G.R. No. 182748               December 13, 2011 Arnel but missed.
Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all that it takes;
b) what distinguishes frustrated homicide from attempted homicide; and c) when an
accused who appeals may still apply for probation on remand of the case to the trial
court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel)
with frustrated homicide before the Regional Trial Court (RTC) of San Jose,
Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on
June 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby
store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby.
From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a
huge stone, about 15 ½ inches in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino
lying by the roadside. Ananias tried to help but someone struck him with something
hard on the right temple, knocking him out. He later learned that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he happened
to be smoking outside his house. He sought the help of a barangay tanod and they
brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two
lacerated wounds on the forehead, along the hairline area. The doctor testified that
these injuries were serious and potentially fatal but Rufino chose to go home after
initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-
defense. He testified that he was on his way home that evening when he met Rufino,
Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed
the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall.
Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab
on the head with it. When Ananias saw this, he charged towards Arnel and tried to
stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same
stone. Arnel then fled and hid in his sister’s house. On September 4, 2000, he
voluntarily surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party
on the night of the incident. His three companions were all drunk. On his way home,
Diomedes saw the three engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable
doubt of frustrated homicide and sentenced him to suffer imprisonment from two years
and four months of prision correccional, as minimum, to six years and one day of
prision mayor, as maximum. Since the maximum probationable imprisonment under
the law was only up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively,
seeking conviction for the lesser crime of attempted homicide with the consequent
reduction of the penalty imposed on him. The CA entirely affirmed the RTC decision
but deleted the award for lost income in the absence of evidence to support it.3 Not
satisfied, Arnel comes to this Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and the Solicitor
General to submit their respective positions on whether or not, assuming Arnel
committed only the lesser crime of attempted homicide with its imposable penalty of
imprisonment of four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum, he could still apply for probation upon
remand of the case to the trial court.
Both complied with Arnel taking the position that he should be entitled to apply for
probation in case the Court metes out a new penalty on him that makes his offense
probationable. The language and spirit of the probation law warrants such a stand.
The Solicitor General, on the other hand, argues that under the Probation Law no
application for probation can be entertained once the accused has perfected his
appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the
head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of
frustrated homicide; and
 3. Given a finding that Arnel is entitled to conviction for a lower offense and
a reduced probationable penalty, whether or not he may still apply for
probation on remand of the case to the trial court.
The Court’s Rulings
The main element of attempted or frustrated homicide is the accused’s intent to take
his victim’s life. The prosecution has to prove this clearly and convincingly to exclude
every possible doubt regarding homicidal intent.9 And the intent to kill is often inferred
from, among other things, the means the offender used and the nature, location, and
number of wounds he inflicted on his victim.10

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he
that it knocked Rufino out. Considering the great size of his weapon, the impact it
merely acted in self-defense when he hit Rufino back with a stone.
produced, and the location of the wounds that Arnel inflicted on his victim, the Court is
convinced that he intended to kill him.
When the accused invokes self-defense, he bears the burden of showing that he was
legally justified in killing the victim or inflicting injury to him. The accused must
The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated,
establish the elements of self-defense by clear and convincing evidence. When
homicide. In Palaganas v. People,11 we ruled that when the accused intended to kill
successful, the otherwise felonious deed would be excused, mainly predicated on the
his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but
lack of criminal intent of the accused.4
the victim did not die because of timely medical assistance, the crime is frustrated
murder or frustrated homicide. If the victim’s wounds are not fatal, the crime is only
In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) attempted murder or attempted homicide.
that the person whom the offender killed or injured committed unlawful aggression; (2)
that the offender employed means that is reasonably necessary to prevent or repel the
Thus, the prosecution must establish with certainty the nature, extent, depth, and
unlawful aggression; and (3) that the person defending himself did not act with
severity of the victim’s wounds. While Dr. Belleza testified that "head injuries are
sufficient provocation.5
always very serious,"12 he could not categorically say that Rufino’s wounds in this case
were "fatal." Thus:
If the victim did not commit unlawful aggression against the accused, the latter has
nothing to prevent or repel and the other two requisites of self-defense would have no
Q: Doctor, all the injuries in the head are fatal?
basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and
unexpected attack or an imminent danger of such attack. A mere threatening or
intimidating attitude is not enough. The victim must attack the accused with actual A: No, all traumatic injuries are potentially treated.
physical force or with a weapon.6
Q: But in the case of the victim when you treated him the wounds actually are
Here, the lower courts found that Arnel failed to prove the element of unlawful not fatal on that very day?
aggression. He alone testified that Jesus and Ananias rained fist blows on him and
that Rufino and Ananias tried to stab him. No one corroborated Arnel’s testimony that
A: I could not say, with the treatment we did, prevent from becoming fatal. But
it was Rufino who started it. Arnel’s only other witness, Diomedes, merely testified that
on that case the patient preferred to go home at that time.
he saw those involved having a heated argument in the middle of the street. Arnel did
not submit any medical certificate to prove his point that he suffered injuries in the
hands of Rufino and his companions.7 Q: The findings also indicated in the medical certificate only refers to the length
of the wound not the depth of the wound?
In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel
was the aggressor. Although their versions were mottled with inconsistencies, these A: When you say lacerated wound, the entire length of the layer of scalp.
do not detract from their core story. The witnesses were one in what Arnel did and
when and how he did it. Compared to Arnel’s testimony, the prosecution’s version is
Q: So you could not find out any abrasion?
more believable and consistent with reality, hence deserving credence.8

A: It is different laceration and abrasion so once the skin is broken up the label
Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable
of the frontal lo[b]e, we always call it lacerated wound, but in that kind of
for frustrated homicide when the wounds he inflicted on Rufino, his victim, were not
wound, we did not measure the depth.13
fatal and could not have resulted in death as in fact it did not?
Indeed, Rufino had two lacerations on his forehead but there was no indication that
his skull incurred fracture or that he bled internally as a result of the pounding of his
head. The wounds were not so deep, they merely required suturing, and were
estimated to heal in seven or eight days. Dr. Belleza further testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give antibiotics and
antit[e]tanus – the problem the contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them would
rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on record to support the
prosecution’s claim that Rufino would have died without timely medical intervention.
Thus, the Court finds Arnel liable only for attempted homicide and entitled to the
mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having
appealed from the judgment of the RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and
holds that the maximum of the penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum. With this new penalty, it would be but fair
to allow him the right to apply for probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere privilege granted
by the state only to qualified convicted offenders. Section 4 of the probation law (PD
968) provides: "That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction."15 Since Arnel
appealed his conviction for frustrated homicide, he should be deemed permanently
disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel
has the right to such privilege; he certainly does not have. What he has is the right to
apply for that privilege. The Court finds that his maximum jail term should only be 2
years and 4 months. If the Court allows him to apply for probation because of the
lowered penalty, it is still up to the trial judge to decide whether or not to grant him the
privilege of probation, taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals "from the
judgment of conviction" is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional trial court, now set
aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position, it will apply the
probation law on Arnel based on the trial court’s annulled judgment against him. He
will not be entitled to probation because of the severe penalty that such judgment
imposed on him. More, the Supreme Court’s judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over to the trial court’s judgment—
even if this has been found in error. And, worse, Arnel will now also be made to pay
for the trial court’s erroneous judgment with the forfeiture of his right to apply for
probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the
carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply for
probation would dilute the ruling of this Court in Francisco v. Court of Appeals16 that
the probation law requires that an accused must not have appealed his conviction
before he can avail himself of probation. But there is a huge difference between
Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty One of those who dissent from this decision points out that allowing Arnel to apply for
of grave oral defamation and sentenced him to a prison term of one year and one day probation after he appealed from the trial court’s judgment of conviction would not be
to one year and eight months of prision correccional, a clearly probationable penalty. consistent with the provision of Section 2 that the probation law should be interpreted
Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly to "provide an opportunity for the reformation of a penitent offender." An accused like
waiving his right to apply for probation. When the acquittal did not come, he wanted Arnel who appeals from a judgment convicting him, it is claimed, shows no penitence.
probation. The Court would not of course let him. It served him right that he wanted to
save his cake and eat it too. He certainly could not have both appeal and probation.
This may be true if the trial court meted out to Arnel a correct judgment of conviction.
Here, however, it convicted Arnel of the wrong crime, frustrated homicide, that carried
The Probation Law, said the Court in Francisco, requires that an accused must not a penalty in excess of 6 years. How can the Court expect him to feel penitent over a
have appealed his conviction before he can avail himself of probation. This crime, which as the Court now finds, he did not commit? He only committed attempted
requirement "outlaws the element of speculation on the part of the accused—to wager homicide with its maximum penalty of 2 years and 4 months.
on the result of his appeal—that when his conviction is finally affirmed on appeal, the
moment of truth well-nigh at hand, and the service of his sentence inevitable, he now
Ironically, if the Court denies Arnel the right to apply for probation under the reduced
applies for probation as an ‘escape hatch’ thus rendering nugatory the appellate
penalty, it would be sending him straight behind bars. It would be robbing him of the
court’s affirmance of his conviction."17
chance to instead undergo reformation as a penitent offender, defeating the very
purpose of the probation law.
Here, however, Arnel did not appeal from a judgment that would have allowed him to
apply for probation. He did not have a choice between appeal and probation. He was
At any rate, what is clear is that, had the RTC done what was right and imposed on
not in a position to say, "By taking this appeal, I choose not to apply for probation."
Arnel the correct penalty of two years and four months maximum, he would have had
The stiff penalty that the trial court imposed on him denied him that choice. Thus, a
the right to apply for probation. No one could say with certainty that he would have
ruling that would allow Arnel to now seek probation under this Court’s greatly
availed himself of the right had the RTC done right by him. The idea may not even
diminished penalty will not dilute the sound ruling in Francisco. It remains that those
have crossed his mind precisely since the penalty he got was not probationable.
who will appeal from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.
The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right
to apply for probation when the new penalty that the Court imposes on him is, unlike
Besides, in appealing his case, Arnel raised the issue of correctness of the penalty
the one erroneously imposed by the trial court, subject to probation?
imposed on him. He claimed that the evidence at best warranted his conviction only
for attempted, not frustrated, homicide, which crime called for a probationable penalty.
In a way, therefore, Arnel sought from the beginning to bring down the penalty to the WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision
level where the law would allow him to apply for probation. dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner
Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide, and
SENTENCES him to suffer an indeterminate penalty from four months of arresto
In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but
mayor, as minimum, to two years and four months of prision correccional, as
only of attempted homicide, is an original conviction that for the first time imposes on
maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as moral damages,
him a probationable penalty. Had the RTC done him right from the start, it would have
without prejudice to petitioner applying for probation within 15 days from notice that
found him guilty of the correct offense and imposed on him the right penalty of two
the record of the case has been remanded for execution to the Regional Trial Court of
years and four months maximum.lavvphil This would have afforded Arnel the right to
San Jose, Camarines Sur, in Criminal Case T-2213.
apply for probation.

SO ORDERED.
The Probation Law never intended to deny an accused his right to probation through
no fault of his. The underlying philosophy of probation is one of liberality towards the
accused. Such philosophy is not served by a harsh and stringent interpretation of the
statutory provisions.18 As Justice Vicente V. Mendoza said in his dissent in Francisco,
the Probation Law must not be regarded as a mere privilege to be given to the
accused only where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be applied in
favor of the accused not because it is a criminal law but to achieve its beneficent
purpose.19

October 20, 2015
G.R. No. 206513
MUSTAPHA DIMAKUTA MARUHOM, Petitioner
vs.
PEOPLE OF THE PHIILPPINES, Respondent
DECISION
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my Dissenting and
Concurring Opinion in Colinares v. People.1 The question regarding the application of
the Probation Law is again inescapably intertwined with the present petition.
Consequently, I must reiterate my assertions and arguments in Colinares to the case
at bar.
In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was
indicted for Violation of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No.
7610 or the Special Protection of Children Against Abuse, Exploitation and
Discriminatory Act. The Information reads:
That on or about the 24th day of September 2005, in the City of Las Piñas,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, did then and there willfully, unlawfully and feloniously
commit a lascivious conduct upon the person of one AAA, who was then a sixteen
(16) year old minor, by then and there embracing her, touching her breast and private
part against her will and without her consent and the act complained of is prejudicial to
the physical and psychological development of the complainant.2
After trial, the RTC promulgated its Decision3 which convicted petitioner of the crime
charged and sentenced him to suffer an indeterminate penalty of imprisonment
ranging from ten (10) years of prision mayor, as minimum, to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal, as maximum, with the
accessory penalty of perpetual absolute disqualification. In addition, he was directed
to pay a fine of ₱20,000.00, civil indemnity of ₱25,000.00, and moral damages of
₱25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing,
among other things, that even assuming he committed the acts imputed, still there is
no evidence showing that the same were done without the victim’s consent or through
force, duress, intimidation or violence upon her. Surprisingly, when asked to comment
on the appeal, the Office of the Solicitor General (OSG), relying heavily on People v.
Abello,5 opined that petitioner should have been convicted only of Acts of
Lasciviousness under Article 336 of the Revised Penal Code (RPC) in view of the
prosecution’s failure to establish that the lascivious acts were attended by force or
coercion because the victim was asleep at the time the alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the
OSG. In modifying the RTC Decision, petitioner was found guilty of Acts of
Lasciviousness under Article 336 of the RPC and was sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. Likewise, he was
ordered to pay ₱20,000.00 as civil indemnity and ₱30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012.7 Instead of further
appealing the case, he filed on July 23, 2012 before the CA a manifestation with
motion to allow him to apply for probation upon remand of the case to the
RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed petitioner
therein to apply for probation after his sentence was later reduced on appeal by the
Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner’s manifestation
with motion.10 It was ruled that Colinares is inapplicable since petitioner therein raised
as sole issue the correctness of the penalty imposed and claimed that the evidence
presented warranted only a conviction for the lesser offense.1âwphi1 Instead, the
appellate court viewed as appropriate the case of Lagrosa v. People,11 wherein the
application for probation was denied because petitioners therein put in issue on
appeal the merits of their conviction and did not simply assail the propriety of the
penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a Resolution13 dated
March 13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted in order
to better understand and apply the wisdom of its framers to cases invoking its
application.
In this jurisdiction, the concept of probation was introduced during the American
colonial period.14 For juvenile delinquents, Act No. 320315 was enacted on December
3, 1924. It was later amended by Act Nos. 3309,16 3559,17 and 3725.18 As to offenders
who are eighteen years old and above, Act No. 422119 was passed by the legislature
and took effect on August 7, 1935. Said Act allowed defendants who are convicted
and sentenced by a Court of First Instance or by the Supreme Court on appeal,
except those who are convicted of offenses enumerated in Section 8 thereof,20 to be
placed on probation upon application after the sentence has become final and before
its service has begun.21 However, We declared in People v. Vera22 that Act No. 4221
is unconstitutional and void as it constitutes an improper and unlawful delegation of On October 5, 1985, Section 4 was subsequently amended by P.D. No.
legislative authority to the provincial boards. 1990.27 Henceforth, the policy has been to allow convicted and sentenced defendant
to apply for probation within the 15-day period for perfecting an appeal. As modified,
Section 4 of the Probation Law now reads:
During the martial law period, then President Ferdinand E. Marcos issued Presidential
Decree (P.D.) No. 96823 on July 24, 1976. Originally, P.D. No. 968 allowed the filing of
an application for probation at any time after the defendant had been convicted and SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the trial court
sentenced. Section 4 of which provides: may, after it shall have convicted and sentenced a defendant and upon
application by said defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court
period and upon such terms and conditions as it may deem best; Provided, that no
may, after it shall have convicted and sentenced a defendant and upon
application for probation shall be entertained or granted if the defendant has perfected
application at any time of said defendant, suspend the execution of said sentence
the appeal from the judgment of conviction.
and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only. An application for probation shall be filed with the trial court. The filing of the
Probation may be granted whether the sentence imposes a term of imprisonment or a
application shall be deemed a waiver of the right to appeal.
fine only. An application for probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the sentence of conviction. The
filing of the application shall be deemed a waiver of the right to appeal, or the An order granting or denying probation shall not be appealable.28
automatic withdrawal of a pending appeal. An order granting or denying probation
shall not be appealable.24
The reason for the disallowance may be inferred from the preamble of P.D. No. 1990,
thus:
Later, the filing of an application for probation pending appeal was still allowed when
Section 4 of P.D. No. 968 was amended by P.D. No. 125725 on December 1, 1977 by
WHEREAS, it has been the sad experience that persons who are convicted of
providing that such application may be made after the defendant had been convicted
offenses and who may be entitled to probation still appeal the judgment of conviction
and sentenced but before he begins to serve his sentence. Thus:
even up to the Supreme Court, only to pursue their application for probation when
their appeal is eventually dismissed;
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court
may, after it shall have convicted and sentenced a defendant but before he
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal
begins to serve his sentence and upon his application, suspend the execution of
entails too much time and effort, not to mention the huge expenses of litigation, on the
said sentence and place the defendant on probation for such period and upon such
part of the State;
terms and conditions as it may deem best.

WHEREAS, the time, effort and expenses of the Government in investigating and
The prosecuting officer concerned shall be notified by the court of the filing of the
prosecuting accused persons from the lower courts up to the Supreme Court, are
application for probation and he may submit his comment on such application within
oftentimes rendered nugatory when, after the appellate Court finally affirms the
ten days from receipt of the notification.
judgment of conviction, the defendant applies for and is granted probation;

Probation may be granted whether the sentence imposes a term of imprisonment or a

WHEREAS, probation was not intended as an escape hatch and should not be used
fine with subsidiary imprisonment in case of insolvency. An application for probation
to obstruct and delay the administration of justice, but should be availed of at the first
shall be filed with the trial court, with notice to the appellate court if an appeal has
opportunity by offenders who are willing to be reformed and rehabilitated;
been taken from the sentence of conviction. The filing of the application shall be
deemed a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal. In the latter case, however, if the application is filed on or after the date of the WHEREAS, it becomes imperative to remedy the problems abovementioned
judgment of the appellate court, said application shall be acted upon by the trial court confronting our probation
on the basis of the judgment of the appellate court.
system[.]
An order granting or denying probation shall not be appealable.26
Observing the developments in our Probation Law, the Court settled in Llamado v.
Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had
established a prolonged but definite period during which an application for probation
may be granted by the trial court. That period was: "After [the trial court] shall have
convicted and sentenced a defendant but before he begins to serve his sentence."
Clearly, the cut-off time – commencement of service of sentence – takes place not
only after an appeal has been taken from the sentence of conviction, but even after
judgment has been rendered by the appellate court and after judgment has become
final. Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 provides
that "the application [for probation] shall be acted upon by the trial court on the basis
of the judgment of the appellate court"; for the appellate court might have increased or
reduced the original penalty imposed by the trial court. x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257, in its present form,
Section 4 establishes a much narrower period during which an application for
probation may be filed with the trial court: "after [the trial court] shall have convicted
and sentenced a defendant and – within the period for perfecting an appeal –." As if to
provide emphasis, a new proviso was appended to the first paragraph of Section 4
that expressly prohibits the grant of an application for probation "if the defendant has
perfected an appeal from the judgment of conviction." It is worthy of note too that
Section 4 in its present form has dropped the phrase which said that the filing of an
application for probation means "the automatic withdrawal of a pending appeal." The
deletion is quite logical since an application for probation can no longer be filed once
an appeal is perfected; there can, therefore, be no pending appeal that would have to
be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of petitioner's
counsel and the dissenting opinion. We are unable to persuade ourselves that Section
4 as it now stands, in authorizing the trial court to grant probation "upon application by
[the] defendant within the period for perfecting an appeal" and in reiterating in
the proviso that
"no application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction."
did not really mean to refer to the fifteen-day period established, as indicated above,
by B.P. Blg. 129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and
the 1985 Rules on Criminal Procedure, but rather to some vague and undefined time,
i.e., "the earliest opportunity" to withdraw the defendant's appeal.
The whereas clauses invoked by petitioner did not, of course, refer to the fifteen-day
period. There was absolutely no reason why they should have so referred to that
period for the operative words of Section 4 already do refer, in our view, to such
fifteen-day period. Whereas clauses do not form part of a statute, strictly speaking;
they are not part of the operative language of the statute.
Nonetheless, whereas clauses may be helpful to the extent they articulate the general
purpose or reason underlying a new enactment, in the present case, an enactment
which drastically but clearly changed the substantive content of Section 4 existing
before the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control
the specific terms of the statute; in the instant case, the whereas clauses of P.D. No.
1990 do not purport to control or modify the terms of Section 4 as amended. Upon the
other hand, the term "period for perfecting an appeal" used in Section 4 may be seen
to furnish specification for the loose language "first opportunity" employed in the fourth
whereas clause. "Perfection of an appeal" is, of course, a term of art but it is a term of
art widely understood by lawyers and judges and Section 4 of the Probation Law
addresses itself essentially to judges and lawyers. "Perfecting an appeal" has no
sensible meaning apart from the meaning given to those words in our procedural law
and so the law-making agency could only have intended to refer the law-making
agency could only have intended to refer to the meaning of those words in the context
of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was
amended precisely to put a stop to the practice of appealing from judgments of
conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused fails in his bid.32 The
Probation Law "expressly requires that an accused must not have appealed his
conviction before he can avail himself of probation. This outlaws the element of
speculation on the part of the accused – to wager on the result of his appeal – that
when his conviction is finally affirmed on appeal, the moment of truth well nigh at hand
and the service of his sentence inevitable, he now applies for probation as an ‘escape
hatch,’ thus rendering nugatory the appellate court's affirmance of his conviction."33
Verily, Section 4 of the Probation Law provides that the application for probation must
be filed with the trial court within the 15-day period for perfecting an appeal. The need
to file it within such period is intended to encourage offenders, who are willing to be
reformed and rehabilitated, to avail themselves of probation at the first opportunity.34 If
the application for probation is filed beyond the 15-day period, then the judgment
becomes final and executory and the lower court can no longer act on the application
for probation. On the other hand, if a notice of appeal is perfected, the trial court that
rendered the judgment of conviction is divested of any jurisdiction to act on the case,
except the execution of the judgment when it has become final and executory.
In view of the latest amendment to Section 4 of the Probation Law that "no application
for probation shall be entertained or granted if the defendant has perfected an appeal
from the judgment of conviction," prevailing jurisprudence35 treats appeal and
probation as mutually exclusive remedies because the law is unmistakable about
it.36 Indeed, the law is very clear and a contrary interpretation would counter its
envisioned mandate. Courts have no authority to invoke "liberal interpretation" or "the
spirit of the law" where the words of the statute themselves, and as illuminated by the
history of that statute, leave no room for doubt or interpretation.37 To be sure, the
remedy of convicted felons who want to avail of the benefits of probation even after
the remedy of an appeal is to go to the Congress and ask for the amendment of the
law. To surmise a converse construal of the provision would be dangerously
encroaching on the power of the legislature to enact laws and is tantamount to judicial
legislation.
With due respect, however, to the ponente and the majority opinion in Colinares,38 the
application of the Probation Law in the said case deserves a second hard look so as
to correct the mistake in the application of the law in that particular case and in similar
cases which will be filed before the courts and inevitably elevated to Us like this
petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond
what is allowed by the Probation Law, albeit erroneously, the accused was deprived of
his choice to apply for probation and instead was compelled to appeal the case. The
reprehensible practice intended to be avoided by the law was, therefore, not present
when he appealed the trial court’s decision. Taking into account that the accused
argued in his appeal that the evidence presented against him warranted his conviction
only for attempted, not frustrated, homicide, the majority of the Court opined that the
accused had purposely sought to bring down the impossible penalty in order to allow
him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have been
allowed the benefit of probation. As I have previously stated and insisted upon,
probation is not a right granted to a convicted offender; it is a special privilege granted
by the State to a penitent qualified offender,39 who does not possess the
disqualifications under Section 9 of P.D. No. 968, as amended.40 Likewise, the
Probation Law is not a penal law for it to be liberally construed to favor the accused.41
In the American law paradigm, probation is considered as an act of clemency and
grace, not a matter of right.42 It is a privilege granted by the State, not a right to which
a criminal defendant is entitled.43 In City of Aberdeen v. Regan,44 it was pronounced
that:
The granting of a deferred sentence and probation, following a plea or verdict of guilty,
is a rehabilitative measure and, as such, is not a matter of right but is a matter of
grace, privilege, or clemency granted to the deserving.
As such, even in the American criminal justice model, probation should be granted
only to the deserving or, in our system, only to qualified "penitent offenders" who are
willing to be reformed and rehabilitated. Corollarily, in this jurisdiction, the wisdom
behind the Probation Law is outlined in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;
(b) provide an opportunity for the reformation of a penitent offender which might be
less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45
As I have previously indicated in Colinares, if this Court will adopt as jurisprudential
doctrine the opinion that an accused may still be allowed to apply for probation even if
he has filed a notice of appeal, it must be categorically stated that such appeal must
be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by the
lower court, which when corrected would entitle the accused to apply for probation;
and
2. When the appeal is merely intended to review the crime for which the accused was
convicted and that the accused should only be liable to the lesser offense which is
necessarily included in the crime for which he was originally convicted and the proper
penalty imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the crime committed by the
accused is more than six years; hence, the sentence disqualifies the accused from
applying for probation. The accused should then be allowed to file an appeal under
the afore-stated grounds to seek a review of the crime and/or penalty imposed by the
trial court. If, on appeal, the appellate court finds it proper to modify the crime and/or
the penalty imposed, and the penalty finally imposed is within the probationable
period, the accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds enumerated above, the
accused should first file a motion for reconsideration of the decision of the trial court
anchored on the above-stated grounds and manifest his intent to apply for probation if
the motion is granted. The motion for reconsideration will give the trial court an
opportunity to review and rectify any errors in its judgment, while the manifestation of
the accused will immediately show that he is agreeable to the judgment of conviction
and does not intend to appeal from it, but he only seeks a review of the crime and/or
penalty imposed, so that in the event that the penalty will be modified within the
probationable limit, he will immediately apply for probation. Without such motion for
reconsideration, the notice of appeal should be denied outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was denied by the trial
court;
(2) that the appeal is only for reviewing the penalty imposed by the lower court or the
conviction should only be for a lesser crime necessarily included in the crime charged
in the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment
of conviction, which involves a review of the merits of the case and the determination
of whether the accused is entitled to acquittal. However, under the recommended
grounds for appeal which were enumerated earlier, the purpose of the appeal is not to
assail the judgment of conviction but to question only the propriety of the sentence,
particularly the penalty imposed or the crime for which the accused was convicted, as
the accused intends to apply for probation upon correction of the penalty or conviction
for the lesser offense. If the CA finds it proper to modify the sentence, and the penalty
finally imposed by the appellate court is within the probationable period, or the crime
for which the accused is eventually convicted imposes a probationable penalty,
application for probation after the case is remanded to the trial court for execution
should be allowed.
It is believed that the recommended grounds for appeal do not contravene Section 4
of the Probation Law, which expressly prohibits only an appeal from the judgment of
conviction. In such instances, the ultimate reason of the accused for filing the appeal
based on the afore-stated grounds is to determine whether he may avail of probation
based on the review by the appellate court of the crime and/or penalty imposed by the
trial court. Allowing the afore-stated grounds for appeal would give an accused the
opportunity to apply for probation if his ground for appeal is found to be meritorious by
the appellate court, thus, serving the purpose of the Probation Law to promote the
reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the following
instances:
1. When the accused is convicted by the trial court of a crime where the penalty
imposed is within the probationable period or a fine, and the accused files a notice of
appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in
issue, even if there is an alternative prayer for the correction of the penalty imposed
by the trial court or for a conviction to a lesser crime, which is necessarily included in
the crime in which he was convicted where the penalty is within the probationable
period.
Both instances violate the spirit and letter of the law, as Section 4 of the Probation
Law prohibits granting an application for probation if an appeal from the sentence of
conviction has been perfected by the accused.
In this case, petitioner appealed the trial court’s judgment of conviction before the CA
alleging that it was error on the part of the RTC to have found him guilty of violating
Section 5(b), Article III of R.A. No. 7610. He argued that the RTC should not have
given much faith and credence to the testimony of the victim because it was tainted
with inconsistencies. Moreover, he went on to assert that even assuming he
committed the acts imputed on him, still there was no evidence showing that the
lascivious acts were committed without consent or through force, duress, intimidation
or violence because the victim at that time was in deep slumber. It is apparent that
petitioner anchored his appeal on a claim of innocence and/or lack of sufficient
evidence to support his conviction of the offense charged, which is clearly inconsistent
with the tenor of the Probation Law that only qualified penitent offender are allowed to
apply for probation. The CA, therefore, did not err in applying the similar case
of Lagrosa v. People46 wherein the protestations of petitioners therein did not simply
assail the propriety of the penalties imposed but meant a profession of guiltlessness, if
not complete innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for
probation he should have admitted his guilt and buttressed his appeal on a claim that
the penalty imposed by the RTC was erroneous or that he is only guilty of a lesser
offense necessarily included in the crime for which he was originally convicted.
Unfortunately for him, he already perfected his appeal and it is late in the day to avail
the benefits of probation despite the imposition of the CA of a probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of
Lasciviousness under Article 336 of the RPC, such conclusion clearly contravenes the
law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section 5(b),
Article III of R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for
allegedly molesting her by touching her breast and vagina while she was sleeping.
The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse
or lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subject to other sexual abus; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lasciviousconduct when the victim is under twelve
(12) years of age shall be reclusion temporal I its medium period; x x x(Emphasis
supplied)
The elements of sexual abuse 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 sexual
abuse.
3. The child, whether male or female, is below 18 years of age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other
sexual abuse when he or she indulges in lascivious conduct under the coercion or
influence of any adult.48 This statutory provision must be distinguished from Acts of
Lasciviousness under Articles 336 and 339 of the RPC. As defined in Article 336 of
the RPC, Acts of Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived or reason or otherwise unconscious; or
c. When the offended party os under 12 years of age; and
That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness committed with
the consent of the offended party done by the same persons and under the same
circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen years of
age by any person in public authority, priest, home-servant, domestic, guardian,
teacher, or any person who, in any capacity, shall be entrusted with the education or
custody of the woman; or
2. if committed by means of deceit against a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and
under eighteen (18) years of age shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the
victim is single or a widow of good reputation and consents to the lascivious acts
through deceit, or;
2. Acts of lasciviousness is not covered by lascivious conduct as defined in R.A. No.
7610. In case the acts of lasciviousness is covered by lascivious conduct under R.A.
No. 7610 and it is done through coercion or influence, which established absences or
lack of consent, the Art.336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of
the victim to the lascivious conduct, which was done through the employment of
coercion or influence. The offender may likewise be liable for sexual abuse under R.A.
No. 7610 if the victim is at least eighteen (18) years and she is unable to fully take
care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person if the victim did not consent either it was done through force,
threat or intimidation; or when the victim is deprived of reason or is otherwise
unconscious; or by means of fraudulent machination or grave abuse of authority as
sexual assault as a form of rape. However, in instances where the lascivious conduct
is covered by the definition under R.A. No 7610, where the penalty is reclusion
temporal medium, and the act is likewise covered by sexual assault under Article 266-
A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender should
be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the law
provides for the higher penalty of reclusion temporal medium, if the offended party is a
child victim. But if the victim is at least eighteen (18) years of age, the offender should
be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the victim
is at least eighteen (18) years and she is unable to fully take care of herself or protect
herself from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition, in which case, the offender may still be held
liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law to be incapable of
giving rational consent to any lascivious act, taking into account the constitutionally
enshrined State policy to promote the physical, moral, spiritual, intellectual and social
well-being of the youth, as well as, in harmony with the foremost consideration of the
child’s best interests in all actions concerning him or her.51 This is equally consistent
with the with the declared policy of the State to provide special protection to
children from all forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development; provide sanctions for their
commission and carry out a program for prevention and deterrence of and crisis
intervention in situations of child abuse, exploitation, and discrimination.52 Besides, if it
was the intention of the framers of the law to make child offenders liable only of Article
266-A of the RPC, which provides for a lower penalty than R.A. No. 7610, the law
could have expressly made such statements.
As correctly found by the trial court, all the elements of sexual abuse under Section "coercion" is the "improper use of x x x power to compel another to submit to the
5(b), Article III of R.A. No. 7610 are present in the case at bar.1âwphi1 wishes of one who wields it."57

First, petitioner’s lewd advances of touching the breasts and vagina of his hapless
victim constitute lascivious conduct as defined in Section 32, Article XIII of the
Implementing Rules and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area
of a person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just
because of his relative seniority but more importantly due to the presumed presence
of mutual trust and confidence between them by virtue of an existing employment
relationship, AAA being a domestic helper in petitioner’s household. Notably, a child is
considered as sexually abused under Section 5(b) of R.A. No. 7610 when he or she is
subjected to lascivious conduct under the coercion or influence of any adult.
Intimidation need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of the
offended party.54 The law does not require physical violence on the person of the
victim; moral coercion or ascendancy is sufficient.55 On this point, Caballo v.
People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when a child
indulges in sexual intercourse or any lascivious conduct due to the coercion or
influence of any adult, the child is deemed to be a "child exploited in prostitution
and other sexual abuse." In this manner, the law is able to act as an effective
deterrent to quell all forms of abuse, neglect, cruelty, exploitation and discrimination
against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct
under the coercion or influence of any adult exists when there is some form of
compulsion equivalent to intimidation which subdues the free exercise of the
offended party’s free will. Corollary thereto, Section 2(g) of the Rules on Child
Abuse Cases conveys that sexual abuse involves the element of influence which
manifests in a variety of forms. It is defined as:
Finally, the victim is 16 years of age at the time of the commission of the offense.
Under Section 3 (a) of R.A. No. 7610, "children" refers to "persons below eighteen
(18) years of age or those over but 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."
The decision of the trial court finding the petitioner guilty of Violation of Section 5(b),
Article III R.A. No. 7610 should have been upheld by the CA instead of erroneously
adopting the recommendation of the OSG, which inaccurately relied on People v.
Abello.58 In said case, the decisive factor for the acquittal of the accused was not the
absence of coercion or intimidation on the offended party, who was then sleeping at
the time the lascivious act was committed, but the fact that the victim could not be
considered as a "child" under R.A. No. 7610. This Court held that while the twenty-one
year old woman has polio as a physical disability that rendered her incapable of
normal function, the prosecution did not present any testimonial or documentary
evidence - any medical evaluation or finding from a qualified physician, psychologist or
psychiatrist - attesting that the physical condition rendered her incapable of fully taking
care of herself or of protecting herself against sexual abuse.
Thus, it is clear that petitioner could not have been entitled to apply for probation in
the first place. Regrettably, since neither the accused nor the OSG questioned the CA
Decision, it has attained finality and to correct the error at this stage is already barred
by the right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be denied the benefit of the
Probation Law and that the Court should adopt the recommendations above-stated in
situations where an accused files an appeal for the sole purpose of correcting the
penalty imposed to qualify him for probation or where he files an appeal specifically
claiming that he should be found guilty of a lesser offense necessarily included with
the crime originally filed with a prescribed penalty which is probationable.
SO ORDERED.

The employment, use, persuasion, inducement, enticement or coercion of a child to

engage in, or assist another person to engage in, sexual intercourse or lascivious
conduct or the molestation, prostitution, or incest with children.

To note, the term "influence" means the "improper use of power or trust in any way
that deprives a person of free will and substitutes another’s objective." Meanwhile,
 The Petitions also question the Resolution6 dated 27 August 2009 denying the
Motions for Reconsideration7 of the Decision dated 7 May 2009.
G.R. No. 189343               July 10, 2013
ANTECEDENT FACTS
BENILDA N. BACASMAS, Petitioner,
vs. All the petitioners work for the City Government of Cebu.8 Benilda B. Bacasmas
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. (Bacasmas), the Cash Division Chief, is the petitioner in G.R. No. 189343.9 Alan C.
Gaviola (Gaviola), the City Administrator, is the petitioner in G.R. No.
189369.10 Eustaquio B. Cesa (Cesa), the City Treasurer, is the petitioner in G.R. No.
x-----------------------x 189553.11

G.R. No. 189369 By virtue of their positions, they are involved in the process of approving and releasing
cash advances for the City. The procedure is as follows:
ALAN C. GAVIOLA, Petitioner,
vs. A written request for a cash advance is made by paymaster Luz Gonzales (Gonzales),
PEOPLE OF THE PHILIPPINES, Respondents. who then submits it to Cash Division Chief Bacasmas for approval. Once the latter
approves the request, she affixes her initials to the voucher, which she forwards to
x-----------------------x City Treasurer Cesa for his signature in the same box. By signing, Bacasmas and
Cesa certify that the expense or cash advance is necessary, lawful, and incurred
under their direct supervision.12
G.R. No. 189553

EUSTAQUIO B. CESA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
SERENO, CJ.:
Before us are three consolidated cases: (1) Petition for Review on Certiorari1 dated 16
September 2009 (G.R. No. 189343), (2) Petition for Review on Certiorari2 dated 15
September 2009 (G.R. No. 189369), and (3) Petition for Review on Certiorari3 dated
12 October 2009 (G.R. No. 189553). All assail the Decision4 in Crim. Case No. 26914
dated 7 May 2009 of the Sandiganbayan, the dispositive portion of which reads:
Thereafter, the voucher is forwarded to City Accountant Edna C. Jaca (Jaca) for
processing and pre-audit. She also signs the voucher to certify that there is adequate
available funding/budgetary allotment; that the expenditures are properly certified and
supported by documents; and that previous cash advances have been liquidated and
accounted for. She then prepares an Accountant’s Advice (Advice).13
This Advice is returned with the voucher to the Chief Cashier for the preparation of the
check. After it has been prepared, she affixes her initials to the check, which Cesa
then signs. Afterwards, City Administrator Gaviola approves the voucher and
countersigns the check.14
The voucher, the Advice, and the check are then returned to the Cash Division, where
Gonzales signs the receipt portion of the voucher, as well as the Check Register to
acknowledge receipt of the check for encashment.15

ACCORDINGLY, accused Alan C. Gaviola ("Gaviola"), Eustaquio B. Cesa ("Cesa"),
Benilda N. Bacasmas ("Bacasmas") and Edna J. Jaca ("Jaca") are found guilty
beyond reasonable doubt for violation of Section 3 (e) of Republic Act No. 3019 and
are sentenced to suffer in prison the penalty of 12 years and 1 month to 15 years.
They also have to suffer perpetual disqualification from holding any public office and
to indemnify jointly and severally the City Government of Cebu the amount of Nine
Million Eight Hundred Ten Thousand, Seven Hundred Fifty-two and 60/100 Pesos
(Php 9,810,752.60).5 (Emphasis in the original)
Upon receipt of the check, Gonzales encashes it at the bank, signs the voucher, and
records the cash advance in her Individual Paymaster Cashbook. She then liquidates
it within five days after payment.16
A report of those cash advances liquidated by Gonzales is called a Report of
Disbursement (RD). An RD must contain the audit voucher number, the names of the
local government employees who were paid using the money from the cash advance,
the amount for each employee, as well as the receipts. The RDs are examined and
verified by the City Auditor and are thereafter submitted to the Cash Division for
recording in the official cash book.17
On 4 March 1998, COA issued Office Order No. 98-001 creating a team to conduct an The prosecution presented the testimonies of the COA Auditors who had conducted
examination of the cash and accounts of the accountable officers of the Cash Division, the examination on the cash and accounts of Gonzales: Cecilia Chan, Jovita Gabison,
City Treasurer’s Office of Cebu City.18 Sulpicio Quijada, Jr., Villanilo Ando, Jr., and Rosemarie Picson.27 The COA Narrative
Report28 on the results of the examination of the cash and accounts of Gonzales
covering the period 20 September 1995 to 05 March 1998 was also introduced as
This team conducted a surprise cash count on 5 March 1998.19 The examination
evidence.29
revealed an accumulated shortage of ₱9,810,752.60 from 20 September 1995 to 5
March 1998 from the cash and accounts of Gonzales.20 The team found that
Bacasmas, Gaviola, Cesa, and Jaca failed to follow the above-mentioned procedure, Bacasmas testified in her own defense. She said that she could not be held liable,
thus facilitating the loss of more than nine million pesos on the part of the city because it was not her responsibility to examine the cash book. She pointed to Jaca
government. Specifically, the team said in its report that there were irregularities in the and the City Auditor as the ones responsible for determining whether the paymaster
grant, utilization, and liquidation of cash advances; shortages were concealed; and had existing unliquidated cash advances. Bacasmas further testified that she allowed
inaccurate and misleading pieces of information were included in the financial the figures to be rounded off to the nearest million without totalling the net payroll,
statements.21 These irregularities were manifested in the following: additional cash because it was customary to round off the cash advance to the nearest amount.30
advances were granted even if previous cash advances had not yet been liquidated,
cash advance vouchers for salaries were not supported by payrolls or lists of payees,
Cesa averred that Jaca was the approving authority in granting cash advances.
and cash advances for salaries and wages were not liquidated within five days after
Hence, when he signed the vouchers, he merely relied on Jaca’s certification that
each 15th day or end-of-the-month pay period.22
Gonzales had already liquidated her cash advances. Besides, he said, he had already
delegated the function of determining whether the amount stated in the disbursement
The report stated that Bacasmas, Gaviola, Cesa, and Jaca not only signed, certified, voucher was equal to the net pay, because it was humanly impossible for him to
and approved the cash advance vouchers, but also signed and countersigned the supervise all the personnel of his department.31
checks despite the deficiencies, which amounted to a violation of Republic Act No.
(R.A.) 7160; Presidential Decree No. (P.D.) 1445; and the circulars issued by the
Jaca admitted that cash advances were granted even if there were no liquidations, so
Commission on Audit (COA), specifically COA Circular Nos. 90-331, 92-382 and 97-
that salaries could be paid on time, because cash advances usually overlapped with
002.23 According to the COA, the violation of the foregoing laws, rules, and regulations
the previous one. Additionally, she acknowledged that when she affixed her
facilitated the loss of a huge amount of public funds at the hands of Gonzales.24
signatures to the vouchers despite the non-attachment of the payrolls, she was aware
that Gonzales still had unliquidated cash advances.32
Hence, an Information25 was filed with the Sandiganbayan on 30 July 2001 against
Bacasmas, Gaviola, Cesa, and Jaca, to wit:
Lastly, Gaviola claimed that when he affixed his signatures, he was not aware of any
anomaly. Allegedly, he only signed on the basis of the signatures of Cesa and Jaca.33
That on or about the 5th and subsequent thereto, at Cebu City, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, above-named accused,
The Sandiganbayan, in its Decision dated 7 May 2009, did not give credence to the
ALAN C. GAVIOLA, EUSTAQUIO B. CESA, BENILDA N. BACASMAS and EDNA J.
defense of the accused, but instead afforded significant weight to the COA Narrative
JACA, public officers, being then the City Administrator, City Treasurer, Cash Division
Report submitted in evidence. It found that the accused, as public officers, had acted
Chief and City Accountant, respectively, of the Cebu City Government, in such
with gross inexcusable negligence by religiously disregarding the instructions for
capacity and committing the offense in relation to Office, conniving and confederating
preparing a disbursement voucher and by being totally remiss in their respective
together and mutually helping with each other [sic], with deliberate intent, with
duties and functions under the Local Government Code of 1991.34 Their gross
manifest partiality, evident bad faith and with gross inexcusable negligence, did then
inexcusable negligence amounted to bad faith, because they still continued with the
and there allow LUZ M. GONZALES, Accountant I, Disbursing Officer-Designate of
illegal practice even if they admittedly had knowledge of the relevant law and COA
the Cebu City Government, to obtain cash advances despite the fact that she has
rules and regulations.35 The Sandiganbayan held that the acts of the accused had
previous unliquidated cash advances, thus allowing LUZ M. GONZALES to
caused not only undue injury to the government because of the ₱9,810,752.60
accumulate Cash Advances amounting to NINE MILLION EIGHT HUNDRED TEN day
shortage, but also gave unwarranted benefit to Gonzales by allowing her to obtain
of March 1998, and for sometime prior THOUSAND SEVEN HUNDRED FIFTY-TWO
cash advances to which she was not entitled.36 Lastly, it found conspiracy to be
PESOS AND 60/100 (₱9,810,752.60), PHILIPPINE CURRENCY, which remains
present in the acts and omissions of the accused showing that they had confederated,
unliquidated, thus accused in the performance of their official functions, had given
connived with, and mutually helped one another in causing undue injury to the
unwarranted benefits to LUZ M. GONZALES and themselves, to the damage and
government through the loss of public money.37
prejudice of the government, particularly the Cebu City Government.26
Gaviola, Cesa, Bacasmas, and Jaca individually filed their Motions for
Reconsideration of the 7 May 2009 Decision.38 Their motions impugned the sufficiency
of the Information and the finding of gross inexcusable negligence, undue injury, and
unwarranted benefit.39 To support their innocence, they invoked the cases of Arias v.
Sandiganbayan,40 Magsuci v. Sandiganbayan,41 Sistoza v. Desierto,42 Alejandro v.
People,43 and Albert v. Gangan,44 in which we held that the heads of office may rely to
a reasonable extent on their subordinates.45 The Motion for Reconsideration of Jaca
also averred that her criminal and civil liabilities had been extinguished by her death
on 24 May 2009.46
The Sandiganbayan, in a Resolution47 promulgated 27 August 2009 denied the
Motions for Reconsideration of the accused. It ruled that the Information was
sufficient, because the three modes of violating Section 3(e) of R.A. 3019 commonly
involved willful, intentional, and conscious acts or omissions when there is a duty to
act on the part of the public official or employee.48 Furthermore, the three modes may
all be alleged in one Information.49 The Sandiganbayan held that the accused were all
guilty of gross inexcusable negligence. Claiming that it was the practice in their office,
they admittedly disregarded the observance of the law and COA rules and regulations
on the approval and grant of cash advances.50 The anti-graft court also stated that the
undue injury to the government was unquestionable because of the shortage
amounting to ₱9,810,752.60.51 It further declared that the aforementioned cases cited
by the accused were inapplicable, because there was paucity of evidence of
conspiracy in these cases.52 Here, conspiracy was duly proven in that the silence and
inaction of the accused - albeit ostensibly separate and distinct  indicate, if taken
collectively, that they are vital pieces of a common design.53 Finally, the
Sandiganbayan decided that although the criminal liability of Jaca was extinguished
upon her death, her civil liability remained.54 Hence, the Motions for Reconsideration
were denied.55
Thus, Bacasmas, Gaviola, and Cesa filed their respective Petitions for Review on
Certiorari, in which they rehashed the arguments they had put forward in their Motions
for Reconsideration previously filed with the Sandiganbayan.
We resolved to consolidate the three Petitions on 23 November 2009.56 The Office of
the Special Prosecutor was required to comment on the three Petitions,57 after which
petitioners were instructed to file a Reply,58 which they did.59
Petitioners, through their respective Petitions for Review on Certiorari and Comments,
bring these two main issues before us:
I. Whether the Information was sufficient; and
II. Whether petitioners are guilty beyond reasonable doubt of violating
Section 3(e) of Republic Act No. 3019
We deny the Petitions.
I.
The Information specified when the crime was committed, and it named all of
the accused and their alleged acts or omissions constituting the offense
charged.
An information is deemed sufficient if it contains the following: (a) the name of all the
accused; (b) the designation of the offense as given in the statute; (c) the acts or
omissions complained of as constituting the offense; (d) the name of the offended
party; (e) the approximate date of the commission of the offense; and (f) the place
where the offense was committed.
Cesa and Gaviola question the sufficiency of the Information on three grounds: first, it
did not specify a reasonable time frame within which the offense was committed, in
violation of their right to be informed of the charge against them; second, not all of the
accused were named, as Gonzales was not charged in the Information; and third, the
Information did not specify an offense, because negligence and conspiracy cannot co-
exist in a crime.
The Sandiganbayan earlier held that the Information was sufficient in that it contained
no inherent contradiction and properly charged an offense. We uphold its ruling for the
following reasons:
First, it is not necessary to state the precise date when the offense was committed,
except when it is a material ingredient thereof.60 The offense may be alleged to have
been committed on a date as near as possible to the actual date of its
commission.61 Here, the date is not a material ingredient of the crime, not having been
committed on one day alone, but rather within a period of time ranging from 20
September 1995 to 5 March 1998. Hence, stating the exact dates of the commission
of the crime is not only unnecessary, but impossible as well. That the Information
alleged a date and a period during which the crime was committed was sufficient,
because it duly informed petitioners that before and until 5 March 1998, over nine
million pesos had been taken by Gonzales as a result of petitioners’ acts. These acts
caused undue injury to the government and unwarranted benefits to the said
paymaster.
Second, the Information charges petitioners with violating Section 3(e) of R.A. 3019,
to wit:
Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence.
Cesa contends that Gonzales should have been included in the Information, because
the latter incurred cash shortages and allegedly had unliquidated cash
advances.62 Cesa is wrong. The Information seeks to hold petitioners accountable for
their actions, which allowed Gonzales to obtain cash advances, and paved the way for
her to incur cash shortages, leading to a loss of over nine million pesos. Thus, the
Information correctly excluded her because her alleged acts did not fall under the
crime charged in the Information.
Third and last, the Information sufficiently specified the offense that violated Section
3(e) of R.A. 3019, the essential elements of which are as follows:
1. The accused must be a public officer discharging administrative, judicial
or official functions;
2. The accused must have acted with manifest partiality, evident bad faith or
gross inexcusable negligence; and
3. The action of the accused caused undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of the functions of the accused.63
The Information is sufficient, because it adequately describes the nature and cause of
the accusation against petitioners,64 namely the violation of the aforementioned law.
The use of the three phrases – "manifest partiality," "evident bad faith" and
"inexcusable negligence"  in the same Information does not mean that three distinct
offenses were thereby charged but only implied that the offense charged may have
been committed through any of the modes provided by the law.65 In addition, there
was no inconsistency in alleging both the presence of conspiracy and gross
inexcusable negligence, because the latter was not simple negligence.
Rather, the negligence involved a willful, intentional, and conscious indifference to the
consequences of one’s actions or omissions.66
II.
Petitioners’ gross negligence amounting to bad faith, the undue injury to the
government, and the unwarranted benefits given to Gonzales, were all proven
beyond reasonable doubt.
Petitioners do not controvert the first element of the offense but assail the
Sandiganbayan’s finding of gross inexcusable negligence, undue injury and
unwarranted benefit. Nevertheless, their contention must fail.
Petitioners committed gross
negligence amounting to bad faith
when they approved and disbursed
the cash advances in violation of law
and rules and regulations.
Petitioners  being the Cash Division Chief, City Treasurer and City Administrator –
have to comply with R.A. 7160, P.D. 1445, and COA Circulars 90-331, 92-382, and
97-002 on the proper procedure for the approval and grant of cash advances. These
laws and rules and regulations state that cash advances can only be disbursed for a
legally authorized specific purpose and cannot be given to officials whose previous
cash advances have not been settled or properly accounted for.67 Cash advances
should also be equal to the net amount of the payroll for a certain pay period, and they
should be supported by the payroll or list of payees and their net payments.68
However, petitioners failed to observe the foregoing. We quote hereunder the findings
of the COA team as contained in its Narrative Report:
A. Granting, Utilization and Liquidation of cash advances:
1. During the period, September 20, 1995 to March 5, 1998,
records and verification documents show that additional cash
advances were granted (Annex 13), even if the previous cash
advances were not yet liquidated.
It resulted in excessive granting of cash advances, which created
the opportunity to misappropriate public funds since excess or idle
funds were placed in the hands of the paymaster under her total
control and disposal. This is in violation of Section 89, PD 1445;
Section 339, RA 7160 and paragraph 4.1.2 of COA Circular No.
97-002.
2. The amounts of cash advances for salary payments were not
equal to the net amount of the payroll for a pay period in violation
of par. 4.2.1. COA Circular No. 90-331. Section 48 (g), COA
Circular No. 92-382 and par. 4.2.1, COA Circular No. 97-002. In
fact, all cash advance vouchers for salaries were not supported
by payrolls or list of payees to determine the amount of the cash
advance to be granted, and that the face of the disbursement
voucher (sample voucher marked as Annex 14) did not indicate
the specific office/ department and period covered for which the
cash advance was granted in violation of par. 4.1.5 COA Cir. No.
90-331, Section 48(e) COA Cir. 92-382 and par. 4.1.7 and 4.2.2
 COA Cir No. 97-002. The amount of the cash advance could D. The following practices of the Office of the City Accountant resulted in inaccurate
therefore be in excess of the required amount of the payroll to be and misleading information in the financial statements including the balance of
paid since it can not be determined which payroll, pay period and unliquidated cash advances in violation of Section 111 and 112 of PD 1445:
department employees are going to be paid by the amount drawn.
Consequently, the liquidations which were made later, cannot
1. Cash returns made on January 8 to 14, 1998 were recorded in
identify which particular cash advances are liquidated,
the accounting records as credits to Mrs. Gonzales accountability
considering that there are other previous cash advances not yet
in December 1997 amounting to ₱8,075,382.36 as shown in the
liquidated, thus resulting in the failure to control cash on
subsidiary ledger (Annex 20. 1-4) and as evidenced by the official
hand.1âwphi1
receipts (Annex 20a. 1-6) as follows:

3. Cash advances for salaries and wages were not liquidated

xxxx
within 5 days after each 15 day/end of the month pay period in
violation of par. 5.1.1 COA Cir. 90-331 and 97-002 and Section 48
(k) of COA Cir No. 92-382. In fact, the balance of unliquidated 2. Some liquidations/ disbursements in January 1998 were
cash advance as of December 31, 1997 per audit, amounted to P included as credits to accountability or a reduction of the
10,602,527.90 consisting of ₱6,388,147.94, ₱3,205,373.16 and P paymaster's accountability as of December 1997 amounting to
1,009,006.80 for General, SEF and Trust Fund (Annex 15) ₱2,395,517.08.
respectively, in violation of Par. 5.8 COA Cir Nos. 90-331 and 97-
002 and Section 48 (o) COA Cir. No. 92-382. However, the
xxxx
balance shown was understated as of December 31, 1997 by
₱2,395,517.08 as discussed in items D.2 pages 15 & 16.
3. Verification of accounting records maintained in the Accounting
Division revealed that the index cards (Annex 21) as a control
Records showed that part of the total cash advances of ₱12,000,000.00 appears to
device in the processing of cash advance voucher recorded only
have been used to liquidate partially the previous year’s unliquidated cash
cash advances granted to Paymaster. It failed to show the
advance/balance of ₱10,602,527.90 since the accountable officer liquidated her cash
liquidations/ disposition of public funds. Hence, unliquidated
advance by way of cash refunds/returns from January 8-14, 1998 in the total amount
balance of cash advances can not be determined at a glance
of ₱8,076,382.36 (Annex 15 E) in violation of par. 4.1.5 COA Cir. 90-331, Section 48
when a cash advance voucher is being processed by the
of COA Cir 92-382 and par. 4.1.7 of COA Cir. 97-002.
accounting personnel.

The concerned City Officials (refer to Part III of this report) signed, certified and
E. Other Deficiencies:
approved the disbursements/cash advance vouchers, and signed and countersigned
the corresponding checks despite the deficiencies which are violations of laws, rules
and regulations mentioned in the preceding paragraphs. 1. There were two claimants who alleged that they did not receive
the financial aid intended for them as fire victims. However,
payroll showed that there were initials/signatures indicated therein
The accountable officer was able to accumulate excess or idle funds within her total
acknowledging receipt of said claim.
control and disposal, resulting in the loss of public funds, due to the flagrant violations
by the concerned city officials of the abovementioned laws, rules and regulations.
2. There were two (2) cash advance vouchers (Annex 22b. 1-2)
which bear no approval of proper official in BOX marked as "C"
On the other hand, the verification and reconciliation of the paymaster’s accountability
hereof, yet checks were issued in violation of Section 4.5 of PD
cannot be determined immediately because the submission of financial reports and its
1445 which provide that disbursement or disposition of
supporting schedules and vouchers/payrolls by the Accounting Division was very
government funds of property shall invariably bear the approval of
much delayed (Annex 16), in violation of Section 122, PD 1445, despite several
the proper officials. x x x
communications from the Auditor to submit said reports, latest of which is attached as
Annex 16.a.
3. Accounting records showed that JV #354 under Trust Fund in
the amount of ₱147,200.00 was a liquidation on December 31,
xxxx
1997. x x x one payroll supporting the JV was signed by only one
(1) person x x x. The other two payrolls supporting the JV were
 not signed/ approved by the concerned officials, which means that
the payrolls were not valid disbursements.69 (Emphases supplied)
The above findings of the COA cannot be any clearer in thoroughly describing the
illegal and anomalous practices of the accused which led to the loss of ₱9,810,752.60
in people’s money.
When he testified before the anti-graft court, Bacasmas admitted that she did not
consider the net pay, which was lower than the amount requested, when she affixed
her signature to the vouchers, because it was supposedly common practice for the
paymaster to round off the figures.70 Furthermore, she signed the vouchers after
relying on the representation of Jaca, Cesa, and Gaviola.71
During his direct and cross-examination, Gaviola admitted that he had affixed his
signature to the vouchers, because they had already been signed by Bacasmas,
Cesa, and Jaca despite the incompleteness thereof – the periods covered by the
vouchers were not stated; the employees who were to be paid by the cash advance
were not specified; no supporting documents were attached to the cash advances
requested; and there was no determination of whether the amounts requested were
equivalent to the net pay.72
Cesa said that because it was impossible for him to supervise all the personnel, he
instructed Bacasmas to examine and check the documents before signing
them.73 Thus, once Cesa saw the signature of Bacasmas, he immediately assumed
that the documents were in order, and he then signed the vouchers.74
These facts show that petitioners failed to act in accordance with their respective
duties in the grant of cash advances. Moreover they repeatedly failed to do so.
Bacasmas signed 294 requests for cash advance, 11 disbursement vouchers, and 7
checks. Cesa signed cash advance requests and 299 disbursement vouchers.
Gaviola approved 303 disbursement vouchers and signed 355 checks.
All these acts demonstrate that petitioners, as correctly found by the Sandiganbayan,
were guilty of gross negligence amounting to bad faith. Gross and inexcusable
negligence is characterized by a want of even the slightest care, acting or omitting to
act in a situation in which there is a duty to act  not inadvertently, but wilfully and
intentionally, with conscious indifference to consequences insofar as other persons
are affected.75 Bad faith does not simply connote bad judgment or simple
negligence.76 It imports a dishonest purpose or some moral obloquy and conscious
doing of a wrong, a breach of a known duty due to some motive or interest or ill will
that partakes of the nature of fraud.77
Petitioners were well aware of their responsibilities before they affixed their signatures
on the cash advance vouchers. Yet, they still chose to disregard the requirements laid
down by law and rules and regulations by approving the vouchers despite the
incomplete information therein, the previous unliquidated cash advances, the absence
of payroll to support the cash requested, and the disparity between the requested
cash advances and the total net pay. What is worse is that they continue to plead their
innocence, allegedly for the reason that it was "common practice" in their office not to
follow the law and rules and regulations to the letter. For them to resort to that defense
is preposterous, considering that as public employees they are required to perform
and discharge their duties with the highest degree of excellence, professionalism,
intelligence and skill.78 The law and the rules are clear and do not provide for
exceptions.
Petitioners’ acts show that they were
unified in illegally approving
irregular cash advance vouchers in
order to defraud the government.
As found by the Sandiganbayan, petitioners’ acts not only show gross negligence
amounting to bad faith, but, when taken together, also show that there was conspiracy
in their willful noncompliance with their duties in order to defraud the government.
In order to establish the existence of conspiracy, unity of purpose and unity in the
execution of an unlawful objective by the accused must be proven.79 Direct proof is not
essential to show conspiracy.80 It is enough that there be proof that two or more
persons acted towards the accomplishment of a common unlawful objective through a
chain of circumstances, even if there was no actual meeting among them.81
A cash advance request cannot be approved and disbursed without passing through
several offices, including those of petitioners. It is outrageous that they would have us
believe that they were not in conspiracy when over hundreds of vouchers were signed
and approved by them in a course of 30 months, without their noticing irregularities
therein that should have prompted them to refuse to sign the vouchers. Clearly, they
were in cahoots in granting the cash advances to Gonzales. By these acts, petitioners
defrauded the government of such a large sum of money that should not have been
disbursed in the first place, had they been circumspect in performing their functions.
Not only were petitioners unified in defrauding the government, but they were also
unified in not reporting the negligence of their cohorts because of their own
negligence. Cesa himself admitted knowing that Gonzales had unliquidated cash
advances, yet he signed the vouchers. He also failed to inform the other officials that
they should not sign the vouchers and tolerated their negligence when they affixed
their signatures thereto. Petitioners, through their admissions before the
Sandiganbayan, all knew that there were irregularities in the vouchers; still they failed
to correct one another, because they themselves signed the vouchers despite the
glaring irregularities therein.
Petitioners cannot hide behind our declaration in Arias v. Sandiganbayan82 that heads
of offices cannot be convicted of a conspiracy charge just because they did not
personally examine every single detail before they, as the final approving authorities,
affixed their signatures to certain documents. The Court explained in that case that
conspiracy was not adequately proven, contrary to the case at bar in which petitioners’
unity of purpose and unity in the execution of an unlawful objective were sufficiently Gen. Fund 187,290,452.66
established. Also, unlike in Arias, where there were no reasons for the heads of
offices to further examine each voucher in detail, petitioners herein, by virtue of the
duty given to them by law as well as by rules and regulations, had the responsibility to
SEF 105,243,526.99
examine each voucher to ascertain whether it was proper to sign it in order to approve
and disburse the cash advance.
Trust Fund 2,750,722.51 295,284,752.16
Petitioners wrongly approved Gonzales’ cash advance vouchers, thereby causing a
loss to the government in the amount of ₱9,810,752.60.
Balance of Accountability, March 5, 1998 P 12,111,700.62
The third element of the offense is that the action of the offender caused undue injury
to any party, including the government; or gave any party any unwarranted benefit,
advantage or preference in the discharge of his or her functions. Here, the Less: Inventory of Cash and Cash Items Allowed 2,300,948.02
Sandiganbayan found that petitioners both brought about undue injury to the
government and gave unwarranted benefit to Gonzales. It is not mistaken.
88
Shortage P 9,810,752.60
83 84
Undue injury means actual damage.  It must be established by evidence  and must (Emphasis supplied)
have been caused by the questioned conduct of the offenders.85 On the other hand,
unwarranted benefit, advantage, or preference means giving a gain of any kind
It is beside the point that no one complained about not receiving any salary from the
without justification or adequate reasons.86
city government. The fact remains that more than nine million pesos was missing –
public funds lost, to the detriment of the government.
When a cash examination is conducted, the paymaster should present her cashbook,
cash, and cash items for examination.87 Upon assessment thereof in the instant case,
This undue injury was brought about by petitioners’ act of approving the cash advance
it was discovered that ₱9,810,752.60 was missing, as plainly evidenced by the COA
vouchers of Gonzales even if they lacked the requirements prescribed by law and
Narrative Report, from which we quote:
rules and regulations, and even if Gonzales had failed to liquidate her previous cash
advances, thereby clearly giving her an unwarranted benefit.
Balance last cash examination, September 20, 1995 P 2,685,719.78
No less than the Constitution declares that public office is a public trust.89 Public
officers and employees must at all times be accountable to the people and serve them
Add: Cash Advances received – September 20, 1995 to March 5, 1998 with utmost responsibility, integrity, loyalty, and efficiency.90 Petitioners, by
intentionally approving deficient cash advance vouchers, have manifestly failed to live
up to this constitutional standard.
Gen. Fund 193,320,350.00
III.

SEF 107,400,600.00
The indeterminate penalty of 12 years and one
month as minimum to 15 years as maximum is fully justified.
Trust Fund 3,989,783.00 304,710,733.00
Under the Indeterminate Sentence Law, if the offense is punished by a special law
such as R.A. 3019, the trial court shall sentence the accused to an indeterminate
Total: P 307,396,452.78 penalty, the maximum term of which shall not exceed the maximum fixed by this law,
and the minimum term shall not be less than the minimum prescribed by the same
law. The penalty for violation of Section 3(e) of R.A. 3019 is "imprisonment for not less
Less: Liquidations – September 20, 1995 to March 5, 1998 than six years and one month nor more than fifteen years, perpetual disqualification
from public office, and confiscation or forfeiture in favor of the Government of any
prohibited interest and unexplained wealth manifestly out of proportion to his salary
and other lawful income." Hence, the indeterminate penalty of 12 years and 1 month initials/signatures indicated therein acknowledging receipt of said claim. This diversion
as minimum to 15 years as maximum imposed by the Sandiganbayan in the present of people's money from their intended use has to end.
case is within the range fixed by law.
WHEREFORE, in view of the foregoing, the 07 May 2009 Decision and 27 August
However, we are aware that if the range of imposable penalty under the law were to 2009 Resolution of the Sandiganbayan in Crim. Case No. 26914 are AFFIRMED.
be divided into three tiers based on the length of imprisonment, the penalty imposed in
this case would be on the highest tier. Hence, the Sandiganbayan should have
SO ORDERED.
explained the reason behind its imposed penalty, for while Section 9 of R.A. 3019
seems to grant it discretion over the indeterminate penalty to be prescribed for
violation of Section 3(e), this Court finds it only proper that the anti-graft court justify
the latter’s imposition of the highest possible penalty. Otherwise, the exercise of this
discretion would appear to be whimsical – something that this Court will not tolerate.
After all, it is our duty to be vigilant in ensuring the correctness and justness of the
ultimate adjudication of cases before us.

Nevertheless, we find the imposition of the highest range of imposable penalty in this
case to be fully justified.1âwphi1 In Jaca v. People of the Philippines,91 promulgated
on 28 January 2013, the Court convicted the very same petitioners herein of exactly
the same kinds of violation of Section 3(e) of R.A. 3019 as those in the present case
and imposed therein the indeterminate penalty of 12 years and 1 month as minimum
to 15 years as maximum. The violations in that case arose from acts of gross
inexcusable negligence similar in all respects to those committed in this case, except
for the amount of cash shortages involved and the identity of the paymaster who
benefitted from the acts of petitioners. Even the period covered by the COA audit in
Jaca – 20 September 1995 to 5 March 1998 – is exactly the same as that in the
present case. It is therefore clear that the Court has previously determined these
identical acts to be so perverse as to justify the penalty of imprisonment of 12 years
and 1 month as minimum to 15 years as maximum. Hence, we adopt the same
penalty in this case.

Indeed, the penalty imposed is justified, considering the extent of the negligent acts
involved in this case in terms of the number of statutory laws and regulations violated
by petitioners and the number of positive duties neglected. The Court emphasizes that
petitioners violated not just one but several provisions of various regulations and laws
namely: Sections 89 and 122 of P.O. 1445, Section 339 of R.A. 7160, paragraphs
4.1.2, 4.1.7, 4.2.1, 4.2.2, and 5.1.1 of COA Circular No. 97-002, paragraphs 4.2.1,
4.1.5, and 5.1.1 of COA Circular No. 90-331~ and Section 48 (g), (e), and (k) of COA
Circular No. 92-382. Worse, they admitted being aware of these regulations. These
circumstances. coupled with the number of times such instances of violations and
negligence were wantonly and systematically repeated, show that their acts bordered
on malice. Hence, we are convinced that the penalty imposed by the Sandiganbayan
is warranted.

Furthermore, we take judicial notice of the need to stop these corrupt practices that
drain local government coffers of millions of pesos in taxpayers' money, which could
have been utilized for sorely needed services. In fact, as discussed in its Narrative
Report, the COA team found instances where fire victims alleged that they did not
receive the financial aid intended for them and yet the payroll showed that there were

January 10, 2018
G.R. No. 199527
PEOPLE OF THE PHILIPPINES, thru Private Complainant BRIAN VICTOR
BRITCHFORD, Petitioner
vs.
SALVADOR ALAPAN, Respondent
DECISION
MARITRES, J.:
This is a petition for review on certiorari assailing the Resolution, dated 22 November
2011, of the Court of Appeals (CA) in CA-G.R. SP No. 118333, which dismissed the
petition seeking the imposition of subsidiary imprisonment for nonpayment of fine in
eight (8) cases of violation of Batas Pambansa Bilang 22 (B.P. Blg. 22).
THE FACTS
In an Information, dated 26 May 2006, respondent Salvador Alapan (respondent) and
his wife Myrna Alapan (Myrna) were charged with eight (8) counts of violation of B.P.
Blg. 22. Upon arraignment on 1 September 2006, they pleaded not guilty to the
charges.
In August 2005, the Spouses Alapan borrowed ₱400,000.00 from petitioner Brian
Victor Britchford (petitioner) with a promise that they would pay the said amount within
three (3) months. To secure the indebtedness, respondent issued eight (8) postdated
checks.
When the checks matured, petitioner deposited then at the Philippine National
Bank (PNB), Olongapo City branch. One week thereafter, PNB informed petitioner
that the checks were dishonored for the reason that the account against which the
checks were drawn was closed. Petitioner immediately informed respondent of the
dishonor of the checks.
On their part, the Spouses Alapan averred that their account was closed only on the
last week of October 2005 because they suffered business reverses. They
nonetheless stated that they were willing to settle their monetary obligation.
The MTC Ruling
In a decision,1 dated 4 February 2009, the Municipal Trial Court, San Felipe,
Zambales (MTC), convicted respondent of eight (8) counts of violation of B.P. Big. 22.
It imposed a penalty of fine instead of imprisonment considering that respondent's act
of issuing the bounced checks was not tainted with bad faith and that he was a first-
time offender. On the other hand, the MTC acquitted Myrna because she did not
participate in the issuance of the dishonored checks. The fallo reads:
WHEREFORE, the Court finds the evidence of the prosecution to have established
the guilt of Accused Salvador Alapan of the eight (8) counts of Violation of B.P. Blg. 22
and imposes upon the aforenamed accused to pay a fine of ₱30,000.00 for each case
or total of ₱240,000.00 and to indemnify the offended party, Mr. Brian Victor Britchford
the sum of FOUR HUNDRED ELEVEN THOUSAND (₱411,000.00) Philippine
Currency, representing the face value of the dishonored checks, with legal interest per
annum commencing from March 8, 2006, when demand was made, until fully paid,
and to pay attorney's fees of ₱15,000.00 and to pay the costs.2
After the MTC judgment became final and executory, a writ of execution was issued.
The writ, however, was returned unsatisfied. Petitioner thus filed a Motion to Impose
Subsidiary Penalty3 for respondent's failure to pay the fine imposed by the MTC.
In its Order,4 dated 24 September 2010, the MTC denied the motion on the ground
that subsidiary imprisonment in case of insolvency was not imposed in the judgment of
convicion.
Aggrieved, petitioner filed an appeal before the Regional Trial Court, Branch 69, Iba,
Zambales (RTC).
The RTC Ruling
In a decision,5 dated 25 January 2011, the RTC dismissed the appeal for lack of
jurisdiction. It held that respondent could not be made to undergo subsidiary
imprisonment because the judgment of conviction did not provide for such penalty in
case of non-payment of fine. The RTC further opined that the MTC decision which
already attained finality could no longer be altered or modified. It disposed the case in
this wise:
IN VIEW THEREOF, the appeal is DISMISSED for lack of jurisdiction.6
Undeterred, petitioner filed a petition for review before the CA.
 The CA Ruling
In a Resolution, dated 22 November 2011, the CA dismissed the petition. It ruled that
the petition was filed without the intervention of the Office of the Solicitor
General (OSG) which was contrary to Section 35, Chapter 12, Title III, Book IV of the
Administrative Code. The dispositive portion reads:
In view of the foregoing and finding the Manifestation (in lieu of Comment) filed by the
OSG to be well-founded, the petition is hereby DISMISSED pursuant to Section 3,
Rule 43 of the 1997 Rules of Court.7
Hence, this petition.
ISSUES
I. WHETHER PETITIONER MAY ASSAIL THE PENALTY IMPOSED IN THE
JUDGMENT OF CONVICTION;
II. WHETHER RESPONDENT MAY UNDERGO SUBSIDIARY IMPRISONMENT FOR
FAILURE TO PAY THE FINE.
Petitioner argues that Section 35, Chapter 12, Title III, Book IV of the Administrative
Code is applicable only in cases wherein the government or any of its branches or
instrumentalities is directly involved; that the said law does not cover matters wherein
it is the interest of the private complainant that is directly affected; and that
Administrative Circular No. 13-2001 expressly states that there is no legal obstacle to
the application of the Revised Penal Code (RPC) provisions on subsidiary
imprisonment should only a fine be imposed and the accused be unable to pay the
fine.8
In his comment, respondent counters, citing Gonzales v. Chavez, 9 that it is mandatory
upon the OSG to represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding, investigation
or matter requiring the services of a lawyer; that it is only the State, through its
appellate counsel, the OSG, which has the sole right and authority to institute criminal
proceedings before the Court of Appeals or the Supreme Court;10 that the imposition
or the non-imposition of subsidiary penalty is a matter that involves the interest of the
State, thus, the private offended party is without legal personality to bring an appeal
on the criminal aspect of the case; and that the imposition of subsidiary imprisonment
must be clearly stated in the judgment.11
In his reply, petitioner avers that Administrative Circular No. 13-2001 categorically
implies that subsidiary imprisonment could be resorted to even if the penalty provided
by the trial court is limited only to fine; and that the imposition of subsidiary
imprisonment would emphasize the gravity of the offense committed by respondent
and would serve as a deterrent to others not to emulate this malicious act.12
OUR RULING
Petitioner lacks legal standing to question the trial court's order.
In the appeal of criminal cases before the Court of Appeals or the Supreme Court, the
authority to represent the People is vested solely in the Solicitor General. This power
is expressly provided in Section 35, Book IV, Title III, Chapter 12 of the Revised
Administrative Code.13 Without doubt, the OSG is the appellate counsel of the People
of the Philippines in all criminal cases.14
Jurisprudence has already settled that the interest of the private complainant is limited
only to the civil liability arising from the crime.1âwphi1 Thus, in Bautista v. Cuneta-
Pangilinan, 15 the Court ruled:
Thus, the Court has definitively ruled that in a criminal case in which the offended
party is the State, the interest of the private complainant or the private offended party
is limited to the civil liability arising therefrom. If a criminal case is dismissed by the
trial court or if there is an acquittal, an appeal of the criminal aspect may be
undertaken, whenever legally feasible, only by the State through the solicitor general.
As a rule, only the Solicitor General may represent the People of the Philippines on
appeal. The private offended party or complainant may not undertake such appeal.16
In this case, respondent was convicted of eight (8) counts of violation of B.P. Blg. 22
for which he was imposed the penalty of fine instead of imprisonment pursuant to
Administrative Circulars No. 12-2000 and 13- 2001. Thus, the penalty of fine and the
imposition of subsidiary imprisonment in case of nonpayment thereof pertain to the
criminal aspect of the case. On the other hand, the indemnification for the face value
of the dishonored checks refers to the civil aspect of the case. Consequently petitioner
could not appeal the imposition of fine as penalty which was not even questioned by
the People through the OSG. "While a private prosecutor may be allowed to intervene
in criminal proceedings on appeal in the Court of Appeals or the Supreme Court, his
participation is subordinate to the interest of the People, hence, he cannot be
permitted to adopt a position contrary to that of the Solicitor General. To do so would
be tantamount to giving the private prosecutor the direction and control of the criminal
proceeding, contrary to the provisions of law."17 Hence, the CA properly dismissed the
petition for review.
Subsidiary imprisonment in case of insolvency must be expressly stated in the
judgment of conviction.
Another reason which militates against petitioner's position is the lack of provision
pertaining to subsidiary imprisonment in the judgment of conviction. People v.
Fajardo, 18 in relation to Republic Act. No. 5465 which amended Article 39 of the RPC,
discusses the rationale behind the necessity for expressly imposing subsidiary
imprisonment in the judgment of conviction, viz:
The first paragraph of article 39 of the Revised Penal Code reads as follows:
ART. 39. Subsidiary penalty. - If the convict has no property with which to meet the
fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a
subsidiary personal liability at the rate of one day for each eight pesos, subject to the
following rules: ...
However, the Circular does not sanction indiscriminate imposition of subsidiary
imprisonment for the same must still comply with the law.
Here, the judgment of conviction did not provide subsidiary imprisonment in case of
failure to pay the penalty of fine. Thus, subsidiary imprisonment may not be imposed
without violating the RPC and the constitutional provision on due process.

Article 78 of Chapter V of the same Code, in its pertinent part, which deals with the The final and executory decision of the MTC can no longer be modified.
execution and service of penalties, provides:
Finally, the time-honored doctrine of immutability of judgment precludes modification
ART. 78. When and how a penalty is to be executed. - No penalty shall executed of a final and executory judgment:
except by virtue of a final judgment.
A decision that has acquired finality becomes immutable and unalterable. This quality
A penalty shall not be executed in any other form than that prescribed by law, nor with of immutability precludes the modification of a final judgment, even if the modification
any other circumstances or incidents than those expressly authorized thereby. is meant to correct erroneous conclusions of fact and law. And this postulate holds
true whether the modification is made by the court that rendered it or by the highest
court in the land. The orderly administration of justice requires that, at the risk of
It is a fundamental principle consecration in section 3 of the Jones Law, the Act of
occasional errors, the judgments/resolutions of a court must reach a point of finality
Congress of the United States of America approved on August 29, 1916, which was
set by the law. The noble purpose is to write finis to dispute once and for all. This is a
still in force when the order appealed from was made, that no person may be deprived
fundamental principle in our justice system, without which there would be no end to
of liberty without due process of law. This constitutional provision was in a sense
litigations. Utmost respect and adherence to this principle must always be maintained
incorporated in article 78 of the Revised Penal Code prescribing that no penalty shall
by those who exercise the power of adjudication. Any act, which violates such
be executed except by virtue of a final judgment. As the fact show that there is no
principle, must immediately be struck down. Indeed, the principle of conclusiveness of
judgment sentencing the accused to suffer subsidiary imprisonment in case of
prior adjudications is not confined in its operation to the judgments of what are
insolvent to pay the fine imposed upon him, because the said subsidiary imprisonment
ordinarily known as courts, but extends to all bodies upon which judicial powers had
is not stated in the judgment finding him guilty, it is clear that the court could not
been conferred.
legally compel him to serve said subsidiary imprisonment. A contrary holding would be
a violation of the laws aforementioned. That subsidiary imprisonment is a penalty,
there can be no doubt, for, according to article 39 of the Revised Penal Code, it is The only exceptions to the rule on the immutability of final judgments are (1) the
imposed upon the accused and served by him in lieu of the fine which he fails to pay correction of clerical errors, (2) the so-called nunc pro tune entries which cause no
on account of insolvency. There is not a single provision in the Code from which it may prejudice to any party, and (3) void Judgments.20
be logically inferred that an accused may automatically be made to serve subsidiary
imprisonment in a case where he has been sentenced merely to pay a fine and has
There is no doubt that the MTC decision has long attained finality and that none of the
been found to be insolvent. Such would be contrary to the legal provisions above-cited
aforementioned exceptions finds application in this case. Hence, the MTC decision
and to the doctrine laid down in United States vs. Miranda (2 Phil., 606, 610), in which
stands and any other question involving the said decision must now be put to rest.
it was said: "That judgment of the lower court fails to impose subsidiary imprisonment
in case of insolvency for indemnification to the owner of the banca, but only imposes
subsidiary punishment as to the costs. In this respect the judgment is erroneous and WHEREFORE, the petition is DENIED. The 22 November 2011 Resolution of the
should be modified." Court of Appeals in CA-G.R. SP No. 118333 is AFFIRMED.

We, therefore, conclude that an accused who has been sentenced by final judgment SO ORDERED.
to pay a fine only and is found to be insolvent and could not pay the fine for this
reason, cannot be compelled to serve the subsidiary imprisonment provided for in
article 39 of the Revised Penal Code. [emphasis supplied]19

Indeed, Administrative Circular No. 13-2001 provides that "should only a fine be
imposed and the accused be unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary imprisonment."

G.R. No. 206666               January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule
65, both of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which
essentially prays for the issuance of the writ of certiorari annulling and setting aside
the April 1, 20131 and April 23, 20132 Resolutions of the Commission on Elections
(COMELEC), Second Division and En bane, respectively, in SPA No. 13-211 (DC),
entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having been rendered
with grave abuse of discretion amounting to lack or excess of jurisdiction; and (2) a
Petition-in-Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be declared
the 2013 winning candidate for Mayor of the City of Manila in view of private
respondent former President Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former President Estrada, a
former President of the Republic of the Philippines, for the crime of plunder in Criminal
Case No. 26558, entitled "People of the Philippines v. Joseph Ejercito Estrada, et al."
The dispositive part of the graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal
Case No. 26558 finding the accused, Former President Joseph Ejercito Estrada,
GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in and
penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the
prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds
the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY of the
crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No. 7080, as
amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the lesser penalty shall be applied
in accordance with Article 63 of the Revised Penal Code. Accordingly, the accused
Former President Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of
Reclusion Perpetua and the accessory penalties of civil interdiction during the period
of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph Ejercito Estrada has been
under detention shall be credited to him in full as long as he agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by
Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred
Ninety[-]One Thousand Pesos (₱545,291,000.00), with interest and income
earned, inclusive of the amount of Two Hundred Million Pesos
(₱200,000,000.00), deposited in the name and account of the Erap Muslim
Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos
(₱189,000,000.00), inclusive of interests and income earned, deposited in
the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as "Boracay
Mansion" located at #100 11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their duly
authorized representatives upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures.
Likewise, the hold-departure orders issued against the said accused are hereby
recalled and declared functus oficio.4
On October 25, 2007, however, former President Gloria Macapagal Arroyo (former
President Arroyo) extended executive clemency, by way of pardon, to former
President Estrada. The full text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
 PARDON
WHEREAS, this Administration has a policy of releasing inmates who have reached
the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half
years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO ESTRADA,
convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full, including all
writs and processes issued by the Sandiganbayan in pursuance hereof, except for the
bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall
take effect.
Given under my hand at the City of Manila, this 25th Day of October, in the year of
Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada "received and
accepted"6 the pardon by affixing his signature beside his handwritten notation
thereon.
On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for
the position of President. During that time, his candidacy earned three oppositions in
the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due Course and Cancel
Certificate of Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No.
09-028 (DC), a petition for "Disqualification as Presidential Candidate" filed by Evilio
C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a "Petition to Disqualify
Estrada Ejercito, Joseph M.from Running as President due to Constitutional
Disqualification and Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed
by Mary Lou Estrada. In separate Resolutions8 dated January 20, 2010 by the
COMELEC, Second Division, however, all three petitions were effectively dismissed
on the uniform grounds that (i) the Constitutional proscription on reelection applies to
a sitting president; and (ii) the pardon granted to former President Estrada by former
President Arroyo restored the former’s right to vote and be voted for a public office.
The subsequent motions for reconsideration thereto were denied by the COMELEC
En banc.
After the conduct of the May 10, 2010 synchronized elections, however, former
President Estrada only managed to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought recourse to this
Court and filed a petition for certiorari, which was docketed as G.R. No. 191988,
entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and Commission
on Elections." But in a Resolution9 dated August 31, 2010, the Court dismissed the
aforementioned petition on the ground of mootness considering that former President
Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more ventured into the political
arena, and filed a Certificate of Candidacy,10 this time vying for a local elective post,
that ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for
Disqualification against former President Estrada before the COMELEC. The petition
was docketed as SPA No. 13-211 (DC). Risos Vidal anchored her petition on the
theory that "[Former President Estrada] is Disqualified to Run for Public Office
because of his Conviction for Plunder by the Sandiganbayan in Criminal Case No.
26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing Him
to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute
Disqualification."11 She relied on Section 40 of the Local Government Code (LGC), in
relation to Section 12 of the Omnibus Election Code (OEC), which state respectively,
that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are disqualified from running
for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence; (b) Those
removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to
the Republic;
 (d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgmentfor
subversion, insurrection, rebellion, or for any offense for which he has been sentenced
to a penalty of more than eighteen months or for a crime involving moral turpitude,
shall be disqualified to be a candidate and to hold any public office, unless he has
been given plenary pardon or granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the
petition for disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for
utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of
the consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and
the 10 May 2010 En Banc resolution affirming it, this Commission will not be labor the
controversy further. Moreso, [Risos-Vidal] failed to present cogent proof sufficient to
reverse the standing pronouncement of this Commission declaring categorically that
[former President Estrada’s] right to seek public office has been effectively restored by
the pardon vested upon him by former President Gloria M. Arroyo. Since this
Commission has already spoken, it will no longer engage in disquisitions of a settled
matter lest indulged in wastage of government resources."13
The subsequent motion for reconsideration filed by Risos-Vidal was denied in a
Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present
petition. She presented five issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT
CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO
RUN AS MAYOR OF MANILA UNDER SEC. 40 OF THE LOCAL
GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED OF
PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
DISMISSING THE PETITION FOR DISQUALIFICATION ON THE
GROUND THAT THE CASE INVOLVES THE SAME OR SIMILAR ISSUES
IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO
DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM RUNNING AS
PRESIDENT, ETC.," SPA NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER
RESTORED HIS RIGHT OF SUFFRAGE NOR REMITTED HIS
PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING PUBLIC
OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO
DISQUALIFY RESPONDENT ESTRADA IN THE FACE OF HIS PATENT
DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC
OFFICE AND TO VOTE RESULTING FROM HIS CRIMINAL CONVICTION
FOR PLUNDER.14
While this case was pending beforethe Court, or on May 13, 2013, the elections were
conducted as scheduled and former President Estrada was voted into office with
349,770 votes cast in his favor. The next day, the local board of canvassers
proclaimed him as the duly elected Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of
Mayor, moved for leave to intervene in this case. His motion was granted by the Court
in a Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidal’s theory that
former President Estrada is disqualified to run for and hold public office as the pardon
granted to the latter failed to expressly remit his perpetual disqualification. Further,
given that former President Estrada is disqualified to run for and hold public office, all
the votes obtained by the latter should be declared stray, and, being the second
placer with 313,764 votes to his name, he (Lim) should be declared the rightful
winning candidate for the position of Mayor of the City of Manila.
 The Issue
Though raising five seemingly separate issues for resolution, the petition filed by
Risos-Vidal actually presents only one essential question for resolution by the Court,
that is, whether or not the COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction in ruling that former President Estrada is qualified to
vote and be voted for in public office as a result of the pardon granted to him by
former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the pardon
granted to former President Estrada was conditional as evidenced by the latter’s
express acceptance thereof. The "acceptance," she claims, is an indication of the
conditional natureof the pardon, with the condition being embodied in the third
Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office." She explains that the
aforementioned commitment was what impelled former President Arroyo to pardon
former President Estrada, without it, the clemency would not have been extended.
And any breach thereof, that is, whenformer President Estrada filed his Certificate of
Candidacy for President and Mayor of the City of Manila, he breached the condition of
the pardon; hence, "he ought to be recommitted to prison to serve the unexpired
portion of his sentence x x x and disqualifies him as a candidate for the mayoralty
[position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former
President Estrada mustbe disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of the LGC, in relation to Section
12 ofthe OEC. She argues that the crime of plunder is both an offense punishable by
imprisonment of one year or more and involving moral turpitude; such that former
President Estrada must be disqualified to run for and hold public elective office.
Even with the pardon granted to former President Estrada, however, Risos-Vidal
insists that the same did not operate to make available to former President Estrada
the exception provided under Section 12 of the OEC, the pardon being merely
conditional and not absolute or plenary. Moreover, Risos-Vidal puts a premium on the
ostensible requirements provided under Articles 36 and 41 of the Revised Penal
Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to
hold publicoffice, or the right of suffrage, unless such rights be expressly restored by
the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.–
The penalties of reclusion perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the sentence as the case may be, and
that of perpetual absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a pardon
makes a general statement that such pardon carries with it the restoration of civil and
political rights. By virtue of Articles 36 and 41, a pardon restoring civil and political
rights without categorically making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public office, or the right of
suffrage; nor shall it remit the accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of reclusion perpetua and reclusion
temporal."17 In other words, she considers the above constraints as mandatory
requirements that shun a general or implied restoration of civil and political rights in
pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and
Florentino P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he
restoration of the right to hold public office to one who has lost such right by reason of
conviction in a criminal case, but subsequently pardoned, cannot be left to inference,
no matter how intensely arguable, but must be statedin express, explicit, positive and
specific language."
Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such
express restoration is further demanded by the existence of the condition in the [third]
[W]hereas [C]lause of the pardon x x x indubitably indicating that the privilege to hold
public office was not restored to him."19
On the other hand, the Office ofthe Solicitor General (OSG) for public respondent
COMELEC, maintains that "the issue of whether or not the pardon extended to [former
President Estrada] restored his right to run for public office had already been passed
upon by public respondent COMELEC way back in 2010 via its rulings in SPA Nos.
09-024, 09-028 and 09-104, there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada] disqualified to run and be
voted as mayor of the City of Manila in the absence of any new argument that would
warrant its reversal. To be sure, public respondent COMELEC correctly exercised its
discretion in taking judicial cognizance of the aforesaid rulings which are known toit
and which can be verified from its own records, in accordance with Section 2, Rule
129 of the Rules of Court on the courts’ discretionary power to take judicial notice of
matters which are of public knowledge, orare capable of unquestionable
demonstration, or ought to be known to them because of their judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it is apparent that [former
President Estrada’s] conviction for plunder disqualifies him from running as mayor of
Manila under Section 40 of the [LGC], the subsequent grant of pardon to him,
however, effectively restored his right to run for any public office."21 The restoration of
his right to run for any public office is the exception to the prohibition under Section 40
of the LGC, as provided under Section 12 of the OEC. As to the seeming requirement
of Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the pardon, the OSG asserts
that "an airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x
would be stretching too much the clear and plain meaning of the aforesaid
provisions."22 Lastly, taking into consideration the third Whereas Clause of the pardon
granted to former President Estrada, the OSG supports the position that it "is not an
integral part of the decree of the pardon and cannot therefore serve to restrict its
effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions."24
For his part, former President Estrada presents the following significant arguments to
defend his stay in office: that "the factual findings of public respondent COMELEC, the
Constitutional body mandated to administer and enforce all laws relative to the
conduct of the elections, [relative to the absoluteness of the pardon, the effects
thereof, and the eligibility of former President Estrada to seek public elective office]
are binding [and conclusive] on this Honorable Supreme Court;" that he "was granted
an absolute pardon and thereby restored to his full civil and political rights, including
the right to seek public elective office such as the mayoral (sic) position in the City of
Manila;" that "the majority decision in the case of Salvacion A. Monsanto v. Fulgencio
S. Factoran, Jr.,which was erroneously cited by both Vidal and Lim as authority for
their respective claims, x x x reveal that there was no discussion whatsoever in the
ratio decidendi of the Monsanto case as to the alleged necessity for an expressed
restoration of the ‘right to hold public office in the pardon’ as a legal prerequisite to
remove the subject perpetual special disqualification;" that moreover, the "principal
question raised in this Monsanto case is whether or not a public officer, who has been
granted an absolute pardon by the Chief Executive, is entitled to reinstatement toher
former position without need of a new appointment;" that his "expressed acceptance
[of the pardon] is not proof that the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the casesfiled against him during his
candidacy for President back in 2009-2010; that Articles 36 and 41 of the Revised
Penal Code "cannot abridge or diminish the pardoning power of the President
expressly granted by the Constitution;" that the text of the pardon granted to him
substantially, if not fully, complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the said document that he was
"restored to his civil and political rights;" that since pardon is an act of grace, it must
be construed favorably in favor of the grantee;25 and that his disqualification will result
in massive disenfranchisement of the hundreds of thousands of Manileños who voted
for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully restored allhis
civil and political rights, which naturally includes the right to seek public elective office,
the focal point of this controversy. The wording of the pardon extended to former
President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered
by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and
constitutional interpretation of the language of the pardon is that the same in fact
conforms to Articles 36 and 41 of the Revised Penal Code. Recall that the petition for
disqualification filed by Risos-Vidal against former President Estrada, docketed as
SPA No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to Section
12 of the OEC, that is, having been convicted of a crime punishable by imprisonment
of one year or more, and involving moral turpitude, former President Estrada must be
disqualified to run for and hold public elective office notwithstanding the fact that he is
a grantee of a pardon that includes a statement expressing "[h]e is hereby restored to
his civil and political rights." Risos-Vidal theorizes that former President Estrada is
disqualified from running for Mayor of Manila inthe May 13, 2013 Elections, and
remains disqualified to hold any local elective post despite the presidential pardon
extended to him in 2007 by former President Arroyo for the reason that it (pardon) did
not expressly provide for the remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his (former President Estrada) right to
vote and bevoted upon for public office. She invokes Articles 36 and 41 of the Revised
Penal Code as the foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and accepted by
former President Estrada does not actually specify which political right is restored, it
could be inferred that former President Arroyo did not deliberately intend to restore
former President Estrada’s rights of suffrage and to hold public office, orto otherwise
remit the penalty of perpetual absolute disqualification. Even if her intention was the
contrary, the same cannot be upheld based on the pardon’s text.
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-
C, provides that the President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all
the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of
election laws, rules, and regulations shall be granted by the President without the
favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (1) impeachment cases;
(2) cases that have not yet resulted in a final conviction; and (3) cases involving
violations of election laws, rules and regulations in which there was no favorable
recommendation coming from the COMELEC. Therefore, it can be argued that any act
of Congress by way of statute cannot operate to delimit the pardoning power of the
President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the
1935 Constitution,wherein the provision granting pardoning power to the President
shared similar phraseology with what is found in the present 1987 Constitution, the
Court then unequivocally declared that "subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative
action." The Court reiterated this pronouncement in Monsanto v. Factoran,
Jr.29 thereby establishing that, under the present Constitution, "a pardon, being a
presidential prerogative, should not be circumscribed by legislative action." Thus, it is
unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.
This doctrine of non-diminution or non-impairment of the President’s power of pardon
by acts of Congress, specifically through legislation, was strongly adhered to by an
overwhelming majority of the framers of the 1987 Constitution when they flatly
rejected a proposal to carve out an exception from the pardoning power of the
President in the form of "offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment of a law. The following is
the pertinent portion lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an
amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of corrupt practices
laws may be limited by legislation.
I suggest that this be deletedon the grounds that, first, violations of corrupt practices
may include a very little offense like stealing ₱10; second, which I think is more
important, I get the impression, rightly or wrongly, that subconsciously we are drafting
a constitution on the premise that all our future Presidents will bebad and dishonest
and, consequently, their acts will be lacking in wisdom. Therefore, this Article seems
to contribute towards the creation of an anti-President Constitution or a President with
vast responsibilities but no corresponding power except to declare martial law.
Therefore, I request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of Commissioner Davide
because of the fact that similar to the provisions on the Commission on Elections, the
recommendation of that Commission is required before executive clemency isgranted
because violations of the election laws go into the very political life of the country.
With respect to violations of our Corrupt Practices Law, we felt that it is also necessary
to have that subjected to the same condition because violation of our Corrupt
Practices Law may be of such magnitude as to affect the very economic systemof the
country. Nevertheless, as a compromise, we provided here that it will be the Congress
that will provide for the classification as to which convictions will still require prior
recommendation; after all, the Congress could take into account whether or not the
violation of the Corrupt Practices Law is of such magnitude as to affect the economic
life of the country, if it is in the millions or billions of dollars. But I assume the Congress
in its collective wisdom will exclude those petty crimes of corruption as not to require
any further stricture on the exercise of executive clemency because, of course, there
is a whale of a difference if we consider a lowly clerk committing malversation of
government property or funds involving one hundred pesos. But then, we also
anticipate the possibility that the corrupt practice of a public officer is of such
magnitude as to have virtually drained a substantial portion of the treasury, and then
he goes through all the judicial processes and later on, a President who may have
close connections with him or out of improvident compassion may grant clemency
under such conditions. That is why we left it to Congress to provide and make a
classification based on substantial distinctions between a minor act of corruption or an
act of substantial proportions. SR. TAN. So, why do we not just insert the word
GROSS or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a better distinction because
"GRAVE" or "GROSS" can be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially an executive
power, and that is precisely why it is called executive clemency. In this sentence,
which the amendment seeks to delete, an exception is being made. Congress, which
is the legislative arm, is allowed to intrude into this prerogative of the executive. Then
it limits the power of Congress to subtract from this prerogative of the President to
grant executive clemency by limiting the power of Congress to only corrupt practices THE PRESIDENT. Commissioner Sarmiento is recognized.
laws. There are many other crimes more serious than these. Under this amendment,
Congress cannot limit the power of executive clemency in cases of drug addiction and
MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.
drug pushing which are very, very serious crimes that can endanger the State; also,
rape with murder, kidnapping and treason. Aside from the fact that it is a derogation of
the power of the President to grant executive clemency, it is also defective in that it Madam President, over and over again, we have been saying and arguing before this
singles out just one kind of crime. There are far more serious crimes which are not Constitutional Commission that we are emasculating the powers of the presidency,
included. and this provision to me is another clear example of that. So, I speak against this
provision. Even the 1935 and the 1973 Constitutions do not provide for this kind of
provision.
MR. REGALADO. I will just make one observation on that. We admit that the
pardoning power is anexecutive power. But even in the provisions on the COMELEC,
one will notice that constitutionally, it is required that there be a favorable I am supporting the amendment by deletion of Commissioner Tan.
recommendation by the Commission on Elections for any violation of election laws.
MR. ROMULO. Commissioner Tingson would like to be recognized.
At any rate, Commissioner Davide, as the principal proponent of that and as a
member of the Committee, has explained in the committee meetings we had why he
THE PRESIDENT. Commissioner Tingson is recognized.
sought the inclusion of this particular provision. May we call on Commissioner Davide
to state his position.
MR. TINGSON. Madam President, I am also in favor of the amendment by deletion
because I am in sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I
MR. DAVIDE. Madam President.
do believe and we should remember that above all the elected or appointed officers of
our Republic, the leader is the President. I believe that the country will be as the
THE PRESIDENT. Commissioner Davide is recognized. President is, and if we systematically emasculate the power of this presidency, the
time may come whenhe will be also handcuffed that he will no longer be able to act
like he should be acting.
MR. DAVIDE. I am constrained to rise to object to the proposal. We have just
approved the Article on Accountability of Public Officers. Under it, it is mandated that a
public office is a public trust, and all government officers are under obligation to So, Madam President, I am in favor of the deletion of this particular line.
observe the utmost of responsibility, integrity, loyalty and efficiency, to lead modest
lives and to act with patriotism and justice.
MR. ROMULO. Commissioner Colayco would like to be recognized.

In all cases, therefore, which would go into the verycore of the concept that a public
THE PRESIDENT. Commissioner Colayco is recognized.
office is a public trust, the violation is itself a violation not only of the economy but the
moral fabric of public officials. And that is the reason we now want that if there is any
conviction for the violation of the Anti-Graft and Corrupt Practices Act, which, in effect, MR. COLAYCO. Thank you very much, Madam President.
is a violation of the public trust character of the public office, no pardon shall be
extended to the offender, unless some limitations are imposed.
I seldom rise here to object to or to commend or to recommend the approval of
proposals, but now I find that the proposal of Commissioner Tan is worthy of approval
Originally, my limitation was, it should be with the concurrence of the convicting court, of this body.
but the Committee left it entirely to the legislature to formulate the mechanics at trying,
probably, to distinguish between grave and less grave or serious cases of violation of
the Anti-Graft and Corrupt Practices Act. Perhaps this is now the best time, since we Why are we singling out this particular offense? There are other crimes which cast a
have strengthened the Article on Accountability of Public Officers, to accompany it bigger blot on the moral character of the public officials.
with a mandate that the President’s right to grant executive clemency for offenders or
violators of laws relating to the concept of a public office may be limited by Congress Finally, this body should not be the first one to limit the almost absolute power of our
itself. Chief Executive in deciding whether to pardon, to reprieve or to commute the
sentence rendered by the court.
MR. SARMIENTO. Madam President.
I thank you. VOTING

THE PRESIDENT. Are we ready to vote now? THE PRESIDENT. As many as are in favor of the proposed amendment of
Commissioner Tan to delete the last sentence of Section 17 appearing on lines 7, 8
and 9, please raise their hand. (Several Members raised their hand.)
MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will
be Commissioner Natividad.
As many as are against, please raise their hand. (Few Members raised their hand.)
THE PRESIDENT. Commissioner Padilla is recognized.
The results show 34 votes in favor and 4 votes against; the amendment is
approved.30 (Emphases supplied.)
MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been
called the Anti-Graft Court, so if this is allowed to stay, it would mean that the
President’s power togrant pardon or reprieve will be limited to the cases decided by The proper interpretation of Articles
the Anti-Graft Court, when as already stated, there are many provisions inthe Revised
Penal Code that penalize more serious offenses.
36 and 41 of the Revised Penal Code.

Moreover, when there is a judgment of conviction and the case merits the
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
consideration of the exercise of executive clemency, usually under Article V of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
Revised Penal Code the judge will recommend such exercise of clemency. And so, I
power and prerogative of the President to pardon persons convicted of violating penal
am in favor of the amendment proposed by Commissioner Tan for the deletion of this
statutes.
last sentence in Section 17.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
contain specific textual commands which must be strictly followed in order to free the
beneficiary of presidential grace from the disqualifications specifically prescribed by
MR. NATIVIDAD. Just one more. them.

THE PRESIDENT. Commissioner Natividad is recognized. Again, Articles 36 and 41 of the Revised Penal Code provides:

MR. NATIVIDAD. I am also against this provision which will again chip more powers ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to
from the President. In case of other criminals convicted in our society, we extend hold publicoffice, or the right of suffrage, unless such rights be expressly restored by
probation to them while in this case, they have already been convicted and we offer the terms of the pardon.
mercy. The only way we can offer mercy to them is through this executive clemency
extended to them by the President. If we still close this avenue to them, they would be
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
prejudiced even worse than the murderers and the more vicious killers in our society. I
imposed upon him by the sentence.
do not think they deserve this opprobrium and punishment under the new Constitution.

xxxx
I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit this to the
floor and also because of the objection of the main proponent, Commissioner Davide.
So we feel that the Commissioners should vote on this question.
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.–
The penalties of reclusion perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the sentence as the case may be, and
that of perpetual absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-
Vidal, is unwarranted, especially so if it will defeat or unduly restrict the power of the
President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est recedendum. From the words of a
statute there should be no departure.31 It is this Court’s firm view that the phrase in the
presidential pardon at issue which declares that former President Estrada "is hereby
restored to his civil and political rights" substantially complies with the requirement of
express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was
no express remission and/or restoration of the rights of suffrage and/or to hold public
office in the pardon granted to former President Estrada, as required by Articles 36
and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions must be
followed by the President, as they do not abridge or diminish the President’s power to
extend clemency. He opines that they do not reduce the coverage of the President’s
pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only provide
a procedural prescription. They are not concerned with areas where or the instances
when the President may grant pardon; they are only concerned with how he or she is
to exercise such power so that no other governmental instrumentality needs to
intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the
pardon the restoration of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute disqualification,he or she
should do so expressly. Articles 36 and 41 only ask that the President state his or her
intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the point,
the President retains the power to make such restoration or remission, subject to a
prescription on the manner by which he or she is to state it.32
With due respect, I disagree with the overbroad statement that Congress may dictate
as to how the President may exercise his/her power of executive clemency. The form
or manner by which the President, or Congress for that matter, should exercise their
respective Constitutional powers or prerogatives cannot be interfered with unless it is
so provided in the Constitution. This is the essence of the principle of separation of
powers deeply ingrained in our system of government which "ordains that each of the
three great branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere."33 Moreso, this
fundamental principle must be observed if noncompliance with the form imposed by
one branch on a co-equal and coordinate branch will result into the diminution of an
exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in
a way that will give full effect to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that may serve to impair or
diminish the import of the pardon which emanated from the Office of the President and
duly signed by the Chief Executive himself/herself. The said codal provisions must be
construed to harmonize the power of Congress to define crimes and prescribe the
penalties for such crimes and the power of the President to grant executive clemency.
All that the said provisions impart is that the pardon of the principal penalty does
notcarry with it the remission of the accessory penalties unless the President
expressly includes said accessory penalties in the pardon. It still recognizes the
Presidential prerogative to grant executive clemency and, specifically, to decide to
pardon the principal penalty while excluding its accessory penalties or to pardon both.
Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the
President on the penalties imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former President Estrada shows
that both the principal penalty of reclusion perpetua and its accessory penalties are
included in the pardon. The first sentence refers to the executive clemency extended
to former President Estrada who was convicted by the Sandiganbayan of plunder and
imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned
which relieved him of imprisonment. The sentence that followed, which states that
"(h)e is hereby restored to his civil and political rights," expressly remitted the
accessory penalties that attached to the principal penalty of reclusion perpetua.
Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is
indubitable from the textof the pardon that the accessory penalties of civil interdiction
and perpetual absolute disqualification were expressly remitted together with the
principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized by law as falling
under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention
and Reacquisition Act of 2003," reads as follows:
Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions: (1) Those intending to exercise their right of
suffrage must meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath;
 (3) Those appointed to any public office shall subscribe and swear an oath
of allegiance to the Republic of the Philippines and its duly constituted
authorities prior to their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took that oath; (4) Those
intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the
country of which theyare naturalized citizens; and/or
(b) are in active service as commissioned or non commissioned
officers in the armed forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, acknowledges the existence of said right. Article 25(b) of the
Convention states: Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally
referred to the right to seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for elective office specific only to
Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is
the operative act that restores their right to run for public office. The petitioner’s failure
to comply there with in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian Citizenship she executed on
September 18, 2006. As such, she is yet to regain her political right to seek elective
office. Unless she executes a sworn renunciation of her Australian citizenship, she is
ineligible to run for and hold any elective office in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted tohim,
he regained his FULL civil and political rights – including the right to seek elective
office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said
penal provisions; and prescribes a formal requirement that is not only unnecessary
but, if insisted upon, could be in derogation of the constitutional prohibition relative to
the principle that the exercise of presidential pardon cannot be affected by legislative
action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v.
Factoran, Jr.36 to justify her argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and that the penalty of perpetual
absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views of
Justices Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do
not form partof the controlling doctrine nor to be considered part of the law of the land.
On the contrary, a careful reading of the majority opinion in Monsanto, penned by no
less than Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36 and 41 of the
Revised Penal Code that will in effect require the President to use a statutorily
prescribed language in extending executive clemency, even if the intent of the
President can otherwise be deduced from the text or words used in the pardon.
Furthermore, as explained above, the pardon here is consistent with, and not contrary
to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the LGC in
relation to Section 12 of the OEC was removed by his acceptance of the absolute
pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective
local position. Risos-Vidal argues that former President Estrada is disqualified under
item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an
exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given plenary pardon or
granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for
plunder disqualifies him from running for the elective local position of Mayor of the City
of Manila under Section 40(a) of the LGC. However, the subsequent absolute pardon
granted to former President Estrada effectively restored his right to seek public
elective office. This is made possible by reading Section 40(a) of the LGC in relation to
Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is worded in
absolute terms, Section 12 of the OEC provides a legal escape from the prohibition –
a plenary pardon or amnesty. In other words, the latter provision allows any person
who has been granted plenary pardon or amnesty after conviction by final judgment of
an offense involving moral turpitude, inter alia, to run for and hold any public office,
whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for
local elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on
Elections,37 the Court acknowledged the aforementioned provision as one of the legal
remedies that may be availed of to disqualify a candidate in a local election filed any
day after the last day for filing of certificates of candidacy, but not later than the date of
proclamation.38 The pertinent ruling in the Jalosjos case is quoted as follows:
What is indisputably clear is that false material representation of Jalosjos is a ground
for a petition under Section 78. However, since the false material representation
arises from a crime penalized by prision mayor, a petition under Section 12 ofthe
Omnibus Election Code or Section 40 of the Local Government Code can also be
properly filed. The petitioner has a choice whether to anchor his petition on Section 12
or Section 78 of the Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple remedies and the choice of
which remedy to adopt belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the pardon
conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e.,
"[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office," neither makes the pardon conditional, nor militate against
the conclusion that former President Estrada’s rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not explicitly impose a condition or
limitation, considering the unqualified use of the term "civil and political rights"as being
restored. Jurisprudence educates that a preamble is not an essential part of an act as
it is an introductory or preparatory clause that explains the reasons for the enactment,
usually introduced by the word "whereas."40 Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the operative language of the
statute.41 In this case, the whereas clause at issue is not an integral part of the decree
of the pardon, and therefore, does not by itself alone operate to make the pardon
conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of COMELEC
Commissioner Maria Gracia Padaca’s separate concurring opinion in the assailed
April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which captured
the essence of the legal effect of preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January 2010 Resolution
did not conclude upon. Here, Petitioner Risos-Vidal raised the same argument with
respect to the 3rd "whereas clause" or preambular paragraph of the decree of pardon.
It states that "Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office." On this contention, the undersigned reiterates the ruling of
the Commission that the 3rd preambular paragraph does not have any legal or binding
effect on the absolute nature of the pardon extended by former President Arroyo to
herein Respondent. This ruling is consistent with the traditional and customary usage
of preambular paragraphs. In the case of Echegaray v. Secretary of Justice, the
Supreme Court ruled on the legal effect of preambular paragraphs or whereas clauses
on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely an introduction
to show its intent or purposes. It cannot be the origin of rights and obligations. Where
the meaning of a statute is clear and unambiguous, the preamble can neither expand
nor restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on Respondent’s
promise never to seek a public office again, the former ought to have explicitly stated
the same in the text of the pardon itself. Since former President Arroyo did not make
this an integral part of the decree of pardon, the Commission is constrained to rule
that the 3rd preambular clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s silence on former President
Estrada’s decision torun for President in the May 2010 elections against, among
others, the candidate of the political party of former President Arroyo, after the latter’s
receipt and acceptance of the pardon speaks volume of her intention to restore him to
his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President is
in issue, the Court must turn to the only evidence available to it, and that is the pardon
itself. From a detailed review ofthe four corners of said document, nothing therein
gives an iota of intimation that the third Whereas Clause is actually a limitation,
proviso, stipulation or condition on the grant of the pardon, such that the breach of the
mentioned commitment not to seek public office will result ina revocation or
cancellation of said pardon. To the Court, what it is simply is a statement of fact or the
prevailing situation at the time the executive clemency was granted. It was not used
as a condition to the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the third Whereas Clausewas one To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand
of the reasons to grant the pardon, the pardon itself does not provide for the attendant close scrutiny even under the provisions of Articles 36 and 41 of the Revised Penal
consequence of the breach thereof. This Court will be hard put to discern the resultant Code.
effect of an eventual infringement. Just like it will be hard put to determine which civil
or political rights were restored if the Court were to take the road suggested by Risos-
The COMELEC did not commit grave abuse of discretion amounting to lack or excess
Vidal that the statement "[h]e is hereby restored to his civil and political rights"
of jurisdiction in issuing the assailed Resolutions.
excludes the restoration of former President Estrada’s rights to suffrage and to hold
public office. The aforequoted text ofthe executive clemency granted does not provide
the Court with any guide asto how and where to draw the line between the included In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did
and excluded political rights. not commit grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.
Justice Leonen emphasizes the point that the ultimate issue for resolution is not
whether the pardon is contingent on the condition that former President Estrada will The Court has consistently held that a petition for certiorariagainst actions of the
not seek janother elective public office, but it actually concerns the coverage of the COMELEC is confined only to instances of grave abuse of discretion amounting to
pardon – whether the pardon granted to former President Estrada was so expansive patentand substantial denial of due process, because the COMELEC is presumed to
as to have restored all his political rights, inclusive of the rights of suffrage and to hold be most competent in matters falling within its domain.43
public office. Justice Leonen is of the view that the pardon in question is not absolute
nor plenary in scope despite the statement that former President Estrada is "hereby
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power
restored to his civil and political rights," that is, the foregoing statement restored to
due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious
former President Estrada all his civil and political rights except the rights denied to him
exercise of power that amounts to an evasion or refusal to perform a positive duty
by the unremitted penalty of perpetual absolute disqualification made up of, among
enjoined by law or to act at all in contemplation of law. For an act to be condemned as
others, the rights of suffrage and to hold public office. He adds that had the President
having been done with grave abuse of discretion, such an abuse must be patent and
chosen to be so expansive as to include the rights of suffrage and to hold public office,
gross.44
she should have been more clear on her intentions.

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or

However, the statement "[h]e is hereby restored to his civil and political rights," to the
legal bases to prove that the assailed COMELEC Resolutions were issued in a
mind of the Court, iscrystal clear – the pardon granted to former President Estrada
"whimsical, arbitrary or capricious exercise of power that amounts to an evasion
was absolute, meaning, it was not only unconditional, it was unrestricted in scope,
orrefusal to perform a positive duty enjoined by law" or were so "patent and gross" as
complete and plenary in character, as the term "political rights"adverted to has a
to constitute grave abuse of discretion.
settled meaning in law and jurisprudence.

On the foregoing premises and conclusions, this Court finds it unnecessary to

With due respect, I disagree too with Justice Leonen that the omission of the
separately discuss Lim's petition-in-intervention, which substantially presented the
qualifying word "full" can be construed as excluding the restoration of the rights of
same arguments as Risos-Vidal's petition.
suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political rights" used alone
without any qualification. How to ascribe to the latter term the meaning that it is WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED.
"partial" and not "full" defies one’s understanding. More so, it will be extremely difficult The Resolution dated April 1, 2013 of the Commission on Elections, Second Division,
to identify which of the political rights are restored by the pardon, when the text of the and the Resolution dated April 23, 2013 of the Commission on Elections, En bane,
latter is silent on this matter. Exceptions to the grant of pardon cannot be presumed both in SPA No. 13-211 (DC), are AFFIRMED.
from the absence of the qualifying word "full" when the pardon restored the "political
rights" of former President Estrada without any exclusion or reservation.
SO ORDERED.

Therefore, there can be no other conclusion but to say that the pardon granted to
former President Estrada was absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support the Presidential intent to grant
a limited pardon.
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified offender. It
essentially rejects appeals and encourages an otherwise eligible convict to
immediately admit his liability and save the state of time, effort and expenses to
jettison an appeal. The law expressly requires that an accused must not have
appealed his conviction before he can avail of probation. This outlaws the element of
speculation on the part of the accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he now applies for probation as an
"escape hatch" thus rendering nugatory the appellate court's affirmance of his
conviction. Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest spontaneity,
contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as
amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC Trans.
Company he failed to control his outburst and blurted —
You employees in this office are all tanga, son of a bitches (sic),
bullshit. Puro kayo walang utak . . . . Mga anak ng
puta . . . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation
in five (5) separate Informations instituted by five (5) of his employees, each
Information charging him with gravely maligning them on four different days, i.e., from
9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati,
Br. 61, found petitioner guilty of grave oral defamation in four (4) of the five (5) cases
filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210,
sentenced him to a prison term of one (1) year and one (l) day to one (1) year and
eight (8) months of prision correccional "in each crime committed on each date of
each case, as alleqed in the information(s)," ordered him to indemnify each of the
offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and
Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees,
plus costs of suit.1 He was however acquitted in Crim. Case No. 105208 for persistent
failure of the offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner
elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction
but appreciated in his favor a mitigating circumstance analogous to passion or
obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the defamatory
words complained of . . . . he must have been angry and worried
"about some missing documents . . . as well as the letter of the
Department of Tourism advising ASPAC about its delinquent tax
of P1.2 million . . . . " the said defamatory words must have been
uttered in the heat of anger which is a mitigating circumstance
analogous to passion or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of
EIGHT (8) MONTHS imprisonment . . . . "3 After he failed to interpose an appeal
therefrom the decision.of the RTC became final. The case was then set for execution
of judgment by the MeTC which, as a consequence, issued a warrant of arrest.
But·before he could be arrested petitioner filed an application for probation which the
MeTC denied "in the light of the ruling of the Supreme Court in Llamado v. Court of
Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992
dismissed his petition on the following grounds —
Initially, the Court notes that the petitioner has failed to comply
with the provisions of Supreme Court Circular No. 28-91 of
September 4, 1991. Violation of the circular is sufficient cause for
dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition
that he had asked the respondent court to reconsider its above
order; in fact, he had failed to give the court an.opportunity to
correct itself if it had, in fact, committed any error on the matter.
He is, however, required to move for reconsideration of the
questioned order before filing a petition for certiorari (Sy It v.
Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a
ground for dismissal of his petition (Santos v. Vda. de Cerdenola,
5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit,
Inc. v. Public Service Commission, 31-SCRA 372).
 Thirdly, it is obvious that respondent court did not commit any
capricious, arbitrary, despotic or whimsical exercise of power in
denying the petitioner's application for probation . . . .
Fourthly, the petition for probation was filed by the petitioner out
of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant
probation after conviction, upon an application by the defendant within the period of
appeal, upon terms and conditions and period appropriate to each case, but expressly
rules out probation where an appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's
compassion in dispensing with the minor technicalities which may militate against his
petition as he now argues before us that he has not yet lost his right to avail of
probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason
for his appeal was precisely to enable him to avail himself of the benefits of the
Probation Law because the original Decision of the (Metropolitan) Trial Court was
such that he would not then be entitled to probation." 6 He contends that "he appealed
from the judgment of the trial court precisely for the purpose of reducing the penalties
imposed upon him by the said court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of probation
even after appealing his conviction to the RTC which affirmed the MeTC except with
regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not
expressly included. Probation is not a right of an accused, but rather an act of grace
and clemency or immunity conferred by the state which may be granted by the court
to a seemingly deserving defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense of which he stands convicted. 9 It is a special
prerogative granted by law to a person or group of persons not enjoyed by others or
by all. Accordingly, the grant of probation rests solely upon the discretion of the court
which is to be exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused.10 The Probation Law should not therefore
be permitted to divest the state or its government of any of the latter's prerogatives,
rights or remedies, unless the intention of the legislature to this end is clearly
expressed, and no person should benefit from the terms of the law who is not clearly
within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no
application for probation shall be entertained or granted if the defendant has perfected
the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which
interprets the quoted provision, offers any ambiguity or qualification. As such, the
application of the law should not be subjected to any to suit the case of petitioner.
While the proposition that an appeal should not bar the accused from applying for
probation if the appealis solely to reduce the penalty to within the probationable limit
may be equitable, we are not yet prepared to accept this interpretation under existing
law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the
Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is not a penal
statute. We, however, understand petitioner's argument to be
really that any statutory language that appears to favor the
accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal
interpretation" or "the spirit of the law" where the words of the
statute themselves, and·as illuminated by the history of that
statute, leave no room for doubt or interpretation. We do not
believe that "the spirit of·the law" may legitimately be invoked to
set at naught words which have a clear and definite meaning
imparted to them by our procedural law. The "true legislative
intent" must obviously be given effect by judges and all others
who are charged with the application and implementation of a
statute. It is absolutely essential to bear in mind, however, that the
spirit of the law and the intent that is to be given effect are derived
from the words actually used by the law-maker, and not from
some external, mystical or metajuridical source independent of
and transcending the words of the legislature.
The Court is not here to be understood as giving a "strict
interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and
"liberal" are adjectives which too frequently impede a disciplined
and principled search for the meaning which the law-making
authority projected when it promulgated the language which we
must apply. That meaning is clearly visible in the text of Section 4,
as plain and unmistakable as the nose on a man's face. The
Courtis simply·reading Section 4 as it is in fact written. There is no
need for the involved process of construction that petitioner
invites us to engage in, a process made necessary only because
petitioner rejects the conclusion or meaning which shines through
the words of the statute. The first duty of the judge is to take and
apply a statute as he finds it, not as he would like·it to be.
Otherwise, as this Court in Yangco v. Court of First
Instance warned, confusion and uncertainty will surely follow,
making, we might add, stability and continuity in the law much
more difficult to achieve:
. . . [w]here language is plain, subtle
refinements which tinge words as to give
 them the color of a particular judicial theory
are not only unnecessary but decidedly
harmful. That which has caused so much
confusion in the law, which has made it so
difficult for the public to understand and know
what the law is with respect to a given matter,
is in considerable measure the unwarranted
interference by judicial tribunals with the
English language as found in statutes and
contracts, cutting the words here and
inserting them there, making them fit
personal ideas of what the legislature ought
to have done or what parties should have
agreed upon, giving them meanings which
they do not ordinarily have cutting, trimming,
fitting, changing and coloring until lawyers
themselves are unable to advise their clients
as to the meaning of a given statute or
contract until it has been submitted to some
court for its interpretation and construction.
The point in this warning may be expected to become sharper as
our people's grasp of English is steadily attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for probation if the
appeal is taken solely to reduce the penalty is simply contrary to the clear and express
mandate of Sec, 4 of the Probation Law, as amended, which opens with a
negativeclause, "no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction." In Bersabal v.
Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the rule of
statutory construction. negative words and phrases are to be
regarded as mandatory while those in the affirmative are merely
directory. . . . the use of the term "shall" further emphasizes its
mandatory character and means that it is imperative, operating to
impose a duty which may be enforced.
And where the law does not distinguish the courts should not distinguish; where the
law does not make exception the court should not except.
Second. At the outset, the penalties imposed by the MeTC were already
probationable. Hence, there was no need to appeal if only to reduce the penalties to
within the probationable period. Multiple prison terms imposed against an accused
found guilty of several offenses in one decision are not, and should not be, added up.
And, the sum of the multiple prison terms imposed against an applicant should not be
determinative of his eligibility for, nay his disqualification from, probation. The multiple
prison terms are distinct from each other, and if none of the terms exceeds the limit
set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to
probation, unless he is otherwise specifically disqualified. The number of offenses is
immaterial as long as all the penalties imposed, taken separately, are within the
probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the
word maximum not total when it says that "[t]he benefits of this Decree shall not be
extended to those . . . . sentenced to serve a maximum term of imprisonment of more
than six years." Evidently, the law does not intend to sum up the penalties imposed
but to take each penalty separately and distinctly with the others. Consequently, even
if petitioner was supposed to have served his prison term of one (1) year and one (1)
day to one (1) year and eight (8) months of prision correccional sixteen (16) times as
he was sentenced to serve the prison term for "each crime committed on each date of
each case, as alleged in the information(s)," and in each of the four (4) informations,
he was charged with.having defamed the four (4) private complainants on four (4)
different, separate days, he was still·eligible for probation, as each prison term
imposed on petitioner was probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation
is based on the assumption that those sentenced to higher penalties pose too great a
risk to society, not just because of their demonstrated capability for serious wrong
doing but because of the gravity and serious consequences of the offense they might
further commit. 14 The Probation Law, as amended, disqualifies only those who have
been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The
Revised Penal Code, 15 and not necessarily those who have been convicted of
multiple offenses in a single proceeding who are deemed to be less perverse. Hence,
the basis of the disqualification is principally the gravity of the offense committed and
the concomitant degree of penalty imposed. Those sentenced to a maximum term not
exceeding six (6) years are not generally considered callous, hard core criminals, and
thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in a single
decision of, say, thirteen (13) counts of grave oral defamation (for having defamed
thirteen [13] individuals in one outburst) and sentenced to a total prison term of
thirteen (13) years, and another who has been found guilty of mutilation and
sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to
twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin.
Obviously, the latter offender is more perverse and is disqualified from availing of
probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision
he could not have availed of the benefits of probation. Since he could have, although
he did not, his appeal now precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be,
that the penalties imposed against him should be summed up, still he would not have
qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of
EIGHT (8) MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16)
times, the total imposable penalty would be ten (10) years and eight (8) months, which
is still way beyond the limit of not more than six (6) years provided for in the Probation
Law, as amended. To illustrate: 8 months multiplied by 16 cases = 128 months; 128
months divided by 12 months (in a year) = 10 years and 8 months, hence, following
his argument, petitioner cannot still be eligible for probation as the total of his
penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times
since there are only four (4) Informations thereby allowing petitioner to qualify for
probation, instead of sixteen (16) times, is quite difficult to understand. The penalties
imposed by the MeTC cannot be any clearer — "one (1) year and one (1) day to one
(1) year and eight (8) months of prision correccional, in each crime committed on
each date of each case, as alleged in the information(s). "Hence, petitioner should
suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed,
the judgment of conviction and merely reduced the duration of each penalty imposed
by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" on account of a mitigating circumstance for each case, count or
incident of grave oral defamation·There is no valid reason therefore why the penalties
imposed by the RTC should be multiplied only four (4) times, and not sixteen (16)
times, considering that the RTC merely affirmed the MeTC as regards the culpability
of petitioner in each of the sixteen (16) cases and reducing only the duration of the
penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered by the
trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C.
Francisco GUILTY beyond reasonable doubt in each of the above
entitled cases and appreciating in his favor the mitigating
circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a
straight penalty of EIGHT (8) MONTHS imprisonment, with the
accessory penalties prescribed by law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused was
acquitted or absolved in any of the four (4) counts under each of the four (4)
Informatfons, or that any part of thejudgment of conviction was reversed, or that any of
the cases, counts or incidents was dismissed. Otherwise, we will have to account for
the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that
the judgment of conviction rendered by the was affirmed with the sole modification on
the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but taken
separately as the totality of all the penalties is not the test, petitioner should have
immediately filed an application for probation as he was already qualified after being
convicted by the MeTC, if indeed thereafter he felt humbled, was ready to
unconditionally accept the verdict of the court and admit his liability. Consequently, in
appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation.
For, plainly, the law considers appeal and probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties
imposed by the MeTC, but to assert his innocence. Nothing more. The cold fact is that
petitioner appealed his conviction to the RTC not for the sole purpose of reducing his
penalties to make him eligible for probation — since he was already qualified under
the MeTC Decision — but rather to insist on his innocence. The appeal record is
wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised
only three (3) statements of error purportedly committed by the MeTC all aimed at his
acquittal: (a) in finding that the guilt of the accused has been established because of
his positive identification by the witness for the prosecution; (b) in giving full faith and
credence to the bare statements of the private complainants despite the absence of
corroborating testimonies; and, (c)in not acquitting him in all the
cases," 18 Consequently, petitioner insisted that the trial court committed an error in
relying on his positive identification considering that private complainants could not
have missed identifying him who was their President and General Manager with whom
they worked for a good number of years. Petitioner further argued that although the
alleged defamatory words were uttered in the presence of other persons, mostly
private complainants, co-employees and clients, not one of them was presented as a
witness. Hence, according to petitioner, the trial court could not have convicted him on
the basis of the uncorroborative testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness, if not
complete innocence, and do not simply put in issue the propriety of the penalties
imposed. For sure, the accused never manifested that he was appealing only for the
purpose of correcting a wrong penalty — to reduce it to within the probationable
range. Hence, upon interposing an appeal, more so after asserting his innocence
therein, petitioner should be precluded from seeking probation. By perfecting his
appeal, petitioner ipso facto relinquished his alternative remedy of availing of the
Probation Law the purpose of which is simply to prevent speculation or opportunism
on the part of an accused who although already eligible does not at once apply for
probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC to
the Court of Appeals does not necessarily mean that his appeal to the RTC was solely
to reduce his penalties. Conversely, he was afraid that the Court of Appeals would
increase his penalties, which could be worse for him. Besides, the RTC Decision had
already become final and executory because of the negligence, according to him, of
his former counsel who failed to seek possible remedies within the period allowed by
law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3,
par. (e), Rule 117 of the Rules of Court, 20 should have moved to quash as each of the
four (4) Informations filed against him charged four (4) separate crimes of grave oral
defamation, committed on four (4) separate days. His failure to do so however may
now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly
convicted, as in the instant case, of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the period allowed by law.
This is vital way beyond the period allowed by law and crucial. From the records it is
clear that the application for probation was filed "only after a warrant for the arrest of
petitioner had been issued . . . (and) almost two months after (his) receipt of the
Decision" 22 of the RTC. This is a significant fact which militates against the instant
petition. We quote with affirmance the well-written, albeit assailed, ponencia of now
Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific
issue —
. . . the petition for probation was filed by the petitioner out of time.
The law in point, Section 4 of P.D. 968, as amended, provides
thus:
Sec. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a
defendant, and upon application by said
defendant within the period for perfecting an
appeal. . . . place the defendant on
probation . . . .
Going to the extreme, and assuming that an application for
probation from one who had appealed the trial court's judgment is
allowed by law, the petitioner's plea for probation was filed out of
time. In the petition is a clear statement that the petitioner was up
for execution of judgment before he filed his application for
probation. P.D. No. 968 says that the application for probation
must be filed "within the period for perfecting an appeal;" but in
this case, such period for appeal had passed, meaning to say that
the Regional Trial Court's decision had attained finality, and no
appeal therefrom was possible under the law. Even granting that
an appeal from the appellate court's judgment is contemplated by
P.D. 968, in addition to the judgment rendered by the trial court,
that appellate judgment had become final and was, in fact, up for
actual execution before the application for probation was
attempted by the petitioner. The petitioner did not file his
application for probation before the finality of the said judgment;
therefore, the petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for probation
may yet be granted even if it was filed only after judgment has become final, the
conviction already set for execution and a warrant of arrest issued for service of
sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which
necessarily must be after the decision of the RTC had become final, for him to file the
application for probation with the trial court, is to stretch the law beyond
comprehension. The law, simply, does not allow probation after an appeal has been
perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as
mutually exclusive remedies, and petitioner appealed from his conviction by the MeTC
although the imposed penalties were already probationable, and in his appeal, he
asserted only his innocence and did not even raise the issue of the propriety of the
penalties imposed on him, and finally, he filed an application for probation outside the
period for perfecting an appeal granting he was otherwise eligible for probation, the
instant petition for review should be as it is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.
Separate Opinions
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this case.
I.
The principal basis for the affirmance of the decision of the Court of Appeals denying
probation is the fact that petitioner had appealed his sentence before filing his
application for probation. Reliance is placed on the literal application of § 4 of the
Probation Law of 1976 ,as amended, which provides as follows:
Sec. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem
best; Provided, That no application for probation shall be
entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.
Probation may be granted whether the sentence imposes a term
of imprisonment or a fine only probation shall be filed with the trial
court application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Thus, under § 4 the accused is given the choice of appealing his sentence or applying
for probation. If he appeals, he cannot later apply for probation. If he opts for
probation, he can not appeal. Implicit in the choice, however, is that the accused is not
disqualified for probation under any of the cases mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more
than six years;
(b) convicted of subversion or any crime against the national
security or the public order;
(c) who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month and
one day and/or a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section
33 hereof.
Consequently, if under the sentence given to him an accused is not qualified for
probation, as when the penalty imposed on him by the court singly or in their totality
exceeds six (6) years but on appeal the sentence is modified so that he becomes
qualified, I believe that the accused should not be denied the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed — even encouraged —
speculation on the outcome of appeals by permitting the accused to apply for
probation after he had appealed and failed to obtain an acquittal. 1 It was to change
this that § 4 was amended by P.D. No. 1990 by expressly providing that "no
application for probation shall be entertained or granted if the defendant has perfected
the appeal from the judgment of conviction." For an accused, despite the fact that he
is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal
if he knows he can any way apply for probation in the event his conviction is affirmed.2
There is, however, nothing in the amendatory Decree to suggest that in limiting the
accused to the choice of either appealing from the decision of the trial court or
applying for probation, the purpose is to deny him the right to probation in cases like
the one at bar where he becomes eligible for probation only because on appeal his
sentence is reduced. The purpose of the amendment, it bears repeating, is simply to
prevent speculation or opportunism on the part of an accused who; although eligible
for probation, does not at once apply for probation, doing so only after failing in his
appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC petitioner
was principally motivated by a desire to be acquitted. While acquittal might have been
an alluring prospect for him, what is clear is that he had a reason for appealing
because under the sentence given to him he was disqualified to apply for probation.
The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months
of prision correccional for "each crime committed on each date of each case, as
alleged in the information[s]." This meant, as the majority opinion points out, that
petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8
months sixteen times, since he was found guilty of four crimes of grave oral
defamation in each of four cases. The totality of the penalties imposed on petitioner
(26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment
allowed by § 9(a) and disqualified him for probation. It was only after this penalty was
reduced on appeal to a straight penalty of eight months imprisonment in each case or
to a total term of 2 years and 8 months in the four cases that petitioner became
eligible for probation. Then he did not appeal further although he could have done so.
The Court of Appeals, while acknowledging that "there may be some space not
covered by the present law on probation . . . where in its original state, the petitioner
was disqualified from applying for probation under Sec. 9 of the Decree, becoming
eligible for probation only under the terms of the judgment on appeal," nevertheless
felt bound by the letter of § 4: "No application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction."
The majority opinion, affirming the ruling, states that to allow probation in this case
would be to go against the "clear and express mandate of sec. 4 of the Probation Law,
as amended." (p. 9)
To regard probation, however, as a mere privilege, to be given to the accused only
where it clearly appears he comes within its letter is to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused not because it
is a criminal law — it is not — but to achieve its beneficent purpose. (Santos To v.
Paño, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its
purpose to "help the probationer develop into a law-abiding and self-respecting
individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or
"afford [him] a chance to reform and rehabilitate himself without the stigma of a prison
record, to save government funds that may otherwise be spent for his food and
maintenance while incarcerated, and to decongest the jails of the country." (Del
Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391,
395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law was
never intended to limit the right of an accused person to present
all relevant evidence he can avail of in order to secure a verdict of
acquittal or a reduction of the penalty. Neither does the law
require a plea of guilty on the part of the accused to enable him to
avail of the benefits of probation. A contrary view would certainly
 negate the constitutional right of an accused to be presumed
innocent until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is
that after the penalty imposed on him by the MeTC had been reduced by the RTC so
that he thereby became qualified for probation, he did not appeal further. The majority
says that this was because he was afraid that if he did the penalty could be increased.
That possibility, however, was also there when he appealed from the MeTC to the
RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the
penalty would be raised as the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his
innocence and not simply questioned the propriety of his sentence, but no more so
does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter
cannot be denied probation if he is otherwise eligible for probation.
It is argued that there is a difference because an accused who pleads "not guilty'' in
the beginning, later acknowledges his guilt and shows contrition after he is found
guilty. So does an accused who appeals a sentence because under it he is not
qualified for probation, but after the penalty is reduced, instead of appealing further,
accepts the new sentence and applies for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566
(1989), in which it was held that because the petitioner had appealed his sentence, he
could not subsequently apply for probation. For, unlike petitioner in the case at bar,
the accused in that case could have applied for probation as his original sentence of
one year of prision correccional did not disqualify him for probation. That case fell
squarely within the ambit of the prohibition in § 4 that one who applies for probation
must not "have perfected an appeal from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the original
sentence meted out to him he was not disqualified for probation. The issue here is
whether the multiple prison terms imposed on petitioner are to be considered singly or
in their totality for the purpose of § 9(a) which disqualifies from probation those
"sentenced to serve a maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally imposed
on petitioner was for "one (1) year and one (1) day to one (1) year and eight (8)
months of prision correccional in each crime committed on each date of each case"
and as there are four offenses of grave oral defamation against petitioner in each of
the four cases, the total prison term which he would have to serve was 26 years and 8
months. This is clearly beyond the probationable maximum allowed by law.
It is said, however, that even if the totality of the prison terms is the test, the modified
sentence imposed by the RTC would not qualify the petitioner for probation because
he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC
only "sentence[d] the said accused in each case to STRAIGHT penalty of EIGHT (8)
MONTHS imprisonment." This means eight (8) months times four (4), since there are
four cases, or 32 months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one multiple sentences
imposed in cases which are jointly tried and decided. For example, § 9(c) disqualifies
from probation persons "who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA
121 (1985) that the accused, who had been found guilty of estafa in five criminal
cases, was qualified for probation because although the crimes had been committed
on different dates he was found guilty of each crime on the same day. As this Court
noted, "Rura was sentenced to a total prison term of seventeen (l7) months and
twenty-five (25) days. In each criminal case the sentence was three (3) months and
fifteen (15) days.
That the duration of a convict's sentence is determined by considering the totality of
several penalties for different offenses committed is also implicit in the provisions of
the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70)
It is said that the basis of disqualification under § 9 is the gravity of the offense
committed and the penalty imposed. I agree. That is why I contend that a person who
is convicted of multiple grave oral defamation for which the total prison term is, say, 6
years and 8 months, is guilty of a graver offense than another who is guilty of only
offense of grave oral defamation and sentenced to a single penalty of 1 year and 8
months. The relevant comparison is between an accused convicted of one offense of
grave oral defamation and another one convicted of the same offense, say four or
more times. The relevant comparison is not, as the majority says, between an
accused found guilty of grave oral defamation four or more times and another one
found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day
of prision mayor to 12 years and 1 day of reclusion temporal.
III.
Finally, it is said that there is a more fundamental reason for denying probation in this
case and that is that petitioner applied for probation only after his case had been
remanded to the MeTC for the execution of its decision as modified. But that is
because § 4 provides that "an application for probation shall be filed with the trial
court." In the circumstances of this case, petitioner had to await the remand of the
case to the MeTC, which necessarily must be after the decision of the RTC had
become final.
The decision of the Court of Appeals should be REVERSED and respondent judge of Probation may be granted whether the sentence imposes a term
the Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT of imprisonment or a fine only probation shall be filed with the trial
petitioner's application for probation. court application shall be deemed a waiver of the right to appeal.

VITUG, J., concurring: An order granting or denying probation shall not be appealable.

While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his
dissenting opinion that an accused, who originally is not qualified for probation
because the penalty imposed on him by a court a quo exceeds six (6) years, should
not be denied that benefit of probation if on appeal the sentence is ultimately reduced
to within the prescribed limit, I am unable, however, to second the other proposition
that multiple prison terms imposed by a court should be taken in their totality for
purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice
Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of
an applicant for probation charged with, and sentenced to serve multiple prison terms
for, several offenses, "the number of offenses is immaterial as long as all the penalties
imposed, taken separately, are within the probationable period." The use of the
word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as
amended, should be enough to reveal that such has been the legislative intent.
Thus, I still must vote for the denial of the petition.
Separate Opinions
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this case.
Thus, under § 4 the accused is given the choice of appealing his sentence or applying
for probation. If he appeals, he cannot later apply for probation. If he opts for
probation, he can not appeal. Implicit in the choice, however, is that the accused is not
disqualified for probation under any of the cases mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more
than six years;
(b) convicted of subversion or any crime against the national
security or the public order;
(c) who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month and
one day and/or a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this
Decree; and

(e) who are already serving sentence at the time the substantive
I.
provisions of this Decree became applicable pursuant to Section
33 hereof.
The principal basis for the affirmance of the decision of the Court of Appeals denying
probation is the fact that petitioner had appealed his sentence before filing his
Consequently, if under the sentence given to him an accused is not qualified for
application for probation. Reliance is placed on the literal application of § 4 of the
probation, as when the penalty imposed on him by the court singly or in their totality
Probation Law of 1976 ,as amended, which provides as follows:
exceeds six (6) years but on appeal the sentence is modified so that he becomes
qualified, I believe that the accused should not be denied the benefit of probation.
Sec. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
Before its amendment by P.D. No. 1990, the law allowed — even encouraged —
sentenced a defendant, and upon application by said defendant
speculation on the outcome of appeals by permitting the accused to apply for
within the period for perfecting an appeal, suspend the execution
probation after he had appealed and failed to obtain an acquittal. 1 It was to change
of the sentence and place the defendant on probation for such
this that § 4 was amended by P.D. No. 1990 by expressly providing that "no
period and upon such terms and conditions as it may deem
application for probation shall be entertained or granted if the defendant has perfected
best; Provided, That no application for probation shall be
the appeal from the judgment of conviction." For an accused, despite the fact that he
entertained or granted if the defendant has perfected the appeal
is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal
from the judgment of conviction.
if he knows he can any way apply for probation in the event his conviction is affirmed.2
There is, however, nothing in the amendatory Decree to suggest that in limiting the
accused to the choice of either appealing from the decision of the trial court or
applying for probation, the purpose is to deny him the right to probation in cases like
the one at bar where he becomes eligible for probation only because on appeal his
sentence is reduced. The purpose of the amendment, it bears repeating, is simply to
prevent speculation or opportunism on the part of an accused who; although eligible
for probation, does not at once apply for probation, doing so only after failing in his
appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC petitioner
was principally motivated by a desire to be acquitted. While acquittal might have been
an alluring prospect for him, what is clear is that he had a reason for appealing
because under the sentence given to him he was disqualified to apply for probation.
The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months
of prision correccional for "each crime committed on each date of each case, as
alleged in the information[s]." This meant, as the majority opinion points out, that
petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8
months sixteen times, since he was found guilty of four crimes of grave oral
defamation in each of four cases. The totality of the penalties imposed on petitioner
(26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment
allowed by § 9(a) and disqualified him for probation. It was only after this penalty was
reduced on appeal to a straight penalty of eight months imprisonment in each case or
to a total term of 2 years and 8 months in the four cases that petitioner became
eligible for probation. Then he did not appeal further although he could have done so.
The Court of Appeals, while acknowledging that "there may be some space not
covered by the present law on probation . . . where in its original state, the petitioner
was disqualified from applying for probation under Sec. 9 of the Decree, becoming
eligible for probation only under the terms of the judgment on appeal," nevertheless
felt bound by the letter of § 4: "No application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction."
The majority opinion, affirming the ruling, states that to allow probation in this case
would be to go against the "clear and express mandate of sec. 4 of the Probation Law,
as amended." (p. 9)
To regard probation, however, as a mere privilege, to be given to the accused only
where it clearly appears he comes within its letter is to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused not because it
is a criminal law — it is not — but to achieve its beneficent purpose. (Santos To v.
Paño, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its
purpose to "help the probationer develop into a law-abiding and self-respecting
individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or
"afford [him] a chance to reform and rehabilitate himself without the stigma of a prison
record, to save government funds that may otherwise be spent for his food and
maintenance while incarcerated, and to decongest the jails of the country." (Del
Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391,
395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law was
never intended to limit the right of an accused person to present
all relevant evidence he can avail of in order to secure a verdict of
acquittal or a reduction of the penalty. Neither does the law
require a plea of guilty on the part of the accused to enable him to
avail of the benefits of probation. A contrary view would certainly
negate the constitutional right of an accused to be presumed
innocent until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is
that after the penalty imposed on him by the MeTC had been reduced by the RTC so
that he thereby became qualified for probation, he did not appeal further. The majority
says that this was because he was afraid that if he did the penalty could be increased.
That possibility, however, was also there when he appealed from the MeTC to the
RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the
penalty would be raised as the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his
innocence and not simply questioned the propriety of his sentence, but no more so
does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter
cannot be denied probation if he is otherwise eligible for probation.
It is argued that there is a difference because an accused who pleads "not guilty'' in
the beginning, later acknowledges his guilt and shows contrition after he is found
guilty. So does an accused who appeals a sentence because under it he is not
qualified for probation, but after the penalty is reduced, instead of appealing further,
accepts the new sentence and applies for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566
(1989), in which it was held that because the petitioner had appealed his sentence, he
could not subsequently apply for probation. For, unlike petitioner in the case at bar,
the accused in that case could have applied for probation as his original sentence of
one year of prision correccional did not disqualify him for probation. That case fell
squarely within the ambit of the prohibition in § 4 that one who applies for probation
must not "have perfected an appeal from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the original
sentence meted out to him he was not disqualified for probation. The issue here is
whether the multiple prison terms imposed on petitioner are to be considered singly or
in their totality for the purpose of § 9(a) which disqualifies from probation those
"sentenced to serve a maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally imposed because § 4 provides that "an application for probation shall be filed with the trial
on petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) court." In the circumstances of this case, petitioner had to await the remand of the
months of prision correccional in each crime committed on each date of each case" case to the MeTC, which necessarily must be after the decision of the RTC had
and as there are four offenses of grave oral defamation against petitioner in each of become final.
the four cases, the total prison term which he would have to serve was 26 years and 8
months. This is clearly beyond the probationable maximum allowed by law.
The decision of the Court of Appeals should be REVERSED and respondent judge of
the Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT
It is said, however, that even if the totality of the prison terms is the test, the modified petitioner's application for probation.
sentence imposed by the RTC would not qualify the petitioner for probation because
he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC
VITUG, J., concurring:
only "sentence[d] the said accused in each case to STRAIGHT penalty of EIGHT (8)
MONTHS imprisonment." This means eight (8) months times four (4), since there are
four cases, or 32 months or 2 years and 8 months. While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his
dissenting opinion that an accused, who originally is not qualified for probation
because the penalty imposed on him by a court a quo exceeds six (6) years, should
The policy of the law indeed appears to be to treat as only one multiple sentences
not be denied that benefit of probation if on appeal the sentence is ultimately reduced
imposed in cases which are jointly tried and decided. For example, § 9(c) disqualifies
to within the prescribed limit, I am unable, however, to second the other proposition
from probation persons "who have previously been convicted by final judgment of an
that multiple prison terms imposed by a court should be taken in their totality for
offense punished by imprisonment of not less than one month and one day and/or a
purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice
fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA
Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of
121 (1985) that the accused, who had been found guilty of estafa in five criminal
an applicant for probation charged with, and sentenced to serve multiple prison terms
cases, was qualified for probation because although the crimes had been committed
for, several offenses, "the number of offenses is immaterial as long as all the penalties
on different dates he was found guilty of each crime on the same day. As this Court
imposed, taken separately, are within the probationable period." The use of the
noted, "Rura was sentenced to a total prison term of seventeen (l7) months and
word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as
twenty-five (25) days. In each criminal case the sentence was three (3) months and
amended, should be enough to reveal that such has been the legislative intent.
fifteen (15) days.

Thus, I still must vote for the denial of the petition.

That the duration of a convict's sentence is determined by considering the totality of
several penalties for different offenses committed is also implicit in the provisions of
the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70)

It is said that the basis of disqualification under § 9 is the gravity of the offense
committed and the penalty imposed. I agree. That is why I contend that a person who
is convicted of multiple grave oral defamation for which the total prison term is, say, 6
years and 8 months, is guilty of a graver offense than another who is guilty of only
offense of grave oral defamation and sentenced to a single penalty of 1 year and 8
months. The relevant comparison is between an accused convicted of one offense of
grave oral defamation and another one convicted of the same offense, say four or
more times. The relevant comparison is not, as the majority says, between an
accused found guilty of grave oral defamation four or more times and another one
found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day
of prision mayor to 12 years and 1 day of reclusion temporal.

III.

Finally, it is said that there is a more fundamental reason for denying probation in this
case and that is that petitioner applied for probation only after his case had been
remanded to the MeTC for the execution of its decision as modified. But that is
G.R. No. 152044            July 3, 2003 Regional Trial Court of Bohol, Branch 2, because the penalty imposed by
said court is more than six (6) years and therefore non-probationable.
DOMINGO LAGROSA and OSIAS BAGUIN, petitioners,
vs. That the first opportunity for herein petitioners to apply for probation was
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF when the Court of Appeals modified the sentence imposed by the Regional
APPEALS, respondents. Trial Court of Bohol, Branch 2, from two (2) years, four (4) months and one
(1) day of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, to six (6) months and one (1) day to one (1) year, eight
YNARES-SANTIAGO, J.:
(8) months and twenty one (21) days as maximum which is clearly
probationable.
This is a petition for review of the decision of the Court of Appeals in CA-G.R. No.
67308,1 which affirmed the Resolution of the Regional Trial Court of Tagbilaran City,
2) That the ruling of this Honorable Supreme Court in the case of Pablo
Branch 2, denying petitioners’ Application for Probation, and its Order denying
Francisco versus Court of Appeals, et al., G.R. No. 108747, is not
petitioners’ Motion for Reconsideration.2
applicable to the instant case because in the said Francisco case the
accused therein can apply for probation because the penalty imposed by
The undisputed facts are as follows. the lower court was already probationable but the accused instead
appealed the decision but in the case of herein petitioners they cannot apply
for probation when they were convicted because the penalty imposed by the
On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2, rendered lower court was more than six (6) years and therefore non-probationable.
a decision in Criminal Case No. 8243,3 finding petitioners Domingo Lagrosa and Osias
Baguin guilty of violation of Section 68 of P.D. 705, as amended (The Revised
Forestry Code), for having in their possession forest products without the requisite 3) That the decision of the Court of Appeals herein sought to be reviewed is
permits. The trial court sentenced them to suffer the indeterminate penalty of clearly contrary to the purpose of the Probation Law.10
imprisonment from two (2) years, four (4) months and one (1) day of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum.
The law that is at the heart of this controversy is Presidential Decree No. 968, also
Petitioners’ Motion for Reconsideration of the decision4 was denied by the trial court
known as the Probation Law, as amended by P.D. 1990, the pertinent provision of
on November 21, 1996.5
which reads:

Petitioners appealed their conviction to the Court of Appeals, where it was docketed
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the
as CA-G.R. CR No. 20632.6 On March 14, 2000, the appellate court affirmed the
trial court may, after it shall have convicted and sentenced a defendant, and
conviction of the petitioners, with the modification as to the penalty imposed, which
upon application by said defendant within the period for perfecting an
was reduced to an indeterminate penalty ranging from six (6) months and one (1) day
appeal, suspend the execution of the sentence and place the defendant on
of prision correccional, as minimum, to one (1) year, eight (8) months and twenty one
probation for such period and upon such terms and conditions as it may
(21) days of prision correccional, as maximum.7 The decision became final and
deem best; Provided, That no application for probation shall be entertained
executory on April 12, 2000.
or granted if the defendant has perfected the appeal from the judgment of
conviction. (underscoring ours)
On August 29, 2001, petitioners filed an Application for Probation with the trial
court,8 which, as mentioned at the outset, was denied. Petitioners’ motion for
Probation may be granted whether the sentence imposes a term of imprisonment or a
reconsideration was likewise denied by the trial court. Hence, petitioners filed a
fine only. An application for probation shall be filed with the trial court. The filing of the
petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP
application shall be deemed a waiver of the right to appeal.
No. 67308.9 On January 11, 2002, the Court of Appeals rendered the assailed
decision affirming the questioned resolutions of the trial court.
An order granting or denying probation shall not be appealable.
Hence this petition, raising the following arguments:
Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a
maximum term of imprisonment of more than six years are disqualified from seeking
1) That Section 4 of Presidential Decree No. 968, as amended by PD No.
probation.
1990, is very absurd and illogical considering that petitioners were not given
the opportunity to apply for probation when they were convicted by the
It should be noted that before P.D. 968 was amended by P.D. 1990, the accused was Petitioners are not being very candid. In their appellant’s brief filed in CA-G.R. CR No.
allowed to apply for probation even after he had already filed an appeal, as long as he 20632, they raised the following assignment of errors:
had not yet begun to serve his sentence.11
I
Petitioners contend that they should be allowed to apply for probation even if they had
already appealed the decision of the trial court. They argue that their case should be
THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED
considered an exception to the general rule which excludes an accused who has
GUILTY OF THE OFFENSE CHARGED BECAUSE THE EVIDENCE
appealed his conviction from the benefits of probation. In the case at bar, the trial
AGAINST THEM LACKS MORAL CERTAINTY.
court sentenced petitioners to a maximum term of eight years, which was beyond the
coverage of the Probation Law. They only became eligible for probation after the
Court of Appeals modified the judgment of the trial court and reduced the maximum II.
term of the penalty imposed on them to one year, eight months and twenty-one
days.12 They submit that the ruling in the case of Francisco v. CA13 is not applicable
IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN
because in that case, the accused appealed their conviction notwithstanding the fact
IMPOSING THE PROPER PENALTY AS PROVIDED BY LAW.
that the maximum term of the prison sentence imposed on them by the trial court was
less than six years.14
The fact that petitioners put the merits of their conviction in issue on appeal belies
their claim that their appeal was prompted by what was admittedly an incorrect
In its Comment, the Office of the Solicitor General reiterates the express provision of
penalty. Certainly, the protestations of petitioners connote a profession of
P.D. 968 prohibiting the grant of probation to those who have appealed their
guiltlessness, if not complete innocence, and do not simply assail the propriety of the
convictions.15 It argues that, even if the petitioners have appealed for the purpose of
penalties imposed. For sure, petitioners never manifested that they were appealing
reducing an incorrect penalty, this fact does not serve to remove them from the
only for the purpose of correcting a wrong penalty – to reduce it to within
prohibition in Section 4 of P.D. 968 for the law makes no such distinction.16
probationable range. Hence, upon interposing an appeal, more so after asserting their
innocence therein, petitioners should be precluded from seeking probation. By
There is no question that petitioners appealed from the decision of the trial court. This perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of
fact alone merits the denial of petitioners’ Application for Probation. Having appealed availing of the Probation Law, the purpose of which is simply to prevent speculation or
from the judgment of the trial court and having applied for probation only after the opportunism on the part of an accused who, although already eligible, does not at
Court of Appeals had affirmed their conviction, petitioners were clearly precluded from once apply for probation, but did so only after failing in his appeal.19
the benefits of probation.17
Although it has been suggested that an appeal should not bar the accused from
However, petitioners now ask us not to apply the letter of the law, claiming that their applying for probation if the appeal is solely to reduce the penalty to within the
situation should be considered an exception to the rule. Their petition is without merit. probationable limit may be equitable,20 we are not yet prepared to accept this
proposition, specially given the factual circumstances of this case. Had the petitioners’
appeal from the decision of the trial court raised the impropriety of the penalty
Petitioners repeatedly assert that their application for probation was made at the "first
imposed upon them as the sole issue, perhaps this Court would have been more
opportunity," undoubtedly invoking the fourth "whereas" clause of P.D. 1990, which
sympathetic to their plight. Unfortunately, their misrepresentation has led to their own
reads:
undoing.

WHEREAS, probation was not intended as an escape hatch and should not
WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the
be used to obstruct and delay the administration of justice, but should be
Court of Appeals dated January 11, 2002 in CA-G.R. No. 67308, which affirmed the
availed of at the first opportunity by offenders who are willing to be reformed
Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying
and rehabilitated; x x x.
petitioners’ Application for Probation, and its Order denying petitioners’ Motion for
Reconsideration, is AFFIRMED. Costs against the petitioners.
To bolster this assertion, petitioners claim that what prompted them to
appeal the decision of the trial court was the erroneous penalty imposed by
SO ORDERED.
the trial court.18
 FIRST DIVISION
G.R. No. 138203 - July 3, 2002
LILIA J. VICOY, Petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
This is a petition under Rule 45 on pure question of law assailing the
February 9, 19981 and February 25, 19982 Orders of the Regional Trial
Court of Bohol, Branch 3, in SP. Civil Case No. 5881, dismissing petitioner's
special civil action for certiorari.
The present controversy stemmed from a judgment of conviction
promulgated on August 24, 1995 by the Municipal Trial Court in Cities
(MTCC) of Tagbilaran, Branch 2, in Criminal Case Nos. 5265 and 5307. The
dispositive portion thereof reads:
WHEREFORE, Judgment is hereby rendered as follows:
1. In Criminal Case No. 5265, the Court finds and so holds the herein
accused Lilia Vicoy y Jumagdao GUILTY beyond reasonable doubt for
violation of City Ordinance No. 365-B for peddling fish outside the Agora
Public Market, and accordingly sentences her to suffer the penalty of a fine
of Fifty Pesos (P50.00) with subsidiary imprisonment in case of insolvency
and to pay the costs;
2. In Criminal Case No. 5307, the Court finds and so holds the herein
accused Lilia Vicoy y Jumagdao GUILTY beyond reasonable doubt of the
crime of Resistance and Serious Disobedience To Agents Of A Person In
Authority, and accordingly sentences her to suffer the penalty of three (3)
months of arresto mayor and to pay a fine of two Hundred Pesos (P200.00)
without subsidiary imprisonment in case of insolvency and to pay the costs.
SO ORDERED.3
On the same date, August 24, 1995, petitioner filed an application for
probation.4 On September 18, 1995, however, petitioner filed a motion to
withdraw her application for probation and simultaneously filed a notice of
appeal.5
In an Omnibus Order6 dated September 22, 1995, the MTCC of Tagbilaran
granted petitioner's withdrawal of her application for probation but denied
her notice of appeal for having been filed out of time. Petitioner filed a
motion for reconsideration of the denial of her appeal, however, the same
was denied.
Hence, petitioner filed a special civil action for certiorari with the Regional
Trial Court of Bohol, Branch 3, contending that the MTCC of Tagbilaran
gravely abused its discretion in denying her the right to appeal. Named
respondents therein were the Presiding Judge of MTCC of Tagbilaran,
Branch 2, and the People of the Philippines, represented by the Philippine
National Police of Tagbilaran City. The parties were ordered by the court to
submit their memorandum within 10 days, after which, the case was
submitted for judgment on the pleadings. 7
Realizing that the People should be represented by the City Prosecutor's
Office, the court issued an Order dated August 2, 1996, requiring the latter
to enter its appearance. In the same order, petitioner was directed to
furnish the City Prosecutor's Office with a copy of her memorandum and of
the assailed judgment, thus:
From the reading of the petition that gave rise to this case, and of the
memorandum of the petitioner, it is the considered opinion of this Court,
and so holds, that the City Prosecutor of Tagbilaran be required to enter his
appearance for the State in the light of the failure of respondent Judge
Emma Enrico-Supremo to submit her reply to comment to the petition.
Besides, the Court noticed that the People of the Philippines has been
impleaded as one of the respondents.
PREMISES CONSIDERED, Atty. Dionisio A. Galido, counsel for the
petitioner, is hereby directed to furnish the Office of the City Prosecutor of
Tagbilaran copies of the questioned judgment and their memorandum, and
for the City Prosecutor to submit within ten (10) days from receipt thereof,
his memorandum or any pleading on the matter.8
On February 9, 1998,9 the Regional Trial Court rendered the assailed Order
dismissing petitioner's special civil action for certiorari for failure to comply
with the aforequoted August 2, 1996 Order. A motion for reconsideration of
the said order of dismissal was denied on February 25, 1999.10
Hence, the instant petition. The sole issue raised in this petition is whether
or not the petition for certiorari was validly dismissed by the Regional Trial
Court on the ground of petitioner's failure to comply with its Order dated
August 2, 1996.
Section 3, Rule 17, of the Rules of Court, provides:

Section 3. Dismissal due to fault of plaintiff. - If, for no justifiable cause,

the plaintiff fails to appear on the date of the presentation of his evidence
in chief on the complaint, or to prosecute his action for an unreasonable
length of time, or to comply with these Rules or any order of the
court, the complaint may be dismissed upon motion of the defendant or
upon the court's own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a separate
action. This dismissal shall have the effect of an adjudication on the merits,
unless otherwise declared by the court. (Emphasis supplied)

In the case at bar, the trial court categorically directed petitioner, in its
August 2, 1996 Order, to furnish the City Prosecutor's Office with a copy of
her memorandum and of the assailed judgment. Petitioner's counsel did
not comply, prompting the court to dismiss the petition for certiorari on
February 9, 1998. The fact that the City Prosecutor's Office has not yet
entered its appearance is no justification to petitioner's adamant and
continued insistence not to comply with a lawful order of the court. Every
court has the power to enforce and compel obedience to its orders,
judgments, and processes in all proceedings pending before it. 11 The
Regional Trial Court's dismissal of petitioner's special civil action, therefore,
was but a valid exercise of said power.

Moreover, even assuming that the Regional Trial Court did not order the
said dismissal, petitioner's special civil action, questioning the denial of her
notice of appeal, would still fail. Note that petitioner filed an application for
probation. Section 7, Rule 120, of the Rules on Criminal Procedure is
explicit that a judgment in a criminal case becomes final when the accused
has applied for probation. This is totally in accord with Section 4 of
Presidential Decree No. 968 (Probation Law of 1976, as amended), which
in part provides that the filing of an application for probation is deemed a
waiver of the right to appeal.12 Thus, there was no more opportunity for
petitioner to exercise her right to appeal, the judgment having become
final by the filing of an application for probation.

WHEREFORE, in view of all the foregoing, the petition is DENIED. The

assailed February 9, 1998 and February 25, 1999 Orders of the Regional
Trial Court of Bohol, Branch 3, in SP. Civil Case No. 5881 are AFFIRMED.

SO ORDERED.

Davide, Jr., Vitug, Kapunan, and Austria-Martinez, JJ., concur.


FIRST DIVISION
G.R. No. 200087, October 12, 2016
YOLANDA LUY Y GANUELAS, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This case involves the criminal attempt by the petitioner to smuggle
dangerous drugs (shabu) inside a detention facility to her detained
husband by submerging the packets of shabu inside a plastic jar filled
with strawberry juice and cracked ice. The attempt failed because of
the alacrity of the lady guard manning the entrance of the jail
compound.
chanroblesvirtuallawlibrary
The Case
Under appeal is the decision promulgated on August 31,
2011,1 whereby the Court of Appeals (CA) affirmed in CA-G.R. CR No.
33057 the judgment rendered on September 18, 2009 by the Regional
Trial Court (RTC), Branch 74, in Olongapo City finding the petitioner
guilty beyond reasonable doubt of illegal possession of six heat-sealed
transparent plastic sachets containing methamphetamine
hydrochloride (shabu)  with a total net weight of approximately 2.60
grams.2
Antecedents
The Office of the City Prosecutor in Olongapo City initiated the
prosecution through the information filed in the RTC charging the
petitioner with violation of Section 11, Article II, Republic Act No.
9165 (Comprehensive Dangerous Drugs Act of 2002), alleging:
That on or about the twenty-fifth (25th) day of October 2004, in the
City of Olongapo, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there
willfully, unlawfully and knowingly have in her effective possession and
control six (6) heat-sealed transparent plastic sachets containing
Methamphetamine Hydrochloride otherwise known as 'Shabu' with an
approximate total weight of Two Gram (sic) and Six Tenth (2.6) of a
gram which is a dangerous drugs (sic), said accused not having the
corresponding license or prescription to possess said dangerous drugs,
(sic)
CONTRARY TO LAW.3
chanrobleslaw
The CA narrated the factual and procedural antecedents, viz.:
During the trial, the prosecution presented the lone testimony of Jail
Officer 3 Myrose Joaquin, while the accused-appellant testified for the
defense.
As part of her testimony, JO3 Joaquin claimed that on 25 October
2004, she was doing her usual duty as female guard at the gate of the
Bureau of Jail Management Bureau Olongapo City. When she searched
the effects of accused-appellant for possible contrabands, her attention
was called on the strawberry juice placed in a white container full of
cracked ice inside. When she was asked what was unusual about the
juice, JO3 Joaquin answered that accused-appellant can make the
juice inside if she wanted to. To quell her suspicion, JO3 Joaquin asked
accused-appellant if she could transfer it in another container but
accused-appellant refused. JO3 Joaquin insisted, nevertheless. They
then went to the guardhouse and transferred the juice into a bowl. As
the ice inside scattered, the illegal drugs were revealed. Accused-
appellant allegedly pleaded for her not to report the matter to the jail
warden, but JO3 Joaquin ignored her plea. After bringing accused-
appellant to the jail warden, they brought the confiscated items to the
laboratory for examination. The examination revealed that the
confiscated items were positive for methamphetamine hydrochloride.
JO3 Joaquin also identified the accused-appellant in court and the
confiscated items and claimed that they can identify them to be the
same items seized from accused-appellant because of the markings
she placed thereon.
On cross-examination, JO3 Joaquin explained that the heat-sealed
plastic sachets were wrapped with a plastic and two (2)-peso coin. She
also admitted that she placed accused-appellant on a close watch
chanRoblesvirtualLawlibrary
because even prior to the incident, accused-appellant would bring with
her ready-made juice, making her think that accused-appellant was
peddling illegal drugs inside the prison. Finally, she claimed that she
never had a misunderstanding with accused-appellant prior to the date
of the incident.
Accused-appellant, on the other hand, claimed that on 25 October
2004, she was at the BJMP to visit her husband, Nestor, a prisoner
therein. As she was about to go inside the compound, a certain Melda
called her and requested that she give the juice to her husband, a
certain Bong, who was also a prisoner at the BJMP. Accused-appellant
initially declined and advised Melda to go personally so she could talk
to her husband. Melda, however, was supposedly in a hurry as she still
had to fetch her child. Melda allegedly also had no identification at that
time. Because of Melda's insistence, accused-appellant acceded to her
request and got Melda's plastic box containing a Tupperware and a
juice container. When she was asked who could corroborate this story,
accused-appellant claimed that nobody saw Melda handed (sic) to her
the juice container as she had no companion at that time.
Accused-appellant further stated that after receiving Melda's items,
she already went inside the compound and went passed (sic) through
the routine security inspection. When JO3 Joaquin transferred the juice
into a bowl, she saw a plastic that contained two (2) coins. Thereafter,
JO3 Joaquin brought her to the office of the BJMP. After a while, she
was detained.
On cross-examination, accused-appellant admitted that her husband
was convicted of a drug-related case and that she, herself, was once
detained before. She did not know the full name of Melda or her
husband but she had seen them in the past inside the jail. She also
admitted that there can be no dispute that the drugs were found in her
possession but maintained that the same came from Melda. 4
chanrobleslaw
Judgment of the RTC
After the trial, the RTC rendered judgment on September 18, 2009
convicting the petitioner as charged,5 disposing thusly: chanRoblesvirtualLawlibrary
WHEREFORE, this Court finds accused Yolanda Luy y Ganuelas guilty
beyond reasonable doubt of violation of Section 11, Article II, R. A.
9165 and is hereby sentenced to suffer the penalty of imprisonment of
twelve (12) years and one (1) day and to pay a fine of P300,000.00
with subsidiary imprisonment in case of inability to pay the fine. The
illegal drug confiscated from the accused is hereby ordered to be
turned over to the Philippine Drug and (sic) Enforcement Agency
(PDEA) for disposition in accordance with law.
SO ORDERED.6
chanrobleslaw
Decision of the CA
The petitioner appealed, but the CA affirmed the conviction through
the now assailed decision, holding: chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant Appeal
is DENIED. The assailed Decision of the court a quo is AFFIRMED IN
TOTO.
SO ORDERED.7
chanrobleslaw
Issue
In this appeal, the petitioner insists that the CA erred in affirming her
conviction despite the failure of the Prosecution to show that arresting
officer JOS Myrose Joaquin had faithfully complied with the
requirement on the chain of custody under Section 21 of R.A. No.
9165; that, accordingly, the packets of shabu presented in court as
evidence were not shown to be the same substances recovered from
her; that, moreover, JO3 Joaquin claimed to have brought the
substances herself to the crime laboratory for chemical examination,
but did not mention the person who had received the same from her at
the laboratory; and that no inventory of the seized substances was
made and no any pictures of them were taken at the point of arrest.
Ruling of the Court
The appeal lacks merit.
First of all, the factual findings of the trial court, its calibration of the
testimonies of the witnesses, and its assessment of the probative
weight thereof, as well as its conclusions on the credibility of the
witnesses on which said findings were anchored are accorded great
respect. This great respect rests in the trial court's first-hand access to
the evidence presented during the trial, and in its direct observation of
the witnesses and their demeanor while they testify on the
occurrences and events attested to.8 Absent any showing of a fact or
circumstance of weight and influence that would appear to have been
overlooked and, if considered, could affect the outcome of the case,
the factual findings on and assessment of the credibility of witnesses
made by the trial court are binding on the appellate tribunal. 9 Unlike
the appellate court, the trial court has the unique opportunity of such
personal observation. The respect for the latter court's factual findings
particularly deepens once the appellate court has affirmed such factual
findings, for the latter, performing its sworn duty to re-examine the
trial records as thoroughly as it could in order to uncover any fact or
circumstances that could impact the verdict in favor of the appellant, is
then presumed to have uncovered none sufficient to undo or reverse
the conviction. As such, the lower courts' unanimous factual findings
are generally binding upon the Court which is not a trier of facts. 10
Upon review, the Court has not found any valid reason to disturb the
factual findings of the RTC and the CA.
Secondly, a successful prosecution for the illegal possession of
dangerous drugs in violation of Section 11 of R. A. No. 9165 requires
that the following essential elements of the offense be established,
namely: (1) the accused is in possession of an item or object identified
as a prohibited drug; (2) her possession is not authorized by law; and
(3) she freely and consciously possessed the drug.11
The petitioner, whose husband, Nestor, was a detainee in the
Olongapo City jail, was caught in the actual illegal possession of
the shabu  involved herein as she was entering the gate of the jail
compound by JO3 Joaquin, the female guard, during the latter's
routine inspection of her person and personal belongings on October
25, 2004. JO3 Joaquin, as the designated searcher of female visitors,
conducted the search in the presence of other jail guards. Noticing the
round white-colored plastic jar labeled Tang Orange  filled with cracked
ice and strawberry juice, she insisted that the petitioner transfer the
strawberry juice into another container, but the latter resisted. JO3
Joaquin and a fellow jail guard then brought the jar inside the
guardhouse with the petitioner in tow, and there emptied its contents
into a bowl. Upon removing the cracked ice, the jail guards discovered
the plastic material containing two P1 coins inside the jar. At that
point, the petitioner pleaded with them not to report their discovery to
the jail warden, but JOS Joaquin ignored her. The guards immediately
haled her before the warden along with the plastic material and its
contents. Opening the plastic material in the presence of the
petitioner, they found the six heat-sealed transparent plastic sachets
with suspected shabu inside. Under the circumstances, the petitioner
was arrested in flagrante delicto.
At the time of confiscation on October 25, 2004, JO3 Joaquin marked
the heat-sealed plastic sachets of shabu  with her initials
"MCJ/AO".12 Thereafter, the request for laboratory examination was
prepared by P./Chief Insp. Miguel Gallardo Corpus.13 The request and
the substances were delivered to the laboratory by PO1 CM. Ballon.
Later on, the PNP Crime Laboratory Service issued Chemistry Report
No. D-0181-2004 (Exhibit C) through P./Sr. Insp. Arlyn M. Dascie,
Forensic Chemist, attesting to the findings on the substances
indicating the presence of methylamphetamine hydrochloride, or
shabu.14
The petitioner expectedly denied that the shabu  belonged to her. Her
sole explanation for why she had the shabu at the time was that a
certain Melda had requested her to bring the jar of strawberry juice
inside the jail compound for her husband, Bong, also a detainee,
because Melda had supposedly forgotten to bring her identification
card that day, and because she was then in a hurry to fetch her child.
The RTC after the trial and the CA on appeal rejected the petitioner's
denial and explanation. We also reject them now. Denial, aside from
being easily fabricated, has been the common excuse tendered by
those arrested and prosecuted for the illegal possession of dangerous
drugs. Under Section 1115 of R.A. Act No. 9165, however, the mere
possession of the dangerous drugs was enough to render the
possessor guilty of the offense. Moreover, the denial by the petitioner,
being self-serving and negative, did not prevail over the positive
declarations of JO3 Joaquin. In order for the denial to be accorded
credence, it must be substantiated by strong and convincing
evidence.16 Alas, the petitioner did not present such evidence here. As
to her explanation, she could have presented Melda herself to
corroborate her story. Her word alone not enough because she had
been caught in the actual possession of the shabu  during the routinary
search at the gate of the jail compound. As such, we cannot allow her
denial to gain traction at all.17
In fine, all the essential elements of illegal possession of dangerous
drugs were established. To start with, she was caught in the voluntary
possession of the shabu.  And, secondly, she presented no evidence
about her being authorized to possess the shabu. Worthy to reiterate
is that her mere possession of the shabu  constituted the crime itself.
Her animus possidendi —  the intent to possess essential in crimes of
mere possession like this - was established beyond reasonable doubt
in view of the absence of a credible explanation for the possession. 18
Thirdly, the petitioner insists that the State did not prove the chain of
custody of the shabu.  In our view, however, her immediate admission
of the possession of the shabu following her arrest in flagranti
delicto bound her for, under the rules on evidence, the act, declaration
or omission of a party as to a relevant fact was admissible against
her.19 Her admission renders her insistence irrelevant and
inconsequential.

Finally, the CA affirmed the penalty fixed by the RTC of 12 years and
one day of imprisonment and fine of P300,000.00 with subsidiary
imprisonment in case of inability to pay the fine. The affirmance was
erroneous for two reasons, namely: one,  the penalty of imprisonment
thus imposed was a straight penalty, which was contrary to Section 1
of the Indeterminate Sentence Law;  and, two,  mandating the
subsidiary imprisonment was legally invalid and unenforceable.
The penalty for the crime committed by the petitioner is provided for
in Section 11(3) of R.A. No. 9165, as follows:
chanRoblesvirtualLawlibrary
Section 11. Possession of Dangerous Drugs. — The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand
pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who, unless authorized by law, shall
possess any dangerous drug In the following quantities, regardless of
the degree of purity thereof:
cralawlawlibrary
xxxx
(3) Imprisonment of twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from Three hundred
thousand pesos (P300,000.00) to four hundred thousand pesos
(P400,000.00), if the quantities of dangerous drugs are less than five
(5) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin
oil, methamphetamine hydrochloride or "shabu", or other
dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA,
TMA, LSD, GHB, and those similarly designed or newly introduced
drugs and their derivatives, without having any therapeutic value or if
the quantity possessed is far beyond therapeutic requirements; or less
than three hundred (300) grams of marijuana.
chanrobleslaw
Based on the provision, the correct penalty was an indeterminate
sentence whose minimum should not be less than the minimum of 12
years and one day prescribed by Section 11(3), R.A. No. 9165, supra,
and whose maximum should not exceed the maximum of 20 years as
also prescribed by Section 11(3), R.A. No. 9165, supra. The imposition
of the indeterminate sentence was required by Section 1 of
the Indeterminate Sentence Law, viz.:
Section 1. Hereafter, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term
prescribed by the same. (As amended by Act No. 4225)
chanrobleslaw
Considering that neither the offense committed nor the imposable
penalty was expressly exempt from the coverage of the Indeterminate
Sentence Law pursuant to Section 220 thereof, the imposition of the
indeterminate sentence was mandatory. 21 The minimum and the
maximum periods had a worthy objective, for, as the Court expounded
in Bacar v. Judge de Guzman, Jr.:22 chanroblesvirtuallawlibrary
The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness of the
accused, since he may be exempted from serving the entire sentence,
depending upon his behavior and his physical, mental, and moral
record.
The requirement of imposing an indeterminate sentence in all criminal
offenses whether punishable by the RPC or by special laws, with
definite minimum and maximum terms, as the Court deems proper
within the legal range of the penalty specified by the law must,
therefore, be deemed mandatory.
chanrobleslaw
To conform with the Indeterminate Sentence Law,  therefore, the
indeterminate sentence should be 12 years and one day, as minimum,
to 14 years, as maximum.
The other error of the lower courts was in imposing subsidiary
imprisonment should the petitioner be unable to pay the fine. The
imposition of subsidiary imprisonment, which is a subsidiary personal
liability of a person found guilty by final judgment who has no property
with which to meet the fine, is based on and in accord with Article 39
of the Revised Penal Code,  a provision that is supplementary to special
laws (like R.A. No. 9165) unless the latter should specially provide the
contrary.23 But subsidiary imprisonment cannot be imposed on the
petitioner because her principal penalty, supra, was higher then
prision correccional  or imprisonment for six years. In this regard,
Article 39 of the Revised Penal Code relevantly states: chanRoblesvirtualLawlibrary
Article 39. Subsidiary penalty. —  If the convict has no property with
which to meet the fine mentioned in the paragraph 3 of the next
preceding article, he shall be subject to a subsidiary personal liability
at the rate of one day for each eight pesos, subject to the following
rules: cralawlawlibrary

xxxx

3. When the principal imposed is higher than prision

correctional, no subsidiary imprisonment shall be imposed
upon the culprit.

xxxx
chanrobleslaw

To repeat, the RTC's imposition of subsidiary imprisonment "in case of

inability to pay the fine" of P300,000.00 was invalid and legally
unenforceable.

In view of the foregoing, the petitioner is ordered to suffer the

modified penalty of an indeterminate sentence of 12 years and one
day, as minimum, to 14 years, as maximum, and to pay a fine of
P300,000.00, without subsidiary imprisonment in case of her
insolvency.

WHEREFORE, the Court AFFIRMS the decision promulgated on

August 31, 2011 in CA-G.R. CR No. 33057 subject to
the MODIFICATION that the penalty of the petitioner is the
indeterminate sentence of 12 years and one day, as minimum, to 14
years, as maximum, and to pay a fine of P300,000.00 without
subsidiary imprisonment in case of her insolvency; and ORDERS the
petitioner to pay the costs of suit.

SO ORDERED. ChanRoblesVirtualawlibrary