Ordinary MC Privileged MC

May be offset by generic aggravating Can never be offset by any aggravating

circumstances circumstance
If not offset, lowers the imposable penalty to Reduces the imposable penalty by one or
its minimum period, [provided the penalty is two degrees depending on the rules on
divisible] Arts. 68 & 69

NOTE: If in the computation of penalties there are aggravating circumstances, mitigating

circumstances, and if there is a PMC, that presence of PMC takes preference over all other
things. Before you can even the appropriate penalty, you still have to first consider the
presence of the PMC. That is how important that is why it's privileged.

1. Incomplete justifying or exempting circumstance.

This is the case when all the elements necessary to justify the act or to exempt the
criminal liability in their respective cases are not attendant.

How would you know if an incomplete JC or EC should be treated as an OMC or as a PMC?

1. If majority of the elements necessary to

justify the act or to exempt from liability are

present, then it's treated as PMC.

2. If less than the majority is present, then it is

an OMC which can be offset by a generic AC.

3. If the elements necessary to justify the act or to exempt from criminal liability is
only 2, the

presence of 1 element is already a PMC.

2, That the offender is under eighteen year of age or over seventy years. In the case of the
minor, he shall be proceeded against in accordance with the provisions of Art. 80. [NOTE: see
Sec. 6, RA 9344. It is now “over 15 but below 18”]

There are two MCs here:

1. Minority
2. Seniority

Remember that if minority is not exempting, it is always and always a PMC. Never an
OMC! So if the offender is over 15 but below 18, and he acted with discernment, it is not
exempting but it is a PMC.
Seniority or being over 70 years of age is a mere OMC.

3. That the offender had no intention to commit so grave a wrong as that committed.

Praeter Intentionem (See Art. 4).

Elements of Praeter Intentionem:

1. The offender committed a felony;

2. A notable or notorious disparity between

the means employed by offender and the resulting felony.

4. That sufficient provocation or threat on the part of the offended party immediately preceded
the act.

Elements of Art. 13, Par. 4:

1. The provocation must be sufficient;

a. Must be adequate to stir a person to commit a wrongful act;

b. It must be proportionate to the gravity of the crime.

2. The provocation must originate from the offended party;

3. The provocation must be immediate from the commission of the criminal act
by the person who was provoked.

PROVOCATION is any unjust or immoral act or conduct on the part of the offended party
which is capable of inciting, exciting or irritating another.

The 3rd element requires that the provocation must be immediate to the commission of the
crime.

The word immediate here does not allow a lapse of time between the provocation
and the commission of the crime. Right after the provocation given by the offended
party, the offender must have performed the said criminal act.

Provocation must be from the offended party NOT a third person.

5. That the act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same
degrees.
Elements of immediate vindication of a grave offense:

1. There be a grave offense to the one

committing the felony, his spouse, ascendants, descendants, legitimate, natural, or

adopted brothers or sisters, or relatives by affinity within the same degree;

2. The said act or grave offense must be the proximate cause of the commission of the
crime.

NOTE: This grave offense need not be a punishable act. It suffices that it be any act unjust
act, immoral act which cause the offender sleepless nights and move him to vindicate
himself.

The 2nd element requires that the commission of crime was in immediate vindication of the
grave offense. This time the word immediate allows a lapse of time. (Spanish text over
English text) According to the SC [People v. Ignas], there was an erroneous Spanish
translation. Our RPC was copied from the Spanish Codigo Penal, in there, the word used
there was proximate. Yet when it was translated in the RPC, the word used was immediate.
SC said wrong translation. It is sufficient that the said grave offense must be the proximate
cause of the commission of the crime. Immediate allows the lapse of time, but not too
long a time that would cause the offender to recover his normal equanimity.

6. That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.

Paragraphs 4 and 5 are related to [this] paragraph -otherwise known as sudden impulse of
passion and obfuscation.

Elements of sudden impulse of passion and obfuscation:

1. There be an act both unlawful and sufficient to produce passion andobfuscation on
the part of the offender;

2. The commission of the criminal act and the said sudden impulse must not be far
removed from each other by the considerable length of time during which the offender
might have recovered his normal equanimity.

NOTE: The 1st element requires some unlawful or unauthorized act done on the said
offender and by reason of this the offender has done an unlawful act. The acts of the
offender arose from lawful sentiments because an unlawful act was committed against
him.

The 2nd element requires also the immediateness. It is necessary that it must be done
immediately because the law says the commission of the act which produced the passion
and obfuscation must not be far removed from the commission of the crime by a
considerable length of time.

NOTE!!!! *So again note, if Pars. 4, 5 and 6 are all present or if any 2 is present and
they are all based on the same facts and circumstances, they should only be treated
as 1 MC.

7. That the offender had voluntarily surrendered himself to a person in authority or his
agents, or that he had voluntarily confessed his guilt before the court prior to the presentation
of the evidence for the prosecution;

There are 2 separate and distinct MCs here:

1. Voluntary surrender

2. Voluntary plea of guilt

NOTE: If both are present, you have to consider always 2 MCs. They have different elements
and would always arise from different set of facts and circumstances. Therefore, they are always
separate and distinct from each other.

Elements of voluntary surrender (People v. Ignas):

1. The offender had not actually been arrested;

2. The offender had surrendered himself to a

person in authority or his agent;

3. The surrender must be voluntary

NOTE: Surrender is said to be voluntary when it is done spontaneously and unconditionally

either because he has this feeling of remorse and wanted to admit his guilt or he wanted to
save the government that much needed time or effort which will be incurred in looking for
him.

Elements of voluntary plea of guilt:

1. That guilt tendered is confessed spontaneously and unconditionally;

2. The accused confesses guilt in open court [the competent court that is to try the
case];
 3. The confession was made before the presentation of the evidence for the
prosecution.

In no. 2, for the confession of guilt to be considered spontaneously, it must be to the

ORIGINAL crime charged. If the plea of guilt was based on a plea bargaining
agreement, there is not valid plea of guilt. It is still plea of guilt but it will not be
considered as a mitigating circumstance.

SAMPLE: If during arraignment he pleaded guilty of physical injuries wherein he is charged for
the crime of murder. It cannot be said the plea of guilty be appreciated.

IF however, during the arraignment he is charged with reckless imprudence resulting to homicide
which is COVERED by ARTICLE 365 a complex crime, then the accused plead guilty for the
same. It is NOT MANDATORY, even if the requisites of plea of guilty has been met, for the
Courts to consider such mitigating circumstance. Article 365 being distinct of its nature, it is
within the discretion of the court to consider the same WoN to mitigate.

8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect
which thus restricts his means of action, defense, or communications with his fellow beings.

This is the MC of physical defect.

For this mc to lie in favor of the accused, it is necessary that there must be a connection, a
relation between the physical defect and the crime committed. It is necessary that the said
physical defect must have restricted his use of action, defense or communication with his
fellow being.

9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts.

It is necessary that the said illness must diminish the exercise of the will-power of the
offender. But it must not deprive him of his consciousness of his act because if it will
deprive him of consciousness of his act, then it is exempting not merely mitigating.

EXAMPLE: Kleptomaniac – no freedom of action but has complete cognition. Not deprived of
consciousness.

10. And, finally, any other circumstances of a similar nature and analogous to those
above mentioned.

Any other circumstance which is similar in nature from the 1st to the 9th paragraph, then it
is also considered as a mc.

Ex. A public officer who has malversed public funds, voluntarily, voluntary returned the
public funds, it is akin to voluntary surrender [NOTE: see Nizurtado v. Sandiganbayan,
where in a case for malversation through falsification of public document, voluntary
surrender and restitution were considered separately]. Or what if a person is already of 65
years of age, sickly, suffering from a disease it can be said to be akin or similar to seniority.
It will mitigate his criminal liability.

AGGRAVATING CIRCUMSTANCE

NOTE: Unlike justifying, exempting and mitigating circumstances, which do not need to be
stated or alleged in the information, aggravating circumstances must be alleged in the
information. Even if they are proven in trial but they are not alleged in the information,
they cannot be considered against the person [People v. Race, Jr.]. They must be both
alleged and likewise proven during trial, so as not to deprive the accused of right to know
the nature of the accusation against him.

Kinds of Aggravating Circumstances [GSIS- Q]:

1. Generic
2. Specific

3. Inherent

4. Qualifying

5. Special

1. Generic Aggravating Circumstances are those that applies generally to all crimes.
Example:

Nighttime- it can be applied to crimes against persons, crimes against property, crimes
against chastity and applied to all other crimes.

Recidivism

2. Specific Aggravating Circumstances are those that apply only to certain or particular
crimes.
Ex: Treachery (Par.16 Art. 14) can only be considered or appreciated in crimes against
persons.

3. Inherent Aggravating Circumstance are those which of necessity follow the

commission of the crime because they are considered as elements in the commission of the
crime, therefore they are considered inherent in the commission of the crime.
If they are present in the commission of the crime they are no longer considered so as to
increase the penalty because they are considered as elements.

4. Qualifying Aggravating Circumstances

are those which either change the nature of the crime to bring about a more serious for a
higher penalty or even without changing the nature of the crime it would impose a higher
penalty. Example: Art. 248: Murder

o the circumstances therein present would qualify the killing of a person from homicide to
murder

o presence of treachery, evident premeditation, cruelty in killing would make a crime not of
homicide but would be qualified to murder.

 In case of qualifying aggravating circumstance, for example, A killed B there was

treachery, it was done in consideration of a price, reward or promise, there was also
cruelty, so there are three qualifying aggravating circumstances present. Only one of them
will qualify the killing to murder. So if treachery is already proven, the crime committed is
already murder. Cruelty and the other circumstance of in consideration of a price, reward
or promise shall only be considered as generic aggravating circumstances.

5. Special Aggravating Circumstances Provides for the imposition of the maximum

penalty prescribed by law; hence it cannot be offset by any mitigating circumstance.

Example: If the crime is committed by a syndicate or organized crime group as provided

by Art.62 as amended by RA 7659.

Sec.23 of RA 7659 provides "The maximum penalty shall be imposed if the offense was
committed by any group who belongs to an organized/syndicated crime group"

[Note: Also, see Art. 62 (1a), RPC as amended by RA 7659: “When in the commission of
the crime, advantage was taken by the offender of his public position, the penalty to be
imposed shall be in its maximum period regardless of mitigating circumstances”.]

1. That advantage be taken by the offender of his public position.

This aggravating circumstance can be applied only if

1) the offender is a public officer, and

2) he used the prestige, influence or ascendency of his office in the commission of the
crime or to facilitate the commission of the crime.

GENERAL RULE: Generally, that the offender took advantage of his public position, is
a special aggravating circumstance. Under Art. 14, however, it is merely Generic
Aggravating, but if you look at Art. 62 as amended by RA 7659, the heinous crime law, it
is a special aggravating circumstance because the law says the maximum penalty
prescribed by law should be the one imposed. Therefore it is a special aggravating and
cannot be offset by any mitigating circumstance.

EXCEPTION: Qualifying Aggravating Circumstance. Under Art.266-B of the RPC "If the
victim is in the custody of police authorities, the military or any member of any penal
institutions”,

it will be considered as Qualified Rape and the imposable penalty will be Death. So it
changed the nature of the crime from Rape to Qualified Rape, and from Reclusion
Perpetua the penalty was increased to Death. So it will Qualify the commission of the
crime, the crime committed is Qualified Rape.

2. That the crime be committed in contempt of or with insult to the public authorities.

Elements of Art. 14, Par. 2:

1. That the public officer or public authority is engaged in the exercise of his function;

2. That the public authority is not the person against whom the crime is committed;

3. That the offender knows him to be a public authority;

4. That the presence of the public authority did not prevent the offender from the
commission of the crime.

NOTE: Any person directly vested with jurisdiction whether an individual or some
members of court or governmental commissioner. It is necessary that he has the duty to
govern and execute the laws. Example: Mayors, barangay chairman. NOTE: A police
officer is merely an agent of a person in authority. DIRECT ASSAULT if the public
authority is the person attacked or assaulted, the crime is Direct Assault and [in]
contempt of or with insult to public authorities is no longer considered as an aggravating
circumstance, but an integral element in the commission of the crime.

3. That the act be committed with insult or in disregard of the respect due the offended party
on account of his rank, age, or sex, or that is be committed in the dwelling of the offended
party, if the latter has not given provocation.

There are four aggravating circumstances under this paragraph:

1. Disregard of rank
2. Disregard of age
3. Disregard [disrespect] of sex
4. Crimes committed in dwelling of the offended party
NOTE: These four aggravating circumstances can be appreciated singly or collectively if
present in the commission of the crime.

NOTE!!!!!!!! Disregard of rank, disregard of age and disregard of sex can only be
considered in crimes against persons and crimes against chastity. You do not consider
these in crimes against property; you do not consider these in crimes against public
interest.

---

Disregard of rank
Rank refers to a high social standing, a high position in the society. For this to be
considered as an aggravating circumstance, it is necessary that the offender be of lower
rank than that of the offended party.

Disregard of age
Age here refers to both minority and seniority.

NOTE: * If there was disrespect of age and there was also treachery, the aggravating
circumstance to be considered is treachery because it absorbs disrespect of age.

Disrespect of sex
Disrespect of sex refers to the female sex.

NOTE: This is inherent in the crime of rape and in certain crimes involving chastity.

Crimes committed in dwelling of the offended party

Dwelling is considered as aggravating circumstance if the crime is committed inside the

dwelling of the offended party, that is, the offended party was inside his dwelling at the
time of the commission of the crime and he has not given any provocation.

NOTE: Instances when dwelling is not considered an AC even if the crime was
committed in a dwelling:

1. When the offended party has given provocation;

2. if the offender and the offended party are living in the same dwelling;

3. When dwelling is inherent in the commission of the crime.

NOTE: Dwelling includes the dependencies, the staircase and the enclosures therein. It
need not be owned by the offended party, it suffices that the offended party uses it for rest
and comfort. For as long as aggression started in the dwelling, still dwelling is an
aggravating circumstance. Dwelling is only inherent in robbery with use of force
upon things but dwelling is not inherent in case of robbery with violence against or
intimidation of persons just like robbery with homicide.

NOTE!!!!!! SAMPLE: Robbery with homicide, under Article 10 which is a crime against
property. Disregard of rank, age and sex are not applicable to any other crimes but only to
crimes against person and crimes against honor [NOT chastity]. Since the crime committed
is a crime against property, therefore, disregard of rank, age and sex cannot be considered
against the accused. But dwelling can be appreciated.

4. That the act be committed with abuse of confidence or obvious ungratefulness.

There are two aggravating circumstances:

1. Abuse of confidence
2. Obvious ungratefulness

Elements of abuse of confidence:

1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a crime against the offended party;
3. That the abuse of confidence facilitated the commission of the crime.

ESTAFA (inherent yung abuse see HYPO)

Elements of obvious ungratefulness:

1. That the offended party had trusted the offender;

2. That the offender abuse such trust by committing a crime against the offended
party;

3. That the act be committed with obvious ungratefulness

5. That the crime be committed in the palace of the Chief Executive, or in his presence, or
where public authorities are engaged in the discharge of their duties or in a place dedicated to
religious worship.

NOTE: In order however for these aggravating circumstances to be considered, it is

necessary that the offender deliberately sought the said place to commit the crime
because otherwise it cannot be said that he disrespected the place.

1. In the palace of the Chief Executive

Regardless of whether there is a public affair or official affair going on, if a crime is
committed there it is aggravating.
2. In the presence of the Chief Executive

Even if the Chief Executive is playing golf in Baguio, still it is considered as aggravating
because of the lack of respect to the chief executive.

3. Where the Public Authorities are engaged in the discharge of their duties

Requisites of place where public authorities are engaged in the discharge of their duties:

1. The place is where public authorities are engaged in the discharge of their duties;

2. The public authorities are actually engaged in the discharge of the performance of
their duties.

4. In a place dedicated to religious worship

Even if there is no religious ceremony on going, for as long as the said crime is committed
in said place dedicated to religious worship it is aggravating because of lack of respect on
said place.

Par. 5 (Places of commission) Par. 2 (Insult to public authorities)

Public duty is performed outside their
Public duty is performed in their office.
office.
The offended party may or may not be the Public authority should not be the
public authority. offended party.

In both, public authorities are in the performance of their duties.

6. That the crime be committed at the nighttime or in an uninhabited place, or by a band,

whenever such circumstances may facilitate the commission of the crime. Whenever more
than malefactors shall have acted together in the commission of the offense, it shall be
deemed to have been committed by a band.

There are three aggravating circumstances:

1. Nighttime
2. Uninhabited place
3. Band

Requisites of nighttime:

1. The offender deliberately took advantage of nighttime or cover of darkness;

2. The purpose of the offender is to facilitate the commission of the crime or to

insure or afford impunity.
NOTE: To facilitate the commission of the crime, he use the cover of darkness, so that his
actual perpetration of the crime will be unmolested. He cannot be disturbed. Therefore,
there is an assurance that crime will be consummated. To insure or afford impunity he
sought to cover in darkness so that no one will be able to recognize him.

Even if the offender sought nighttime, the moment the scene of the crime has been
illuminated by any light, rule out nighttime as an aggravating circumstance.

Requisites of an uninhabited place:

1. That in the place where the crime was committed there was a remote possibility for
the victim to receive some help;

2. That the offender deliberately sought the uninhabited place in order to facilitate the
commission of the crime.

Requisites of by a band:

For the aggravating circumstance of by a band to be present, the law says where more than
three armed malefactors shall have acted together in the commission of the offense, it shall
be deemed to have been committed by a band. Therefore, there must be at least 4 armed
men [who] have acted together in the commission of the crime.

NOTE: Even if the court already considered conspiracy, by a band may still be
considered by the court because conspiracy is a means of committing a crime. It
means they have the same criminal liability. On the other hand, by a band is an aggravating
circumstance. One does not absorb the other, therefore, both maybe considered and
appreciated by the court.

7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake,

epidemic, or other calamity or misfortune.

It is considered as an aggravating circumstance because on occasion of these calamities, the

offender took advantage of the said occasion in order to commit the crime.

NOTE: In times of calamities we should help one another, so if the offender took
advantage of these occasions, it shows his greater criminality, his greater perversity hence
it will aggravate his criminal liability.

8. That the crime be committed with the aid of armed men or persons who insure or afford
impunity.
"With the aid of armed men"
The armed men aided the offender in the commission of the crime. The aid given by the
armed men maybe a direct or indirect participation in the commission of the crime.

Band (Par. 6) Armed Men (Par. 8)

No requisite as to the number of armed men who
At least 4 armed malefactors
aided the actual perpetrator of the crime.
Not necessary that they acted together in the
commission of the crime because they

merely
The armed men must have acted
actual
together in the commission of the crime
their
may be direct or indirect.

aided the perpetrator; participation

Band members are all principals (GN) Armed men are mere accomplices (GN)

FOUR FORMS OF HABITUALITY

   Recidivism (Art. 14, Par. 9);

   Reiteracion/Habituality (Art. 14, Par. 10);
   Habitual Delinquency (Art. 62.);
   Quasi-Recidivism (Art. 160).

9. That the accused is a recidivist. A recidivist is one whom at the time of his trial for one
crime, shall have previously been convicted by final judgment of another crime embraced in
the same title of this Code.

Requisites of Recidivism:

1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of another crime;
3. That both the first and second offenses are embraced in the same title of the RPC;
4. That the offender is convicted of the second offense charged.

In case of recidivism, there must be at least 2 convictions. First conviction must be by final
judgment. The second conviction must be for the second time for which he is on trial.

10. That the offender has been previously punished for an offense to which the law attaches
an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

This is likewise considered as reiteracion or habituality.

Elements of reiteracion:

1. That the accused is on trial for an offense;

2. That at the time of the trial he previously served sentence for another crime to
which the law attaches an equal or greater penalty or for two or more crimes to
which it attaches a lighter penalty;

3. That he is also convicted of the new offense.

NOTE: Under the second element there are two situations. The first situation is that, he has
already served out the sentence, he has already been punished for a crime. If it is only
one crime it is necessary that the said crime must carry a penalty equal to or greater than
the second crime. But if there are two crimes for which he had been previously punished, it
is necessary that they carry a lighter penalties than the new crime for which he is
convicted.

Elements of habitual delinquency: HABITUAL DELINQUENCY: See Art. 62

1. The crimes the offender committed should be serious physical injuries, less serious
physical injuries, robbery, theft, estafa, and falsification;

2. There should be at least three convictions

3. Each convictions must come within ten year from date of release or last conviction
of the previous crime.

NOTE: A person is deemed a habitual delinquent, if within a period of 10 years from the date of
is release or last conviction of the crimes of serious physical injuries, less serious physical
injuries, robbery, theft, estafa or falsification, he is found guilty of any of the said crimes a third
time or oftener (Art. 62, last par.)

Effect: Additional penalty shall be imposed in the maximum period being an aggravating
circumstance.

Limitation: the penalty committed for the crime plus additional penalty should not exceed
thirty years.

NOTE: HD is considered as a Special Aggravating Circumstance. Some book says that

it is an Extraordinary Aggravating Circumstance because the presence of this aggravating
circumstance of HD would mean and imposition of an additional penalty aside from the
penalty imposed on the offender for the crime that he has committed an additional
penalty would be imposed on him for being a habitual delinquent. [The] limitation,
however, is that if you add the penalty for the crime that he has committed and the
additional penalty for being a HD, they must not exceed 30 yrs.[NOTE: On 22 Feb 2017
class lecture, Prosec. G said that HD is an Extraordinary AC]

Elements of QUASI-RECIDIVISM:

QUASI-RECIDIVISM (Art. 160): a Special AC.

A quasi-recidivist is a person, who after having been convicted by final judgment, commits
a felony before serving out his sentence. The maximum period shall be imposed.

The first crime may be any crime, but the second must be a felony.

11. That the crime be committed in consideration of a price, reward, or promise.

If the price, reward or promise, as a circumstance is present in the killing of a person, it is

not considered as a generic aggravating person but a qualifying aggravating
circumstance. It is one of the qualifying circumstances under Art.248.

This aggravating circumstance should be considered both against the person who made the
offer and the person who accepted the price, reward or promise. Therefore, it is to be
considered both against the principal by inducement and the principal by direct
participation.

To be considered against the principal by inducement, it is necessary that the price, reward
or promise must be the prime reason for the principal by direct participation committed
the crime. That without the price, reward or promise, the principal by direct participation
would not have committed the crime.

12.That the crime be committed by means of inundation, fire, poison, explosion, stranding of
a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other
artifice involving great waste and ruin.

The offender makes use of inundation, fire or explosion in order to commit the crime. It is a
means to commit the crime. If these means are used in killing a person, it is not a generic
aggravating circumstance, it is a qualifying aggravating circumstance under Article
248. It qualifies the killing to murder.

13.That the act be committed with evident premeditation.

Evident premeditation is the stubborn adherence to a decision to commit a crime. It implies

a deliberate plan before or after the commission of the crime.

Requisites of evident premeditation:

1. The time when the offender determined to commit the crime;

 2. An act manifestly indicating that the culprit has clung to his determination;

3. Sufficient lapse of time between the determination and execution, to allow him to
reflect upon the consequences of his acts.

14. That craft, fraud or disguise be employed.

There are three aggravating circumstances: 1. Craft

2. Fraud
3. Disguise

 Craft: intellectual trickery or cunning resorted to by the accused

Example: The accused knocked at the door. He knows that only the maid was at home. He
told the maid that he was a relative of the owners of the house who came from the
province. He was allowed to enter the house, thereafter he committed a crime of robbery.
There was cunning or intellectual trickery resorted to by the accused for he tricked the
maid to consummate the crime of robbery.

 Fraud: Deceit. It is manifested by the use of insidious words or machinations resorted to

by the accused so that the offended party will perform an act that will make the offender do
the crime easily.

 Disguise: ways and means resorted to by the accused to conceal his identity. Stockings,
bonnet or anything that could be used so that one could not be recognized.

NOTE: If despite disguise he is recognized, rule out disguise as an aggravating circumstance

as it did not serve its purpose.

15. That advantage be taken of superior strength, or means be employed to weaken the
defense.

Requisites of Abuse of Superior Strength (ASS):

1. That there be a notorious inequality of forces between the offender and the
offended party in terms of their age, size and strength;
2. That the offender took advantage of this inequality of forces to facilitate the
commission of the crime.

 Inequality of forces
Example: Offender enjoys numerical superiority over that of the offended party
The mere fact that there was numerical superiority does not automatically mean that there
is abuse of superior strength. Under the second element, evidence must show that the
offender deliberately took advantage of their strength to facilitate the commission of the
crime.

16.That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might
make.

The essence of treachery is the suddenness and unexpectedness of the act to

unexpecting and unarmed victim who has not given the slightest provocation. The
victim must be totally without defense.

Elements of treachery:

1. That the offender deliberately adopted the particular means, method or form of
attack employed by him;

2. That at the time of the attack, the victim was not in a position to defend himself.

But see Fantastico v. Malicse, Sr. and other assigned cases:

1. the employment of means of execution that gives the persons attacked no opportunity
to defend themselves or retaliate; and

2.the means of execution were deliberately or consciously adopted.

NOTE: If the victim was able to put out any defense, no matter how minor, treachery is not
present. Spur of the moment attacks are not treacherous, they lack element No. 1. The
aggravating circumstance of treachery is not present [as] it is a mere chance encounter.
The first element is wanting. There is no showing the offender deliberately adopted
the particular means, method or form of attack employed by him in killing the
woman.

NOTE!!!! Since no one saw the commencement of the attack, treachery is not present.
EXCEPTION: People v. Tabarnero, SC held that there was treachery. The witness did not
see the commencement of the attack, however, he saw that there was restraint on the
person of X. What the witness saw was that the hands of the victim were being held at the
back while he was being attacked. That suffices because there was restraint on the person
of the victim.
17. That the means be employed or circumstances brought about which add ignominy to the
natural effects of the act.

Ignominy: a moral circumstance which adds to the injury suffered by the victim. It is
humiliation, embarrassment, moral killing.

It pertains to the moral order, which adds disgrace to the material injury caused by
the crime. Ignominy adds insult to injury or adds shame to the natural effects of the
crime. Ignominy shocks the moral conscience of man (GN 2016).

18. That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance is effected by a way not intended for the
purpose.

NOTE: unlawful entry is inherent in the crimes of trespass to dwelling & robbery with
force upon things. But it is aggravating in the crime of robbery with violence against or in
intimidation of persons (GN 2016).

Prosec. G: the door is the [only means] intended for entry. So if you break a window,
make an opening in the wall, it is unlawful entry. Even if one of the residents made a
secret passageway through a wall, and the accused used this passageway to enter, Art. 18
is attendant.

19. That as a means to the commission of a crime a wall, roof, floor, door, or window be
broken.

Unlawful Entry (18) Breaking Wall (19)

Presupposes that there is no breaking as by Involves the breaking of the enumerated
entry through the window. parts of the house.

20. That the crime be committed with the aid of persons under fifteen years of age or by
means of motor vehicles, motorized watercraft, airships, or other similar means. (As amended
by RA 5438).

If the crime committed makes use of minors under 15 years of age, it shows the greater
perversity of the offender because he knows that minors cannot be arrested. Persons below
15 years of age cannot be prosecuted, it is among the exempting circumstances. Therefore,
it shows greater perversity.

If the crime is committed with the use of motor vehicle in killing a person, it is a qualifying
aggravating circumstance under article 248. If the motor vehicle is used in the commission
of any other crime, it is a mere generic aggravating circumstance.
21. That the wrong done in the commission of the crime be deliberately augmented by causing
other wrong not necessary for its commission.

Elements of Cruelty (Art. 14, Par. 21):

1. That at the time of the infliction of the physical pain, the offended party is still alive.
2. That the offender enjoys and delights in seeing his victim suffer gradually by the
infliction of the physical pain.

NOTE: If ignominy refers to the moral pain, cruelty pertains to the additional physical pain
other than that which is necessary in the commission of the crime.

Ignominy Cruelty
Victim suffered moral pain. Victim suffered physical pain or physical suffering.

The victim can either be alive or dead. Necessary that the victim is alive.

OTHER AGGRAVATING CIRCUMSTANCES

Use of unlicensed firearms (PD 1866 as amended by RA 8294 and RA 10591) as a

special aggravating circumstance.

Section 29, RA 10951: Use of Loose Firearm in the Commission of a Crime. – The use of a
loose firearm, when inherent in the commission of a crime punishable under the Revised
Penal Code or other special laws, shall be considered as an aggravating circumstance:
Provided, That if the crime committed with the use of a loose firearm is penalized by the law
with a maximum penalty which is lower than that prescribed in the preceding section for illegal
possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the
penalty for the crime charged: Provided, further, That if the crime committed with the use of a
loose firearm is
penalized by the law with a maximum penalty which is equal to that imposed under the
preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum
period shall be imposed in addition to the penalty for the crime punishable under the Revised
Penal Code or other special laws of which he/she is found guilty.

If the violation of this Act is in furtherance of, or incident to, or in connection with the crime
of rebellion of insurrection, or attempted coup d’
etat,such violation shall be absorbed as an element of the crime of rebellion or insurrection, or
attempted coup d’ etat.
If the crime is committed by the person without using the loose firearm, the violation of this
Act shall be considered as a distinct and separate
offense.

If the use of the unlicensed firearm is inherent in the commission of the crime punishable
under the RPC or under Special Penal Laws, it is considered as an AGGRAVATING
CIRCUMSTANCE. Whatever be the crime committed, whether under the RPC or
SPL, if the use of such firearm is inherent in commission of the crime, is considered as an
aggravating circumstance.

NOTE: Even if the firearm is licensed, if it is used in the commission of a crime, it is

considered a loose firearm. This is covered by the definition of “loose firearm” (1 March
2017).

SAMPLE: If the crime is committed by the person without using the loose firearm, the
violation of this Act shall be considered as a distinct and separate offense”. Thus 2 cases
must be filed.

X carnapped Y’s car. He also shot to death Y with a loose firearm. He was charged with
qualified carnapping and illegal possession of loose firearm. Are the charges correct?

A: No, it should only be qualified carnapping. In the killing of Y, the use of the loose
firearm was inherent in the killing, hence under Sec. 29, 1st par of RA 10591, the use of
the loose firearm is a special AC.

Use of dangerous drugs as a qualifying AC (Sec. 25, RA 9165)

Under Sec. 25 of RA9165, Qualifying Aggravating Circumstances in the Commission of

a Crime by an Offender Under the Influence of Dangerous Drugs. - Notwithstanding the
provisions of any law to the contrary, a positive finding for the use of dangerous drugs
shall be a qualifying aggravating circumstance in the commission of a crime by an
offender, and the application of the penalty provided for in the Revised Penal Code
shall be applicable.

Section 15. Use of Dangerous Drugs. - A person apprehended or arrested, who is found
to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months rehabilitation in a government center for the first
offense, subject to the provisions of Article VIII of this Act. If apprehended using any
dangerous drug for the second time, he/she shall suffer the penalty of imprisonment
ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from
Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00):
Provided, That this Section shall not be applicable where the person tested is also found
to have in his/her possession such quantity of any dangerous drug provided for under
Section 11 of this Act, in which case the provisions stated therein shall apply.

NOTE: The first element that the accused was apprehended or arrested for the
commission of the crime does not refer to any other crime. It refers only to crimes under
Art. 2 of RA9165. So based on this decision, if the crime committed by the offender is
outside the scope of RA 9165, the police cannot subject him to drug testing. No person
may be placed under mandatory drug testing because it is against his right to privacy and
self-incrimination.

Applying such decision, this confirmatory test will only apply if the said offender's crime
is under RA 9165 but not any other law. (IN THE CASE OF PEOPLE v. DELA CRUZ)

HOWEVER: CONGRESS dissents. Sec. 25, a positive result for the use dangerous drugs
is a qualifying AC. It appears to be applicable to all crimes.

BOTTOMLINE: In Dela Cruz, it is only QAC when the crime committed is connected to
violation of RA 9165. However, for Congress, it applies to all crimes.

RULES FOR COMPUTATION

Article 63. Rules for the application of indivisible penalties. - In all cases in which the law
prescribes a single indivisible penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have attended the commission of the
deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstances and there
is no aggravating circumstance, the lesser penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the commission of the
act, the court shall reasonably allow them to offset one another in consideration of their
number and importance, for the purpose of applying the penalty in accordance with the
preceding rules, according to the result of such compensation.

*When there is a privileged mitigating circumstance

circumstance, apply it first before computing the penalties.

Example: [Single, indivisible penalty:] Rape, penalty is reclusion perpetua. If the penalty
is single and indivisible, it shall be imposed as is, without consideration of any AC or
MC.

What if the crime was murder: penalty is reclusion perpetua to death: two indivisible
penalties.
If there is one AC: greater penalty (death).
If there is one MC, no AC: lesser penalty (reclusion perpetuaI).
If there is no MC or AC: lesser penalty.
If there are MCs or ACs: offset, then apply the above rules.
NOTE: Don’t consider ISLAW, because it does not apply in indivisible penalties.

Article 64. Rules for the application of penalties which contain three periods. - In cases in
which the penalties prescribed by law contain three periods, whether it be a single divisible
penalty or composed of three different penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the court shall observe for the
application of the penalty the following rules, according to whether there are or are not
mitigating or aggravating circumstances:

When there are neither aggravating nor mitigating circumstances, they shall impose the
penalty prescribed by law in its medium period.

When only a mitigating circumstances is present in the commission of the act, they shall
impose the penalty in its minimum period.

When an aggravating circumstance is present in the commission of the act, they shall
impose the penalty in its maximum period.
When both mitigating and aggravating circumstances are present, the court shall
reasonably offset those of one class against the other according to their relative weight.

When there are two or more mitigating circumstances and no aggravating circumstances
are present, the court shall impose the penalty next lower to that prescribed by law, in the
period that it may deem applicable, according to the number and nature of such
circumstances. [Lower by 1 degree in its proper period. Also apply PMC first]

Whatever may be the number and nature of the aggravating circumstances, the courts
shall not impose a greater penalty than that prescribed by law, in its maximum period.

Within the limits of each period, the court shall determine the extent of the penalty
according to the number and nature of the aggravating and mitigating circumstances and
the greater and lesser extent of the evil produced by the crime.

Degree of penalty

Is a penalty prescribed by law for every crime committed whether divisible or indivisible.

Period of penalty

Refers to the subdivision of every said divisible penalty into three portions, the first portion
is minimum, second is medium, third is maximum

Indivisible penalty - penalty with no fixed duration:

 death,
 reclusion perpetua,

 perpetual absolute disqualification,

 perpetual special disqualification, o NOTE: Temporary DQ has a duration.

 public censure, and

 fine.

Divisible penalty - penalty with fixed duration and therefore can be divided into three
periods. The first portion is minimum, second is medium, and third is maximum.

Article 27 was amended by RA 7659. Reclusion perpetua has now a duration 20 years and 1
day. But in People v Lucas, the SC said that there is no clear legislative intent to make
reclusion perpetua divisible despite the amendment. When reclusion perpetua is imposed as
penalty, there is no need to state duration. Hence it remains indivisible.