d.

interrupt the prescriptive period

BAR QUESTIONS
2010-2018
Katarungang Pambarangay Law
(P.D. No. 1508; R.A. 7610, as
amended)
Under the Katarungan Pambarangay
rules, the execution of an amicable
settlement or arbitration award is
started by filing a motion for
execution with the Punong
Barangay, who may issue a notice
of execution in the name of the
Lupon Tagapamayapa. Execution
itself, however, will be done by:
(2012 BAR)
a. a court-appointed sheriff.
b. any Barangay Kagawad.
c. Punong Barangay.
d. any member of the Pangkat ng
Tagapagsundo.
not exceeding 60 days
Danielle, a Filipino citizen and
permanent resident of Milan, Italy, filed
with the Regional Trial Court (RTC) of
Davao City, where she owns a rest
house, a complaint for ejectment
against Dan, a resident of Barangay
Daliao, Davao City. Danielle’s property,
which is located in Digos City, Davao
del Sur, has an assessed value of PhP
25,000. Appended to the complaint
was Danielle’s certification on non-
forum shopping executed in Davao
City duly notarized by Atty. Dane
Danoza, a notary public. (2018 BAR)
(a) Was there a need to refer the case
to the Lupong Tagapamayapa for
prior barangay conciliation before
the court can take cognizance of
the case? (2.5%)

SUGGESTED ANSWERS:
The filing of a complaint with the
(a) No. Since Danielle is not an actual
Punong Barangay involving cases
resident of Barangay Daliao, or a
covered by the Katarungang
barangay adjacent thereto, this case
Pambarangay Rules shall: (2012
is not subject to the Katarungang
BAR)
Pambarangay Law; hence, prior
a. not interrupt any prescriptive
referral to the Lupong Tagamayapa is
period.
not a pre-condition to the filing of this
b. interrupt the prescriptive period for case in court (Pascual v. Pascual,
90 days. G.R. No. 157830, 17 November
c. interrupt the prescriptive period for 2005).
60 days.

Legal Counseling Page 1 of 33 cmii

(b) Was the action properly instituted
before the RTC of Davao City? (2.5%)
SUGGESTED ANSWERS:
(b) No. Batas Pambansa Blg. 129 vests
the Municipal Trial Court with the
exclusive jurisdiction over unlawful
detainer cases, regardless of the
assessed value of the property; hence,
the action was wrongfully instituted with
the RTC.
Special Protection of Children
Against Child Abuse,
Exploitation and Discrimination
Act (R.A. No. 7610, as amended)
To n i t o , a n 8 - y e a r - o l d b o y, w a s
watching a free concert at the Luneta
Park with his father Tony. The child
stood on a chair to be able to see the
performers on the stage. Juanito, a 10-
year-old boy, who was also watching
the concert, could not see much of the
performance on the stage because
Tonito was blocking his line of sight
by standing on the chair. Using his
elbow, Juanito strongly shoved Tonito
to get a good view of the stage. The
shove caused Tonito to fall to the
ground. Seeing this, Tony struck
Juanito on the head with his hand and
caused the boy to fall and hit his head
on a chair. Tony also wanted to
strangle Juanito but the latter’s aunt
prevented him from doing so. Juanito
Legal Counseling
sustained a lacerated wound on the
head that required medical attendance
for 10 days.
Tony was charged with child abuse in
violation of Sec. 10(a), in relation to
Sec. 3(b)(2), of R.A. 7610 (Child Abuse
Law) for allegedly doing an “act by
deeds or words which debases,
degrades or demeans the intrinsic
worth and dignity of a child as a
human being.” In his defense, Tony
contended that he had no intention to
maltreat Juanito, much less to
degrade his intrinsic worth and dignity
as a human being. (2017 BAR)
(b) Was Tony criminally liable for child
abuse under R.A.7610? Explain your
answer. (3%)
SUGGESTED ANSWER :
(b) Tony laid hands on Juanito without
intent to debase the intrinsic worth and
dignity” of Juanito as a human being, or
that he had thereby intended to humiliate
or embarrass Juanito. It appears that the
laying of hands on Juanito have been
done at the spur of the moment, and in
anger, indicative of his being then
overwhelmed by his fatherly concern for
the personal safety of his own minor son,
Tonito, who fell to the ground due to the
shoving by Juanito. With the loss of his
self-control, he lacked that specific intent
to debase, degrade or demean the
Page 2 of 33 cmii
intrinsic worth and dignity of a child as a
human being that was so essential in the
crime of child abuse; hence, the crime
committed is only slight physical injuries.
(Bongalon y People, G.R. No. 169533,
March 20, 2013)
Arnold, 25 years of age, was sitting on
a bench in Luneta Park watching the
statue of Jose Rizal when, without his
permission, Leilani, 17 years of age,
sat beside him and asked for financial
assistance, allegedly for payment of
her tuition fee, in exchange for sex.
While they were conversing, police
operatives arrested and charged him
with violation of Section 10 of RA 7610
(Special Protection of Children against
Child Abuse, Exploitation and
Discrimination Act), accusing him of
having in his company a minor, who is
not related to him, in a public place. It
was established that Arnold was not in
the performance of a sociai, moral and
legal duty at that time. (2016 BAR)
Is Arnold liable for the charge?
Explain. (5%).
SUGGESTED ANSWER
No, Arnold is not liable. Under Section 10
of RA No. 7610, any person who shall
keep or have in his company a minor,
twelve (12) years or under or who in ten
(10) years or more his junior in any public
or private place, hotel, motel, beer joint,
discotheque, cabaret, pension house,
Legal Counseling Page 3 of 33
sauna or massage parlor, beach and/or
other tourist resort or similar places is
liable for child abuse.
Arnold is not liable for the charge. To be
held liable under Section 10 (6) of RA No.
7610, it is indispensable that the child in
the company of the offender must be 12
years or under or who in 10 years or
more his junior in a public place. In this
case, Leilani is 17 years of age, and only
8 years younger than Arnold.
Moreover, Leilani sat beside Arnold
without his permission, hence, he is not in
the company of a child in a public place.
Lastly, applying the episdem generis
principle, Arnold is not liable for child
abuse because Luneta is not a place
similar to hotel, motel, beer joint,
discotheque, cabaret, pension house,
sauna or massage parlor, beach and/or
other tourist resort.
Braulio invited lulu, his I l-year old
stepdaughter; inside the master.
bedroom. He pulled out a knife and
threatened her with harm unless she
submitted to his desires. He was
touching her chest and sex organ
when his wife caught him in the act.
The prosecutor is unsure whether to
charge Braulio for acts of
lasciviousness under Art. 336 of the
RPC; for lasciv ious conduct under RA
7610 (Special Protection against Child
Abuse, Exploitation and
Discrimination Act); or for rape under
cmii
Art. 266-A of the RPC. What is the
crime committed? Explain. (5%) (2016
BAR)
SUGGESTED ANSWER:
The acts of Braulio of touching the chest
and sex organ of Lulu, who is under 12
years of age, are merely acts of
lasciviousness and not attempted rape
because intent to have sexual intercourse
is not clearly shown (People v. Banzuela,
G.R. No. 202060, December 11, 2013).
To be held liable of attempted rape, it
must be shown that the erectile penis is
in the position to penetrate (Cruz v.
People, G.R. No. 166441, October 8,
2014) or the offender actually
commenced to force his penis into the
v i c t i m ’s s e x u a l o r g a n ( P e o p l e v.
Banzuela, supra).
The same acts of touching the chest and
sex organ of Lulu under psychological
coercion or influence of her stepfather,
Braulio, constitutes sexual abuse under
Section 5 (b) of RA No. 7610 (People v.
Opiana, G.R. No. 133922, February 12,
2001),
Since the requisites for acts of
lasciviousness under Article 336 of the
Revised Penal Code are met, in addition
to the requisites for sexual abuse under
Section 5 of RA No. 7610, and the victim
is under 12 years of age, Braulio shall be
prosecuted for acts of lasciviousness
under Revised Penal Code but the
penalty imposable is that prescribed by
Legal Counseling
RA No. 7610 (Amployo v. People, G.R.
No. 157718, April 26, 2005). Under
Section 5 (6) of RA No: 7610, when the
victim (child subjected to sexual abuse) is
under 12 years of age, the perpetrators
sh a l l b e p r o se c u te d ( fo r a cts o f
lasciviousness) under Article 336 of the
Revised Penal Code: Provided, That the
penalty for lascivious conduct when the
victim is under 12 years of age shall be
reclusion temporal in its medium period.
With a promise of reward, Robert
asked Romy to bring him a young girl
that he (Robert) can have carnal
knowledge with. Romy agreed, seized
an eight-year old girl and brought her
to Robert. After receiving his reward,
Romy left while Robert proceeded to
have carnal knowledge with the girl.
(2018 BAR)
(a) For what felony may Robert and
Romy be charged? (2.5%)
SUGGESTED ANSWER:
Robert may be charged with the crime of
Child Prostitution or other sexual abuse
under Section 5(b) of R.A. No. 7610 (the
Special Protection of Children Against
Child Abuse, Exploitation and
Discrimination Act) by having sexual
intercourse with a child exploited in
prostitution. Because the victim was
under 12 years of age, (in this case, 8
years), Robert shall be prosecuted under
Page 4 of 33 cmii
Article 266-A and 266-B of the Revised
Penal Code. Romy, on the other hand,
may be charged with the crime of Child
Prostitution or other sexual abuse under
Section 5(a) of R.A. No. 7610 by acting
as procurer of a child prostitute.
(b) Will your answer in (a) be the same
if the victim is a 15-year old lass who
was enticed, through cunning and
deceit of Romy, to voluntarily go to the
house of Robert where the latter
subsequently had carnal knowledge
with her? (2.5%)
SUGGESTED ANSWER:
Yes. R.A. No. 7610 covers sexual abuse
committed against a child or children
below eighteen (18) years of age.
Children, who for money, profit or any
other consideration 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. Robert and Romy may be
prosecuted under the said law.
Mrs. Robinson is a teacher at an
elementary school. In one of her
classes, she found, to her
consternation, that an 8-year old
Richard was always the cause of
distraction, as he was fond of bullying
classmates smaller in size than him.
Legal Counseling Page 5 of 33
One morning, Reymart, a 7-year old
pupil, cried loudly and complained to
Mrs. Robinson that Richard had boxed
him on the ear. Confronted by Mrs.
Robinson about Reymart's accusation,
Richard sheepishly admitted the same.
Because of this, Mrs. Robinson
ordered Richard to lie face down on a
desk during class. After Richard
obliged, Mrs. Robinson hit him ten (10)
times on the legs with a ruler and
pinched his ears. Richard ran home
and reported to his mother what he
had suffered at the hands of Mrs.
Robinson. When Richard's parents
went to Mrs. Robinson to complain,
she interposed the defense that she
merely performed her duty as a
teacher to discipline erring pupils.
Richard's parents ask your advice on
what actions can be instituted against
Mrs. Robinson for acts committed on
their minor child. (2018 BAR)
May Mrs. Robinson be charged with
child abuse OR slight physical
injuries? (2.5%)
ANSWER:
Yes, Mrs. Robinson can be charged with
either child abuse under R.A. 7610 R.A.
7610 or slight physical injuries if the
injuries inflicted constitute slight physical
injuries.
(Sec. 10 of R.A. 7610 provides:
cmii
 Any person who shall commit any
other acts of child
abuse, cruelty or exploitation or be
responsible for other conditions
prejudicial to the child’s development
including those covered by Art. 59 of P.D.
603 but not covered by the Revised
Penal Code shall suffer the penalty of
prision mayor”.
In other words, Richard’s parents was
choose to prosecute Mrs. Robinson
under the Revised Penal Code or R.A.
7610. I will advise them to consider R.A.
7610 as there was no showing of the
extent of the physical injuries inflicted.
"Anti-Sexual Harassment Act of
1995.
( Wa k u k i t a u g A n t i - S e x u a l
Harassment na Bar Question for
2010-2018)
The Comprehensive Dangerous Drugs
Act of 2002 (R.A. No. 9165)
A, a young boy aged sixteen (16)
at the time of the commission of
the crime, was convicted when he
was already seventeen (17) years of
age for violation of Section 11 of
R.A. 9165 or Illegal Possession of
Dangerous Drugs for which the
imposable penalty is life
imprisonment and a fine. Section 98
Legal Counseling Page 6 of 33
of the same law provides that if the
penalty imposed is life
imprisonment to death on minor
offenders, the penalty shall be
reclusion perpetua to death. Under
R.A. 9344, a minor offender is
entitled to a privileged mitigating
circumstance. (2014 BAR)
(A) May the privileged mitigating
circumstance of minority be
appreciated considering that the
penalty imposed by law is life
imprisonment and fine?
(B) Is the Indeterminate Sentence
Law applicable considering that
life imprisonment has no fixed
duration and the Dangerous
Drugs Law is malum prohibitum?
(C) If the penalty imposed is more
than six (6) years and a notice
of appeal was filed by A and
given due course by the court,
may A still file an application for
probation
(D) If probation is not allowed by
the court, how will A serve his
sentence?
ANSWER:
(A) Yes. As stated above, under
Section 98, RA 9165, if the
offender is a minor, the penalty of
life imprisonment shall be
considered as reclusion perpetua.
Now that it has the nomenclature
of penalties under the RPC, the
cmii
 modifying circumstances therein
may also be applied. Even if
reclusion perpetua is a single
indivisible penalty, the privileged
mitigating circumstance of minority
would still be considered to lower
the imposable penalty. The rule in
Article 63, RPC that if the penalty
prescribed by law is a single
indivisible penalty, it shall be
imposed regardless of mitigating
and aggravating circumstance
refers only to ordinary mitigating
circumstances.
(B) Yes. The Indeterminate Sentence
Law is applicable even to special
penal laws. Since life imprisonment
was converted into reclusion
perpetua, which in turn was
graduated to reclusion temporal
because of the privileged mitigating
circumstance of minority, the
Indeterminate Sentence Law is
applicable. (People vs. Mantalaba,
GR 186227, July 20, 2011)
(C) Yes. A may still file an application
for probation even if he filed a
notice of appeal. Section 42, RA
9344 provides: “The court may,
after it shall have convicted and
sentenced a child in conflict with
the law, and upon application at
any time, place the child on
probation in lieu of service of his/
Legal Counseling Page 7 of 33
her sentence taking into account
the best interest of the child. For
this purpose, Section 4 of PD 968,
otherwise known as the Probation
Law of 1976, is hereby amended
accordingly.” The phrase “at any
time” mentioned in Section 42
means that the child in conflict with
the law may file an application for
probation at any time, even beyond
the period for perfecting an appeal
and even if the child has perfected
the appeal from the judgment of
conviction.
(D) If probation is not allowed by the
court, the minor offender shall
serve his sentence in agricultural
camp or other training facility in
accordance with Section 51 of RA
9344 as amended.
Michael was 17 years old when he
was charged for violation of Sec. 5
of R.A. 9165 (illegal sale of
prohibited drug). By the time he
was convicted and sentenced, he
was already 21 years old. The court
sentenced him to suffer an
indeterminate penalty of
imprisonment of six (6) years and
one (1) day of prision mayor, as
minimum, to seventeen (17) years
and four (4) months of reclusion
temporal, as maximum, and a fine
of P500,000. Michael applied for
cmii
probation but his application was
denied because the probation law
does not apply to drug offenders
under R.A. 9165. Michael then
sought the suspension of his
sentence under R.A. 9344 or the
Juvenile Justice and Youth Welfare
Code. Can Michael avail of the
suspension of his sentence
provided under this law? (2013
BAR)
Answer:
The benefits of a suspended sentence
can no longer apply to Michael. The
suspension of sentence lasts only until
the law reaches the maximum age
and thus, could no longer be
considered a child for purposes of
applying R.A. 9344. However, he shall
be entitled to the right of restoration,
rehabilitation and reintegration
accordance with the law to give him
the chance to live a normal life and
become a productive member of the
community. Accordingly, Michael may
be confined in an agricultural camp
and other training facility in accordance
with Sec. 51 of R.A. 9344 (People v.
Jacinto, G.R. No. 182239, March 16,
2011).
George, the 20-year old son of a
rich politician, was arrested at the
NAIA arrival lounge and found
positive for opium, a dangerous
Legal Counseling
drug. When arrested, 15 grams of
cocaine were found in his
backpack. What offense would you
charge George under R.A. No. 9160
(Comprehensive Dangerous Drugs
Act)? (2013 BAR)
(A) Use of dangerous drug.
(B) Use and possession of dangerous
drugs.
(C) Possession of dangerous drugs.
(D) Importation of dangerous drugs.
(E) None of the above.
The Philippine Drug Enforcement
Agency (PDEA) had intelligence
reports about the drug pushing
activities of Rado, but could not
arresthim for lack of concrete
evidence. SP03 Relio, a PDEA team
leader, approached Emilo and
in
requested him to act as poseur-
buyer of shabu and transact with
Rado. Emilo refused, saying that he
had completely been rehabilitated
and did not want to have anything
to do with drugs anymore. But he
was prevailed upon to help when
SP03 Relio explained that only he
could help capture Rado because
he used to be his customer. SP03
Relio then gave Emilo the marked
money to be used in buying shabu
from Rado. The operation
proceeded. After Emilo handed the
marked money to Rado in exchange
Page 8 of 33 cmii
for the sachets of shabu weighing
50 grams, and upon receiving the
pre-arranged signal from Ernilo,
SP03 Relio and his team members
barged in and arrested Rado and
Ernilo, who were both charged with
violation of R.A. 9165, otherwise
known as the Comprehensive
Dangerous Drugs Act of2002. (2015
BAR)
a) What defense, if any, may
Ernilo invoke to free himself
from criminal liability? Explain.
Answer:
Ernilo may invoke Section 33, Art. II
of RA 9165 or the “Comprehensive
Drugs Act of 2002”. He may have
violated Section 11 of RA 9165 for
possession of shabu but he is immune
from prosecution and punishment
because of his role as the poseur-
buyer in the entrapment operation.
There was virtually instigation. He is
exempted from prosecution or
punishment because the information
obtained from him by the PDEA
agents, who had no direct and
concrete evidence of Rado’s drug-
pushing activities, led to the
whereabouts, identity and arrest of
Rado. So long as the information and
testimony given are pleaded and
proven, Ernilo cannot be prosecuted
for violation of RA 9165.
Legal Counseling Page 9 of 33
b) May Rado adopt as his own
Emilo's defense? Explain.
Answer:
No. First, an entrapment operation is
a valid means of arresting violators of
RA 9165. It is an effective way of
apprehending law offenders in the act
of committing a crime. In a buy-bust
operation, the idea to commit a crime
originates from the offender, without
anybody inducing or prodding him to
commit the offense. Second, the
immunity does not extend to violators
of Section 5 of RA 9165 or the sale
of shabu (sec. 33, RA 9165). Lastly,
he was the offender of the crime and
apparently the most guilty of the
offense.
Dimas was arrested after a valid buy-
bust operation. Macario, the
policeman who acted as poseur-buyer,
inventoried and photographed ten (10)
sachets of shabu in the presence of a
barangay tanod. The inventory was
signed by Macario and the tanod, but
Dimas refused to sign. Aş Macario was
stricken with flu the day after, he was
able to surrender the sachets to the
PNP Crime Laboratory only after four
(4) days. During pre-trial, the counsel
de oficio of Dimas stipulated that the
substance contained in the sachets
examined by the forensic chemist is in
fact methamphetamine hydrochloride
cmii
or shabu. Dimas was convicted of
violating Section 5 of RA 9165. On
appeal, Dimas questioned the
admissibility of the evidence because
Macario failed to observe the requisite
“chain of custody” of the alleged
“shabu” seized from him. On behalf of
the State, the Solicitor General
claimed that despite non-compliance
with some requirements, the
prosecution was able to show that the
integrity of the substance was
preserved. Moreover, even with some
deviations from the requirements, the
counsel of Dimas stipulated that the
substance seized from Dimas was
shabu so that the conviction should
be affirmed. (2016 BAR)
(A) What is the “chain of custody”
requirement in drug offenses?
(2.5%)
ANSWER:
(A) To establish the chain of custody, the
prosecution must show the movements of
the dangerous drugs from its confiscation
up to its presentation in court. The
purpose of establishing the chain of
custody is to ensure the integrity of the
corpus delicti (People v. Magat, G.R. No.
179939, September 29, 2008). The
following links that must be established in
the chain of custody in a buy-bust
situation are: first, the seizure and
marking, if practicable, of the illegal drug
Legal Counseling Page 10 of 33
recovered from the accused by the
apprehending officer; second, the
turnover of the illegal drug seized by the
apprehending officer to the investigating
officer; third, the turnover by the
investigating officer of the illegal drug to
the forensic chemist for laboratory
examination; and fourth, the turnover and
submission of the marked illegal drug
seized from the forensic chemist to the
court (People v. Kamad, G.R. No.
174198, January 29, 2010)
To establish the first link in the chain of
custody, and that is the seizure of the
drug from the accused, the prosecution
must comply with Section 21 of RA No.
9165, which requires that the
apprehending officer after the
confiscation of drug must immediately
physically inventory and photograph the
same in the presence of the accused or
the person from whom such items were
confiscated, or his representative or
counsel, a representative from the media
and the Department of Justice (DOJ), and
any elected public official who shall be
required to sign the copies of the
inventory and be given a copy thereof
and within twenty-four (24) hours upon
such confiscation, the drug shall be
submitted to the.PDEA Forensic
Laboratory for examination.
(B) Rule on the contention of the State.
(2.5%)
cmii
ANSWER: The contention of the State is
meritorious. Macario, the policeman failed
to comply with Section 21 of RA NO 9165
since the inventory and photograph of the
drugs was only made in the presence of
barangay tanod and the same was not
submitted to the PNP Crime Laboratory
within 24 hours. The rule is settled that
failure to strictly comply with Section
21(1), Article il of R.A. No. 9165 does not
necessarily render an accused’s arrest
illegal or the items seized or confiscated
from him inadmissible. The most
important factor is the preservation of the
integrity and evidentiary value of the
seized item. Moreover, the issue of non-
compliance with Section 21 of RA No.
9165 cannot be raised for the first time on
appeal (People v. Badilla, G.R. No.
218578, August 31, 2016).
Maita was the object of Solito’s avid
sexual desires Solito had attempted
many times to entice Maita to a date in
bed with him but Maita had
consistently refused, Fed up with all
her rejections, Solito abducted Maita
into a Toyota Innova and drove off
with her to a green-painted house
situated in a desolated part of the
town. There, Solito succeeded in
having carnal knowledge of Maita
against her will.”
Meanwhile, the police authorities were
tipped off that at 11:30 p.m. on that
same night Solito would be selling
marijuana outside the green-painted
Legal Counseling Page 11 of 33
house. Acting on the tip, the PNP
station of the town formed a buy-bust
team with PO2 Masahol being
designated the poseur buyer. During
the buy bust operation Solito opened
the trunk of the Toyota Innova to
retrieve the bag of marijuana to be
sold to PO2 Masahol. To cut the laces
that he had tied the bag with, Solito
took out a swiss knife, but his doing
so prompted PO2 Ma sahol to effect
his immediate arrest out of fear that he
would attack him with the knife. PO2
Masahol then confiscated the bag of
marijuana as well as the Toyota
Innova. (2017 BAR)
(a) Two informations were filed against
Solito in the RTC-one for forcible
abduction with rape, raffled to Branch
8 of the RTC; the other for illegal sale
of drugs, assigned to Branch 29 of the
RTC. Was Solito charged with the
proper offenses based on the
circumstances? Explain your answer.
ANSWER:
(a) The charge of rape through forcible
abduction is correct. The rule is
settled that if the main objective of the
accused is to rape the victim, the
crime committed is rape even if he
abducted her forcefully. Forcible
abduction is absorbed. The doctrine
of absorption rather than Article 48 of
RPC is applicable since forcible
cmii
 abduction is an indispensable means
to commit rape (People A Mejoraday,
GR No. 102705, July 30, 1993;
People 1, Almanzor, G.R. No.
124916, July 11, 2002; People v.
Sabúdlab, G.R. No. 175924, March
14, 2012). If forcible abduction,
however, is a necessary means to
commit rape, this is a complex crime
proper under Article 48 of RPC
(People . Jose G.R. No:L-28232,
February 6, 1971, People v Buhos,
G.R. No. L-4099, June 25, 1980;
People v. Tami, G.R. Nos. 101801-03,
May 02, 1995). Where the victim was
abducted with lewd design and
brought to a house (People v.
Magdaraog, G.R. No. L-40988, April
15, 1988; People v. Buhos, G.R. No.
L-40995, June 25, 1980, Ex Banc,
People v. Velasquez, G.R. No.
137383-84, November 23, 2000) in a
desolated place e.g. uninhabited
grassy upland (People v. Caraang,
G.R. Nos. 148424-27, December 11,
2003) or forest (People v. De Lara,
GR No. 124703, June 27, 2000)
where she was raped, forcible
abduction should be treated as a
necessary means to commit rape,
and thus, the crime committed is a
complex crime of rape through
forcible abduction under Art. 48 of the
Revised Penal Code. The charge of
sale of dangerous drugs is
improper, since this crime is
consummated only upon the
Legal Counseling Page 12 of 33
delivery of the dangerous drugs to
the poseur buyer for a
consideration. Since in this case
Solito has not yet delivered the
marijuana to PO2 Masahol when
the latter apprehended the former,
the crime committed is not sale of
dangerous drugs but attempted
sale of dangerous drugs. In People
v. Figueroa (G.R. No. 186141, April
11, 2012), where the sale was
aborted when the police officers
immediately placed accused under
arrest, the crime committed is
attempted sale.
(b) W h i l e t h e P r o s e c u t i o n w a s
presenting its evidence in Branch
29, Branch 8 convicted Solito.
Immediately after the judgment of
conviction was promulgated, Solito
filed in both Branches a motion for
the release of the Toyota Innova.
He argued and proved that he had
only borrowed the vehicle from his
brother, the registered owner.
Branch 8 granted the motion but
Branch 29 denied it. Were the two
courts correct in their rulings?
Explain your answer. (5%)
ANSWER:
Yes. The two courts were correct in their
rulings. The applicable provisions of law
are Article 45 of the Revised Penal Code
and Section 20 of R.A. No. 9165. Under
cmii
Article 45 of the Revised Penal Code,
every penalty imposed for the
commission of a felony shall include the
forfeiture of the instruments or tools with
which the crime was committed, unless
they be the property of a third person not
liable for the offense. The Supreme Court
ruled that the return of the instrument or
tools to its owner cannot be prevented
unless said owner is charged with the
offense for which said instrument or tool
was used (PDEA v. Brodett, G.R. No.
196390, September 28, 2011, citing
People v. Jose, G.R. No. L-28232,
February 6, 1971). The Supreme Court
further held that the forfeiture of said
instrument or tools, if warranted, would
be part of the penalty prescribed (PDEA
v. B r o d e t t , s u p r a ) . H e n c e , t h e
determination of whether it will be
forfeited could be made only when
judgment is rendered.
In this case, the RTC Branch 8 already
rendered a judgment of conviction
against Solito. Solito was able to prove
that the car belonged to his brother who
was not charged with forcible abduction
with rape hence, it was correct for the
RTC Branch & to order the release of the
Toyota Innova to his brother who is not
liable for the offense.
On the other hand, Section 20 of R.A. No.
9165 states in part, “[d]uring the
pendency of the case in the Regional
Legal Counseling
Trial Court, no property or income derived
from the unlawful sale of any dangerous
drug), which may be confiscated and
forfeited, shall be disposed, alienated or
transferred and the same shall be in
custodia legis and no bond shall be
admitted for the release of the same.”
The Supreme Court ruled that it is
premature to release the car used in the
sale of dangerous drugs while the trial is
still ongoing The Supreme Court
explained that the status of the car for the
duration of the trial in the RTC as being in
custodia legis is primarily intended to
preserve it as evidence and to ensure its
availability as such. (PDEA v. Brodeti,
supra)
The RTC Branch 29, thus was correct in
denying Solito’s motion… to release the
Toyota Innova considering that the trial
for illegal sale of drugs is still ongoing.
G Robin and Rowell are best friends
and have been classmates since grade
school. When the boys graduated from
high school, their parents gifted them
with a trip to Amsterdam, all expenses
paid. At age 16, this was their first
European trip. Thrilled with a sense of
freedom, they decided to try what
Amsterdam was known for. One night,
they scampered out of their hotel
room, went to the De Wallen, better
known as the Red-light District of
Amsterdam. There, they went to a
Page 13 of 33 cmii
"coffee shop" which sells only drinks
and various items made from opium
poppy, cannabis, and marijuana, all of
which are legal in Amsterdam. They
represented themselves to be of age,
and were served, and took shots of,
cannabis and marijuana products.
They indulged in these products the
whole night, even if it was their first
time to try them.
Before returning to Manila, they
bought a dozen lollipops laced with
cannabis, as souvenir and
"pasalubong" for their friends. They
were accosted at the Manila
International Airport and were charged
with importation of dangerous drugs
under the Comprehensive Dangerous
Drugs Act of 2002. They were also
charged with use of dangerous drugs
after pictures of them in the "coffee
shop" in Amsterdam were posted on
Facebook, showing them smoking and
taking shots of a whole menu of
cannabis and marijuana products.
Their own captions on their Facebook
posts clearly admitted that they were
using the dangerous products. The
pictures were posted by them through
Private Messenger (PM) only for their
close friends, but Roccino, the older
brother of one of their best friends,
was able to get hold of his younger
brother's password, and without
authority from his brother, accessed
his PM and shared Robin and Rowell's
Legal Counseling Page 14 of 33
Amsterdam photos on Facebook.
(2018 BAR)
a) Can Robin and Rowell be
prosecuted for use of dangerous
drugs for their one-night use of these
products in Amsterdam? (2.5%)
SUGGESTED ANSWER:
Robin and Rowell cannot be prosecuted
by Philippine courts, because they did not
use the dangerous drug within its
t e r r i t o r y, u n d e r t h e p r i n c i p l e o f
territoriality.
b) Can they be prosecuted for
importation of dangerous drugs?
(2.5%)
SUGGESTED ANSWER:
They can be prosecuted for importation of
dangerous drugs under RA
9165, which provides:
“Section 4. Importation of Dangerous
Drugs and/or Controlled Precursors and
Essential Chemicals.- .The penalty of life
imprisonment to death and a 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 import or bring into the
Philippines any dangerous drug,
regardless of the quantity and purity
cmii
involved, including any and all species of
opium poppy or any part thereof or
substances derived therefrom even for
floral, decorative and culinary purposes”.
c) If found liable under either (a) or (b)
above, what is the penalty that may be
imposed on them? (2.5%)
SUGGESTED ANSWER:
If found guilty, they will be exempt from
criminal liability, because they are minors
(16 years old), as provided in Chapter 2,
section 6 of RA 9344 ("Juvenile Justice
and Welfare Act of 2006"), to wit:
“A child above fifteen (15) years but
below eighteen (18) years of age shall
likewise be exempt from criminal liability
and be subjected to an intervention
program, unless he/she has acted with
discernment, in which case, such child
shall be subjected to the appropriate
proceedings in accordance with this Act”.
Anti-Violence Against Women
and Their Children Act of 2004
(R.A. No.9262)
Ms. A had been married to Mr. B
for 10 years. Since their marriage,
Mr. B had been jobless and a
drunkard, preferring to stay with his
"barkadas" until the wee hours of
the morning. Ms. A was the
breadwinner and attended to the
Legal Counseling Page 15 of 33
needs of their three (3) growing
children. Many times, when Mr. B
was drunk, he would beat Ms. A
and their three (3) children, and
shout invectives against them. In
fact, in one of the beating incidents,
Ms. A suffered a deep stab wound
on her tummy that required a
prolonged stay in the hospital. Due
to the beatings and verbal abuses
committed against her, she
consulted a psychologist several
times, as she was slowly beginning
to lose her mind. One night, when
Mr. B arrived dead drunk, he
suddenly stabbed Ms. A several
times while shouting invectives
against her. Defending herself from
the attack, Ms. A grappled for the
possession of a knife and she
succeeded. She then stabbed Mr. B
several times which caused his
instantaneous death. Medico-Legal
Report showed that the husband
suffered three (3) stab wounds. Can
Ms. A validly put up a defense?
Explain. (2014, 2010)
ANSWER:
Yes, Ms. A can put up the defense of
battered woman syndrome. It appears
that she is suffering from physical and
psychological or emotional distress
resulting from cumulative abuse by her
husband. Under Sec. 3 of R.A. 9262,
“victim survivors who are found by
courts to be suffering from battered
cmii
woman syndrome do not incur any
criminal and civil liability
notwithstanding the absence of any of
the elements for justifying
circumstances of self defense under
the RPC.”
The husband has for a long time
physically and mentally tortured his
wife. After one episode of beating,
the wife took the husband’s gun
and shot him dead. Under the
circumstances, her act constitutes
(2011 BAR)
(A) mitigating vindication of grave
offense.
(B) battered woman syndrome,
complete self-defense.
(C) incomplete self-defense.
(D) mitigating passion and obfuscation.
A battered woman claiming self-
defense under the Anti-Violence
against Women and Children must
prove that the final acute battering
episode was preceded by (2011
BAR)
(A) 3 battering episodes.
(B) 4 battering episodes.
(C) 5 battering episodes.
(D) 2 battering episodes
Legal Counseling Page 16 of 33
Dion and Talia were spouses. Dion
always came home drunk since he
lost his job a couple of months
ago. Talia had gotten used to the
verbal abuse from Dion. One night,
in addition to the usual verbal
abuse, Dion beat up Talia. The next
morning, Dion saw the injury that
he had inflicted upon Talia and
promised her that he would stop
drinking and never beat her again.
However, Dion did not make good
on his promise. Just after one
week, he started drinking again.
Talia once more endured the usual
verbal abuse. Afraid that he might
beat her up again, Talia stabbed
Dion with a kitchen knife while he
a
was passed out from imbibing too
much alcohol. Talia was charged
with the crime of parricide. (2015
BAR)
May Talia invoke the defense of
Battered Woman Syndrome to free
herself from criminal liability?
ANSWER:
No, a single act of battery or physical
harm committed by Dion against Talia
resulting to the physical and
psychological or emotional distress on
her part is not sufficient to avail of the
benefit of the justifying circumstance
of “Battered Woman Syndrome”. The
defense of Battered Woman Syndrome
cmii
can be invoked if the woman with
marital relationship with the victim is
subjected to cumulative abuse or
battery involving the infliction of
physical harm resulting to the physical
and psychological or emotional
distress. Cumulative means resulting
from successive addition. In sum,
there must be “at least two battering
episodes” between the accused and
her intimate partner and such final
episode produced in the battered
person’s mind an actual fear of an
imminent harm from her batterer and
an honest belief that she needed to
use force in order to save her life
(People v. Genosa, G.R. No. 135981,
January 15, 2004).
b) Will your answer be the same,
assuming that Talia killed Dion after
being beaten up after a second
time? Explain.
Answer:
Yes, Talia can invoke the defense of
Battered Woman Syndrome to free
herself from criminal liability for killing
her husband since she suffered
physical and emotional distress arising
from cumulative abuse or battery.
Under Section 26 of RA 9262, victim
survivors of Battered Woman
Syndrome do not incur any criminal or
civil liability despite the absence of the
requisites of self-defense.
Legal Counseling Page 17 of 33
Jack and Jill have been married for
seven years. One night, Jack came
home drunk. Finding no food on
the table, Jack started hitting Jill
only to apologize the following day.
A week later, the same episode
occurred - Jack came home drunk
and started hitting Jill. Fearing for
her life, Jill left and stayed with
her sister. To woo Jill back, Jack
sent her floral arrangements of
spotted lilies and confectioneries.
Two days later, Jill returned home
and decided to give Jack another
chance. After several days, however,
Jack again came home drunk. The
following day, he was found dead.
Jill was charged with parricide but
raised the defense of "battered
woman syndrome." A.
Define "Battered Woman Syndrome?
(2%) (2010 Bar Question)
SUGGESTED ANSWER:
"Battered Woman Syndrome" refers to
a scientifically defined pattern of
psychological and behavioral symptoms
found in women living in battering
relationships as a result of cumulative
abuse (Section 31dj, Rep. Act No.
9262).
What are the three phases of the
"Battered Woman Syndrome"? (3%)
(2010 Bar Question)
cmii
SUGGESTED ANSWER:
The three (3) phases of the "Battered
Woman Syndrome" are: (1) the
tensionbuilding phase; (2) the acute
battering incident; and (3) the tranquil,
loving, or nonviolent phase (People v.
Genosa, G.R. No. 135981, January
15, 2004).
Would the defense prosper despite
the absence of any of the elements
for justifying circumstances of self-
defense under the Revised Penal
Code? Explain. (2%) (2010 Bar
Question)
SUGGESTED ANSWER:
Yes. Section 26 of Rep. Act No. 9262
provides that victim-survivors who are
found by the courts to be suffering
from battered woman syndrome do
not incur any criminal and civil liability
notwithstanding the absence of any of
the elements for justifying
circumstances of self-defense under
the Revised Penal Code.
Romeo and Julia have been married
for twelve (12) years and had two (2)
children. The first few years of their
m a r r i a g e w e n t a l o n g s m o o t h l y.
However, on the fifth year onwards,
they would often quarrel when Romeo
comes home drunk. The quarrels
became increasingly violent, marked
by quiet periods when Júlla would
Legal Counseling
leave the conjugal dwelling. During
these times of quiet, Romeo would
“court” Julia with flowers and
chocolate and convince her to return
home, telling her that he could not live
without her; or Romeo would ask Julia
to forgive him, which she did,
believing that it she humbled herself,
Romeo would change: After a month
of marital bliss, Romeo would return
to his drinking habit and the quarrel
would start 7 again; verbally at first,
until it would escalate to physical
violence. One night, Romeo came
home drunk and went straight to bed.
Fearing the onset of another violent
fight, Julia stabbed Romeo while he
was asleep. A week later, their
neighbors discovered Romeo’s rotting
corpse on the marital bed. Julia and
the children were nowhere to be
found. Julia was charged with
parricide. She asserted “battered
woman’s syndrome” as her defense.
(2016 BAR)
a) Explain the “cycle of
violence.” (2.5%)
ANSWER:
The battered woman syndrome is
characterized by the so-called “cycle of
violence,” which has three phases: (1) the
tension-building phase; (2) the acute
battering incident; and (3) the tranquil,
loving (or, at least, nonviolent) phase.
Page 18 of 33 cmii
During the tension-building phase, minor
battering occurs-it could be verbal or
slight physical abuse or another form of
hostile behavior. The woman tries to
pacify the batterer through a kind,
nurturing behavior; or by simply staying
out of his way. The acute battering
incident is characterized by brutality,
destructiveness and, sometimes, death.
The battered woman deems this incident
as unpredictable, yet also inevitable.
During this phase, she has no control;
only the batterer may put an end to the
violence. The final phase of the cycle of
violence begins when the acute battering
incident ends. During this tranquil period,
the couple experience profound relief.
b) Is Julia’s “battered woman’s
syndrome” defense meritorious?
Explain. (2.5%)
ANSWER:
Yes. Under Section 3 (c) of RA NO. 9262,
“Battered Woman Syndrome” refers to a
scientifically defined pattern of
psychological and behavioral symptoms
found in women living in battering
relationships as a result of “cumulative
abuse”. Under Section 3 (b), “Battery”
refers to an act of inflicting physical harm
upon the woman or her child resulting in
physical and psychological or emotional
distress (Section 3). In sum, the defense
of Battered Woman Syndrome can be
invoked if the woman in marital
Legal Counseling Page 19 of 33
relationship with the victim is subjected to
cumulative abuse or battery involving the
infliction of physical harm resulting to the
physical and psychological or emotional
distress. Cumulative means resulting
from successive addition. In sum, there
must be “at least two battering episodes”
between the accused and her intimate
partner and such final episode produced
in the battered person’s mind an actual
fear of an imminent harm from her
batterer and an honest belief that she
needed to use force in order to save her
life (People v. Genosa, G.R. No. 135981,
January 15, 2004). In this case, because
of the battering episodes, Julia, feared
the onset of another violent fight and
honestly believed the need to defend
herself even if Romeo had not
commenced an unlawful aggression.
Even in the absence of unlawful
aggression, however, Battered Woman
Syndrome is a defense. Under Section 27
of RA No. 9262, Battered Woman
Syndrome is a defense notwithstanding
the absence of any of the elements for
justifying circumstances of self-defense
under the Revised Penal Code such as
unlawful aggression (Section 26 of RA
No. 9262).
For the past five years, Ruben and
Rorie had been living together as
husband and wife without the benefit
of marriage. Initially, they had a happy
relationship which was blessed with a
daughter, Rona, who was born on
cmii
March 1, 2014. However, the partners'
relationship became sour when Ruben
began indulging in vices, such as
women and alcohol, causing frequent
arguments between them. Their
relationship got worse when, even for
slight mistakes, Ruben would lay his
hands on Rorie. One day, a tipsy
Ruben barged into their house and, for
no reason, repeatedly punched Rorie
in the stomach. To avoid further harm,
Rorie ran out of the house. But Ruben
pursued her and stripped her naked in
full view of their neighbors; and then
he vanished.
Ten days later, Ruben came back to
Rorie and pleaded for forgiveness.
However, Rorie expressed her wish to
live separately from Ruben and asked
him to continue providing financial
support for their daughter Rona. At
that time, Ruben
was earning enough to support a
family. He threatened to withdraw the
support he was giving to Rona unless
Rorie would agree to live with him
again. But Rorie was steadfast in
refusing to live with Ruben again, and
insisted on her demand for support for
Rona. As the ex-lovers could not reach
an agreement, no further support was
given by Ruben.
What crimes did Ruben commit:
(a) For beating and humiliating Rorie?
(2.5%)
Legal Counseling Page 20 of 33
ANSWER:
For beating and humiliating Rorie, such
acts violate Ra 9262, known as the "Anti-
Violence Against Women and Their
Children Act of 2004,” particularly section
3 (a) thereof under "Physical Violence"
referring to acts that include bodily or
physical harm against a woman with
whom the person has or had a sexual or
dating relationship.
(b) For withdrawing support for Rona?
(2.5%)
ANSWER:
For withdrawing support for Rona, such
act is a violation of RA 9262, section 3
(d), which reads:
"Economic abuse" refers to acts that
make or attempt to make a woman
financially dependent which includes, but
is not limited to the following:
1. Withdrawal of financial support or
preventing the victim from engaging in
any legitimate profession, occupation,
business or activity, except in cases
wherein the other spouse/partner objects
on valid, serious and moral grounds as
defined in Article 73 of the Family Code;
ARREST
As Cicero was walking down a
dark alley one midnight, he saw an
"owner-type jeepney" approaching
cmii
him. Sensing that the occupants of
the vehicle were up to no good, he
darted into a corner and ran. The
occupants of the vehicle- elements
from the Western Police District -
gave chase and apprehended him. The
police apprehended Cicero, frisked
him and found a sachet of 0.09
gram of shabu tucked in his waist
and a Swiss knife in his secret
pocket, and detained him thereafter.
Is the arrest and body-search legal?
(3%) (2010 Bar Question)
SUGGESTED ANSWER:
The arrest and body-search was legal.
Cicero appears to be alone "walking
down a dark alley" and at midnight.
There appears probable cause for the
policemen to check him, especially
when he darted into a corner
(presumably also dark) and run under
such circumstance. Although the arrest
came after the body-search where
Cicero was found with shabu and a
Swiss knife, the body search is legal
under the "Terry search" rule or the
"stop and frisk" rule. And because the
mere possession, with animus, of
dangerous drug (the shabu) is a
violation of the law (Rep. Act 9165),
the suspect is in a continuing state of
committing a crime while he is
illegally possessing the dangerous
drug, thus making the arrest
tantamount to an arrest in flagrante:
so the arrest is legal and
Legal Counseling Page 21 of 33
correspondingly, the search and
seizure of the shabu and the
concealed knife may be regarded as
incident to a lawful arrest.
In a criminal case for violation of a
city ordinance, the court may issue
a warrant of arrest: (2012 BAR)
a. for failure of the accused to
submit his counter-affidavit.
b. after finding probable cause
against the accused.
c. for failure of the accused to post
bail.
d. for non-appearance in court
whenever required.
U n d e r S e c t i o n 5 , R u l e 11 3 a
warrantless arrest is allowed when an
offense has just been committed and
the peace officer has probable cause
to believe, based on his personal
knowledge of facts or circumstances,
that the person to be arrested has
committed it. A policeman approaches
you for advice and asks you how he
will execute a warrantless arrest
against a murderer who escaped after
killing a person. The policeman arrived
two (2) hours after the killing and a
certain Max was allegedly the killer per
information given by a witness. He
asks you to clarify the following: (2016
BAR)
cmii
A) How long after the commission of
the crime can he still execute the
warrantless arrest? (2.5%)
ANSWER:
In executing a warrantless arrest under
Section 5, Rule 113, the Supreme Court
held that the requirement that an offense
has just been committed means that
there must be a large measure of
immediacy between the time the offense
was committed and the time of the arrest
(Joey M. Pestilos v. Moreno Generoso,
G.R. No. 182601, November 10, 2014). If
there was an appreciable lapse of time
between the arrest and the commission
of the crime, a warrant of arrest must be
secured. In any case, personal
knowledge by the arresting officer is an
indispensable requirement to the validity
of a valid warrantless arrest. The exact
period varies on a case to case basis. In
People v. Gerente (G.R. Nos. 95847-48,
March 10, 1993), the Supreme Court
ruled that a warrantless arrest was validly
executed upon therein accused three (3)
hours after the commission of the crime.
In People v. Tonog, Jr. (G.R. No. 94533.
February 4, 1992), the Supreme Court
likewise upheld the valid warrantless
arrest which was executed on the same
day as the commission of the crime.
However, in People v. Del Rosario (G.R.
No. 127755. April 14, 1999, 365 Phil.
292), the Supreme Court held that the
cantless arrest effected a day after the
commission of the crime is invalid. In Go
Legal Counseling Page 22 of 33
v. Court of Appeals (G.R. No. 101837,
February 11, 1992), Supreme Court also
declared invalid a warrantless arrest
effected (6) days after the commission of
the crime.
B) What does “personal knowledge of
the facts and circumstances that the
person to be arrested committed it”
mean? (2.5%)
ANSWER:
The phrase “personal knowledge of the
facts and circumstances that the person
to be arrested committed it” means that
matters in relation to the supposed
commission of the crime were within the
actual perception, personal evaluation or
observation of the police officer at the
scene of the crime. Thus, even though
the police officer has not seen someone
actually fleeing, he could still make a
warrantless arrest if, based on his
personal evaluation of the circumstances
at the scene of the crime, he could
determine the existence of probable
cause that the person sought to be
arrested has committed the crime;
however, the determination of probable
cause and the gathering of facts or
circumstances should be made
immediately after the commission of the
crime in order to comply with the element
of immediacy.
cmii
The arresting officer’s determination of
probable cause under Section 5(b), Rule
113 of the Revised Rules of Criminal
Procedure is based on his personal
knowledge of facts or circumstances that
the person sought to be arrested has
committed the crime. These facts or
circumstances pertain to actual facts or
raw evidence, i.e., supported by
circumstances sufficiently strong in
themselves to create the probable cause
of guilt of the person to be arrested. A
reasonable suspicion therefore must be
founded on probable cause, coupled with
good faith on the part of the peace
officers making the arrest. The probable
cause to justify warrantless arrest
ordinarily signifies a reasonable ground of
suspicion supported by circumstances
sufficiently strong in themselves to
warrant a cautious man to believe that
the person accused is guilty of the
offense with which he is charged, or an
actual belief or reasonable ground of
suspicion, based on actual facts (Joey M.
Pestilos v. Moreno Generoso, G.R. No.
182601, November 10, 2014).
Give at least two instances when a
peace officer or a private person may
make a valid warrantless arrest
(2%) (2017 BAR)\
SUGGESTED ANSWER
Under Section 5, Rule 113 of the Rules of
Court; a peace officer or a private person
Legal Counseling Page 23 of 33
may make a valid warrantiess arrest in
the fol lowing instances:
1. When, in his presence, the person to
be arrested has commit ted, is
actually committing, or is attempting
to commit an offense;
2. When an offense has just been
committed, and he has probable
cause to believe based on personal
knowledge of facts or circumstances
that the person to be arrested has
committed it; and
3. When the person to be arrested is a
prisoner who has escaped from a
penal establishment or place where
he is serving final judgment or is
temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to
another.
In a buy-bust operation, 30 kilos of
shabu were seized from Dave and
Daryll. They were arrested and placed
on inquest before Prosecutor Danilo
Doon who ordered their continued
detention. Thereafter, the information
for the sale and distribution of shabu
was filed in court. When arraigned,
Dave and Daryll pleaded not guilty to
the charge. During pre-trial, counsel
for both of the accused raised, for the
first time, the illegality of the arrest.
The case proceeded to trial. After trial,
the court scheduled the promulgation
of judgment with notice to both the
cmii
accused and their counsel, Atty.
Dimayuga. During the promulgation,
only Dave and Atty. Dimayuga were
present. Both the accused were
convicted of the crime charged. (2018
BAR)
(a) Was the challenge to the validity of
the arrest timely raised? (2.5%)
ANSWER:
No, the challenge to the validity of the
arrest was not timely
raised. As a rule, an accused may
question the validity of his arrest through
a motion to quash before he enters his or
her plea; otherwise, the objection is
deemed waived, and an accused is
estopped from questioning the legality of
his or her arrest (Veridiano v. People of
the Philippines, G.R. No. 200370, 7 June
2017).
(b) What is the remedy available to
Daryll, if any, to be able to file an
appeal? (2.5%)
ANSWER:
(b) In this case, Dave and Daryll
questioned the legality of their arrest only
during pre-trial, after they were arraigned;
hence, the challenge to the validity of the
arrest was not timely raised. To be able to
file an appeal, Daryll should: (a)
surrender, and (b) file a motion for leave
of court to file an appeal, stating therein
Legal Counseling Page 24 of 33
the reasons for his absence during the
promulgation, within 15 days from the
date of promulgation of judgment.
As a rule, the accused who fails to
appear at the promulgation of the
judgment of conviction shall lose the
remedies available under the Rules of
Court against the judgment, such as the
filing of: (a) a motion for new trial or
reconsideration; or (b) an appeal from the
judgment of conviction. The Rules of
Court, however, allow the accused to
regain his standing in court to avail of
these remedies by: (a) his surrender; and
(b) his filing of a motion for leave of court
to avail of these remedies, stating therein
the reasons for his absence within 15
days from the date of promulgation of
judgment (Villena v. People of the
Philippines, G.R. No. 184091, 31 January
2011).
Danjo, a stay-in gardener at the Dy
home in Quezon City, applied for
overseas employment in Riyadh as a
flower arranger. After he left for
abroad, Dino Dy, head of the family,
discovered that all his wristwatches
were missing. Dino followed Danjo’s
Instagram account and in one instance
saw Danjo wearing his Rolex watch.
He filed a complaint for qualified theft
against Danjo with the Office of the
Prosecutor (OP), Quezon City. The
subpoena with the affidavit-complaint
was served on Denden, Danjo’s wife,
at their house. No counter-affidavit
cmii
was filed by Danjo who continued to
work in Riyadh. After conducting a
preliminary investigation, the OP
found probable cause against Danjo
and subsequently filed the information
for qualified theft before the RTC of
Quezon City. The court likewise found
probable cause and issued in 2016 a
warrant for Danjo’s arrest.
Danjo was repatriated to the
Philippines in 2018. While Danjo was
lurking outside the Dys’ house, which
was only about 100 meters away from
the police station, SPO1 Dody
recognized Danjo. Realizing that the
police station had a copy of Danjo’s
warrant of arrest, SPO1 Dody
immediately pursued and arrested
Danjo. (2018 BAR)
(a) Was the warrant of arrest issued
against Danjo who was not in the
Philippines valid? (2.5%)
ANSWER:
Yes, the warrant of arrest issued against
Danjo is valid.
Section 6, Rule 112 of the Revised Rules
of Criminal Procedure states:
“Section 6: When warrant of arrest may
issue. — (a) By the Regional Trial Court.
— Within ten (10) days from the filing of
the complaint or information, the judge
shall personally evaluate the resolution of
the prosecutor and its supporting
evidence. He may immediately dismiss
Legal Counseling Page 25 of 33
the case if the evidence on record clearly
fails to establish probable cause. If he
finds probable cause, he shall issue a
warrant of arrest, or a commitment order
if the accused has already been arrested
pursuant to a warrant issued by the judge
who conducted the preliminary
investigation or when the complaint or
information was filed pursuant to section
7 of this Rule. In case of doubt on the
existence of probable cause, the judge
may order the prosecutor to present
additional evidence within five (5) days
from notice and the issue must be
resolved by the court within thirty (30)
days from the filing of the complaint of
information”.
Likewise, in Ocampo v. Abando, (G.R.
No. 176830, 11 February 2014), the
Supreme Court held that,
“[I]t is enough that the judge personally
evaluates the Prosecutor’s report and
supporting documents showing the
existence of probable cause for the
indictment and, on the basis thereof,
issue a warrant of arrest; or on the basis
of his evaluation he finds no probable
cause, to disregard the Prosecutor’s
resolution and require the submission of
additional affidavits of witnesses to aid
him in determining its existence”.
It is provided that the Judge, may at his
discretion, issue a warrant of arrest to
order the arrest of Danjo if the
prosecution sufficiently established the
existence of a probable cause as
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required by the Revised Rules of Criminal
Procedure.
It is clear, therefore, that the warrant of
arrest issued against Danjo is valid
(b) Can the warrant of arrest be served
Danjo upon his return? (2.5%)
SUGGESTED ANSWERS:
(b) Yes, the warrant of arrest may be
served on Danjo upon his return to the
Philippines.
The Supreme Court in Manangan v.
Court of First Instance of Nueva Vizcaya
(G.R. No. 82760, 30 August 1990) ruled
that unlike a search warrant, which is
valid for only ten (10) days from date
(Rule 126, Sec. 9), a Warrant of Arrest
remains valid until arrest is effected or the
Warrant lifted.
In the case at bar, absent any indication
that the warrant of arrest is lifted by the
Court , the warrant of arrest issued for the
arrest of Danjo is still valid.
Two police teams monitored the
payment of ransom in a kidnapping
case.
The bag containing the ransom money
was placed inside an unlocked trunk
of a car which was parked at the
Angola Commercial Center in
Mandaluyong City.
The first police team, stationed in an
area near where the car was parked,
witnessed the retrieval by the
Legal Counseling Page 26 of 33
kidnappers on the bag from the
unlocked trunk. The kidnappers
thereafter boarded their car and
proceeded towards the direction of
Amorsolo St. in Makati City where the
second police team was waiting.
Upon confirmation by radio report
from the first police team that the
kidnappers were heading towards
their direction, the second police team
proceeded to conduct surveillance on
the car of the kidnappers, eventually
saw it enter Ayala Commercial Center
in Makati City, and the police team
finally blocked it when it slowed down.
The members of the second police
team approached the vehicle and
proceeded to arrest the kidnappers.
Is the warrantless arrest of the
kidnappers by the second police team
lawful? (5%)
ANSWER:
The warrantless arrest is lawful.
There are two requirements before a
warrantless arrest can be effected under
Section 5(b), Rule 113, Rules of Court:
(1) an offense has just been committed,
and (2) the person making the arrest has
personal knowledge of facts indicating
that the person to be arrested has
committed it.
Both requirements are present in the
instant case. The first police team present
in the Angola Commercial Center was
able to witness the pay-off which
cmii
effectively consummated the crime of
kidnapping. Its team members all saw the
kidnappers take the money from the car
trunk. Such knowledge was then relayed
to the other police officers comprising the
second police team stationed in Amorsolo
St. where the kidnappers were expected
to pass.
It is sufficient for the arresting team that
they were monitoring the pay-off for a
number of hours long enough for them to
be informed as to who the kidnappers
were. This is equivalent to personal
knowledge based on probable cause
(People v. Uyboco, G.R. No. 178039,
January 19, 2011)
SEARCH AND SEIZURE
PDEA agents conducted a search
on a house abandoned by its
owners in Quezon City. The search,
in order to be valid, must be made
in the presence of: (2012 BAR) a.
any relative of the owner of the
house. b. the Director of the PDEA
and a member of the media. c. the
Barangay Chairman and a Barangay
Tanod. d. any elected Quezon City
official.
a. any relative of the owner of the
house.
b. the Director of the PDEA and a
member of the media.
Legal Counseling Page 27 of 33
c. the Barangay Chairman and a
Barangay Tanod.
d. any elected Quezon City official.
Q: Hercules was walking near a
police station when a police officer
signalled for him to approach. As
soon as Hercules came near, the
police officer frisked him but the
latter found no contraband. The
police officer told Hercules to get
inside the police station. Inside the
police station, Hercules asked the
police officer, "Sir, may problema po
ba?" Instead of replying, the police
officer locked up Hercules inside
the police station jail. (2015)
a. If Hercules filed with the
Ombudsman a complaint for
warrantless search, as counsel
for the police officer, what
defense will you raise for the
dismissal of the complaint?
ANSWER:
a. As counsel of policeman, I will
raise the defense of presumption
of regularity in the performance of
duty. I can also raise the defense
that the police officer has the duty
to search Hercules under the
“Stop-and-Frisk” rule. A stop-and-
frisk situation must precede a
warrantless arrest, be limited to
the person’s outer clothing, and
cmii
 should be grounded upon a
genuine reason, in the light of the
police officers experience and
surrounding conditions, to warrant
the belief that the person detained
has weapons concealed about him
(Valdez v. People, G.R. No.
170180, November 23, 2007). The
“stop-and-frisk” search should be
used “when dealing with rapidly
unfolding and potentially criminal
situation in the city streets where
unarguably there is no time to
secure a search warrant.” “Stop-
and-frisk” searches (sometimes
referred to as Terry searches) are
necessary for law enforcement,
that is, law enforcers should be
given the legal arsenal to prevent
the commission of the offenses.
This should be balanced, however,
with the need to protect the
privacy of citizens in accordance
with Article III, Section 2 of the
Constitution (People of the
Philippines v. Victor Cogaed, G.R.
No. 200334, July 30, 2014).
b. If Hercules opts to file a civil
action against the police officer, will
he have a cause of action?
ANSWER:
YES. Hercules has a cause of action
to file civil action against the police
officer under Article 32(4) in relation to
Legal Counseling Page 28 of 33
Article 2219(6) and (10) of the New
Civil code, which provides that a
police officer may be liable for
damages when the right to be secure
in one’s person, house, papers and
effects against unreasonable searches
and seizures is impaired. The
indemnity includes moral damages.
Exemplary damages may also be
adjudicated (Galvante v. Casimiro,
G.R. No. 162808, April 22, 2008).
A search warrant was issued for
the purpose of looking for
unlicensed firearms in the house of
Ass-asin, a notorious gun for hire.
When the police served the warrant,
they also sought the assistance of
barangay tanods who were assigned
to look at other portions of the
premises around the house. In a
nipa hut thirty (30) meters away
from the house of Ass-asin, a
Barangay tanod came upon a kilo
of marijuana that was wrapped in
newsprint. He took it and this was
later used by the authorities to
charge Ass-asin with illegal
possession of marijuana. Ass-asin
objected to the introduction of such
evidence claiming that it was
illegally seized. Is the objection of
Ass-asin valid? (2014 BAR)
ANSWER:
The objection is valid. The search
warrant specifically designates or
cmii
describes the house as the place to night. The general rule is that a
be searched. Incidentally, the search warrant must be served in the
marijuana was seized by the Barangay day time (Sec. 8, Rule 126), or that
Tanods thirty (30) meters away from portion of the twenty-four hours in
the house of the accused. Since the which a man’s person and
confiscated items were found in a countenance are distinguishable (17
place other than the one described in C.J. 1134). By way of exception, a
the search warrant, it can be search warrant may be made at night
considered as fruits of an invalid when it is positively asserted in the
warrantless search, the presentation of affidavit that the property is on the
which as an evidence is a violation of person or in the place ordered to be
petitioner’s constitutional guaranty searched (Alvares v. CFI of Tayabas,
against unreasonable searches and G.R. No. L-45358, January 29, 1937).
seizure (Ruben Del Castillo v. People There is no showing that the exception
of the Philippines, G.R. No. 185128, applies.
January 30, 2012). Besides, the
search is also illegal because the b) Suppose the search warrant was
marijuana confiscated in the nipa hut served on March 15, 2012 and the
was wrapped in a newsprint. search yielded the described
Therefore, the same cannot be contraband and a case was filed
considered validly seized in plain view against the accused in RTC, Sta.
(Abraham Miclat v. People of the Cruz, Laguna and you are the
Philippines, G.R. No. 176077, August lawyer of Sio Pao and Ho Pia, what
31, 2011). will you do? (2012 BAR)

a) Cite/enumerate the defects, if ANSWER:

any, of the search warrant. (2012
BAR)
ANSWER:
The search warrant failed to
particularly describe the place to be
searched and the things to be seized
(Sec. 4, Rule 126). 2. The search
warrant commanded the immediate
search, at any time in the day or
If I were the lawyer of Sio Pao and
Ho Pia, I would file a Motion to
Quash the search warrant for having
been served beyond its period of
validity (Sec.14, Rule 126). A search
warrant shall be valid only for ten
days from its date. Thereafter, it shall
be void (Sec. 10, Rule 126).

Legal Counseling Page 29 of 33 cmii

Atty. Dalmacio, the Director of the
National Bureau of Investigation,
applied for a search warrant before the
Executive Judge of RTC Manila.
Healleged in his application that a
certain alias Django was keeping
about 10 kilos of shabu in a wooden
cabinet located at Dillian’s Store in
Paseo de Sta. Rosa, Laguna. The
Executive Judge of Manila personally
examined Atty. Dalmacio and his
witnesses and thereafter issued the
search warrant particularly describing
the place to be searched and the items
to be seized. (2018 BAR)
(a) Can the search warrant issued by
the Executive Judge of Manila be
enforced in Laguna? (2.5%)
ANSWER:
Yes, the search warrant issued by the
Executive Judge of Manila may be
enforced in Laguna.
Administrative No. 99-20-09 of the
Supreme Court states all applications for
search warrant personally endorsed by
the head of the Philippine National Police
(PNP), the National Bureau of
Investigation (NBI), The Presidential Anti-
Organized Crime Task Force (PAOC-TF)
and the Reaction Against Crime Task
Force (REACT-TF) with The Executive
Judge and Vice Executive Judges of
Regional Trial Courts, Manila and
Quezon City, may be served in places
Legal Counseling Page 30 of 33
outside the territorial jurisdiction of said
courts.
In the case at bar, the application for the
issuance of search warrant was filed by
the Director of the National Bureau of the
National Bureau of Investigation (NBI)
before the Executive Judge of Manila;
hence, the search warrant may be
enforced outside the territorial jurisdiction
of Manila
Five foreign nationals arrived at the
NAIA from Hong Kong. After retrieving
their checked-in luggage, they placed
all their bags in one pushcart and
proceeded to Express Lane 5. They
were instructed to place their luggage
on the examiner’s table for inspection.
The examiner found brown-colored
boxes, similar in size to powdered milk
boxes, underneath the clothes inside
the foreigners’ bags. The examiner
discovered white crystalline
substances inside the boxes that were
the inspected and proceeded to
bundle all of the boxes by putting
masking tape around them. He
thereafter handed the boxes over to
Bureau of Customs agents. The
agents called out the names of the
foreigners one by one and ordered
them to sign their names on the
masking tape placed on the boxes
recovered from their respective bags.
The contents of the boxes were
thereafter subjected to tests which
cmii
confirmed that the substance was
shabu.
Can the shabu found inside the boxes
admitted in evidence against the five
foreigners for the charge of illegal
possession of drugs in violation of the
Comprehensive Dangerous Drugs Act
of 2002? (2.5%) (2018 BAR)
ANSWER:
Yes, shabu obtained in ordinary customs
searches such as those done in airport,
which is a valid warrantless search, are
admissible in evidence (Dela Cruz v.
People G.R. 209387, January 11, 2016).
Around 12:00 midnight, a team of
police officers was on routine
patrol in Barangay Makatarungan
when it noticed an open delivery
van neatly covered with banana
leaves. Believing that the van was
loaded with contraband, the team
leader flagged down the vehicle
which was driven by Hades. He
inquired from Hades what was
loaded on the van. Hades just gave
the police officer a blank stare and
started to perspire profusely. The
police officers then told Hades that
they will look inside the vehicle.
Hades did not make any reply. The
police officers then lifted the banana
leaves and saw several boxes. They
opened the boxes and discovered
several kilos of shabu inside.
Legal Counseling Page 31 of 33
Hades was charged with illegal
possession of illegal drugs. After
due proceedings, he was convicted
by the trial court. On appeal, the
Court of Appeals affirmed his
conviction. In his final bid for
exoneration, Hades went to the
Supreme Court claiming that his
constitutional right against
unreasonable searches and seizures
was violated when the police
officers searched his vehicle
without a warrant; that the shabu
confiscated from him is thus
inadmissible in evidence; and that
there being no evidence against
him, he is entitled to an acquittal.
For its part, the People of the
Philippines maintains that the case
of Hades involved a consented
warrantless search which is legally
recognized. The People adverts to
the fact that Hades did not offer
any protest when the police officers
asked him if they could look inside
the vehicle. Thus, any evidence
obtained in the course thereof is
admissible in evidence. Whose claim
is correct? Explain. (2015 BAR)
Answer: The warrantless search was
illegal. There was no probable cause
to search the van. The shabu was not
immediately apparent. It was
discovered only after they opened the
boxes. The mere passive silence of
Hades did not constitute consent to
cmii
the warrantless search (Caballes v.
CA, 373 SCRA 221 [2002]).
Using the description of the
supplier of shabu given by persons
who had been arrested earlier for
selling it, the police conducted a
surveillance of the area indicated.
When they saw a man who fitted
the description walking from the
apartment to his car, they
approached and frisked him and he
did not object. The search yielded
an unlicensed gun tucked on his
waist and shabu in his car. Is the
search valid? (2011 BAR)
Answer: No, the man did not manifest
any suspicious behavior that would
give the police sufficient reason to
search him.
An informer told the police that a
Toyota Car with plate ABC 134
would deliver an unspecified
quantity of ecstacy in Forbes Park,
Makati City. The officers whom the
police sent to watch the Forbes
Park gates saw the described car
and flagged it down. When the
driver stopped and lowered his
window, an officer saw a gun
tucked on the driver's waist. The
officer asked the driver to step out
and he did. When an officer looked
inside the car, he saw many tablets
Legal Counseling Page 32 of 33
strewn on the driver's seat. The
driver admitted they were ecstacy.
Is the search valid? (2011 BAR)
Answer: Yes, the police acted based
on reliable information and the fact
that an officer saw the driver carrying
a gun.
When can evidence "in plain view"
be seized without need of a search
warrant? Explain. (2%) (2012 BAR
EXAMS)
Answer:
Evidence in plain view can be seized
without need of a search warrant if
the following elements are present. 1.
There was a prior valid intrusion
based on the valid warrantless arrest
in which the police were legally
present pursuant of their duties; 2.
The evidence was inadvertently
discovered by the police who had the
right to be where they were: 3. The
evidence must be immediately
apparent; and 4. Plain view justified
seizure of the evidence without further
search. (del rosario vs. People, 358
scra 372)
It is form of entrapment. The
method is for an officer to pose as
a buyer. He, however, neither
instigates nor induces the accused
to commit a crime because in these
cmii
cases, the "seller" has already
decided to commit a crime. The
offense happens right before the
eyes of the officer. Under these
circumstances: (2012 BAR EXAMS)
Answer:
there is no need for a warrant either
for the seizure of the goods or for
the arrest of the offender;
laws as well as the legal orders of the
duly constituted authorities therein;
2. To the Legal Profession: to uphold
the dignity and integrity of the legal
profession
3. To the Court: to be candid, promote
respect for the courts
4. To the Clients: candor, fairness &
loyalty, holds clients mooney and
property

Lawyer's Oath
I, do solemnly swear that I will maintain
allegiance to the Republic of the
Philippines, I will support the Constitution
and obey the laws as well as the legal
orders of the duly constituted authorities
therein; I will do no falsehood, nor
consent to the doing of any in court; I will
not wittingly or willingly promote or sue
any groundless, false or unlawful suit, or
give aid nor consent to the same; I will
delay no man for money or malice, and
will conduct myself as a lawyer according
to the best of my knowledge and
discretion, with all good fidelity as well to
the courts as to my clients; and I impose
upon myself these voluntary obligations
without any mental reservation or
purpose of evasion. So help me God.

4 FOLD DUTIES OF A LAWYER

1. To the Society: I, do solemnly swear
that I will maintain allegiance to the
Republic of the Philippines, I will
support the Constitution and obey the

Legal Counseling Page 33 of 33 cmii