
Uy vs. Court of Appeals, 342 Phil. 329 (1997); Evangelista vs. People, 620 SCRA 134 (5 May 2010).
13
People vs. Macasaet, 492 Phil. 355 (2005).
 5

rule laid down in 1987 case of Crespo vs. Judge Mogul14 that once a complaint or information is filed in court,
any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound
discretion of the court. The court is not dutifully bound by such finding of the investigating prosecutor.

Further, in the 2000 case of Solar Team Entertainment, Inc. vs. Judge How,15 the Supreme Court
emphasized that the court is not bound to adopt the resolution of the Secretary of Justice since the court is
mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with
the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice
would be an abdication of the trial court’s duty and jurisdiction to determine prima facie case. (Evangelista vs.
People, supra.)

Q.14. Can the accused still raise the question of jurisdiction over his person, despite the fact that
he already posted bail?

A.14. No. The rule is well settled that the act of an accused in posting bail or in filing motions seeking
affirmative relief is tantamount to submission of his person to the jurisdiction of the court.16 It has been held that:
When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or
otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must raise the
question of the court’s jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to
the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over his
person.17

DOCTRINE OF NON-INTERFERENCE

The Supreme Court has consistently adhered to the policy of non-interference of the courts in the conduct
of preliminary investigations or reinvestigations, and to leave to the investigating prosecutor sufficient latitude of
discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the
filing of an information against the supposed offender.18

Consistent with this policy, courts are not empowered to substitute their own judgment for that of the
executive branch.19 Courts do not reverse the Secretary of Justice’s findings and conclusions on the matter of
probable cause except in clear cases of grave abuse of discretion.20 It also consistently refrained from interfering
with the discretion of the Ombudsman to determine the existence of probable cause and to decide whether an
Information should be filed. Nonetheless, it is not also precluded from reviewing the Ombudsman's action when
there is a charge of grave abuse of discretion.

In Tetangco vs. Ombudsman,21 the Supreme Court said that it is the Court's consistent policy to
maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided
there is no grave abuse in the exercise of such discretion. This observed policy is based not only on respect for the
investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the Court will be seriously hampered by innumerable petitions
assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it, in much the same way that the courts would be extremely swamped with cases if they
could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each
time they decide to file an information in court or dismiss a complaint by a private complainant.22

Thus, in Alberto vs. Court of Appeals,23 the Supreme Court pronounced that courts of law are precluded
from disturbing the findings of public prosecutors and the DOJ on the existence or non-existence of probable

14
235 Phil. 465 (1987).
15
393 Phil. 172 (2000).
16
Miranda vs. Tuliao, 520 Phil. 907 (2006), citing Santiago vs. Vasquez, 217 SCRA 633 (27 January 1993); Cojuangco vs.
Sandiganbayan, 360 Phil. 559 (1998); Velasco vs. Court of Appeals, 315 Phil. 757 (1995).
17
State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534.
18
Glaxosmithkline Philippines, Inc. vs. Khalid Mehmood Malik, 499 SCRA 268 (17 August 2006); Andres vs. Cuevas, 460 SCRA
38 (9 June 2005); Punzalan vs. Dela Peña, 434 SCRA 601 (21 July 2004).
19
Metropolitan Bank and Trust Company vs. Tonda, 338 SCRA 254 (16 August 2000).
20
Metropolitan Bank & Trust Co. (Metrobank) vs. Tobias III, 664 SCRA 165 (25 January 2012); Reyes vs. Pearlbank Securities,
Inc., 560 SCRA 518 (30 July 2008); Aguirre vs. Secretary, Department of Justice, 547 SCRA 431 (3 March 2008).
21
479 SCRA 249 (20 January 2006).
22
Roxas vs. Vasquez, 358 SCRA 636 (19 June 2001).
23
699 SCRA 104 (19 June 2013).
 6

cause for the purpose of filing criminal informations, unless such findings are tainted with grave abuse of
discretion, amounting to lack or excess of jurisdiction. The rationale behind the general rule rests on the principle
of separation of powers, dictating that the determination of probable cause for the purpose of indicting a suspect
is properly an executive function; while the exception hinges on the limiting principle of checks and balances,
whereby the judiciary, through a special civil action of certiorari, has been tasked by the present Constitution "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government."

The underlying principle behind the courts’ power to review a public prosecutor’s determination of
probable cause is to ensure that the latter acts within the permissible bounds of his authority or does not gravely
abuse the same. This manner of judicial review is a constitutionally-enshrined form of check and balance which
underpins the very core of our system of government. 24

EXCEPTION TO THE DOCTRINE OF NON-INTERFERENCE

While it is the Supreme Court’s general policy not to interfere in the conduct of preliminary
investigations, leaving the investigating officers sufficient discretion to determine probable cause, the Court
has nonetheless made some exceptions to the general rule, such as when the acts of the officer are without or
in excess of authority. Although there is no general formula or fixed rule for the determination of probable cause
since the same must be decided in the light of the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding
should not disregard the facts before the judge nor run counter to the clear dictates of reason.25

In the case of Alawiya vs. Datumanong 585 SCRA 267 (16 April 2009), the Supreme Court held that the
duty of the Supreme Court in an appropriate case is confined to the issue of whether the executive or judicial
determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with
grave abuse of discretion amounting to want of jurisdiction.26

However, in the following exceptional cases, the Supreme Court may ultimately resolve the existence or
non-existence of probable cause by examining the records of the preliminary investigation.27

(a) To afford adequate protection to the constitutional rights of the accused;

(b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions;
(c) When there is a prejudicial question which is sub judice;
(d) When the acts of the officer are without or in excess of authority;
(e) Where the prosecution is under an invalid law, ordinance or regulation;
(f) When double jeopardy is clearly apparent;
(g) Where the court has no jurisdiction over the offense;
(h) Where it is a case of persecution rather than prosecution;
(i) Where the charges are manifestly false and motivated by the lust for vengeance;
(j) When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied; and
(k) Preliminary injunction has been issued by the Supreme Court to prevent the threatened
unlawful arrest of petitioners.

In other words, judicial review of the resolution of the Secretary of Justice is limited to a determination of
whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction considering that
full discretionary authority has been delegated to the executive branch in the determination of probable cause
during a preliminary investigation.28

24
Aguilar vs. Department of Justice, 705 SCRA 629 (11 September 2013).
25
Tan, Jr. vs. Matsuura, 688 SCRA 263 (9 January 2013); Gonzalez vs. Hongkong & Shanghai Banking Corporation, 537 SCRA
255 (19 October 2007).
26
Roberts, Jr. vs. Court of Appeals, 254 SCRA 307 (5 March 1996).
27
Brocka vs. Enrile, 192 SCRA 183 (10 December 1990); Samson vs. Guingona, Jr., 348 SCRA 32 (14 December 2000).
28
Cabahug vs. People, 376 SCRA 113 (5 February 2002); Metropolitan Bank and Trust Company vs. Tonda, 338 SCRA 254 (16
August 2000).
 7

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment on the part of
the public officer concerned which is equivalent to an excess or lack of jurisdiction.29 The abuse of discretion must
be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility30 and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by law, or to act at all in contemplation of law. 31 Grave abuse of discretion refers not
merely to palpable errors of jurisdiction; or to violations of the Constitution, the law and jurisprudence.32 It refers
also to cases in which, for various reasons, there has been a gross misapprehension of facts. 33 In this regard, case
law states that not every error in the proceedings, or every erroneous conclusion of law or fact, constitutes grave
abuse of discretion.34

Moreover, on the reversal by the Secretary of Justice of the resolution of the State Prosecutor, settled is
the rule that the Secretary of Justice retains the power to review resolutions of his subordinates even after the
information has already been filed in court.35 The nature of the power of control of the Secretary of Justice over
prosecutors was explained in Ledesma vs. Court of Appeals.36 According to the Court, the decisions or
resolutions of prosecutors are subject to appeal to the Secretary of Justice who, under the Revised Administrative
Code, exercises the power of direct control and supervision over said prosecutors, and who may thus affirm,
nullify, reverse or modify their rulings. However, once a complaint or information is filed in court, any disposition
of the case such as its dismissal or its continuation rests on the sound discretion of the court.37 Trial judges are
not bound by the Secretary of Justice’s reversal of the prosecutor’s resolution finding probable cause. Trial judges
are required to make their own assessment of the existence of probable cause, separately and independently of
the evaluation by the Secretary of Justice.38

PROSECUTION OF OFFENSES (RULE 110)

Q.15. What is an Information?

A.15. In the case of Enrile vs. People (766 SCRA 1, 11 August 2015)(En Banc)[Brion, J.], it was
defined as : An Information is an accusation in writing charging a person with an offense, signed by the
prosecutor and filed with the court.39 The Revised Rules of Criminal Procedure, in implementing the
constitutional right of the accused to be informed of the nature and cause of the accusation against him,
specifically require certain matters to be stated in the Information for its sufficiency. The requirement aims to
enable the accused to properly prepare for his defense since he is presumed to have no independent knowledge
of the facts constituting the offense charged.40

Q.16. When can you consider an Information sufficient and valid?

A.16. To be considered as sufficient and valid, an information must state the name of the accused;
the designation of the offense given by the statute; the acts or omissions constituting the offense; the name
of the offended party; the approximate date of the commission of the offense; and the place where the
offense was committed.

If there is no designation of the offense, reference shall be made to the section or subsection of the
statute penalizing it. The acts or omissions constituting the offense and the qualifying and aggravating

29
Bernardo vs. Tan, 676 SCRA 288 (11 July 2012); Rimbunan Hijau Group of Companies vs. Oriental Wood Processing
Corporation, 470 SCRA 650 (23 September 2005); Gaston vs. Court of Appeals, 334 SCRA 546 (29 June 2000); Palma and
Ignacio vs. Q. & S., Inc., et al., 17 SCRA 97 (19 May 1966).
30
Romy’s Freight Service vs. Castro, 490 SCRA 160 (8 June 2006); Soria vs. Desierto, 450 SCRA 339 (31 January 2005); Perez vs.
Office of the Ombudsman, 429 SCRA 357 (27 May 2004); Duero vs. Court of Appeals, 373 SCRA 11 (4 January 2002); Lim vs.
Executive Secretary, 380 SCRA 739 (11 April 2002).
31
Ciron vs. Gutierrez, 756 SCRA 110 (20 April 2015); Soriano vs. Marcelo, 592 SCRA 394 (13 July 2009); De Vera vs. De Vera,
584 SCRA 506 (7 April 2009); Republic vs. Desierto, 512 SCRA 57 (22 January 2007); Chua Huat vs. Court of Appeals, 199
SCRA 1 (9 July 1991).
32
Presidential Commission on Good Government vs. Desierto, 397 SCRA 171 (10 February 2003).
33
United Coconut Planters Bank vs. Looyuko, 534 SCRA 322 (28 September 2007).
34
Tavera-Luna, Inc. vs. Judge Mariano Nable, 67 Phil. 340 (14 April 1939).
35
Dimatulac vs. Villon, 297 SCRA 679 (12 October 1998); Roberts, Jr. vs. Court of Appeals, 254 SCRA 307 (5 March 1996);
Marcelo vs. Court of Appeals, 235 SCRA 39 (4 August 1994).
36
278 SCRA 656 (5 September 1997).
37
Crespo vs. Mogul, 151 SCRA 462 (30 June 1987).
38
Jalandoni vs. Drilon, 327 SCRA 107 (2 March 2000).
39
Section 4, Rule 110, Revised Rules of Criminal Procedure.
40
People vs. Ching, 563 Phil. 433 (2007).
 8

circumstances alleged must be stated in ordinary and concise language; they do not necessarily need to be in
the language of the statute, and should be in terms sufficient to enable a person of common understanding to
know what offense is charged and what qualifying and aggravating circumstances are alleged, so that the court
can pronounce judgment.41 The Rules do not require the Information to exactly allege the date and place of the
commission of the offense, unless the date and the place are material ingredients or essential elements of the
offense, or are necessary for its identification.

PROBLEM:

Sometime in 2014, Jeffrey "Jennifer" Laude was killed in Celzone Lodge, Ramon Magsaysay Drive,
Olongapo City allegedly by 19-year-old US Marine L/CPL Joseph Scott Pemberton. A complaint for murder was
filed by Jennifer's sibling, Marilou S. Laude, against Pemberton before the Olongapo City Office of the City
Prosecutor. Sometime in October 22, 2014, Pemberton was detained in Camp Aguinaldo, the general
headquarters of the Armed Forces of the Philippines.4

On December 15, 2014, the Public Prosecutor filed an Information for murder against Pemberton before
the Regional Trial Court in Olongapo City. The case was raffled to Judge Ginez-Jabalde. Thereafter, a warrant of
arrest against Pemberton was issued on December 16, 2014.

Pemberton surrendered personally to Judge Ginez-Jabalde on December 19, 2014, and he was then
arraigned.

On the same day, Marilou S. Laude filed an Urgent Motion to Compel the Armed Forces of the Philippines
to Surrender Custody of Accused to the Olongapo City Jail and a Motion to Allow Media Coverage. However,
Laude failed to comply with the three-day notice rule on motion and they did not also secure the conformity of the
public prosecutor. The judge denied the motion.

Q.17. Is the prior conformity of the public prosecutor necessary in the motion? Explain.

A.17. Yes. In Laude vs. Ginez-Jabalde (775 SCRA 408, 24 November 2015)(En Banc)[Leonen, J.], the
Supreme Court held that: The conformity of the Public Prosecutor to the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused to the Olongapo City Jail is not a mere
superfluity. In Jimenez vs. Sorongon,42 the High Court held that in criminal cases, the People is the real party in
interest, which means allowing a private complainant to pursue a criminal action on his own is a rare exception:
Procedural law basically mandates that all criminal actions commenced by complaint or by information shall
be prosecuted under the direction and control of a public prosecutor. In appeals of criminal cases before the
CA and before this Court, the OSG is the appellate counsel of the People.

Q.18. What must be alleged in the Information for it to be sufficient in form and substance?

A.18. In the following cases:

1. Quimvel vs. People (823 SCRA 192, 18 April 2017)(En Banc)[Velasco, Jr., J
2. Reyes vs. Ombudsman (787 SCRA 355, 15 March 2016)(En Banc)[Perlas-Bernabe, J.], it was
held that:

In criminal prosecutions, every element constituting the offense must be alleged in the Information
before an accused can be convicted of the crime charged. This is to apprise the accused of the nature of the
accusation against him, which is part and parcel of the rights accorded to an accused enshrined in Article III,
Section 14(2) of the 1987 Constitution.43 This is also provided under Sections 6, Rule 110 of the 2000 Rules of
Criminal Procedure.

41
See Olivarez vs. Court of Appeals, 503 Phil. 421 (2005).
42
687 SCRA 151 (5 December 2012)[Per J. Brion, Second Division].
43
Section 14. x x x (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall el1ioy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is
unjustifiable.
 9

Jurisprudence has already set the standard on how the requirement is to be satisfied. Case law dictates
that the allegations in the Information must be in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged and enable the court to know the proper
judgment. The Information must allege clearly and accurately the elements of the crime charged. The facts
and circumstances necessary to be included therein are determined by reference to the definition and
elements of the specific crimes.44

PROBLEM:

The second paragraph of the Information reads:

―That the accused had performed all the acts of execution which would have produce the crime of
Homicide as a consequence, but which, nevertheless, did not produce it by reason of causes independent of his
own will.‖

Q.19. Can the accused be convicted for the crime of frustrated murder based on these statements
in the Information?

A.19. Yes. In People vs. Oandasan (793 SCRA 278, 14 June 2016)(En Banc)[Bersamin, J.][Case of
two (2) counts of murder and frustrated murder.], it was held that:

The rule is that the allegations of the information on the nature of the offense charged, not the
nomenclature given it by the Office of the Public Prosecutor, are controlling in the determination of the
offense charged. Accordingly, considering that the information stated in its first paragraph that the accused,
armed with a gun, with intent to kill, with evident premeditation and with treachery, conspiring together and
helping one another, did then and there willfully, unlawfully and feloniously assault, attack and shot one Engr.
Mario Paleg y Ballad, inflicting upon the latter a gunshot wound, the accused can be properly found guilty of
frustrated murder, a crime sufficiently averred in the information.

Q.20. Is it necessary that the description of the crime, as worded in the penal provision allegedly
violated, be reproduced verbatim in the accusatory portion of the Information?

A.20. No. In Quimvel vs. People (823 SCRA 192, 18 April 2017)(En Banc)[Velasco, Jr., J.],45 it was
held that: It is not necessary. Sec. 9, Rule 110 of the 2000 Rules of Criminal Procedure support this thesis. The
acts or omissions complained of as constituting the offense and the qualifying and aggravating
circumstances must be stated in ordinary and concise language and not necessarily in the language used in
the statute, but in terms sufficient to enable a person of common understanding to know what offense is
being charged, as well as its qualifying and aggravating circumstances and for the court to pronounce
judgment.

The Supreme Court has held in a catena of cases31 that the rule is satisfied when the crime is described
in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the
offense charged. Furthermore, the use of derivatives or synonyms or allegations of basic facts constituting the
offense charged is sufficient. Hence, the exact phrase exploited in prostitution or subjected to other abuse need
not be mentioned in the Information. Even the words coercion or influence need not specifically appear.

Q.21. Why is violation of B.P. Blg. 22 categorized as a transitory or continuing crime?

A.21. In Yalong vs. People (704 SCRA 195, 28 August 2013)(Second Division)[Perlas-Bernabe, J.], a
violation of B.P. Blg. 22 case, it was held that: Violation of BP 22 cases is categorized as transitory or continuing
crimes because the acts material and essential thereto occur in one municipality or territory, while some
occur in another. Accordingly, the court wherein any of the crime’s essential and material acts have been
committed maintains jurisdiction to try the case; it being understood that the first court taking cognizance of the
same excludes the other.

44
Serapio vs. Sandiganbayan (Third Division), 444 Phil. 499 (2003).
45
The accused was convicted for the crime of Acts of Lasciviousness as penalized under Sec. 5(b) of RA 7610. The conviction
was affirmed by the Supreme Court.
 10

Stated differently, a person charged with a continuing or transitory crime may be validly tried in any
municipality or territory where the offense was in part committed.46 Applying these principles, a criminal case
for violation of BP 22 may be filed in any of the places where any of its elements occurred – in particular, the
place where the check is drawn, issued, delivered, or dishonored.

Q.22. What is the rule on venue in criminal cases?

A.22. In Union Bank of the Philippines vs. People (667 SCRA 113, 28 February 2012)(En Banc)
[Brion, J.], a perjury case under Art. 183 of the RPC wherein the Verification Certification was notarized in Makati
but was used in a case in Pasay; thus, Makati MTC has jurisdiction over the case, it was held that: Venue is an
essential element of jurisdiction in criminal cases. It determines not only the place where the criminal action
is to be instituted, but also the court that has the jurisdiction to try and hear the case. The reason for this rule
is two-fold:

First, the jurisdiction of trial courts is limited to well-defined territories such that a trial court can only
hear and try cases involving crimes committed within its territorial jurisdiction.47

Second, laying the venue in the locus criminis is grounded on the necessity and justice of having an
accused on trial in the municipality of province where witnesses and other facilities for his defense are
available.48

Q.23. Can jurisdiction in criminal cases be raised at any time even after conviction or appeal?

A.23. Yes. In Casanas vs. People (848 SCRA 324, 11 December 2017)(Second Division)[Perlas-
Bernabe, J.], a carnapping case, it was held that: Jurisdiction of a court may be questioned at any stage of the
proceedings. Lack of jurisdiction is one of those excepted grounds where the court may dismiss a claim or a
case at any time when it appears from the pleadings or the evidence on record that any of those grounds
exists, even if they were not raised in the answer or in a motion to dismiss. So that, whenever it appears that
the court has no jurisdiction over the subject matter, the action shall be dismissed.

This defense may be interposed at any time, during appeal or even after final judgment. Such is
understandable, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to
themselves determine or conveniently set aside.49 In criminal cases, venue is jurisdictional in that a court cannot
exercise jurisdiction over a person charged with an offense committed outside its limited territory.50 As such,
when it becomes apparent that the crime was committed outside the territorial jurisdiction of the court, the
case must be dismissed for want of jurisdiction.51

In Casanas, it is clear that the RTC-Valenzuela had no authority to take cognizance of the instant
case as the crime was committed outside its territorial jurisdiction. Consequently, the RTC-Valenzuela ruling
convicting Casanas of the crime charged, as well as the CA ruling upholding the same, is null and void for
lack of jurisdiction. It is well-settled that where there is want of jurisdiction over a subject matter, the judgment
is rendered null and void. A void judgment is in legal effect no judgment, by which no rights are divested,
from which no right can be obtained, which neither binds nor bars any one, and under which all acts
performed and all claims flowing out are void. It is not a decision in contemplation of law and, hence, it can
never become executory. It also follows that such a void judgment cannot constitute a bar to another case by
reason of res judicata,52 as in this case.

Q.24. When can the prosecutor amend an Information without leave of court?

A.24. In the following cases:

1. De Lima vs. Guerrero (843 SCRA 1, 10 October 2017)(En Banc)[Velasco, J.]

46
See Rigor vs. People, 442 SCRA 450 (17 November 2004).
47
United States vs. Cunanan, 26 Phil. 376 (1913).
48
Parulan vs. Reyes, 78 Phil. 855 (1947).
49
Heirs of Fernando vs. De Belen, 713 Phil. 364 (2013).
50
Treñas vs. People, 680 Phil. 368 (2012).
51
Isip vs. People, 552 Phil. 786 (2007).
52
People vs. Lagat, 673 Phil. 351 (2011). See also People vs. Bustinera, 475 Phil. 190 (2004), citing People vs. Obillo, 411 Phil.
139 (2001).
 11

2. Dabalos vs. Regional Trial Court, Branch 59, Angeles City (Pampanga)(688 SCRA 64, 7
January 2013)(Second Division)[Perlas-Bernabe, J.], it was held that:

Sec. 14 of Rule 110 of the 2000 Rules of Criminal Procedure provides that an information may be
amended, in form or in substance, without leave of court, at any time before the accused enters his plea.

Q.25. What is the remedy available for the accused if they were charged with murder and
interposed as a defense the Political Offense Doctrine?

A.25. In Ocampo vs. Abando (715 SCRA 673, 11 February 2014)(En Banc)[Sereno, CJ.], it was held
that: The burden of demonstrating political motivation must be discharged by the defense, since motive is a
state of mind which only the accused knows. The proof showing political motivation is adduced during trial
where the accused is assured an opportunity to present evidence supporting his defense. It is not for the Supreme
Court to determine this factual matter in the instant petitions.

As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte vs. CA,53 if during
trial, petitioners are able to show that the alleged murders were indeed committed in furtherance of rebellion,
Section 14, Rule 110 of the 2000 Rules of Court provides the remedy, which is amendment or substitution
information. Thus, if it is shown that the proper charge against petitioners should have been simple rebellion, the
trial court shall dismiss the murder charges upon the filing of the Information for simple rebellion, as long as
petitioners would not be placed in double jeopardy.

PROSECUTION OF CIVIL ACTION (RULE 111)

Q.26. Does the dismissal of the criminal case carry with it the extinction of the civil aspects?
Explain.

A.26. No. In the following cases:

1. Burgos, Jr. vs. Naval (793 SCRA 120, 8 June 2016)(First Division)[Perlas-Bernabe, J.]
2. Coscolluela vs. Sandiganbayan (First Division)(701 SCRA 188, 15 July 2013)(Second
Division)[Perlas-Bernabe, J.], it was held that:

The extinction of the penal action does not carry with it the extinction of the civil action where:

(a) the acquittal is based on reasonable doubt as only preponderance of evidence is required;
(b) the court declares that the liability of the accused is only civil; and
(c) the civil liability of the accused does not arise from or is not based upon the crime of which
the accused was acquitted.

The civil action based on delict may, however, be deemed extinguished if there is a finding on the
final judgment in the criminal action that the act or omission from which the civil liability may arise did not
exist.44

Q.27. What is the effect of the death of the accused pending appeal of his case on his civil and
criminal liabilities?

A.27. In the case of People vs. Layag (806 SCRA 190, 17 October 2016)(First Division)[Perlas-
Bernabe, J.], citing the case of People vs. Egagamao,54 the Supreme Court held that: Death of the accused
pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely
thereon. As opined by Justice Regalado, in this regard, the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and based solely on the
offense committed, i.e., civil liability ex delicto in senso strictiore.

Q.28. Is the prescriptive period for the action on civil liability suspended during the pendency of
the criminal case?

53
401 Phil. 945 (2000).
54
See G.R. No. 218809 (3 August 2016).
 12

A.28. Yes. In cases where during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil action, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of
Article 1155 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by
prescription.55

Thus, in the case of People vs. Layag supra, the death of the accused pending appeal of his conviction,
the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil
action instituted therein for the recovery of the civil liability ex delicto is ipso facto extinguished, grounded as it
is on the criminal action. However, it is well to clarify that Layag's civil liability in connection with his acts
against the victim, AAA, may be based on sources other than delicts; in which case, AAA may file a separate civil
action against the estate of Layag, as may be warranted by law and procedural rules.

PRELIMINARY INVESTIGATION(RULE 112)

Q.29. What is Preliminary Investigation?

A.29. In the case of Ocampo vs. Abando (715 SCRA 673, 11 February 2014)(En Banc)[Sereno, C.J.], it
was held that: A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by
the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should
be held for trial.

A preliminary investigation is not a casual affair.56 It is conducted to protect the innocent from the
embarrassment, expense and anxiety of a public trial.57 While the right to have a preliminary investigation
before trial is statutory rather than constitutional, it is a substantive right and a component of due process in the
administration of criminal justice.

The essence of due process is reasonable opportunity to be heard and submit evidence in support of
one’s defense.58 What is proscribed is lack of opportunity to be heard. Thus, one who has been afforded a
chance to present one’s own side of the story cannot claim denial of due process.59

Q.30. Under the doctrine of non-interference, the Supreme Court is precluded from reviewing the
findings of probable cause by the Ombudsman. Is this absolute?

A.30. No. In Reyes vs. Ombudsman (787 SCRA 355, 15 March 2016)(En Banc)[Perlas-Bernabe, J.], it
was held that the Supreme Court is not precluded from reviewing the Ombudsman's action when there is a
charge of grave abuse of discretion. Grave abuse of discretion implies a capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction.

The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which
must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. 60

In Ciron vs. Gutierrez,61 the Supreme Court laid down the policy, viz:

This Court's consistent policy has been to maintain non-interference in the determination of the
Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such
discretion. This observed policy is based not only on respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the
functions of the Court will be seriously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in
much the same way that the courts would be extremely swamped with cases if they could be compelled to

55
People vs. Bayotas, 236 SCRA 239 (2 September 1994).
56
Ang-Abaya vs. Ang, 573 SCRA 129 (4 December 2008).
57
Uy vs. Office of the Ombudsman, 556 SCRA 73 (27 June 2008).
58
Kuizon vs. Desierto, 406 Phil. 611 (2001).
59
Pascual vs. People, 547 Phil. 620 (2007).
60
Soriano vs. Marcelo, 610 Phil. 72 (2009).
61
G.R. Nos. 194339-41 (20 April 2015).
 13

review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by a private complainant.62

HEARSAY EVIDENCE IS ADMISSIBLE DURING PRELIMINARY INVESTIGATION

Q.31. During the preliminary investigation in the Office of the Ombudsman, will the validity of the
respondent’s defense or accusation be taken into consideration in the determination of probable cause?

A.31. No. A preliminary investigation is not the occasion for the full and exhaustive display of the
prosecution's evidence, and that the presence or absence of the elements of the crime is evidentiary in nature
and is a matter of defense that may be passed upon after a full-blown trial on the merits.63 Therefore, the
validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence,
are better ventilated during trial proper than at the preliminary investigation level.

Furthermore, owing to the initiatory nature of preliminary investigations, the technical rules of evidence
should not be applied in the course of its proceedings,64 keeping in mind that the determination of probable
cause does not depend on the validity or merits of a party's accusation or defense or on the admissibility or
veracity of testimonies presented.65

Thus, in Estrada vs. Ombudsman,66 the Supreme Court declared that since a preliminary investigation
does not finally adjudicate the rights and obligations of parties, probable cause can be established with
hearsay evidence, as long as there is substantial basis for crediting the hearsay.

PROBLEM:

Delfin and Dexter Lee, Sagun and Alvarez were charged with syndicated estafa, along with Cristina
Salagan, on the basis of the findings of the DOJ that Globe Asiatique had violated its warranties under the
Funding Commitment Agreements (FCAs) and the July 13, 2009 MOA; that Globe Asiatique had submitted
spurious and questionable documents concerning the qualifications of its buyers; that Globe Asiatique had
employed fictitious buyers to obtain funds from the Home Development Mutual Fund (HDMF); and that Globe
Asiatique had failed to remit to the HDMF the monthly housing loan amortizations of its buyers in the Xevera
Project in Pampanga.

Q.32. Is the DOJ correct in finding probable cause for the filing of the Information and the RTC of
Pampanga for the issuance of warrant of arrest with no bail due to syndicated estafa under PD No. 1689
against all the accused?

A.32. No. Both the DOJ and the RTC of Pampanga are incorrect. In the following cases:

1. Home Development Mutual Fund (HDMF) Pag-Ibig Fund vs. Christina Sagun, et al. (G.R. No.
205698, etc., 31 July 2018)(En Banc)[Bersamin, J.]
2. Young vs. People (783 SCRA 286, 3 February 2016)(First Division)[Perlas-Bernabe, J.][The trial
court dismissed the case at first instance for lack of probable cause. However, it was reversed
by the CA finding probable cause against the petitioners for violation of Sections 4(a) and (e) in
relation to Sections 6(a) and (c) of Republic Act No. 9208, otherwise known as the "Anti-
Trafficking in Persons Act of 2003."]
3. De Los Santos-Dio vs. CA (699 SCRA 614, 26 June 2013)(Second Division)[Perlas-Bernabe, J.]
4. Garcia vs. Office of the Ombudsman (741 SCRA 172, 19 November 2014)(First Division)
[Perlas-Bernabe, J.],67 it was held that:

The Supreme Court said in Home Development Mutual Fund (HDMF) Pag-Ibig Fund vs. Christina
Sagun, et al. supra:

62
Tetangco vs. Ombudsman, 515 Phil. 230 (2006), further citing Roxas vs. Vasquez, 411 Phil. 276 (2011).
63
Lee vs. KBC Bank N.V., 624 Phil. 115 (2010), citing Andres vs. Cuevas, 499 Phil. 36 (2005).
64
See De Chavez vs. Ombudsman, 543 Phil. 600 (2007).
65
Unilever Philippines, Inc. vs. Tan, 715 SCRA 36 (29 January 2014).
66
G.R. Nos. 212140-41 (21 January 2015).
67
The petition was partly granted. Petitioners should only be indicted for violation of Section 3(e), RA 3019. The criminal
charge for Technical Malversation was DISMISSED, without prejudice to its proper re-filing.
 14

The concept of probable cause has been discussed in Napoles vs. De Lima68 as follows:

I. PRELIMINARY INVESTIGATION FOR PURPOSES OF FILING AN INFORMATION IS AN

EXECUTIVE FUNCTION

During preliminary investigation, the prosecutor determines the existence of probable cause for filing an
information in court or dismissing the criminal complaint. As worded in the Rules of Court, the prosecutor
determines during preliminary investigation whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for
trial. At this stage, the determination of probable cause is an executive function. Absent grave abuse of
discretion, this determination cannot be interfered with by the courts. This is consistent with the doctrine of
separation of powers.

II. DETERMINATION OF PROBABLE CAUSE FOR THE ISSUANCE OF WARRANT OF ARREST IS

A JUDICIAL FUNCTION

On the other hand, if done to issue an arrest warrant, the determination of probable cause is a
judicial function. No less than the Constitution commands that no warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. This requirement of personal evaluation by the judge is
reaffirmed in Rule 112, Section 5(a) of the Rules on Criminal Procedure.

Therefore, the determination of probable cause for filing an information in court and that for
issuance of an arrest warrant are different. Once the information is filed in court, the trial court acquires
jurisdiction and any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court.

Q.33. What is needed during preliminary investigation in order that an Information may be filed in
court?

A.33. In the case of Estrada, Napoles and De Asis vs. Office of the Ombudsman (G.R. Nos. 212761-
62, 31 July 2018)(En Banc)[Carpio, J.], it was held that: Under Sections 1 and 3, Rule 112 of the Revised Rules of
Criminal Procedure, probable cause is needed to be established by the investigating officer, to determine
whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof,69 and should be held for trial, during preliminary investigation.

Thus, probable cause has been defined as the existence of such facts and circumstances as would
excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. It is merely based on opinion and
reasonable belief. In determining probable cause, the average person weighs facts and circumstances without
resorting to the calibrations of the rules of evidence of which he or she has no technical knowledge. 70

Q.34. What is the substance of all the definitions of probable cause?

A.34. It is a reasonable ground for belief of guilt.71 This means less than evidence which would
justify condemnation or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke vs.
United States.72 Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause
exists where the facts and circumstances within the officer’s knowledge and of which they had reasonably

68
797 SCRA 1 (13 July 2016).
69
Alberto vs. Court of Appeals, 699 SCRA 104 (19 June 2013)(Second Division)[Perlas-Bernabe, J.].
70
Estrada vs. Office of the Ombudsman, 751 Phil. 821 (2015); Cambe vs. Office of the Ombudsman, 812 SCRA 537 (6 December,
2016)[Per J. Perlas-Bernabe, En Banc]; Clave vs. Office of the Ombudsman, 812 SCRA 187 (5 December 2016); Reyes vs.
Ombudsman, 783 Phil. 304 (2016); Aguilar vs. Department of Justice, 717 Phil. 789 (2013); Ang-Abaya vs. Ang, 593 Phil. 530
(2008); Joson vs. Office of the Ombudsman, 784 Phil. 172 (2016); Hasegawa vs. Giron, 716 Phil. 364 (2013); Dichaves vs. Office
of the Ombudsman, 813 SCRA 273 (7 December 2016), citing Kalalo vs. Office of the Ombudsman, 633 Phil. 160
(2010); Relampagos vs. Office of the Ombudsman, G.R. Nos. 216812-16 (19 July 2016)(Unsigned Resolution); Aguilar vs.
Department of Justice, 717 Phil. 789 (2013).
71
McCarthy vs. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161.
72
7 Cranch 339, 348.
 15

trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.73

Q.35. What are to be considered by an investigating prosecutor to arrive at a finding of probable

cause?

A.35. In order to arrive at probable cause, the elements of the crime charged should be present.74
In Reyes vs. Ombudsman,75 the Supreme Court unanimously held that in determining the elements of the crime
charged for purposes of arriving at a finding of probable cause, only facts sufficient to support a prima facie
case against the accused are required, not absolute certainty. It was explained that owing to the nature of a
preliminary investigation and its purpose, all of the foregoing elements need not be definitively established
for it is enough that their presence becomes reasonably apparent. This is because probable cause - the
determinative matter in a preliminary investigation implies mere probability of guilt; thus, a finding based on
more than bare suspicion but less than evidence that would justify a conviction would suffice.

Q.36. What is the consequence if the trial court finds probable cause for the issuance of warrant of
arrest but there is a question as to the conduct of preliminary investigation?

A.36. In Sec. De Lima vs. Reyes, 76 the Supreme Court held that once the trial court finds probable
cause, any question on the prosecution's conduct of preliminary investigation becomes moot.

Q.37. What is the Doctrine of Inordinate Delay?

A.37. In the case of Cagang vs. Sandiganbayan, Fifth Division (G.R. Nos. 206438, etc., 31 July 2018)
(En Banc)[Leonen, J.], it was held that: Inordinate delay in the resolution and termination of a preliminary
investigation violates the accused's right to due process and the speedy disposition of cases, and may result in
the dismissal of the case against the accused.

WHEN BURDEN IS ON THE PART OF THE RESPONDENT

The burden of proving delay depends on whether delay is alleged within the periods provided by law
or procedural rules. If the delay is alleged to have occurred during the given periods, the burden is on the
respondent or the accused to prove that the delay was inordinate.

WHEN BURDEN SHIFTS ON THE PART OF THE PROSECUTION

If the delay is alleged to have occurred beyond the given periods, the burden shifts to the prosecution
to prove that the delay was reasonable under the circumstances and that no prejudice was suffered by the
accused as a result of the delay.

The determination of whether the delay was inordinate is not through mere mathematical reckoning
but through the examination of the facts and circumstances surrounding the case. Courts should appraise a
reasonable period from the point of view of how much time a competent and independent public officer would
need in relation to the complexity of a given case. If there has been delay, the prosecution must be able to
satisfactorily explain the reasons for such delay and that no prejudice was suffered by the accused as a result.
The timely invocation of the accused's constitutional rights must also be examined on a case-to-case basis.

Q.38. In the determination of probable cause by the investigating prosecutor, is hearsay evidence
admissible?

A.38. Yes. In the case of PDIC vs. Casimiro (769 SCRA 110, 2 September 2015)(First Division)[Perlas-
Bernabe, J.], citing the case of Estrada vs. Ombudsman,77 the Supreme Court declared that hearsay evidence is
admissible in determining probable cause in preliminary investigations because such investigation is merely
preliminary, and does not finally adjudicate rights and obligations of parties.

73
Carroll vs. United States, 267 U. S. 132.
74
Hasegawa vs. Giron, supra.
75
783 Phil. 304 (2016).
76
776 Phil. 623 (2016).
77
See G.R. Nos. 212140-41 (21 January 2015).
 16

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis
for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. (In Unilever, Mr. Justice Brion Citing a case decided by the Supreme Court of the United
States, in US vs. Ventresca,78 and Brinegar vs. US supra).

THERE IS NO LAW OR RULE WHICH REQUIRES THAT RESPONDENT BE FURNISHED BY THE COUNTER
AFFIDAVITS OF HIS CO-RESPONDENTS

Q.39. Is there a violation of the respondent’s constitutional right to due process if he was not given
copies of the Counter Affidavits of his co-respondents by the investigating agency conducting the preliminary
investigation? Explain.

A.39. No. In Estrada vs. Office of the Ombudsman (748 SCRA 1, 21 January 2015)(En Banc)[Carpio,
J.], it was ruled that: Sen. Estrada claims that the denial of his request for the counter affidavits of his co-
respondents violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule
which states that it is a compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section 3(b),
Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the
Office of the Ombudsman supports Sen. Estrada’s claim.

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the
Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the co-
respondents should be furnished to a respondent.

Q.40. Is the right to cross-examination available to the respondent during preliminary investigation?

A.40. No. The respondent has no right to cross-examine the witnesses which the complainant may
present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the
right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where
the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be
waived by the accused, the Supreme Court finds no compelling justification for a strict application of the
evidentiary rules.

Q.41. Is the right to preliminary investigation considered as a constitutional right? Explain.

A.41. No. The right to a preliminary investigation is merely a statutory right,79 not part of the
fundamental and essential requirements of due process as prescribed in Ang Tibay vs. Court of Industrial
Relations 80 and amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation. The
constitutional right of an accused to confront the witnesses against him does not apply in preliminary
investigations; nor will the absence of a preliminary investigation be an infringement of his right to confront the
witnesses against him.81 A preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial.82

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidence
needed in a preliminary investigation to establish probable cause, or to establish the existence of a prima
facie case that would warrant the prosecution of a case. Ang Tibay refers to substantial evidence, while the
establishment of probable cause needs only more than bare suspicion, or less than evidence which would

78
380 U.S. 102 (1965).
79
Mariñas vs. Hon. Siochi, etc., et al., 191 Phil. 698 (1981).
80
69 Phil. 635 (1940); See also GSIS vs. CA, 357 Phil. 511 (1998).
81
See Dequito vs. Arellano, 81 Phil. 128 (1948), citing 32 CJS 456.
82
Bustos vs. Lucero, 81 Phil. 640 (1948).
 17

justify conviction. In the United States, from where we borrowed the concept of probable cause,83 the prevailing
definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These
are not technical; they are the factual and practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be
proved.

Q.42. Is the investigating public prosecutor allowed to resolve the complaint even without the
counter affidavit of the respondent? Explain.

A.42. Yes. In Ocampo vs. Abando (715 SCRA 673, 11 February 2014)(En Banc)[Sereno, C.J.], it was
held that: Section 3(d), Rule 112 of the Rules of Court, allows the Prosecutor to resolve the complaint based
on the evidence before him if a respondent could not be subpoenaed. As long as efforts to reach a respondent
were made, and he was given an opportunity to present countervailing evidence, the preliminary investigation
remains valid.84 The rule was put in place in order to foil underhanded attempts of a respondent to delay the
prosecution of offenses.

Q.43. What is the period of appeal from the adverse resolution of the Office of the City/Provincial
Prosecutor to the Secretary of the Department of Justice?

A.43. The party has fifteen (15) days reckoned from the date of receipt of the adverse resolution of
the city/provincial prosecutor. This is clear from Section 3 of the 2000 National Prosecution Service Rule on
Appeal: Sec. 3. Period to appeal.– The appeal shall be taken within fifteen (15) days from receipt of the
resolution, or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen
(15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed.

Q.44. From the adverse resolution of the Office of the City/Provincial Prosecutor of a crime
cognizable by the Municipal Trial Court in Cities, Municipal Trial Court, and Municipal Circuit Trial Court,
where can the aggrieved party appeal his case?

A.44. In the following cases:

1. Mina, et al. vs. CA (G.R. No. 239521, 28 January 2019)(Second Division)[Perlas-Bernabe, J.]
2. Cariaga vs. Sapigno (828 SCRA 436, 28 June 2017)(First Division)[Perlas-Bernabe, J.],85 it was
held that:

The aggrieved party may file a Petition for Review to the Office of the Regional State Prosecutor
(RSP) within fifteen (15) days from receipt of the adverse resolution pursuant to DOJ Circular No. 70-A.

The Department of Justice's Department Circular No. 7086 dated July 3, 2000, entitled the 2000 NPS Rule
on Appeal, which governs the appeals process in the National Prosecution Service (NPS), provides that
resolutions of, inter alia, the RSP, in cases subject of preliminary investigation/reinvestigation shall be appealed
by filing a verified petition for review before the SOJ.87

However, this procedure was immediately amended by the DOJ's Department Circular No. 70-A88
dated 10 July 2000, entitled: Delegation of Authority to Regional State Prosecutors to Resolve Appeals in
Certain Cases.

83
The Fourth Amendment of the United States Constitution reads: "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized." See also Ocampo vs. United States, 234 U.S. 91 (1914).
84
Rodis, Sr. vs. Sandiganbayan, 248 Phil. 854 (1988).
85
Subject of the Petition for review on certiorari are the Resolutions of the Court of Appeals which dismissed petitioner’s
Petition for Review on the ground of non-exhaustion of administrative remedies. Petitioner filed cases of Falsification of
Public Documents, False Certification, and Slander by Deed, defined and penalized under Articles 171, 174, and 359 of the
Revised Penal Code against the respondents.
86
1 September 2000.
87
See Sections 1 and 4 of DOJ Circular No. 70.
88
1 September 2000.
 18

Further amplified by Section 3 of DOJ Department Circular No. 018-14, viz: The aggrieved party can
file a Petition for Review within fifteen (15) days from receipt of the adverse resolution to the Prosecutor
General (PG) who can decide the same with finality.

A reading of the foregoing provisions shows that the prevailing appeals process in the NPS with regard
to complaints subject of preliminary investigation would depend on two factors, namely: where the complaint
was filed, i.e., whether in the NCR or in the provinces; and which court has original jurisdiction over the case, i.e.,
whether or not it is cognizable by the MTCs/MeTCs/ MCTCs. Thus, the rule shall be as follows:

If the complaint is filed outside the NCR and is cognizable by

the MTCs/MeTCs/ MCTCs, the ruling of the OPP may be
(a)
appealable by way of petition for review before the ORSP,
which ruling shall be with finality;

If the complaint is filed outside the NCR and is not cognizable

by the MTCs/ MeTCs/MCTCs, the ruling of the OPP may be
(b)
appealable by way of petition for review before SOJ, which
ruling shall be with finality;

If the complaint is filed within the NCR and is cognizable by

the MTCs/ MeTCs/MCTCs, the ruling of the OCP may be
(c)
appealable by way of petition for review before the Prosecutor
General, whose ruling shall be with finality;

If the complaint is filed within the NCR and is not cognizable

by the MTCs/ MeTCs/MCTCs, the ruling of the OCP may be
(d)
appealable by way of petition for review before the SOJ,
whose ruling shall be with finality;

Provided, that in instances covered by (a) and (c), the SOJ

may, pursuant to his power of control and supervision over
(e) the entire National Prosecution Service, review, modify, or
reverse the ruling of the ORSP or the Prosecutor General, as
the case may be.

PROBLEM:

Senator William Halili was the former Secretary of the Department of Justice (DOJ) and Commissioner of
the Commission on Human Rights (CHR) of the Banana Republic. During his term, there were many politicians
whom he entangled with and cases were filed against them. As Commissioner of CHR, he conducted an
investigation against Mayor Tago Walo for alleged extrajudicial killings in the City of Samat. According to
reports, the Mayor has his own SDS (Samat Death Squad). From thereon, he got the ire of Mayor Tago Walo. In
the meantime, the Mayor was elected as President of the Banana Republic.

Considering that Senator Halili did not stop his criticisms against now President Tago Walo, several
cases involving violations of R.A. No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 were filed against
him. The DOJ conducted the preliminary investigation now headed by Secretary Antonio Cabanez. Senator Halili
did not participate in the Preliminary Investigation on the premise that the DOJ has no jurisdiction over him as he
has a salary Grade higher than 27.

Several witnesses, who were convicted for different heinous crimes and presently serving sentence at
the National Bilibid Prisons (NBP), were presented. They testified that the Senator received drug money from the
drug lords inside the NBP, through his driver, to finance his candidacy as Senator. Thus, several Informations
were filed against him for violations of R.A. No. 9165, raffled to different branches of the RTC of Iliyan, where the
NBP is based. The alleged offenses were non-bailable.
 19

Some of the Informations were raffled to the sala of Judge Primitiva Pribado, who has just returned from
her travel abroad. Senator Halili filed a Motion to Quash the Informations. Nonetheless, the judge issued an Order
finding probable cause against Senator Halili and the corresponding warrant for his arrest. Pending Resolution of
the Motion to Quash, Senator Halili went immediately to the Supreme Court via Petition for Certiorari and
Prohibition with application for TRO/SQA/ Injunction, ratiocinating that Judge Pribado gravely abused her
discretion when the latter issued the Order and the corresponding warrant of arrest without first resolving the
Motion to Quash.

Q.45. Was there grave abuse of discretion committed by Judge Pribado when she issued the
warrant of arrest without resolving first the Motion to Quash filed by Senator Halili? Explain.

A.45. None. In the following cases:

1. De Lima vs. Guerrero (843 SCRA 1, 10 October 2017)(En Banc)[Velasco, Jr., J.]
2. Marcos vs. Faller (815 SCRA 285, 24 January 2017)(En Banc)[Per Curiam], it was held that:

There was no grave abuse of discretion, which is defined as the capricious and whimsical exercise of
judgment equivalent to an evasion of positive duty or a virtual refusal to act at all in contemplation of the law.89
The respondent judge had no positive duty to first resolve the Motion to Quash before issuing a warrant of
arrest. There is no rule of procedure, statute, or jurisprudence to support the petitioner's claim. Rather, Sec.
5(a), Rule 112 of the Rules of Court90 required the respondent judge to evaluate the prosecutor's resolution and its
supporting evidence within a limited period of only ten (10) days.

It is not far-fetched to conclude, therefore, that had the respondent judge waited longer and first
attended to the petitioner's Motion to Quash, she would have exposed herself to a possible administrative liability
for failure to observe Sec. 5(a), Rule 112 of the Rules of Court. Her exercise of discretion was sound and in
conformity with the provisions of the Rules of Court considering that a Motion to Quash may be filed and, thus
resolved by a trial court judge, at any time before the accused petitioner enters her plea.91 What is more, it is in
accord with the Supreme Court's ruling in Marcos vs. Cabrera-Faller92 that as the presiding judge, it was her
task, upon the filing of the Information, to first and foremost determine the existence or non-existence of probable
cause for the arrest of the accused.

The Supreme Court's ruling in Miranda vs. Tuliao93 does not support the petitioner's position.
Miranda does not prevent a trial court from ordering the arrest of an accused even pending a motion to quash the
information. At most, it simply explains that an accused can seek judicial relief even if he has not yet been taken
in the custody of law.

PROBLEM:

Laurence Buelo is the President of the University of Timbukto in the City of Iraga. He filed a case of
Estafa against Serafia Luna, the former Credit and Collection Officer of the University with the Office of the Iraga
City Prosecutor.

After the preliminary investigation, the Investigating Prosecutor Nimfa Arciaga recommended the filing
of two Information for Estafa against Ms. Luna which was approved by City Prosecutor Lamberto Magno. The
two (2) Information for Estafa were filed with the RTC of Iraga. Luna filed the following motions: (a) motion for a
bill of particulars alleging that both Informations were deficient because they simply state that the estafa was
committed during the period from June, 2001 to May 31, 2002 without specifying when she received the
money; and (b) supplemental motion for re-investigation. On January 17, 2005 and January 27, 2005, the RTC
issued Orders directing the prosecution to amend said Informations and state therein the particulars sought for
by Luna, as well as to conduct re-investigation of the charges against her. This notwithstanding, the OCP-Iraga
issued two (2) Resolutions, both dated June 30, 2006, holding that there is no cogent reason to alter, modify, or
reconsider its earlier resolutions finding probable cause against Luna for estafa and, accordingly, ordered the
elevation of the case back to the RTC.

89
Yang Kuang Yong vs. People, G.R. No. 213870 (Notice)(27 July 2016).
90
Formerly Section 6. The former Sec. 5 (Resolution of Investigating Judge and its Review) was deleted per AM. No. 05-8-26-SC
(3 October 2005).
91
Section 1, Rule 117 of the Rules of Court. Time to move to quash. – At any time before entering his plea, the accused may
move to quash the complaint or information.
92
A.M. No. RTJ-16-2472 (24 January 2017).
93
520 Phil. 907 (2006).
 20

Due to the OCP-Iraga's insistence of the sufficiency of its Informations, the RTC issued an Order, dated 9
August 2006, dismissing the two criminal cases without prejudice to their re-filing. Such Order attained finality on
September 2, 2006. Due to the setback, the OCP of Iraga reviewed the evidence and issued two (2) supplemental
resolutions and recommended the filing of twenty-one (21) Informations for Estafa against Ms. Luna.

Ms. Luna filed a complaint against Laurence Buelo, ACP Nimfa Arciaga and CP Lamberto Magno with
the Office of the Ombudsman for alleged violation of Section 3(e), R.A. No. 3019. However, the OMB dismissed the
case for lack of probable cause.

Q.46. Is the dismissal of the case by the Ombudsman for lack of probable cause correct? Explain.

A.46. Yes. In the case of Ciron vs. Gutierrez (756 SCRA 110, 20 April 2015)(First Division)[Perlas-
Bernabe, J.], a case with similar factual milieu with the problem, the Supreme Court sustained the dismissal of
the Ombudsman, citing the case of Tetangco vs. Ombudsman,94 it was held that:

This Court's consistent policy has been to maintain non-interference in the determination of the
Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such
discretion. This observed policy is based not only on respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the
functions of the Court will be seriously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in
much the same way that the courts would be extremely swamped with cases if they could be compelled to
review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by a private complainant.

Guided by the foregoing considerations, the Court finds that the Ombudsman did not gravely abuse its
discretion in dismissing the complaints against respondent for lack of probable cause.

Q.47. Is the remedy resorted to by Ms. Serafia Luna in filing a case for violation of Section 3(e),
R.A. No. 3019 against Buelo, ACP Arciaga and CP Magno correct? Explain.

A.47. No. The Ombudsman correctly found that Arciaga and Magno’s acts of issuing the
Supplemental Resolutions and filing of new Informations before the RTC, even without Buelo filing a new
complaint before the OCP-Iraga, is in accordance with prevailing rules and jurisprudence and, thus, were not
tainted with manifest partiality, evident bad faith, or inexcusable negligence.

The Ombudsman did not gravely abuse its discretion in dismissing the complaint against respondents
since the issuance of the Supplemental Resolutions and the filing of the new Informations against Luna even
without a new complaint having been filed for preliminary investigation were done in accordance with prevailing
rules and jurisprudence.

The Court emphasizes that in our criminal justice system, the public prosecutor, which is the Office
of the Ombudsman in this case, exercises wide latitude of discretion in determining whether a criminal case
should be filed in court.95 Courts cannot interfere with the Ombudsman's discretion in the conduct of
preliminary investigations and in the determination of probable cause where the Ombudsman's discretion
prevails over judicial discretion except when there is grave abuse of discretion,96 which does not obtain in this
case.

Q.48. When can a new preliminary investigation or reinvestigation be conducted?

A.48. A new preliminary investigation is only required in order to accord the accused the right to
submit counter-affidavits and evidence in the following instances:

(a) where the original witnesses of the prosecution or some of them may have recanted their
testimonies or may have died or may no longer be available and new witnesses for the State have emerged;

(b) where aside from the original accused, other persons are charged under a new criminal

94
515 Phil. 230 (2006).
95
Schroeder vs. Saldevar, 550 Phil. 719 (2007).
96
See Tetangco vs. Ombudsman, supra.
 21

complaint for the same offense or necessarily included therein;

(c) if under a new criminal complaint, the original charge has been upgraded; or

(d) if under a new criminal complaint, the criminal liability of the accused is upgraded from
being an accessory to that of a principal.97

Applying the foregoing requirements in the problem above, in Ciron vs. Gutierrez supra, the high court
said: Since none of the foregoing instances obtain in this case, the Court holds that the OCP-Iraga, through
Arciaga and Magno, need not conduct another preliminary investigation before it can issue the Supplemental
Resolutions and subsequently, file the consequent Informations in court.

Q.49. Upon filing of the Information in court and the determination of probable cause by the
judge, can he immediately dismiss the case? Explain.

A.49. In the following cases:

1. The Law Firm of Chavez Miranda and Seoche vs. Fria (703 SCRA 258, 7 August 2013)(Second
Division)[Perlas-Bernabe, J.](A case for Open Disobedience under Art. 231 of the RPC was
dismissed by the MTC after respondent filed a Motion for Determination of Probable Cause. The
dismissal was affirmed by the RTC.)
2. De Los Santos-Dio vs. CA (699 SCRA 614, 26 June 2013)(Second Division)[Perlas-Bernabe, J.]
3. People vs. Dela Torre-Yadao (685 SCRA 264, 13 November 2012)(En Banc)[Abad, J.], it was
held that:

While a judge’s determination of probable cause is generally confined to the limited purpose of
issuing arrest warrants, Section 5(a), Rule 112 of the Revised Rules of Criminal Procedure explicitly states
that a judge may immediately dismiss a case if the evidence on record clearly fails to establish probable
cause.98

In this regard, so as not to transgress the public prosecutor’s authority, it must be stressed that the
judge’s dismissal of a case must be done only in clear-cut cases when the evidence on record plainly fails to
establish probable cause – that is when the records readily show uncontroverted, and thus, established facts
which unmistakably negate the existence of the elements of the crime charged. On the contrary, if the
evidence on record shows that, more likely than not, the crime charged has been committed and that respondent
is probably guilty of the same, the judge should not dismiss the case and thereon, order the parties to proceed to
trial. In doubtful cases, however, the appropriate course of action would be to order the presentation of
additional evidence.99

In other words, once the information is filed with the court and the judge proceeds with his primordial
task of evaluating the evidence on record, he may either:

(a) issue a warrant of arrest, if he finds probable cause;

(b) immediately dismiss the case, if the evidence on record clearly fails to establish probable
cause; and
(c) order the prosecutor to submit additional evidence, in case he doubts the existence of
probable cause.

Q.50. When is the court precluded from immediately dismissing a case upon filing of the
Information?

A.50. In De Los Santos-Dio vs. CA supra, the Supreme Court finds that the RTC’s immediate
dismissal, as affirmed by the CA, was improper as the standard of clear lack of probable cause was not
observed. In this case, records show that certain essential facts – namely:

(a) whether or not Desmond committed false representations that induced Dio to invest in Ocean
Adventure; and

97
People vs. Lacson, 448 Phil. 317 (2003).
98
See also Ong vs. Genio, 609 SCRA 188 (23 December 2009).
99
SEC. 5(a), Rule 112, Revised Rules of Criminal Procedure, as amended by A.M. No. 05-8-26-SC.
 22

(b) whether or not Desmond utilized the funds invested by Dio solely for the Miracle Beach Project
for purposes different from what was agreed upon – remain controverted.

As such, it cannot be said that the absence of the elements of the crime of estafa under Article 315(2)(a)
and 315(1)(b) of the RPC had already been established, thereby rendering the RTC’s immediate dismissal of the
case highly improper.

The Supreme Court further said that:

Trial judges will do well to remember that when a perceived gap in the evidence leads to a "neither this
nor that" conclusion, a purposeful resolution of the ambiguity is preferable over a doubtful dismissal of the case.
Verily, a judge's discretion to dismiss a case immediately after the filing of the information in court is
appropriate only when the failure to establish probable cause can be clearly inferred from the evidence
presented and not when its existence is simply doubtful.

After all, it cannot be expected that upon the filing of the information in court the prosecutor would have
already presented all the evidence necessary to secure a conviction of the accused, the objective of a previously-
conducted preliminary investigation being merely to determine whether there is sufficient ground, to engender a
well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and
should be held for trial.100

In this light, given that the lack of probable cause had not been clearly established in this case, the CA
erred, and the RTC gravely abused its discretion, by ruling to dismiss Criminal Case Nos. 515-2004 and 516-
2004. Indeed, these cases must stand the muster of a full-blown trial where the parties could be given, as they
should be given, the opportunity to ventilate their respective claims and defenses, on the basis of which the court
a quo can properly resolve the factual disputes therein.

Q.51. If an arrested person signed a waiver under Article 125 of the Revised Penal Code, what is
the period provided by the 2000 Rules of Criminal Procedure within which to terminate the conduct of
preliminary investigation and to file the corresponding Information in court if there is probable cause?
Explain.

A.51. In the Matter of the Petition for Issuance of Writ of Habeas Corpus with Petition for Relief,
Integrated Bar of the Philippines Pangasinan Legal Aid and Jay-Ar R. Senin vs. Department of Justice,
Provincial Prosecutor's Office, Bureau of Jail Management and Penology, and Philippine National Police (832
SCRA 396, 25 July 2017)(En Banc)[Mendoza, J.], it was held that:

The waiver of the effects of Article 125 of the RPC is not a license to detain a person ad
infinitum. Waiver of a detainee's right to be delivered to proper judicial authorities as prescribed by Article 125 of
the RPC does not trump his constitutional right in cases where probable cause was initially found wanting by
reason of the dismissal of the complaint filed before the prosecutor's office even if such dismissal is on appeal,
reconsideration, reinvestigation or on automatic review. Every person's basic right to liberty is not to be
construed as waived by mere operation of Section 7, (6) Rule 112 of the Rules of Court. The fundamental law
provides limits and this must be all the more followed especially so that detention is proscribed absent probable
cause.

Accordingly, the Court rules that a detainee under such circumstances must be promptly released to
avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if the 15-day period (or the
thirty 30-day period in cases of violation of R.A. No. 9165) for the conduct of the preliminary investigation lapses.
This rule also applies in cases where the investigating prosecutor resolves to dismiss the case, even if such
dismissal was appealed to the DOJ or made the subject of a motion for reconsideration, reinvestigation or
automatic review. The reason is that such dismissal automatically results in a prima facie finding of lack of
probable cause to file an information in court and to detain a person.

The Court is aware that this decision may raise discomfort to some, especially at this time when the
present administration aggressively wages its indisputably popular war on illegal drugs. As Justice Diosdado
Peralta puts it, that the security of the public and the interest of the State would be jeopardized is not a
justification to trample upon the constitutional rights of the detainees against deprivation of liberty without due
process of law, to be presumed innocent until the contrary is proved and to a speedy disposition of the case.

100
People vs. CA, 301 SCRA 475 (21 January 1999).
 23

ARREST (RULE 113)

PROVERBIAL FRUIT OF A POISONOUS TREE

Q.52. Explain the concept of exclusionary rule.

A.52. In the following cases:

1. Sindac vs. People (802 SCRA 270, 6 September 2016)(First Division)[Perlas-Bernabe, J.](a case
for violation of Section 11, Article II of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002 where the Supreme Court reversed the conviction
of the accused)
2. Comerciante vs. People (763 SCRA 587, 22 July 2015)(First Division) [Perlas-Bernabe, J.][An
illegal possession of dangerous drugs case defined and penalized under Section 11, Article II of
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
where the conviction was reversed by the Supreme Court]
3. People vs. Villareal (693 SCRA 549, 18 March 2013)(Second Division)[Perlas-Bernabe, J.](A
case for violation of Section 11, Article II of Republic Act No. 9165 where the Supreme Court
reversed the conviction of the accused), it was held that:

The exclusionary rule finds its origin from the provision of Section 3(2) in relation to Section 2,
Article III101 of the Constitution. It mandates that a search and seizure must be carried out through or on the
strength of a judicial warrant predicated upon the existence of probable cause; in the absence of such warrant,
such search and seizure becomes, as a general rule, "unreasonable" within the meaning of said constitutional
provision.

To protect people from unreasonable searches and seizures, Section 3(2), Article III102 of the
Constitution provides an exclusionary rule which instructs that evidence obtained and confiscated on the
occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In other words, evidence obtained from unreasonable searches and seizures
shall be inadmissible in evidence for any purpose in any proceeding.103

Q.53. Give at least one recognized exception that a person may be searched even if without a
warrant?

A.53. In the case of Reyes vs. People of the Philippines (G.R. No. 229380, 6 June 2018)(Second
Division)[Perlas-Bernabe, J.], the High Court said that: One of the recognized exceptions to the need of a
warrant before a search may be effected is a search incidental to a lawful arrest.104 In this instance, the law
requires that there first be a lawful arrest before a search can be made – the process cannot be reversed.105

Q.54. What are the elements of Section 5(a), Rule 113 of the 2000 Rules of Criminal Procedure?

A.54. In Santos vs. People of the Philippines (G.R. No. 232950, 13 August 2018)(Second Division)
[Perlas-Bernabe, J.], the High Court ruled that: Section 5(a) speaks of an in flagrante delicto arrest, where the
concurrence of two (2) elements is necessary, to wit:

(1) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and

101
Section 2, Article III of the Constitution states:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons
or things to be seized.
102
Section 3 (2), Article III of the Constitution states:
Section 3. xx xx
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.
103
See Ambre vs. People, 692 Phil. 681 (2012).
104
See Section 13, Rule 126 of the Rules of Court.
105 See Miguel vs. People, G.R. No. 227038 (31 July 2017), citing Sindac vs. People, 794 Phil. 421 (2016).
 24

(2) such overt act is done in the presence or within the view of the arresting officer.106 (Villamor
vs. People, 821 SCRA 328, 22 March 2017; See also People vs. Collado, 698 SCRA 628, 17 June 2013; Rebellion
vs. People, Rebellion vs. People, 623 SCRA 343, 5 July 2010.)

Non-confluence of these elements renders an in flagrante delicto arrest constitutionally infirm.

Q.55. What are the elements for a warrantless arrest under Section 5(b), Rule 113 of the 2000 Rules
of Criminal Procedure on Warrantless Arrest?

A.55. The elements are as follows:

(a) that at the time of the arrest, an offense had in fact just been committed; and
(b) the arresting officer had personal knowledge of facts indicating that the accused had committed
it.107

It shall be noted however that, in both instances, the officer's personal knowledge of the fact of the
commission of an offense is essential. The scenario under Section 5(a), Rule 113 of the Revised Rules of Criminal
Procedure contemplates that the officer himself witnesses the crime; while in Section 5(b) of the same, the officer
knows for a fact that a crime has just been committed.

Q.56. What is Stop and Frisk searches? Explain.

A.56. In People vs. Cogaed,108 the Supreme Court had an opportunity to exhaustively explain "stop
and frisk" searches:

"Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law enforcement.
That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this
should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the
Constitution.

The balance lies in the concept of "suspiciousness" present where the police officer finds himself or
herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers
have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to
discern - based on facts that they themselves observe - whether an individual is acting in a suspicious manner.
Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe
the facts leading to the suspicion of an illicit act.

Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge to
determine probable cause. In Posadas vs. Court of Appeals,109 one of the earliest cases adopting the "stop and
frisk" doctrine in Philippine jurisprudence, this court approximated the suspicious circumstances as probable
cause:

The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag
there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the
police officers to inspect the same.

For warrantless searches, probable cause was defined as "a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is
guilty of the offense with which he is charged.

Malacat vs. Court of Appeals110 clarifies the requirement further. It does not have to be probable cause,
but it cannot be mere suspicion. It has to be a genuine reason to serve the purposes of the "stop and frisk"
exception:

106
See People vs. Villareal, 706 Phil. 511 (2013); Dacanay vs. People, G.R. No. 199018 (27 September 2017).
107
See Miguel vs. People, supra. See also Veridiano vs. People, G.R. No. 200370 (7 June 2017); and Comerciante vs. People,
supra, citing People vs. Villareal, 706 Phil. 511 (2013).
108
See G.R. No. 200334 (30 July 2014).
109
G.R. No. 89139 (2 August 1990).
110
G.R. No. 123595 (12 December 1997).
 25

Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"
it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must
exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him.

In his dissent for Esquillo vs. People,111 Justice Bersamin reminds us that police officers must not rely on
a single suspicious circumstance. There should be "presence of more than one seemingly innocent activity,
which, taken together, warranted a reasonable inference of criminal activity." The Constitution prohibits
"unreasonable searches and seizures." Certainly, reliance on only one suspicious circumstance or none at all will
not result in a reasonable search.

In People vs. Villareal supra, citing the case of People vs. Tudtud,112 the Supreme Court said:

The right of a person to be secure against any unreasonable seizure of his body and any deprivation
of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations
when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot
liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically
provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so
deserving of full protection.

Q.57. If the accused failed to question the legality of the warrantless arrest against him before
arraignment and actively participated in the trial of the case, does it constitute as a waiver to the validity of
his arrest and the evidence obtained as a consequence thereof?

A.57. Yes. In Sindac vs. People supra, citing the case of Hamar vs. People,113 the Supreme Court held
that: We agree with the respondent that the petitioner did not timely object to the irregularity of his arrest before
his arraignment as required by the Rules. In addition, he actively participated in the trial of the case. As a result,
the petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his
arrest.

However, this waiver to question an illegal arrest only affects the jurisdiction of the court over his
person. It is well-settled that a waiver of an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. Since the shabu was seized during an
illegal arrest, its inadmissibility as evidence precludes conviction and justifies the acquittal of the petitioner.

All told, since the shabu purportedly seized from Sindac constitutes inadmissible evidence in
violation of Section 3 (2), Article III of the 1987 Constitution, and given that the confiscated shabu is the very
corpus delicti of the crime charged, the Court finds Sindac's conviction to be improper and therefore, acquits
him.

Q.58. What is the test for the validity of a warrantless arrest?

A.58. The validity of the warrantless arrest requires compliance with the overt act test, showing
that the accused exhibit an overt act within the view of the police officers suggesting that she was in
possession of illegal drugs at the time she was apprehended.114 Absent any overt act showing the commission
of a crime, the warrantless arrest is rendered invalid, as in a case where a person was apprehended for merely
carrying a bag and traveling aboard a jeepney without acting suspiciously. 115 Similarly, in People vs. Racho,116 a
search based solely on a tip describing one of the passengers of a bus was declared illegal, since at the time of
apprehension, the said accused was not "committing a crime in the presence of the police officers," nor did he
commit a crime or was about to commit one.

111
629 SCRA 370 (25 August 2010)[Per J. Carpio Morales, Third Division].
112
458 Phil. 752 (2003).
113
See G.R. No. 182534 (2 September 2015).
114
Veridiano vs. People, supra.
115
See People vs. Cogaed, 740 Phil. 212 (2014).
116
640 Phil. 669 (2010).
 26

BAIL (RULE 114)

Q.59. What is the purpose of bail?

A.59. In the case of Enrile vs. Sandiganbayan (Third Division)(767 SCRA 282, 18 August 2015)(En
Banc)[Bersamin, J.], it was held that: The purpose of bail is to guarantee the appearance of the accused at the
trial, or whenever so required by the trial court. The amount of bail should be high enough to assure the
presence of the accused when so required, but it should be no higher than is reasonably calculated to fulfill this
purpose.117 Thus, bail acts as a reconciling mechanism to accommodate both the accused’s interest in his
provisional liberty before or during the trial, and the society’s interest in assuring the accused’s presence at
trial.118 It is worthy to note that bail is not granted to prevent the accused from committing additional crimes.119

PROBLEM:

Basagolero and Mamano were arrested and detained on a Friday at the Criminal Investigation and
Detention Unit of General Santos City. They were charged with Frustrated Murder, punishable by reclusion
temporal, the penalty lower by one degree than that provided for consummated murder. Since they want to be
released immediately pending posting of bail on the next working day, their counsel went to the house of the
Judge to file the Petition for Bail. The Judge ordered the City Prosecutor to comment which the latter immediately
complied and stated the recommended amount of bail. The two accused immediately posted their bail.
Thereafter, the Judge issued the Temporary Release Order. The Petition for Bail and the bail were only received
by the OCC on the next working day, which is a Monday.

Q.60. Was the issuance of the Temporary Release Order valid?

A.60. Yes. In Rodriguez vs. Noel, Jr. (A.M. No. RTJ-18-2525, 25 June 2018)(Second Division)[Perlas-
Bernabe, J.], a case with similar import with the problem, it was held that: Considering that the accused are not
charged with an offense punishable by death, reclusion perpetua, or life imprisonment, Basagolero and
Mamano were entitled to bail as a matter of right as guaranteed by the Constitution and pursuant to Section
4, Rule 114 of the Rules of Court.

There is nothing in the law or the rules that prevented a Judge from acting on the bail application
submitted to him on a weekend. Accordingly, the Judge acted in accordance with the rules in granting the
application for bail.

Q.61. When is bail a matter of right?

A.61. In Enrile vs. Sandiganbayan (Third Division)(767 SCRA 282, 18 August 2015)(En Banc)
[Bersamin, J.], it was held: All criminal cases within the competence of the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court are bailable as matter of right
because these courts have no jurisdiction to try capital offenses, or offenses punishable with reclusion
perpetua or life imprisonment.

Likewise, bail is a matter of right prior to conviction by the Regional Trial Court (RTC) for any offense not
punishable by death, reclusion perpetua, or life imprisonment, or even prior to conviction for an offense
punishable by death, reclusion perpetua, or life imprisonment when evidence of guilt is not strong.

Q.62. What penalty should be considered in determining the right to bail of an accused?

A.62. In People vs. Valdez and the Sandiganbayan (Fifth Division)(G.R. Nos. 216007-09, 8
December 2015)(En Banc)[Peralta, J.], it was held that: For purposes of determining whether a person can be
admitted to bail as a matter of right, it is the imposable penalty prescribed by law for the crime charged which
should be considered and, not the penalty to be actually imposed.

117
Yap, Jr. vs. Court of Appeals, 358 SCRA 564 (6 June 2001).
118
Leviste vs. Court of Appeals, 615 SCRA 619 (17 March 2010).
119
Government of the United States of America vs. Purganan, 389 SCRA 623 (24 September 2002) where the Court said that the
constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt; See
also Shima Baradaran, Restoring the Presumption of Innocence, Ohio State Law Journal, Vol. 72 (2011), p. 728.
 27

Q.63. When is bail discretionary?

A.63. In Enrile vs. Sandiganbayan (Third Division)(767 SCRA 282, 18 August 2015)(En Banc)
[Bersamin, J.], the High Court ruled that: The granting of bail is discretionary:

(1) upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment; or

(2) if the RTC has imposed a penalty of imprisonment exceeding six years, provided none of the
circumstances enumerated under paragraph 3 of Section 5, Rule 114 of the 2000 Rules of Criminal Procedure.

Q.64. What must a judge comply in resolving bail applications for a capital offense?

A.64. In resolving bail applications of the accused who is charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, the trial judge is expected to comply with the guidelines
outlined in Cortes vs. Catral,120 to wit:

(1) In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the
hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the
Rules of Court, as amended);

(2) Where bail is a matter of discretion, conduct a hearing of the application for bail regardless
of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong
for the purpose of enabling the court to exercise its sound discretion; (Section 7 and 8, supra)

(3) Decide whether the guilt of the accused is strong based on the summary of evidence of the
prosecution;

(4) If the guilt of the accused is not strong, discharge the accused upon the approval of the
bailbond (Section 19, supra). Otherwise petition should be denied.

Q.65. What is the justification of the Supreme Court in granting the application for bail of Senator
Enrile, despite the fact that plunder is a capital offense?

A.65. In granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned
principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so
required by the court. The Court is further mindful of the Philippines’ responsibility in the international
community arising from the national commitment under the Universal Declaration of Human Rights to: Uphold
the fundamental human rights as well as value the worth and dignity of every person. This commitment is
enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every
human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility
of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or
arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of
the detention and order their release if justified. In other words, the Philippine authorities are under obligation
to make available to every person under detention such remedies which safeguard their fundamental right to
liberty. These remedies include the right to be admitted to bail.121

This national commitment to uphold the fundamental human rights as well as value the worth and
dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also
to extraditees upon a clear and convincing showing:

(1) that the detainee will not be a flight risk or a danger to the community; and
(2) that there exist special, humanitarian and compelling circumstances.122

In our view, his social and political standing and his having immediately surrendered to the
authorities upon his being charged in court indicate that the risk of his flight or escape from this jurisdiction is
highly unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has

120
279 SCRA 1 (10 September 1997).
121
Government of Hong Kong Special Administrative Region vs. Olalia, Jr., 521 SCRA 470 (19 April 2007).
122
Rodriguez vs. Presiding Judge, RTC, Manila, Br. 17, 483 SCRA 290 (27 February 2006).
 28

demonstrated his utter respect for the legal processes of this country. The Supreme Court also did not ignore
that at an earlier time many years ago when he had been charged with rebellion with murder and multiple
frustrated murder, he already evinced a similar personal disposition of respect for the legal processes, and
was granted bail during the pendency of his trial because he was not seen as a flight risk. With his solid
reputation in both his public and his private lives, his long years of public service, and history’s judgment of
him being at stake, he should be granted bail.

The currently fragile state of Enrile’s health presents another compelling justification for his admission to
bail, but which the Sandiganbayan did not recognize.

Q.66. If the accused is arrested by virtue of a warrant issued by the court, to which court will the
accused post his bail for his temporary liberty?

A.66. In the case of Cruz vs. Judge Yaneza,123 the Supreme Court held that: First, the application for
bail must be filed in the court where the case is pending. In the absence or unavailability of the judge thereof,
the application for bail must be filed with another branch of the same court within the province or city.

Second, if the accused is arrested in a province, city or municipality other than where the case is
pending, bail may be filed with any regional trial court of the place.124

The requirements of Section 17(a), Rule 114 must be complied with before a judge may grant bail. The
Court recognizes that not every judicial error bespeaks ignorance of the law and that, if committed in good faith,
does not warrant administrative sanction, but only in cases within the parameters of tolerable misjudgment.
Where, however, the law is straightforward and the facts so evident, not to know it or to act as if one does not
know it constitutes gross ignorance of the law.

Q.67. What is the duty of the Judge when a bail bond is posted in his court pending in other court?

A.67. In the case of Re: Report on the Judicial Audit Conducted in the Regional Trial Court, Branch
4, Dolores, Eastern Samar (A.M. No. 06-6-340-RTC, 17 October 2007)(En Banc)[Per Curiam], citing the case of
Naui vs. Mauricio, Sr.,125 the Court held that judges should forward the records pertaining to the bail bond
immediately after receiving them.

In Re: Report on the Judicial Audit Conducted in the Regional Trial Court, Branch 4, Dolores, Eastern
Samar, the Audit team of the Supreme Court finds that Judge Bugtas accepted the bail bond in Criminal Case No.
358 on 9 December 1999. He forwarded the bail, order of release, and other supporting papers only after a
subpoena duces tecum was issued on 29 January 2002. If the subpoena duces tecum were not issued, Judge
Bugtas would have continued to ignore the provisions of Section 19 indefinitely.

Judge Bugtas explained that he did not forward the records pertaining to the bail because the accused
failed to cause the annotation of the lien on the property's certificate of title. This is unacceptable. Section 19 is
very clear: "When bail is filed with a court other than where the case is pending, the judge who accepted the
bail shall forward it, together with the order of release and other supporting papers, to the court where the
case is pending."

Section 11, Rule 114 of the Rules of Court states that failure of the accused to cause the annotation of
the lien on the property's certificate of title within ten (10) days after the approval of the property bond shall
be sufficient cause for the cancellation of the bond and re-arrest and detention of the accused. Judge Alvarez
could have cancelled the property bond and issued the warrant of arrest much sooner had Judge Bugtas followed
Section 19. Moreover, since Judge Bugtas opted to accept and retain possession of the bail bond, albeit
erroneously, the least he could have done was to cancel the property bond and issue a warrant of arrest when the
accused failed to cause the annotation of the lien within 10 days, yet he did not do so.

Not every judicial error constitutes ignorance of the law. When the error is committed in good faith, it
does not warrant administrative sanction. However, the error must be within the parameters of tolerable

123
363 Phil. 629, 644 (1999).
124
RE: Report on the Judicial Audit Conducted in the Regional Trial Court, Branch 4, Dolores, Eastern Samar, A.M. No. 06-6-340-
RTC (17 October 2007).
125
460 Phil. 107 (2003).
 29

misjudgment. When the law is clear and leaves little room for error, not to know it constitutes gross ignorance
of the law.126 In the instant case, the law is very clear and Judge Bugtas is grossly ignorant.

Q.68. Is the Clerk of Court authorized to sign a Release Order after the accused posted his bail
bond for his temporary liberty?

A.68. No. Clerks of court have no authority to order the release of persons charged with penal
offenses. In Gonzalo vs. Mejia,127 the Court held that: There is usurpation of judicial function when a person who
is not a judge attempts to perform an act the authority for which the law has vested only upon a judge.
In Escañan vs. Monterola II,128 we ruled that the clerk of court, unlike a judge, has no power to order either the
commitment or the release of persons charged with penal offenses. Thus, respondent, in ordering the release of
the four prisoners, has duly usurped the judicial prerogative of a judge. Such usurpation is equivalent to grave
misconduct.

ARRAIGNMENT AND PLEA (RULE 116)

Q.69. What is the purpose of arraignment?

A.69. In the case of Enrile vs. People (766 SCRA 1, 11 August 2015)(En Banc)[Brion, J.], it was held
that: The procedural due process mandate of the Constitution requires that the accused be arraigned so that he
may be fully informed as to why he was charged and what penal offense he has to face, to be convicted only
on showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence
against him.129 During arraignment, the accused is granted the opportunity to fully know the precise charge
that confronts him and made fully aware of possible loss of freedom, even of his life, depending on the nature
of the crime imputed to him.

An arraignment thus ensures that an accused be fully acquainted with the nature of the crime imputed
to him in the Information and the circumstances under which it is allegedly committed. It is likewise at this stage
of the proceedings when the accused enters his plea, or enters a plea of not guilty to a lesser offense which is
necessarily included in the offense charged.

Q.70. What is plea bargaining?

A.70. In Estipona, Jr. vs. Lobrigo (837 SCRA 160, 15 August 2017)(En Banc)[Peralta, J.],130 it was
held that: Plea bargaining has been defined as a process whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval.131 There is give-and-take negotiation
common in plea bargaining.132

The essence of the agreement is that both the prosecution and the defense make concessions to
avoid potential losses.133Properly administered, plea bargaining is to be encouraged because the chief virtues
of the system - speed, economy, and finality - can benefit the accused, the offended party, the prosecution,
and the court.134

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the
prosecution already rested its case.135 As regards plea bargaining during the pre-trial stage, the trial court's
exercise of discretion should not amount to a grave abuse thereof.136 Grave abuse of discretion is a capricious and

126
Lim vs. Dumlao, 454 SCRA 196 (31 March 2005).
127
435 SCRA 349 (28 July 2004).
128
351 SCRA 228 (6 February 2001), citing Biag vs. Gubatanga, 318 SCRA 753 (1999).
129
Herrera, Remedial Law, Vol. IV (Rules 110-127), Criminal Procedure, 2007 ed., p. 591.
130
Section 23 of Republic Act No. 9165, which prohibits plea bargaining, was declared unconstitutional for being contrary to the
rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution.
131
People vs. Villarama, Jr., 285 Phil. 723 (1992), citing Black's Law Dictionary, 5th Ed., 1979, p. 1037. See also Gonzales III vs.
Office of the President of the Philippines, et al., 694 Phil. 52 (2012); Atty. Amante-Descallar vs. Judge Ramas, 601 Phil. 21
(2009); Daan vs. Hon. Sandiganbayan, 573 Phil. 368 (2008); and People vs. Mamarion, 459 Phil. 51 (2003).
132
Parker vs. North Carolina, 397 U.S. 790 (1970).
133
Hughey vs. United States, 495 U.S. 411 (1990).
134
See Santobello vs. New York, 404 U.S. 257 (1971) and Blackledge vs. Allison, 431 U.S. 63 (1977).
135
See Daan vs. Hon. Sandiganbayan, supra; People vs. Mamarion, 459 Phil. 51 (2003); Ladino vs. Hon. Garcia, 333 Phil. 254
(1996); and People vs. Villarama, Jr., supra.
136
See Daan vs. Hon. Sandiganbayan, supra.
 30

whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner
because of passion or hostility; it arises when a court or tribunal violates the Constitution, the law or existing
jurisprudence.137

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the
prosecution rested its case, the rules allow such a plea only when the prosecution does not have sufficient
evidence to establish the guilt of the crime charged.138 The only basis on which the prosecutor and the court
could rightfully act in allowing change in the former plea of not guilty could be nothing more and nothing less
than the evidence on record. As soon as the prosecutor has submitted a comment whether for or against said
motion, it behooves the trial court to assiduously study the prosecution's evidence as well as all the
circumstances upon which the accused made his change of plea to the end that the interests of justice and of the
public will be served.139 The ruling on the motion must disclose the strength or weakness of the prosecution's
evidence.140 Absent any finding on the weight of the evidence on hand, the judge's acceptance of the defendant's
change of plea is improper and irregular.141

Q.71. What are the duties of the court in case the accused pleads guilty to a capital offense?

A.71. In People vs. Gambao (706 SCRA 508, 1 October 2013)(En Banc)[Perez, J.], citing the case of
People vs. Oden,142 the High Court laid down the duties of the trial court when the accused pleads guilty to a
capital offense. The trial court is mandated:

(1) to conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of the plea of guilt;

(2) to require the prosecution to still prove the guilt of the accused and the precise degree of his
culpability; and

(3) to inquire whether or not the accused wishes to present evidence in his behalf and allow
him to do so if he desires.

The rationale behind the rule is that the courts must proceed with more care where the possible
punishment is in its severest form, namely death, for the reason that the execution of such a sentence is
irreversible. The primordial purpose is to avoid improvident pleas of guilt on the part of an accused where grave
crimes are involved since he might be admitting his guilt before the court and thus forfeiting his life and liberty
without having fully understood the meaning, significance and consequence of his plea.143 Moreover, the
requirement of taking further evidence would aid this Court on appellate review in determining the propriety or
impropriety of the plea.144

Q.72. What is the rule if the sole basis of the conviction of the accused is the improvident plea of
guilty to a capital offense?

A.72. As a general rule, convictions based on an improvident plea of guilt are set aside and the
cases are remanded for further proceedings if such plea is the sole basis of judgment. If the trial court,
however, relied on sufficient and credible evidence to convict the accused, as it did in this case of Gambao, et al.,
the conviction must be sustained, because then it is predicated not merely on the guilty plea but on evidence
proving the commission of the offense charged.145 The manner by which the plea of guilty is made, whether
improvidently or not, loses legal significance where the conviction can be based on independent evidence
proving the commission of the crime by the accused.146

137
Sofronio Albania vs. Commission on Elections, et al., G.R. No. 226792 (6 June 2017).
138
People vs. Villarama, Jr., supra, as cited in Gonzales III vs. Office of the President of the Philippines, et al., supra, and People
vs. Mamarion, supra.
139
People vs. Villarama, Jr., supra.
140
See People vs. Villarama, supra.
141
People vs. Villarama, Jr., supra.
142
471 Phil. 638 (2004).
143
People vs. Ernas, 455 Phil. 829 (2003).
144
People vs. Pastor, 428 Phil. 976 (2002).
145
People vs. Pastor, supra.
146
People vs. Oden, supra.
 31

Contrary to accused-appellants’ assertions, they were convicted by the trial court, not on the basis of
their plea of guilty, but on the strength of the evidence adduced by the prosecution, which was properly
appreciated by the trial court.147 The prosecution was able to prove the guilt of the accused-appellants and their
degrees of culpability beyond reasonable doubt.

Q.73. What is a Bill of Particulars?

A.73. In Enrile vs. People (766 SCRA 1, 11 August 2015)(En Banc)[Brion, J.], a case for violation of
R.A. No. 7080 (Plunder), the High Court explained that: A bill of particulars is the further specification of the
charges or claims in an action, which an accused may avail of by motion before arraignment, to enable him to
properly plead and prepare for trial.

In civil proceedings, a bill of particulars has been defined as a complementary procedural document
consisting of an amplification or more particularized outline of a pleading, and is in the nature of a more
specific allegation of the facts recited in the pleading.148

The purpose of a motion for bill of particulars in civil cases is to enable a party to prepare his responsive
pleading properly.

In criminal cases, a bill of particulars details items or specific conduct not recited in the Information
but nonetheless pertain to or are included in the crime charged. Its purpose is to enable an accused:

a) to know the theory of the government’s case;149

b) to prepare his defense and to avoid surprise at the trial;
c) to plead his acquittal or conviction in bar of another prosecution for the same offense; and
d) to compel the prosecution to observe certain limitations in offering evidence.150

In criminal proceedings, the motion for a bill of particulars is governed by Section 9 of Rule 116 of the
2000 Rules of Criminal Procedure.

The rule requires the information to describe the offense with sufficient particularity to apprise the
accused of the crime charged with and to enable the court to pronounce judgment. The particularity must be
such that persons of ordinary intelligence may immediately know what the Information means. 151

Q.74. What is the general function of Bill of Particulars in civil or criminal cases? Explain.

A.74. The general function of a bill of particulars, whether in civil or criminal proceedings, is to
guard against surprises during trial. It is not the function of the bill to furnish the accused with the evidence of
the prosecution.

Thus, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating
to how the people intend to prove the elements of the offense charged or how the people intend to prove any item
of factual information included in the bill of particulars.152

Q.75. How did the concept of a bill of particulars come to existence?

A.75. Even before the promulgation of the 1964 Rules of Court, when the applicable rules for
criminal procedure was still General Order No. 58,153 the Court had already recognized the need for a bill of
particulars in criminal cases. This recognition came despite the lack of any specific provision in General Order
No. 58 setting out the rules for a bill of particulars in criminal cases.

In U.S. vs. Schneer,154 the issue presented was whether a bill of particulars was available in a criminal
case for estafa after the accused had already been arraigned. The Court essentially ruled that there was no

147
People vs. Ceredon, 542 SCRA 550 (28 January 2008).
148
Virata vs. Sandiganbayan, 339 Phil. 47 (1997).
149
Remmer vs. United States, 9 Cir., 1953, 205 F.2d 277, 281; United States vs. Caserta, 3 Cir., 1952, 199 F.2d 905.
150
See US vs. Kelly, 92 F. Supp. 672, 673 (W.D. Mo. 1950).
151
Romualdez vs. Sandiganbayan, 479 Phil. 265 (2004).
152
US vs. Kelly, supra.
153
Criminal Procedure 1900.
154
7 Phil. 523 (1907).
 32

specific provision of law expressly authorizing the filing of specifications or bills of particulars in criminal cases,
and held that:

We know of no provision either in General Orders, No. 58, or in the laws existing prior thereto which
requires the Government to furnish such a bill of particulars, and we accordingly hold that it was not error on the
part of the court below to refuse to do so.

In U.S. vs. Cernias,155 however, the Court formally recognized the existence and applicability of a bill of
particulars in criminal cases. In this case, the prosecution filed an information charging Basilio Cernias with
several counts of brigandage before the Court of First Instance of Leyte. In overruling the accused’s objection, the
Court declared that the prosecution’s act of specifying certain acts done by the conspirators in the Information
did no more than to furnish the defendant with a bill of particulars of the facts which it intended to prove at the
trial.

In sum, the Court essentially held that a detailed complaint or information is not objectionable, and that
the details it contains may be properly considered as specifications or bill of particulars.156

In People vs. Abad Santos,157 the court first recognized a bill of particulars, as a right that the accused
may ask for from the court. In this case, the prosecution charged respondent Joseph Arcache with the crime of
treason before the People’s Court. The Information filed against the accused contained, in counts 2 and 3, the
phrase and other similar equipment.

The counsel for the accused verbally petitioned the People’s court to order the prosecution to ask more
specifically the phrase ―and other similar equipment,‖ which request the People’s Court granted. The People of
the Philippines filed a petition for certiorari, but the Court dismissed this petition.

In upholding the order of the People’s Court, the Court ruled that in the absence of specific provisions of
law prohibiting the filing of specifications or bills of particulars in criminal cases, their submission may be
permitted, as they cannot prejudice any substantial rights of the accused. On the contrary, they will serve to
apprise the accused clearly of the charges filed against them, and thus enable them to prepare intelligently
whatever defense or defenses they might have.

Notably, Abad Santos emphasized the importance of a bill of particulars in criminal cases, stating that
in as much as in criminal cases not only the liberty but even the life of the accused may be at stake, it is
always wise and proper that the accused should be fully apprised of the true charges against them, and thus
avoid all and any possible surprise, which might be detrimental to their rights and interests; and ambiguous
phrases should not, therefore, be permitted in criminal complaints or informations; and if any such phrase
has been included therein, on motion of the defense, before the commencement of the trial, the court should
order either its elimination as surplusage or the filing of the necessary specification, which is but an
amendment in mere matters of form.158

In these cited cases, the Courts did not rely on the Rules of Court to provide for a bill of particulars in
criminal cases. A specific provision granting the accused the right to move for or demand a more definite
statement or a bill of particulars was not incorporated as a formal rule until the 1964 Rules of Court, 159 under its
Section 6, Rule 116. This initial provision later became Section 10 of Rule 116 under the 1985 Rules of Criminal
Procedure160 and Section 9 of Rule 116 under the Revised Rules of Criminal Procedure, as amended.161

Q.76. When is a Bill of Particulars proper in criminal cases?

A.76. When the allegations in an Information are vague or indefinite, the remedy of the accused is
not a motion to quash, but a motion for a bill of particulars. The purpose of a bill of particulars is to supply

155
10 Phil. 682 (1908).
156
People vs. Abad Santos, 76 Phil. 746 (1946).
157
76 Phil. 746 (1946).
158
Id. at 747. See also Bill of Particulars in Criminal Cases, by Angel C. Cruz, PLJ volume 23, Number 1-03, Notes and
Comments, p. 438. plj.upd.edu.ph (http://www.plj.upd.edu.ph, last visited on September 17, 2014), where the concept and
origin of bill of particulars was discussed more extensively. It examined, among others, the cases of Schneer, Cernias,
Veluz and Abad Santos.
159
Effective 1 January 1964.
160
Promulgated on 22 November 1984; Effective 1 January 1985.
161
A.M. No. 00-5-03-SC. Effective 1 December 2000.
 33

vague facts or allegations in the complaint or information to enable the accused to properly plead and prepare
for trial. It presupposes a valid Information, one that presents all the elements of the crime charged, albeit
under vague terms. Notably, the specifications that a bill of particulars may supply are only formal amendments
to the complaint or Information.

Q.77. What is the effect if the accused failed to move for bill of particulars?

A.77. The failure of the accused to move for the specification of the details desired deprives him of
the right to object to evidence that could be introduced and admitted under an Information of more or less
general terms but which sufficiently charges the accused with a definite crime.162

Q.78. What must the court consider in granting a motion for bill of particulars?

A.78. Although the application for the bill of particulars is one addressed to the sound discretion of
the court163 it should nonetheless exercise its discretion within the context of the facts and the nature of the
crime charged in each case and the right of the accused to be informed of the nature and cause of accusation
against him. As articulated in the case of People vs. Iannone:164

It is beyond cavil that a defendant has a basic and fundamental right to be informed of the charges
against him so that he will be able to prepare a defense. Hence the courts must exercise careful surveillance to
ensure that a defendant is not deprived of this right by an overzealous prosecutor attempting to protect his case
or his witnesses. Any effort to leave a defendant in ignorance of the substance of the accusation until the time of
trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In
such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to
effective discovery. Should the prosecutor decide to use an indictment which, although technically sufficient, does
not adequately allow a defendant to properly prepare for trial, he may well run afoul of the defendant's right to be
informed of the accusations against him.

Thus, if the Information is lacking, a court should take a liberal attitude towards its granting 165 and order
the government to file a bill of particulars elaborating on the charges. Doubts should be resolved in favor of
granting the bill166 to give full meaning to the accused’s constitutionally guaranteed rights.

Notably, the government cannot put the accused in the position of disclosing certain overt acts through
the Information and withholding others subsequently discovered, all of which it intends to prove at the trial. This
is the type of surprise a bill of particulars is designed to avoid.167 The accused is entitled to the observance of all
the rules designated to bring about a fair verdict.

This becomes more relevant in the present case where the crime charged carries with it the severe
penalty of capital punishment and entails the commission of several predicate criminal acts involving a great
number of transactions spread over a considerable period of time.

Q.79. Will the resolution on the issue of probable cause bar the accused to move for bill of
particulars?

A.79. No. The question of whether there is probable cause to issue a warrant of arrest against an
accused, is separate and distinct from the issue of whether the allegations in the Information have been
worded with sufficient definiteness to enable the accused to properly plead and prepare his defense.

While the grounds cited for each may seemingly be the same, they are submitted for different purposes
and should be appreciated from different perspectives, so that the insufficiency of these grounds for one does not
necessarily translate to insufficiency for the other. Thus, the resolution of the issue of probable cause should not
bar Enrile from seeking a more detailed averment of the allegations in the Information.

The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of
arrest should be issued against the accused. The judge must satisfy himself that based on the evidence

162
See People vs. Marquez, 400 Phil. 1313 (2000).
163
Wong Tai vs. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927).
164
45 N.Y. 2d 589 (1978).
165
Walsh vs. United States, 371 F.2d 436 (1st Cir. 1967).
166
See United States vs. Tanner, 279 F. Supp. 457, 474 (N.D. Ill. 1967).
167
See United States vs. Covelli, 210 F. Supp. 589 (N.D. Ill. 1967).
 34

submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of
justice.168 Simply put, the judge determines whether the necessity exists to place the accused under immediate
custody to avoid frustrating the ends of justice.

On the other hand, the Revised Rules of Criminal Procedure grants the accused the remedy of a bill
of particulars to better inform himself of the specifics or particulars concerning facts or matters that had not
been averred in the Information with the necessary clarity for purposes of his defense.

Its purpose is to better acquaint the accused of the specific acts and/or omissions in relation with the
crime charged, to limit the matters and the evidence that the prosecution may otherwise be allowed to use
against him under a more or less general averment, and to meet the charges head on and timely object to
evidence whose inadmissibility may otherwise be deemed waived.

MOTION TO QUASH (RULE 117)

Q.80. Does the quashal of an information mean that the accused is innocent of the crime charged
against him?

A.80. No. In Anonymous Letter Against Aurora C. Castañeda, Clerk III, Regional Trial Court,
Branch 224, Quezon City, and Lorenzo Castañeda, Sheriff IV, Regional Trial Court, Branch 96, Quezon City
(758 SCRA 189, 16 June 2015)(En Banc)[Per Curiam], it was held that: The quashal of the information does not
mean innocence of the accusations, or the inanity of the charges. Under the Rules of Criminal Procedure,
indeed, the quashal of the information could arise from a cause or causes that did not concern the substantive
merits of the charges.

Q.81. What are the options of a trial court if a Motion to Quash was filed by the accused? Explain.

A.81. In the case of De Lima vs. Guerrero (843 SCRA 1, 10 October 2017)(En Banc)[Velasco, Jr., J.],
it was held that: Under Rule 117 of the Rules of Court, the trial court has three (3) possible alternative actions
when confronted with a Motion to Quash:

(1) Order the amendment of the Information;

(2) Sustain the Motion to Quash; or
(3) Deny the Motion to Quash.

The first two options are available to the trial court where the motion to quash is meritorious.
Specifically, as to the first option, the court had held that should the Information be deficient or lacking in any
material allegation, the trial court can order the amendment of the Information under Section 4, Rule 117 of the
2000 Rules of Criminal Procedure. The failure of the trial court to order the correction of a defect in the
Information curable by an amendment amounts to an arbitrary exercise of power.

Q.82. What is the plain, speedy and adequate remedy of an accused if the Motion to Quash is
denied? Explain.

A.82. In the case of Cagang vs. Sandiganbayan, Fifth Division (G.R. Nos. 206438 and 206458, G.R.
Nos. 210141-42, 31 July 2018)(En Banc)[Leonen, J.], it was held that: The adequate, plain, and speedy remedy
is to proceed to trial and to determine the guilt or innocence of the accused. A party may, however, question
the denial in a petition for certiorari if the party can establish that the denial was tainted with grave abuse of
discretion:

A direct resort to a special civil action for certiorari is an exception rather than the general rule, and
is a recourse that must be firmly grounded on compelling reasons. In past cases, we have cited the interest of
a more enlightened and substantial justice; the promotion of public welfare and public policy; cases that have
attracted nationwide attention, making it essential to proceed with dispatch in the consideration thereof; or
judgments on order attended by grave abuse of discretion, as compelling reasons to justify a petition for
certiorari.

In grave abuse of discretion cases, certiorari is appropriate if the petitioner can establish that the
lower court issued the judgment or order without or in excess of jurisdiction or with grave abuse of

168
See Alfredo C. Mendoza vs. People of the Philippines and Juno Cars, Inc., 722 SCRA 647 (21 April 2014).
 35

discretion, and the remedy of appeal would not afford adequate and expeditious relief. The petitioner carries
the burden of showing that the attendant facts and circumstances fall within any of the cited instances.

In Cagang, petitioner alleges that the Sandiganbayan committed grave abuse of discretion when it
denied his Motion to Quash/Dismiss, insisting that the denial transgressed upon his constitutional rights to due
process and to speedy disposition of cases. A petition for certiorari under Rule 65 is consistent with this
theory.

Q.83. When can there be double jeopardy?

A.83. Based on Section 7, Rule 117 of the 2000 Rules of Criminal Procedure, double jeopardy only
applies when:

(1) a first jeopardy attached;

(2) it has been validly terminated; and
(3) a second jeopardy is for the same offense as in the first.169

A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has been
dismissed or otherwise terminated without his express consent, by a competent court in a valid indictment for
which the accused has entered a valid plea during arraignment.

Q.84. When can there be provisional dismissal of a criminal case?

A.84. In Bonsubre, Jr. vs. Yerro (750 SCRA 490, 11 February 2015)(First Division)[Perlas-Bernabe,
J.], a case of estafa which was provisionally dismissed, it was held that: A case can be provisionally dismissed if
the following requisites concur:

(a) The prosecution with the express conformity of the accused, or the accused, moves for a
provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional
dismissal;

(b) The offended party is notified of the motion for a provisional dismissal of the case;

(c) The court issues an Order granting the motion and dismissing the case provisionally; and

(d) The public prosecutor is served with a copy of the Order of provisional dismissal of the
case.170

Q.85. What is the effect of the dismissal of the criminal case grounded on the denial of the right of
the accused to speedy trial? Explain.

A.85. A dismissal grounded on the denial of the right of the accused to speedy trial has the effect
of acquittal that would bar the further prosecution of the accused for the same offense. In Bonsubre, Jr. vs.
Yerro supra, the trial court dismissed the cases against private respondents for the denial of their right to speedy
trial. In a long line of cases, the Supreme Court held that a dismissal on the ground of the denial of the
accused’s right to a speedy trial will have the effect of acquittal that would bar further prosecution of the
accused for the same offense. Thus, it was held that where after such dismissal the prosecution moved for the
reconsideration of the order of dismissal and the court re-set the case for trial, the accused can successfully claim
double jeopardy as the said order was actually an acquittal, was final and cannot be reconsidered.

The Dismissal Order grounded on the denial of respondents’ right to speedy trial is a final order that
is not appealable171 and is immediately executory.172 While the remedy of certiorari may be availed of in order to
challenge the judgment or order of acquittal, petitioner must prove that the trial court, in acquitting the
accused, committed not merely errors of judgment, but grave abuse of discretion amounting to lack or excess
of jurisdiction.173

169
Pacoy vs. Cajigal, 534 SCRA 338 (28 September 2007).
170
Los Baños vs. Pedro, 604 Phil. 215 (2009).
171
People vs. Asis, 629 SCRA 250 (25 August 2010).
172
See Villareal vs. Aliga, G.R. No. 166995 (13 January 2014).
173
People vs. Judge Hernandez, 531 Phil. 289 (2006).
 36

Under its classic formulation, grave abuse of discretion means such capricious or whimsical exercise
of judgment which is equivalent to lack of jurisdiction. To justify the issuance of the writ of certiorari, the abuse
of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of a positive duty or
to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to
having acted without jurisdiction.174

Q.86. What is the principle of time bar rule? Explain.

A.86. The principle of time bar rule was explained by the Supreme Court in the case of People vs.
Lacson.175 Section 8, Rule 117 of the Rules on provisional dismissal was held as a special procedural limitation
qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an
inherent part thereof, so that its expiration operates to extinguish the right of the State to prosecute the
accused.176 Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined:

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused; not for the accused
only.177

Q.87. What is the rationale for the rule that the Information must charge only one offense?

A.87. The reason for the rule is stated in People of the Philippines and AAA vs. Court of Appeals,
21st Division, Mindanao Station, et al.,178 thus: The rationale behind this rule prohibiting duplicitous complaints
or informations is to give the accused the necessary knowledge of the charge against him and enable him to
sufficiently prepare for his defense. The State should not heap upon the accused two or more charges which
might confuse him in his defense. Non-compliance with this rule is a ground for quashing the duplicitous
complaint or information under Rule 117 of the Rules on Criminal Procedure and the accused may raise the
same in a motion to quash before he enters his plea, otherwise, the defect is deemed waived.

However, if the accused entered a plea of not guilty during arraignment and failed to move for the
quashal of the Informations, he is deemed to have waived his right to question the same. This is provided by
Section 9 of Rule 117 of the 2000 Rules of Criminal Procedure except those based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of Section 3 of this Rule.

It is also well-settled that when two or more offenses are charged in a single complaint or information
but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and
proved, and impose upon him the proper penalty for each offense.179

Q.88. In what stage of the criminal proceedings should the accused move for the quashal of the
Information?

A.88. In People vs. Pepino (779 SCRA 170, 12 January 2016)(En Banc)[Brion, J.], it was held that:
The accused may move to quash the Information, on any grounds, at any time before entering his plea. Thus,
if the issue is on the legality of the warrantless arrest or the acquisition of RTC's jurisdiction over his person, it is
deemed waived when it is not timely raised in a motion to quash the information.

It is settled that any objection to the procedure followed in the matter of the acquisition by a court of
jurisdiction over the person of the accused must be opportunely raised before he enters his plea; otherwise, the
objection is deemed waived.180

PRE-TRIAL (RULE 118)

Q.89. Discuss the history of plea bargaining as a rule and practice.

174
Julie’s Franchise Corp. vs. Hon. Judge Ruiz, 614 Phil. 108 (2009).
175
448 Phil. 317 (2003).
176
See Los Baños vs. Pedro, 604 Phil. 215 (2009).
177
People vs. Lacson, supra.
178
G.R. No. 183652 (25 February 2015).
179
People of the Philippines and AAA vs. Court of Appeals, 21st Division, Mindanao Station, et al., supra.
180
See People vs. Trestiza, 660 SCRA 407 (16 November 2011).
 37

A.89. In Estipona, Jr. vs. Lobrigo (837 SCRA 160, 15 August 2017)(En Banc)[Peralta, J.],181 the High
Court explained that: Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1,
1940, when the 1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:

SEC. 4. Plea of guilty of lesser offense.– The defendant, with the consent of the court and of the fiscal, may
plead guilty of any lesser offense than that charged which is necessarily included in the offense charged in the
complaint or information.

When the 1964 Rules became effective on 1 January 1964, the same provision was retained under Rule
118 (Pleas). Subsequently, with the effectivity of the 1985 Rules on 1 January 1985, the provision on plea of guilty
to a lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense.– The accused with the consent of the offended party and the
fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is
necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No
amendment of the complaint or information is necessary. (4a, R-118)

As well, the term plea bargaining was first mentioned and expressly required during pre-trial. Section 2,
Rule 118 mandated:

SEC. 2. Pre-trial conference; subjects.– The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;
(c) Marking for identification of evidence of the parties;
(d) Waiver of objections to admissibility of evidence; and
(e) Such other matters as will promote a fair and expeditious trial. (n)

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2,
Rule 116 was modified in 1987. A second paragraph was added, stating that a conviction under this plea shall be
equivalent to a conviction of the offense charged for purposes of double jeopardy.

When R.A. No. 8493 (Speedy Trial Act of 1998) was enacted,182 Section 2, Rule 118 of the Rules was
substantially adopted. Section 2 of the law required that plea bargaining and other matters 183 that will promote a
fair and expeditious trial are to be considered during pre-trial conference in all criminal cases cognizable by the
Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the
Sandiganbayan.

Currently, the pertinent rules on plea bargaining under the 2000 Rules184 are quoted below:
RULE 116 (Arraignment and Plea):

SEC. 2. Plea of guilty to a lesser offense.– At arraignment, the accused, with the consent of the offended
party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily
included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead
guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or
information is necessary. (Sec. 4, Cir. 38-98)

RULE 118 (Pre-trial):

SECTION 1. Pre-trial; mandatory in criminal cases.– xxx order a pre-trial conference to consider the
following:

(a) plea bargaining;

xxx

181
Section 23 of Republic Act No. 9165 which prohibits plea bargaining was declared unconstitutional for being contrary to the
rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution.
182
Approved on 12 February 1998.
183
Such as stipulation of facts, marking for identification of evidence of parties, and waiver of objections to admissibility of
evidence.
184
Effective 1 December 2001 (People vs. Mamarion, 459 Phil. 51, 2003).
 38

Q.90. What is the rationale of plea bargaining?

A.90. Plea bargaining is a rule of procedure. The Supreme Court's sole prerogative to issue, amend,
or repeal procedural rules is limited to the preservation of substantive rights, i.e., the former should not
diminish, increase or modify the latter.185

Substantive law is that part of the law which creates, defines and regulates rights, or which regulates
the right and duties which give rise to a cause of action; that part of the law which courts are established to
administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtain
redress for their invasions.186 Fabian vs. Hon. Desierto187 laid down the test for determining whether a rule is
substantive or procedural in nature.

It will be noted that no definitive line can be drawn between those rules or statutes which are
procedural, hence within the scope of the Court's rule-making power, and those which are substantive. In fact, a
particular rule may be procedural in one context and substantive in another. It is admitted that what is
procedural and what is substantive is frequently a question of great difficulty. It is not, however, an
insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural
and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the
lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates
procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested
right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely
with procedure.188

TRIAL (RULE 119)

Q.91. Is taking of deposition in criminal cases allowed by the Rules of Court?

A.91. Yes. In Go, et al. vs. People (G.R. No. 185527, 18 July 2012)(Third Division)[Perlas-
Bernabe, J.], it was held that: Witnesses who would forseeably be unavailable for trial, the testimonial
examination should be made before the court, or at least before the judge, where the case is pending as
required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure.

RULES 23-28 OF THE 1997 RULES OF CIVIL PROCEDURE APPLY ONLY IN CIVIL CASES

The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases,
either upon oral examination or written interrogatories, before any judge, notary public or person authorized to
administer oaths at any time or place within the Philippines; or before any Philippine consular official,
commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional
requirement except reasonable notice in writing to the other party.189

IN CRIMINAL CASES, SECTION 15 OF RULE 115 GOVERNS AND MUST BE TAKEN BEFORE THE JUDGE
WHERE THE CASE IS PENDING

But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness
who would forseeably be unavailable for trial, the testimonial examination should be made before the court, or
at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119
of the Revised Rules of Criminal Procedure.

185
Sec. 5(5), Art. VIII, Constitution. See also Ogayon vs. People, 768 Phil. 272 (2015) and San Ildefonso Lines, Inc. vs. CA, 352
Phil. 405 (1998).
186
See Carpio-Morales vs. Court of Appeals (Sixth Division), 774 SCRA 431 (10 November 2015).
187
356 Phil. 787 (1998).
188
Fabian vs. Desierto, supra. See also Carpio-Morales vs. Court of Appeals (Sixth Division), supra; Securities and Exchange
Commission vs. Judge Laigo, et al., 768 Phil. 239 (2015); Jaylo, et al. vs. Sandiganbayan, et al., 751 Phil. 123 (2015); Land
Bank of the Phils. vs. De Leon, 447 Phil. 495 (2003); and Bernabe vs. Alejo, 424 Phil. 933 (2002).
189
Sections 1, 10, 11, 14 and 15, Rule 23, 1997 Rules of Civil Procedure.
 39

In Go, et al. vs. People supra, the high court held: Since the conditional examination of a prosecution
witness must take place at no other place than the court where the case is pending, the RTC properly nullified
the MeTC's orders granting the motion to take the deposition of Li Luen Ping before the Philippine consular
official in Laos, Cambodia.

CONDITIONAL EXAMINATION OF A PROSECUTION WITNESS CANNOT DEFEAT THE RIGHTS OF THE

ACCUSED TO PUBLIC TRIAL AND CONFRONTATION OF WITNESSES

There is a great deal of difference between the face-to-face confrontation in a public criminal trial in
the presence of the presiding judge and the cross-examination of a witness in a foreign place outside the
courtroom in the absence of a trial judge. In the aptly cited case of People vs. Estenzo,190 the Court noted the
uniqueness and significance of a witness testifying in open court, thus:

The main and essential purpose of requiring a witness to appear and testify orally at a trial is to
secure for the adverse party the opportunity of cross-examination. "The opponent", according to an eminent
authority, "demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by
him, but for the purpose of cross examination which cannot be had except by the direct and personal putting
of questions and obtaining immediate answers." There is also the advantage of the witness before the judge,
and it is this – it enables the judge as trier of facts "to obtain the elusive and incommunicable evidence of a
witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is
only when the witness testifies orally that the judge may have a true idea of his countenance, manner and
expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of
the witness will reveal his capacity for accurate observation and memory, and his deportment and
physiognomy will reveal clues to his character. These can only be observed by the judge if the witness
testifies orally in court.

Q.92. Who has the right to grant immunity to the accused and employ him as a state witness?
Explain.

A.92. In Reyes vs. Ombudsman (787 SCRA 355, 15 March 2016)(En Banc)[Perlas-Bernabe, J.],191 it
was held that: Congress has vested such power in the Ombudsman as well as in the Secretary of Justice. The
authority to grant immunity is not an inherent judicial function. Besides, the decision to employ an accused as
a state witness must necessarily originate from the public prosecutors whose mission is to obtain a successful
prosecution of the several accused before the courts. The latter do not, as a rule, have a vision of the true strength
of the prosecution's evidence until after the trial is over. Consequently, courts should generally defer to the
judgment of the prosecution and deny a motion to discharge an accused so he can be used as a witness only
in clear cases of failure to meet the requirements of Section 17, Rule 119 of the 2000 Rules of Criminal
Procedure.192

As explained in Quarto vs. Marcelo:193

The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is
essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is
a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a
crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals
who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be
exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the
sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be
prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of
prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of
a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the
prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such
errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense.

Q.93. Is Certiorari the proper remedy in case of a denial of the Demurrer to Evidence? Explain.

190
72 SCRA 428 (25 August 1976).
191
Petitioners were charged with Plunder and violations of Section 3(e) of RA 3019. The petition for Certiorari was dismissed by
the Supreme Court.
192
People vs. Sandiganbayan, 699 SCRA 713 (26 June 2013).
193
674 Phil. 370 (2011).
 40

A.93. No. In Macapagal-Arroyo vs. People (797 SCRA 241, 19 July 2016)(En Banc)[Bersamin, J.]
(Plunder), it was held that: The special civil action for certiorari is generally not proper to assail such an
interlocutory order issued by the trial court because of the availability of another remedy in the ordinary
course of law.194 Moreover, Section 23, Rule 119 of the Rules of Court expressly provides that the order denying
the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by
appeal or by certiorari before judgment. It is not an insuperable obstacle to this action, however, that the denial
of the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the proceedings,
and the proper recourse of the demurring accused was to go to trial, and that in case of their conviction they
may then appeal the conviction, and assign the denial as among the errors to be reviewed.195 Indeed, it is
doctrinal that the situations in which the writ of certiorari may issue should not be limited,196 because to do
so would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the court that
authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus. In the
exercise of its superintending control over other courts, the Supreme Court is to be guided by all the
circumstances of each particular case as the ends of justice may require. So it is that the writ will be granted
where necessary to prevent a substantial wrong or to do substantial justice.

The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct
errors of jurisdiction as a result of capricious, arbitrary, whimsical and despotic exercise of discretion by expressly
incorporating in Section 1 of Article VIII the following provision: Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

The exercise of this power to correct grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government cannot be thwarted by rules of procedure to the
contrary or for the sake of the convenience of one side. This is because the Court has the bounden constitutional
duty to strike down grave abuse of discretion whenever and wherever it is committed.

Thus, notwithstanding the interlocutory character and effect of the denial of the demurrers to
evidence, petitioners as the accused could avail themselves of the remedy of certiorari when the denial was
tainted with grave abuse of discretion.197 On Motion for Reconsideration by the People through the OSG, which
was denied by the Supreme Court, it was further held that:

The prohibition contained in Section 23, Rule 119 of the Rules of Court is not an insuperable obstacle
to the review by the Court of the denial of the demurrer to evidence through certiorari. We have had many
rulings to that effect in the past. For instance, in Nicolas vs. Sandiganbayan,198 the Court expressly ruled that the
petition for certiorari was the proper remedy to assail the denial of the demurrer to evidence that was tainted
with grave abuse of discretion or excess of jurisdiction, or oppressive exercise of judicial authority.

Q.94. If a Demurrer to Evidence was granted by the court and the People file a Motion for
Reconsideration, will it violate the right of the accused not to be placed in double jeopardy? Explain.

A.94. Yes. In Macapagal-Arroyo vs. People (823 SCRA 370, 18 April 2017)(En Banc)[Bersamin, J.],199
the High Court ruled that: The Court's consequential dismissal of Criminal Case No. SB-12-CRM-0174 as to the
petitioners for insufficiency of evidence amounted to their acquittal of the crime of plunder charged against
them. In People vs. Tan,200 the Court shows why:

In People vs. Sandiganbayan,201 the Supreme Court explained the general rule that the grant of a
demurrer to evidence operates as an acquittal and is, thus, final and unappealable, to wit:

194
Tadeo vs. People, 300 SCRA 744 (29 December 1998).
195
Alarilla vs. Sandiganbayan, 338 SCRA 485 (22 August 2000).
196
Ong vs. People, 342 SCRA 372 (9 October 2000).
197
Cruz vs. People, 303 SCRA 533 (23 February 1999).
198
544 SCRA 324 (11 February 2008).
199
Resolution of the Motion for Reconsideration by the People through the OSG which was denied by the SC.
200
625 SCRA 388 (26 July 2010).
201
447 SCRA 291 (17 December 2004).
 41

The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had
rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of file
case on the merits, tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant
of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy.
The verdict being one of acquittal, the case ends there.

The rule on double jeopardy, however, is not without exceptions. In People vs. Laguio, Jr.,202 the
Supreme Court stated that the only instance when double jeopardy will not attach is when the RTC acted with
grave abuse of discretion, thus:

The only instance when double jeopardy will not attach is when the trial court acted with grave
abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the
opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of to
correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that
the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense
justice.

The constitutional prohibition against placing a person under double jeopardy for the same offense bars
not only a new and independent prosecution but also an appeal in the same action after jeopardy had attached.203
As such, every acquittal becomes final immediately upon promulgation and cannot be recalled for correction or
amendment. With the acquittal being immediately final, granting the State's motion for reconsideration in this
case would violate the Constitutional prohibition against double jeopardy because it would effectively reopen the
prosecution and subject the petitioners to a second jeopardy despite their acquittal.

It is cogent to remind in this regard that the Constitutional prohibition against double jeopardy provides
to the accused three related protections, specifically:

(1) protection against a second prosecution for the same offense after acquittal;
(2) protection against a second prosecution for the same offense after conviction; and
(3) protection against multiple punishments for the same offense.204

The rationale for the three protections is expounded in United States vs. Wilson:205

The interests underlying these three protections are quite similar. When a defendant has been once
convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected
to the possibility of further punishment by being again tried or sentenced for the same offense. 206 When a
defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make
repeated attempts to convict him, "thereby subjecting him to embarrassment, expense and ordeal, and
compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that,
even though innocent, he may be found guilty."207

The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle
have been only grudgingly allowed. Initially, a new trial was thought to be unavailable after appeal, whether
requested by the prosecution or the defendant.208 It was not until 1896 that it was made clear that a defendant
could seek a new trial after conviction, even though the Government enjoyed no similar right.209

Q.95. What is the duty of the court if the accused filed a Demurrer to Evidence?

A.95. The court, in the exercise of its sound discretion, may require or allow the prosecution to
present additional evidence (at its own initiative or upon a motion) after a demurrer to evidence is filed. This

202
G.R. No. 128587 (16 March 2007).
203
Republic vs. Court of Appeals, 116 SCRA 505 (11 September 1982); People vs. Pomeroy, 97 Phil 927 (1955); People vs. Bringas,
70 Phil 528; People vs. Yelo, 83 Phil. 618.
204
North Carolina vs. Pearce, 395 US 711 (1969).
205
420 US 332 (1975).
206
Ex parte Lange, 18 Wall 163 (1874); In re Nielsen, 131 U.S. 176 (1889).
207
Green vs. United States, 355 U.S. 184, 187-188 (1957).
208
See United States vs. Gibert, 25 F. Cas. 1287 (No. 15,204) (CCD Mass. 1834)(Story, J.).
209
United States vs. Ball, 163 U.S. 662.
 42

exercise, however, must be for good reasons and in the paramount interest of justice. 210 As mentioned, the court
may require the presentation of further evidence if its action on the demurrer to evidence would patently result in
the denial of due process; it may also allow the presentation of additional evidence if it is newly discovered, if it
was omitted through inadvertence or mistake, or if it is intended to correct the evidence previously offered.211

Q.96. What are the requirements for reopening of a case?

A.96. In the following cases:

1. Rivac vs. People (G.R. No. 224673, January 22, 2018)(Second Division) [Perlas-Bernabe, J.]
2. Hernan vs. Sandiganbayan (847 SCRA 552, 5 December 2017)(En Banc) [Peralta, J.], citing the
case of Cabaries vs. Maceda,212 the Supreme Court expounded on the novelty, nature, and
parameters of this rule, to wit:

A motion to reopen a case to receive further proofs was not in the old rules but it was nonetheless a
recognized procedural recourse, deriving validity and acceptance from long, established usage. This lack of a
specific provision covering motions to reopen was remedied by the Revised Rules of Criminal Procedure which
took effect on December 1, 2000.

Section 24, Rule 119 and existing jurisprudence stress the following requirements for reopening a case:

(1) the reopening must be before the finality of a judgment of conviction;

(2) the order is issued by the judge on his own initiative or upon motion;
(3) the order is issued only after a hearing is conducted;
(4) the order intends to prevent a miscarriage of justice; and
(5) the presentation of additional and/or further evidence should be terminated within thirty
days from the issuance of the order.

Generally, after the parties have produced their respective direct proofs, they are allowed to offer
rebutting evidence only. However, the court, for good reasons, and in the furtherance of justice, may allow new
evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of
discretion appears. A motion to reopen may thus properly be presented only after either or both parties had
formally offered and closed their evidence, but before judgment is rendered, and even after promulgation but
before finality of judgment and the only controlling guideline covering a motion to reopen is the paramount
interest of justice. This remedy of reopening a case was meant to prevent a miscarriage of justice.

In the case of Rivac vs. People supra, petitioner's claim that the Sandiganbayan's denial of her motion to
reopen the case is capricious, despotic, and whimsical since the admission of her additional evidence will prevent
a miscarriage has no legal nor factual leg to stand on.

JUDGMENT (RULE 120)

Q.97. If the accused is acquitted, does it also mean that he is not civilly liable? Explain.

A.97. No. In the case of Daluraya vs. Oliva (744 SCRA 193, 8 December 2014)(First Division)[Perlas-
Bernabe, J.], a case of reckless imprudence resulting to homicide, it was held that: Every person criminally liable
for a felony is also civilly liable. The acquittal of an accused of the crime charged, however, does not
necessarily extinguish his civil liability.213 In Manantan vs. CA,214 the Court expounded on the two kinds of
acquittal recognized by our law and their concomitant effects on the civil liability of the accused, as follows:

210
Atty. Gacayan vs. Hon. Pamintuan, 373 Phil. 460 (1999). Section 11, Rule 119 of the Rules on Criminal Procedure reads:
Section. 11. Order of trial.– The trial shall proceed in the following order:
xxxx
(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court,
in furtherance of justice, permits them to present additional evidence bearing upon the main issue.
211
Republic of the Philippines vs. Sandiganbayan (Fourth Division), Jose L. Africa (substituted by his heirs), Manuel H. Nieto,
Jr., Ferdinand E. Marcos (substituted by his heirs), Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and
Potenciano Ilusorio (substituted by his heirs), G.R. No. 152375 (16 December 2011); and Atty. Gacayan vs. Hon. Pamintuan,
supra.
212
545 Phil. 210 (2007).
213
Lumantas vs. Calapiz, G.R. No. 163753 (15 January 2014).
214
403 Phil. 299 (2001).
 43

First is an acquittal on the ground that the accused is not the author of the actor 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
delict, 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 of the accused. In this
case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability
which may be proved by preponderance of evidence only.

Q.98. Explain the Variance Doctrine.

A.98. In People vs. Caoili (835 SCRA 107, 8 August 2017)(En Banc)[Tijam, J.], a rape case in relation
to R.A. No. 7610, the High Court explained that: The variance doctrine allows the conviction of an accused for a
crime proved which is different from but necessarily included in the crime charged, is embodied in Section 4,
in relation to Section 5 of Rule 120 of the Rules of Court.

In Caoili, the Supreme Court said: It cannot accept the OSG's argument that based on the variance
doctrine,215 Caoili can be convicted of rape by sexual assault because this offense is necessarily included in the
crime of rape through sexual intercourse. By jurisprudence,216 however, an accused charged in the Information
with rape by sexual intercourse cannot be found guilty of rape by sexual assault, even though the latter
crime was proven during trial. This is due to the substantial distinctions between these two modes of rape.217

The elements of rape through sexual intercourse are:

(1) that the offender is a man;

(2) that the offender had carnal knowledge of a woman; and
(3) that such act is accomplished by using force or intimidation.218

Rape by sexual intercourse is a crime committed by a man against a woman, and the central element is
carnal knowledge.219

On the other hand, the elements of rape by sexual assault are:

(1) that the offender commits an act of sexual assault;

(2) that the act of sexual assault is committed by inserting his penis into another person's
mouth or anal orifice or by inserting any instrument or object into the genital or anal orifice
of another person; and
(3) that the act of sexual assault is accomplished by using force or intimidation, among
others.220

In the first mode (rape by sexual intercourse):

(1) the offender is always a man;

(2) the offended party is always a woman;
(3) rape is committed through penile penetration of the vagina; and
(4) the penalty is reclusion perpertua.221

In the second mode (rape by sexual assault):

(1) the offender may be a man or a woman;

(2) the offended party may be a man or a woman;

215
Embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Court.
216
People vs. Abulon, 557 Phil. 428 (2007); People vs. Pareja, 724 Phil. 759 (2014); People vs. Cuaycong, 718 Phil. 633 (2013).
217
People vs. Pareja, supra.
218
People vs. Alfredo, 653 Phil. 435 (2010).
219
People vs. Espera, 718 Phil. 680 (2013).
220
People vs. Alfredo, supra.
221
People vs. Espera, 718 Phil. 680 (2013); People vs. Abulon, supra.
 44

(3) rape is committed by inserting the penis into another person's mouth or anal orifice, or any
instrument or object into the genital or anal orifice of another person; and
(4) the penalty is prision mayor.

The Court en banc's categorical pronouncement in People vs. Abulon,222 thus, finds application:

In view of the material differences between the two modes of rape, the first mode is not necessarily
included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424
is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was
proven, without violating his constitutional right to be informed of the nature and cause of the accusation
against him.

In fine, given the material distinctions between the two modes of rape introduced in R.A. No. 8353, the
variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape
through sexual intercourse, since the former offense cannot be considered subsumed in the latter.

The High Court, remind public prosecutors of their crucial role in drafting criminal complaints or
Information. They have to be more judicious and circumspect in preparing the Information since a mistake or
defect therein may not render full justice to the State, the offended party and even the offender.

In People vs. Pareja,223 the Court held that:The primary duty of a lawyer in public prosecution is to see
that justice is done - to the State, that its penal laws are not broken and order maintained; to the victim, that
his or her rights are vindicated; and to the offender, that he is justly punished for his crime.

Caoili can be convicted of the crime of lascivious conduct under Section 5(b) of R.A. No. 7610. R.A.
No. 7610 finds application when the victims of abuse, exploitation or discrimination are children or those persons
below 18 years of age or those over but are unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.224

It is undisputed that at the time of the commission of the lascivious act, AAA was fourteen (14) years,
one (1) month and ten (10) days old. This calls for the application of Section 5(b) of R.A. No. 7610. The elements
of sexual abuse under Section 5(b) of R.A. No. 7610 are as follows:

(1) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in prostitution or subjected to other sexual
abuse; and
(3) The child, whether male or female, is below 18 years of age.225

The prosecution's evidence has sufficiently established the elements of lascivious conduct under Section
5(b) of R.A. No. 7610.

In Melgar vs. People,226 Melgar argues, inter alia, that he was charged of violation of Section 5(i) of RA
9262 as the Information alleged that the acts complained of caused mental or emotional anguish, public ridicule or
humiliation to [AAA] and her son [BBB]. As such, he contends that he cannot be convicted of violation of Section
5(e) of RA 9262 as charged in the Information. The Supreme Court upheld the conviction as the deprivation or
denial of support, by itself and even without the additional element of psychological violence, is already
specifically penalized therein.

Q.99. Is promulgation of judgment in absentia allowed under the 2000 Rules of Criminal
Procedure?

A.99. Yes. In Re: Complaint dated January 28, 2015 of Catherine Damayo, Represented by Her
Mother, Veniranda Damayo, Against Hon. Marilyn Lagura-Yap, Associate Justice, Court of Appeals-Visayas,
Cebu City, Cebu (762 SCRA 581, 14 July 2015)(En Banc)[Peralta, J.], it was ruled that: Section 6, Rule 120 of the

222
557 Phil. 428 (2007).
223
724 Phil. 759 (2014).
224
People vs. Chingh, 661 Phil. 208 (2011).
225
Roallos vs. People, 723 Phil. 655 (2013); Caballo vs. People, 710 Phil. 792 (2013); People vs. Rayon, Sr., 702 Phil. 672
(2013); Garingarao vs. People, 669 Phil. 672 (2011); andOlivarez vs. CA and People, 503 Phil. 421 (2005).
226
Melgar vs. People of the Philippines, G.R. No. 223477 (14 February 2018) [Perlas-Bernabe, J., Second Division].
 45

2000 Rules of Criminal Procedure authorizes the promulgation of judgment in absentia in case the accused failed
to appear despite notice. It bears stressing that the rule authorizing promulgation in absentia is intended to
obviate the situation where the judicial process could be subverted by the accused jumping bail to frustrate
the promulgation of judgment.227

Q.100. What is the consequence if the accused failed to appear during the promulgation of the
judgment of conviction?

A.100. In the case of Jaylo, et al. vs. Sandiganbayan, et al.,228 the Supreme Court held that: Section 6,
Rule 120 of the Rules, which provides that an accused who failed to appear at the promulgation of the judgment
of conviction shall lose the remedies available against the judgment, does not take away substantive rights but
merely provides the manner through which an existing right may be implemented. Section 6, Rule 120, of the
Rules of Court, does not take away per se the right of the convicted accused to avail of the remedies under the
Rules. It is the failure of the accused to appear without justifiable cause on the scheduled date of
promulgation of the judgment of conviction that forfeits their right to avail themselves of the remedies
against the judgment.

It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the
substantive rights of petitioners. It only works in pursuance of the power of the Supreme Court to provide a
simplified and inexpensive procedure for the speedy disposition of cases. This provision protects the courts from
delay in the speedy disposition of criminal cases - delay arising from the simple expediency of nonappearance of
the accused on the scheduled promulgation of the judgment of conviction.

Q.101. What is the Doctrine of Immutability of Judgments? What are the exceptions to the application
of this doctrine?

A.101. The doctrine holds that a final judgment may no longer be altered, amended or modified, even
if the alteration, amendment or modification is meant to correct what is perceived to be an erroneous
conclusion of fact or law and regardless of what court, be it the highest court of the land, rendered it. 229
However, the Supreme Court has suspended the application of this rule based on certain recognized exceptions, viz:

Aside from matters of life, liberty, honor or property which would warrant the suspension of the Rules of the
most mandatory character and an examination and review by the appellate court of the lower court’s findings of fact,
the other elements that should be considered are the following:

(a) the existence of special or compelling circumstances;

(b) the merits of the case;
(c) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of
the rules;
(d) a lack of any showing that the review sought is merely frivolous and dilatory; and
(e) the other party will not be unjustly prejudiced thereby.230 (Almuete vs. People, supra.)

APPEAL (RULE 122)

Q.102. If a criminal case is brought on appeal, is the power of review of the appellate court limited
to the assigned errors of the appellant? Explain.

A.102. No. In the following cases:

1. People vs. Calibod (845 SCRA 370, 20 November 2017)(Second Division)[Perlas-Bernabe, J.]
(The accused was ACQUITTED for violation of Section 5, Article II of R.A. No. 9165 on
reasonable doubt and non compliance with the procedure in Section 21 of RA 9165, which is a
matter of substantive law.)
2. Ramos vs. People (845 SCRA 324, 20 November 2017)(Second Division)[Perlas-Bernabe, J.]
(The petition was partly granted. The Decision was MODIFIED, finding petitioner Digna Ramos

227
See People vs. Chiok, 534 Phil. 538 (2006).
228
751 Phil. 123 (2015).
229
Apo Fruits Corporation vs. Land Bank of the Philippines, 632 SCRA 727 (12 October 2010). See Peña vs. Government Service
Insurance System, 533 Phil. 670 (2006).
230
Sanchez vs. Court of Appeals, 452 Phil. 665 (2003). See Dra. Baylon vs. Fact-Finding Intelligence Bureau, 442 Phil. 217 (2002).
 46

GUILTY beyond reasonable doubt only of the crime of Slight Oral Defamation defined and
penalized under Article 358 of the RPC.)
3. People vs. Rubillar, Jr. (837 SCRA 646, 23 August 2017)(Second Division)[Perlas-Bernabe, J.]
(Accused was acquitted for the crime of Rape under Art. 266-A of the RPC due to the invocation
of sweetheart theory and based on reasonable doubt.)
4. People vs. Ceralde (834 SCRA 613, 7 August 2017)(First Division)[Perlas-Bernabe, J.](A case
for violations of Sections 5 and 11, Article II of RA 9165, where the accused was acquitted due to
non-compliance with Section 21 by the arresting police officers.)
5. Miguel vs. People (833 SCRA 440, 31 July 2017)(First Division)[Perlas-Bernabe, J.](A case for
violation of Section 11, Article II of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002. The Supreme Court reversed the decision of the
trial court and the CA and acquitted the accused-appellant of the crime charged.)
6. Belmonte vs. People (828 SCRA 463, 28 June 2017)(First Division)[Perlas-Bernabe, J.]
(Affirmed the conviction of Kevin Belmonte y Goromeo for violation of Section 5, Article II of
Republic Act No. 9165, as amended, and the penalty of life imprisonment and payment of a fine
of P500,000.00.)
7. People vs. Alejandro (820 SCRA 189, 13 March 2017)(First Division)[Perlas-Bernabe, J.]
(Qualified Rape and Homicide, defined and penalized under Articles 3354 and 249 of the RPC,
respectively. Accused Alberto withdrew his appeal. Whereas, the conviction of accused
Angeles was affirmed with modifications.)
8. People vs. Macapundag (820 SCRA 204, 13 March 2017)(First Division) [Perlas-Bernabe, J.](A
case for violations of Sections 5 and 11, Article II of RA 9165, where the accused was acquitted
due to non-compliance with Section 21 by the arresting police officers.)
9. Ramos vs. People (815 SCRA 226, 23 January 2017)(First Division)[Perlas-Bernabe, J.][The
conviction for Murder was AFFIRMED with MODIFICATIONS. The accused was sentenced to
suffer the penalty of reclusion perpetua, and ordered to jointly and severally pay Rolando
Necesito's heirs the amounts of P50,000.00 as temperate damages, P75,000.00 as civil indemnity,
P75,000.00 as moral damages, and P75,000.00 as exemplary damages with six percent (6%) legal
interest per annum on all the monetary awards from the date of finality of this judgment until
fully paid.]
10. People vs. Goco (806 SCRA 240, 17 October 2016)(First Division)[Perlas-Bernabe, J.](A case
for violations of Sections 5 and 11, Article II of RA 9165, where the accused was acquitted due to
non-compliance with Section 21 by the arresting police officers.)
11. Balauitan vs. People (803 SCRA 367, 19 September 2016)(First Division)[Perlas-Bernabe, J.]
12. People vs. Jugueta (788 SCRA 331, 5 April 2016)(En Banc)[Peralta, J.][The accused was found
guilty beyond reasonable doubt of two (2) counts of the crime of murder defined under Article
248 of the Revised Penal Code and four (4) counts of attempted murder.]
13. People vs. Comboy (785 SCRA 512, 2 March 2016)(First Division)[Perlas-Bernabe, J.]
[Conviction was affirmed for two (2) counts of Qualified Rape and one (1) count of Qualified
Attempted Rape, defined and penalized under Article 266-A (1) (a) and (d), in relation to Article
266-B (1), of the RPC.]
14. Wacoy vs. People (760 SCRA 259, 22 June 2015)(First Division)[Perlas-Bernabe, J.](The
Supreme Court affirmed with modification the conviction of the accused for the crime of
Homicide defined and penalized under Article 249 of the RPC.)
15. People vs. Arguta (756 SCRA 376, 20 April 2015)(First Division)[Perlas-Bernabe, J.](The
conviction of the accused for the crime of Qualified Rape under Article 335 of the RPC was
affirmed by the Supreme Court.)
16. People vs. Matibag (754 SCRA 529, 25 March 2015)(First Division)[Perlas-Bernabe, J.](The
conviction of the accused for the crime of Murder under Art. 248 of the RPC was affirmed with
modification by the Supreme Court.)
17. People vs. Palma (751 SCRA 233, 18 February 2015)(First Division)[Perlas-Bernabe, J.](The
conviction of the accused for violation of Section 5, Article II of R.A. No. 9165 was affirmed by
the Supreme Court. As observed in this case, the accused questioned the trial court’s
assessment of prosecution witness PO2 Coronel and not the compliance with Section 21 of R.A.
No. 9165 and its IRR.)
18. People vs. Balute (748 SCRA 172, 21 January 2015)(First Division)[Perlas-Bernabe, J.][A case
of Robbery with Homicide under Article 294 (1) of the RPC, as amended. The conviction of the
trial court and the CA was affirmed.], the High Court ruled that:

In criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal
can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's decision
 47

based on grounds other than those that the parties raised as errors. The appeal confers the appellate court full
jurisdiction over the case and renders such court competent to examine records, revise the judgment appealed
from, increase the penalty, and cite the proper provision of the penal law. 231

Q.103. If the issues on credibility of witness, the elements of the crime and conspiracy were not
satisfactorily proven and good faith was not properly appreciated, will these be given due course on appeal?

A.103. No. In the following cases:

1. People vs. Hallarte (720 SCRA 583, 2 April 2014)(Second Division)[Perlas-Bernabe, J.](The
conviction of the accused for Homicide under Art. 249 of the RPC was affirmed with modification
by the Supreme Court.)
2. Lihaylihay vs. People (702 SCRA 755, 31 July 2013)[(Second Division) [Perlas-Bernabe, J.][The
conviction of the petitioners (accused) by the Sandiganbayan for violation of Section 3(e) of RA
3019 was affirmed by the Supreme Court.]
3. People vs. Nelmida (680 SCRA 386, 11 September 2012)(En Banc)[Perez, J.] [The conviction of
the accused for two (2) counts of murder and seven (7) counts of attempted murder was affirmed
by the Supreme Court with modifications.], it was held that:

It must be stressed that in criminal cases, factual findings of the trial court are generally accorded
great weight and respect on appeal, especially when such findings are supported by substantial evidence on
record. It is only in exceptional circumstances, such as when the trial court overlooked material and relevant
matters, that the Court will re-calibrate and evaluate the factual findings of the court below.1232

Thus, it bears pointing out that in appeals from the Sandiganbayan, only questions of law and not
questions of fact may be raised. Issues brought to the Court on whether the prosecution was able to prove the
guilt of the accused beyond reasonable doubt, whether the presumption of innocence was sufficiently
debunked, whether or not conspiracy was satisfactorily established, or whether or not good faith was properly
appreciated, are all, invariably, questions of fact.233 Hence, absent any of the recognized exceptions to the
above-mentioned rule,234 the Sandiganbayan’s findings on the foregoing matters should be deemed as conclusive.

Q.104. If a criminal case is brought on appeal, who shall represent as legal counsel of the people?
Explain.

A.104. In Burgos, Jr. vs. People (793 SCRA 121, 8 June 2016)(First Division)[Perlas-Bernabe, J.], a
case of Estafa through Falsification of Public Documents, it was held that: It is the OSG which possesses the
requisite authority to represent the People in an appeal on the criminal aspect of a case. 235 The OSG is the law
office of the Government whose specific powers and functions include that of representing the Republic and/or
the People before any court in any action which affects the welfare of the people as the ends of justice may
require.236 It is provided by Section 35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code.

Q.105. In case there are several accused, and not all of them filed an appeal, what is the effect of
reversal of conviction to the other co-accused who did not appeal?

A.105. In the following cases:

1. People vs. Libre (G.R. No. 235980, 20 August 2018)(Second Division)[Perlas-Bernabe, J.]
2. Benabaye vs. People (752 SCRA 26, 25 February 2015)(First Division)[Perlas-Bernabe, J.], it
was held that:

231
See People vs. Alejandro, G.R. No. 225608 (13 March 2017), citing People vs. Comboy, 785 SCRA 512 (2 March 2016).
232
See People vs. Baraga, G.R. No. 208761 (4 June 2014), citing Seguritan vs. People, 618 SCRA 406 (19 April 2010).
233
Jaca vs. People, G.R. Nos. 166967, etc. (28 January 2013).
234
―Settled is the rule that findings of fact of the Sandiganbayan in cases before this Court are binding and conclusive in the
absence of a showing that they come under the established exceptions, among them: (1) when the conclusion is a finding
grounded entirely on speculation, surmises and conjectures; (2) the inference made is manifestly mistaken; (3) there is a
grave abuse of discretion; 4) the judgment is based on misapprehension of facts; (5) said findings of facts are conclusions
without citation of specific evidence on which they are based; and (6) the findings of fact of the Sandiganbayan are premised
on the absence of evidence on record.‖ (Balderama vs. People, 542 SCRA 423, 28 January 2008.)
235
See People vs. Piccio, 732 SCRA 254 (6 August 2014).
236
Gonzales vs. Chavez, 205 SCRA 816 (4 February 1992).
 48

Under Section 11(a), Rule 122 of the Revised Rules of Criminal Procedure, a favorable judgment shall
benefit the co-accused who did not appeal. 237 In Binabaye, while it is true that she was the only one who was
able to successfully perfect her appeal among the accused, the rule is that an appeal in a criminal proceeding
throws the whole case open for review of all its aspects, including those not raised by the parties.
Considering that under Section 11(a), Rule 122 of the Revised Rules of Criminal Procedure, a favorable
judgment, as in this case, shall benefit the co-accused who did not appeal or those who appealed from their
judgments of conviction but for one reason or another, the conviction became final and executory,
Benabaye’s discharge for the crime of estafa is likewise applicable to Tupag. Note that the dismissal of the
estafa charge against Tupag is similarly without prejudice to the filing of the appropriate criminal charge against
him as may be warranted under the circumstances pertinent to him.

PROCEDURE IN THE COURT OF APPEALS( RULE 124)

Q.106. What are the grounds for the dismissal of an appeal in criminal cases?

A.106. In Usares vs. People (G.R. No. 209047, 7 January 2019)(Second Division)[Perlas-Bernabe, J.], it was
held that: Under Section 8, Rule 124 the appeal may be dismissed either on motion of the appellee or motu
proprio on the following grounds:

1. appellant escapes from prison or confinement;

2. jumps bail or flees to a foreign country during the pendency of the appeal.

Q.107. What is the rationale for dismissing an appeal upon motion of the appellee or motu proprio
by the CA if the accused–appellant jumps bail during the pendency of his appeal?

A.107. An accused-appellant who jumps bail during the pendency of his appeal is considered to have
evaded the established judicial processes to ensure his proper criminal prosecution, and in so doing, forfeits
his right to pursue an appeal.

By putting himself beyond the reach and application of the legal processes of the land, accused-
appellant revealed his contempt of the law and placed himself in a position to speculate, at his pleasure on
his chances for a reversal. In the process, he kept himself out of the reach of justice, but hoped to render the
judgment nugatory at his option. Such conduct is intolerable and does not invite leniency on the part of the
appellate court.

PROBLEM:

In a Decision dated January 14, 2019, the RTC Branch 123 of the City of Iraga, Province of Ilyan, found
Jess Dimas guilty beyond reasonable doubt of the crime of Homicide.

During the promulgation of Judgment on January 18, 2019, Atty. John Laurence Buelo, representing
Dimas, manifested in open court that they intend to file a Notice of Appeal within fifteen (15) days from January
18, 2019 and moved that Dimas be released under the same bond. The RTC granted the said motion in an
Order issued on even date.

Accordingly, Dimas filed a Notice of Appeal on January 22, 2019, which the RTC granted in an Order
dated January 25, 2019.

On March 15, 2019, a certain Malvino Matalino filed a Motion for the Issuance of Warrant of Arrest,
praying that the warrant be issued against Dimas to enforce the RTC Decision. Matalino averred that Dimas
jumps bail.

The CA, dismissed the appeal, on the ground that Dimas jumps bail in accordance with Section 8, Rule
124 of the 2000 Rules of Criminal Procedure. Unknown to Dimas, his counsel Atty. Buelo abandoned him without
any information as to his whereabouts. Dimas belatedly filed a Motion for Reconsideration through a certain Atty.
William Halili, stating among others, that Dimas did not jump bail but actually a victim of unprofessionalism of his
counsel. The CA denied Dima’s Motion for Reconsideration, issued an Entry of Judgment and remanded the case
to the court of origin in RTC Branch 123 of the City of Iliyan for the issuance of the warrant and implementation of
the final and executory decision.

237
Benabaye vs. People, 755 Phil. 144 (2015).
 49

Q.108. Is the dismissal of the appeal correct? Explain.

A.108. No. Having the same factual milieu, in Usares vs. People supra, the Supreme Court held that:
Considering that Usares has an existing cash bail bond - which the CA should have known had it reviewed more
carefully the records of this case - she cannot be considered to have jumped bail, which thus renders erroneous
the dismissal of her appeal on the said ground.

Notably, while it appears that Usares belatedly filed her motion for reconsideration before the CA, which
resulted in the issuance of an entry of judgment against her, the Court finds it proper to relax such
technicalities in the interest of substantial justice given that there was, in the first place, no cogent basis for
the dismissal of her appeal. In addition, the Court recognizes that Usares had duly explained in her petition
that her previous lawyer, Atty. Vijiga, who received the copy of the February 14, 2013 CA Resolution on
February 21, 2013, unfortunately abandoned her cause without any explanation to her whatsoever. It was
only when she asked her present lawyer, Atty. Cuaresma, to check on the status of her appeal that she found out
that the same had long been dismissed by the CA. While as a general rule, the negligence of counsel may not
be condoned and should bind the client, the exception is when such negligence is so gross, reckless and
inexcusable that the client is deprived of his or her day in court,238 as in Usares's case. Time and again, the
Court has ruled that dismissal of appeals purely on technical grounds is frowned upon, and the rules of
procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not
override, substantial justice, and thereby defeat their very aims.239

In fine, the Court, based on the considerations above-discussed, resolves to grant the petition.
Accordingly, the case is remanded to the CA for resolution of Usares's appeal on the merits, with reasonable
dispatch.

Q.109. If the accused jumped bail during the proceedings before the RTC and was, in fact, tried and
convicted in absentia, could he pursue an appeal to the Court of Appeals? Explain.

A.109. No. In People vs. De Los Reyes (684 SCRA 216, 16 October 2012)(En Banc)[Perlas Bernabe,
J.],240 it was held that:

Once an accused escapes from prison or confinement, jumps bail, or flees to a foreign country, he
loses his standing in court, and unless he surrenders or submits to the jurisdiction of the court, he is deemed
to have waived any right to seek relief therefrom.241

The court shall dismiss appellants appeal, as he is considered a fugitive from justice. This is provided
for by Section 8, Rule 124 of the 2000 Rules of Criminal Procedure.

It bears to stress that the right to appeal is merely a statutory privilege, and, as such, may be exercised
only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same
must comply with the requirements of the Rules, failing which, the right to appeal is lost.

PROBLEM:

Antone was charged for two (2) counts of rape of his then eleven (11)-year old niece-in-law, AAA.

After trial in the RTC, he was found guilty beyond reasonable doubt of two (2) counts of simple statutory
rape, and accordingly, sentenced to suffer the penalty of reclusion perpetua for each count of rape, and to
indemnify AAA the amounts of P50,000.00 as civil indemnity and P30,000.00 as exemplary damages for each
count of rape, without subsidiary imprisonment in case of insolvency.

238
See Hilario vs. People of the Philippines, 574 Phil. 348 (2008).
239
Sarmiento vs. Zaratan, 543 Phil. 232 (2007).
240
The accused was convicted by RTC of Tabaco, Albay, Branch 16 of two (2) counts of rape and sentenced him to suffer the
death penalty for each count and to pay moral damages and attorney’s fees. However, he escaped and was tried and
convicted in absentia. The case was for automatic review by the Supreme Court. With the SC’s pronouncement in the 2004
case of People vs. Mateo (433 SCRA 640, 7 July 2004) providing for and making mandatory the intermediate review by
the CA of cases involving the death penalty, reclusion perpetua or life imprisonment, the proper course of action would
be to remand these cases to the appellate court for the conduct of an intermediate review. Since the accused escaped,
the SC dismissed the appeal pursuant to Section 8, Rule 124 of the 2000 Rules of Criminal Procedure.
241
Villena vs. People, 641 SCRA 127 (31 January 2011).
 50

On appeal to the CA, it affirmed the ruling of the RTC with modification, adjusting the award of
damages in favor of AAA to P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as
exemplary damages, plus legal interest at the rate of six percent (6%) per annum from finality of the ruling until
fully paid.

Dissatisfied, Antone moved for reconsideration of the CA adverse decision but the same was denied.
He then filed an Appeal via Petition for Review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure to the Supreme Court.

Q.110. Is the remedy of Antone correct? Explain.

A.110. No. In the case of Antone vs. People (845 SCRA 294, 20 November 2017)(Second Division)
[Perlas-Bernabe, J.], it was held that: Antone made a procedural lapse in elevating the case before the Court via
a petition for review on certiorari under Rule 45 of the Rules of Court. Section 3(e), Rule 122 of the Revised Rules
on Criminal Procedure especially provides that “except as provided in the last paragraph of Section 13, Rule
124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.”

In this case, the CA affirmed the imposition of the penalty of reclusion perpetua to Antone for each
count of Statutory Rape committed against AAA. As such, he should have filed a notice of appeal before the CA
instead of filing a petition for review on certiorari before the Court.

Accordingly, Antone’s failure to timely file a notice of appeal before the CA resulted in the latter
court's Decision and the Resolution to the Motion for Reconsideration lapsing into finality. Time and again, the
Court has repeatedly held that a decision that has acquired finality becomes immutable and unalterable, and may
no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact
and law, and whether it be made by the court that rendered it or by the Highest Court of the land.

SEARCH AND SEIZURE (RULE 126)

Q.111. Does the issuance of the search warrant in accordance with the provisions of Rule 126 of the
2000 Rules of Criminal Procedure mean limitless discretion on the part of the searching police authorities?
Explain.

A.111. No. In Balauitan vs. People (803 SCRA 367, 19 September 2016)(First Division)[Perlas-
Bernabe, J.], it was held that: A search warrant issued in accordance with the provisions of the Revised Rules
of Criminal Procedure does not give the authorities limitless discretion in implementing the same as the same
Rules provide parameters in the proper conduct of a search under Section 8, Rule 126.

Under the provision of Section 8, Rule 126 of the 2000 Rules of Criminal Procedure, a search under the
strength of a warrant is required to be witnessed by the lawful occupant of the premises sought to be searched. It
must be stressed that it is only upon their absence that their presence may be replaced by two (2) persons of
sufficient age and discretion residing in the same locality. In People vs. Go,242 the Supreme Court held that a
departure from the said mandatory rule - by preventing the lawful occupant or a member of his family from
actually witnessing the search and choosing two (2) other witnesses observe the search - violates the spirit and
letter of the law, and thus, taints the search with the vice of unreasonableness, rendering the seized articles
inadmissible due to the application of the exclusionary rule.

REVISED GUIDELINES ON CONTINUOUS TRIAL (A.M. NO. 15-06-10-SC)

Q.112. What are the objectives of the RGOCT?

A.112. The objectives are as follows:

1. To protect and advance the constitutional right of persons to a speedy disposition of their cri-
minal cases;

2. To reinforce and give teeth to the existing rules on criminal procedure and other special rules
prescribing periods for court action and those which promote speedy disposition of criminal cases; and

242
457 Phil. 885 (2003).
 51

3. To introduce innovations and best practices for the benefit of the parties.

THE RULE ON CYBERCRIME WARRANTS (A.M. NO. 17-11-03-SC)

Q.113. Where is the Venue for Criminal Actions for violation of R.A. No. 10175?

A.113. The criminal actions for violation of Section 4 (Cybercrime offenses) and/or Section 5 (Other
offenses), Chapter II of RA 10175, shall be filed before the designated cybercrime court of the province or city
where the offense or any of its elements is committed, or where any part of the computer system used is
situated, or where any of the damage caused to a natural or juridical person took place: Provided, that the
court where the criminal action is first filed shall acquire jurisdiction to the exclusion of the other courts. [Section
2.1. Venue of Criminal Actions]

All other crimes defined and penalized by the Revised Penal Code, as amended, and other special laws,
committed by, through, and with the use of ICT, as provided under Section 6, Chapter II of RA 10175, shall be
filed before the regular or other specialized regional trial courts, as the case may be.

Q.114. Who shall file the application for cyber warrant and where it shall be filed?

A.114. An application for a warrant under this Rule concerning a violation of Section 4 (Cybercrime
Offenses) and/or Section 5 (Other Offenses), Chapter II of RA 10175 shall be filed by the law enforcement
authorities before any of the designated cybercrime courts of the province or the city where the offense or
any of its elements has been committed, is being committed, or is about to be committed, or where any part
of the computer system used is situated, or where any of the damage caused to a natural or juridical person
took place. However, the cybercrime courts in Quezon City, the City of Manila, Makati City, Pasig City, Cebu
City, Iloilo City, Davao City and Cagayan De Oro City shall have the special authority to act on applications
and issue warrants which shall be enforceable nationwide and outside the Philippines. [Section 2.2. Where to
file an Application for a Warrant]

On the other hand, an application for a warrant under this Rule for violation of Section 6, Chapter II of RA
10175 (all crimes defined and penalized by the Revised Penal Code, as amended, and other special laws, if
committed by, through, and with the use of ICT) shall be filed by the law enforcement authorities with the regular
or other specialized regional trial courts, as the case may be, within its territorial jurisdiction in the places above-
described.

Q.115. If a motion to quash warrant is filed, which court has jurisdiction to act?

A.115. Once a criminal action is instituted, a motion to quash and other incidents that relate to the
warrant shall be heard and resolved by the court that subsequently acquired jurisdiction over the criminal
action. The prosecution has the duty to move for the transmittal of the records, as well as the transfer of the items'
custody to the latter court, which procedure is set forth in Section 7.2 of this Rule. [Section 2.3. Incidents Related
to the Warrant When a Criminal Action is Instituted]

Q.116. What is the effectivity of a search warrant issued pursuant to the Rule on Cybercrime?

A.116. Any warrant issued under this Rule shall only be effective for the length of time as
determined by the court, which shall not exceed a period of ten (10) days from its issuance. The court issuing
the warrant may, upon motion, extend its effectivity based only on justifiable reasons for a period not exceeding
ten (10) days from the expiration of the original period. [Section 2.5. Effective Period of Warrants]

Q.117. Can the ten (10)-day period lifetime of the cyber warrant be extended?

A.117. Yes, but for not more than ten (10) days from its expiration or from the original ten (10)-day
period.