CRIMINAL LAW REVIEW FISCAL PETRALBA | FINALS | S.Y.
2018-2019
TENTH WEEK OF DISCUSSIONS (MARCH 27-28, 2019)
TITLE 10 – CRIMES AGAINST PROPERTY
THEFT, QUALIFIED THEFT AND ROBBERY
ROBBERY THEFT QUALIFIED THEFT
 Taking of personal property
 Belonging to another
 With intent to gain
 Without consent
THEFT has four elements:
1. Taking of personal property
2. Belonging to another
3. With intent to gain
4. Without consent
Theft will become robbery depending on the “how” or manner or
means used in order to obtain.
It will become ROBBERY if:
1. There is violence or intimidation against persons
2. Force upon things
a) Inhabited place
b) Uninhabited place
QUALIFIED THEFT
 Penalty is 2 degrees higher:
 Committed by domestic servant; or
 With grave abuse of confidence; or
 Property stolen is mail matter; or
 Coconuts taken from plantation; or
 Fish taken from fishpond or fishery; or
 Property taken on occasion of earthquake, fire,
typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance
The same sets of elements will become QUALIFIED THEFT
depending on who committed the theft that is either:
a) By a domestic servant; or
b) By a person to whom the trust and confidence of the victim
has been reposed.
The penalty will graduate two degrees higher. It also answers the
question of what the thing taken is.
QUALIFIED THEFT OF COCONUTS
 Empelis & Cabungco v. IAC GR-L 66136, Sept. 28,
1984, take note of Valenzuela v. Pp, June 21, 2007)
 Coconuts taken within the premises of a plantation
 Coconuts may be stolen while still in the tree or
deposited on the ground within premises
 Crime is Frustrated Qualified Theft as accused was
seen carrying away coconuts while in the premises of
the plantation, but was not able to carry the coconuts
away from the plantation due to the timely arrival of the
owner. (This would now have been Consummated
Qualified Theft in view of Valenzuela)
Art. 310. Qualified theft. — The crime of theft shall be punished by
the penalties next higher by two degrees than those respectively
specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is
motor vehicle, mail matter or large cattle or consists of coconuts taken
from the premises of a plantation, fish taken from a fishpond or fishery
or if property is taken on the occasion of fire, earthquake, typhoon,
volcanic eruption, or any other calamity, vehicular accident or civil
disturbance.
Example:
 Coconut in a plantation (if in the carbon – only simple theft)
 Fish in a fishpond (if in the carbon – only simple theft)
How about shrimp in the fishpond?
Reyes said we should apply ejusdem generis because they belong in
the same kind. But penal laws are interpreted strictly; hence it cannot
include what has not been included by the legislators.
 For motor vehicles – we should take into consideration the
special laws such as carnapping law.
These elements will become qualified depending on who took and
what was taken and it will become robbery as to how taking was done.
DISSECTING THE ELEMENTS:
 What is meant by “taking”?
o It is not necessary that the property be
actually carried away out of the physical
possession of the possessor or that he should
have made his escape with it. Neither
asportation nor actual manual possession of
the property be required. Constructive
possession of the thief of the property is
enough.
o Laurel v. Abrogar GR 155076 Feb. 27, 2006
 Thus, there can be no Frustrated Theft
 Valenzuela v. PP June 21, 2007; Canceran
V. PP, July 1, 2015
Even intangibles can be subject of taking, misappropriation, or estafa.
Mere taking control of the thing will already consummate the crime.
Ergo, no frustrated theft or frustrated qualified theft.
Q: Is there still frustrated robbery?
NO MORE FRUSTRATED THEFT
 Valenzuela v. Pp 552, Phil 381, June 21, 2007
 Accused stole boxes of detergent from a supermarket,
but security guards were able to apprehend them.
 The ability of the offender to freely dispose of the
property stolen is not an element of the crime of theft.
Judicial interpretation of penal laws should be aligned
with what was the evident legislative intent, as
expressed in the language of the law.
 Accused committed Consummated Theft, but convicted
only for Attempted Theft because charges were for
Frustrated Theft.
For theft, there is no more frustrated. So when there is a taking or
physical handling or control over the thing, then the crime is already
consummated.
In this case, the case filed was frustrated. The SC said that no more
frustrated theft. But here he could not be convicted with consummated.
The crime was consummated but he cannot be convicted with it
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because he was charged only for frustrated. So he was convicted only
for attempted.
Canceran v. Pp GR 206442, July 1, 2015
 Accused stole boxes of Ponds cream from a
supermarket, but security guards were able to
apprehend them.
 Valenzuela ruling was reiterated.
 Accused committed Consummated Theft, but convicted
for Attempted Theft because charges were for
Frustrated Theft.
WHAT IS MEANT BY “PERSONAL PROPERTY?”
 Personal property does not necessarily mean “tangible”
 Electricity may be pilfered, though there is a special
penal law (RA 7832) on Anti-Electricity Pilferage that
specifically covers it.
 Business interest is a personal property capable of
appropriation
 Stocheker v. Ramirez GR 18700, Sept. 26,
1922
 Business of providing telephone services is likewise
personal property which can be the object of theft.
 PLDT v. HPS Software, Dec. 10, 2012,
reversing Laurel v. Abrogar GR 155076,
Feb. 27, 2006
The thing taken may be intangible. Until 2012, there was a debate that
should it also consist service.
T/N: Prior to that, there was a ruling in so far as gas, LPG. LPG is not
capable of manual or physical handling. However, it can be consumed.
It is a fungible that can be taken and can be misappropriated.
As to Business Interest
A business interest is a personal property. Under the law, there is an
enumeration of what are real properties. Ang wa sa enumeration sa
real property, it is considered is as personal property.
Considering that business interest is not in the enumeration under real
property, it is a personal property.
Discussion of the PLDT Case:
What was stolen was the services of PLDT. So here, there was this
company wherein they have certain gadget and they would issue
certain cards (long distance call cards) to people in Japan (Fiscal is not
sure). And then they will place a call and use the facilities of PLDT. But
HPS was paying PLDT for local services.
They skipped some protocols in such a way that the calls will appear
as local calls when in truth an in fact it was long distance calls. PLDT
says there was theft.
SC said services can be the subject of theft. Business involving public
utilities can be a subject of theft. It belongs to the classification of
personal property that can be taken.
 What is meant by “with intent to gain”?
 This specific criminal intent (animus furandi, the intent to
deprive another of his ownership/possession) must exist
apart from and concurrently with the genera criminal
intent of dolo (dolus malus)
 Laurel v. Abrogar GR 155076 Feb. 27, 2006
INTENT TO GAIN
Specific criminal intent refers to the intent to deprive another of his
ownership or possession. This is a specific criminal intent which must
exist together with the general criminal intent.
So there is no such this as culpa in theft.
COCONUT CASE REITERATION:
The Supreme Court said that the crime committed was frustrated
qualified theft because he was still in the plantation. Kung makagawas
nalang siya sa plantation, theft nalang.
 Naa pa sa lubi: QUALIFIED THEFT
 Ig-naog: FRUSTRATED QUALIFIED THEFT
 Inig gawas sa plantation: THEFT
QUALIFIED THEFT: GRAVE ABUSE OF CONFIDENCE
 People v. Syou Hu, GR 45765, Jan. 29, 1938
 Grave abuse of discretion is mere circumstance which
aggravates and qualified the crime. It is not necessary
for said circumstance to be premediated in order to be
taken into consideration. Its presence in the commission
of the crime is sufficient.
It does not necessarily have to be deliberately planned to get the
confidence as long as there is confidence.
Not all employees belong to the category of with confidence. There are
only a distinct number of employees who are imposed with trust and
confidence.
Example: A cashier would be a person upon whom trust and
confidence is reposed. But an ordinary tindera would not fall in that
category. If she takes money then it would be theft, if it’s the cashier
that would be qualified theft.
Example in Viray where the laborer was paid in a daily basis and was
not allowed even inside the house by himself, he had to destroy the
lock doors the crime is robbery not qualified theft. The surprising thing
is robbery carries a lower penalty than qualified theft. No confidence
was reposed upon him.
QUALIFIED THEFT FROM CARNAPPING
 Pp v. Bustinera, GR 148233, June 8, 2004
 Taxi driver failed to return his taxi.
 Art. 310 has been modified with respect to certain
vehicles. “When statutes are in pari materia or when
they relate to the same person or thing or cover the
same specific matter, or have the same purpose or
object, the rule dictates that they should be construed
together.
 Accused who was charged for Qualified Theft was
convicted for Carnapping.
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QUALIFIED THEFT: MOTOR VEHICLE
 Paramount Ins. v Remondeulaz, Nov. 28, 2012
 The car was entrusted by the owners to a car accessory
expert for the purpose of adding accessories and
improvements. The latter did not return it after the
agreed 3 days. Is there Qualified Theft when the car was
entrusted and not “taken without owner’s consent”?
 Theft can also be committed by misappropriation when
the accused did not have juridical possession.
In Bustinera, The taxi driver was entrusted with the taxi. The
agreement was that after a certain period, he will return the taxi. He did
not. In this kind of cases, although there was receiving, he did not take;
In Remondeulaz, that when the case was only supposed to be in the
possession of the offender for 3 days and he did not return it, there is
now taking without owners consent.
So even if actually he did not take it. It was received by him and it was
entrusted to him. Here SC said that the crime is qualified theft because
it involves a motor vehicle, never mind that it came to the possession
because it was given entrusted to him.
So it would seem to be that SC was so focused on the issue of taking.
The issue here was taking the element of taking. The SC said, the
taking need not necessarily that you have to get it. It could include
property being entrusted. In which case there is no taking but
receiving.
But it would seem that the SC forgot on the law of carnapping. If the
thing or object is a motor vehicle. We do not apply anymore qualified
theft. In Bustinera the issue was not taking, it was not the focus. Here
focus was what law applies. Should it be Art. 310 or Qualified Theft or
should it be carnapping. SC said that RPC on Qualified Theft has been
modified with respect to certain vehicles.
So if the vehicle is a land based vehicle, motorized land based vehicle,
the appropriate or proper law is the law on carnapping.
If statutes are in pari materia, involving the same subject matter, or
when they relate to the same person, or cover the same specific
matter, the rule dictates that they should be construed together. And so
they can stand together. Meaning that carnapping is only for those
motorized vehicles on land.
In Bustenira the accused was charged for qualified theft. But he was
convicted for carnapping. Why? Because the body of the information
states the same acts punished in the carnapping law. So he can still be
convicted even if it was not the designation in the information because
what matters is the body, the allegation in the information.
Therefore, if the question is what law shall apply, even if Bustinera is
older than Remon, with respect to the law it should be carnapping. If
the issue is whether there is taking or not, or whether the crime should
be estafa or theft, in this case theft will not be punished under 310 but
under carnapping. We refer to Remondeulaz but only to the nature of
the possession.
TAKING AND RECEIVING
 When there is Theft even if property was received,
not taken:
Whether the offender, on receiving the property, acquired:
1. Material possession alone; or
2. Material and juridical possession; or
3. Material and juridical possession plus the ownership.
 Where only the material possession is transferred,
conversion of the property gives rise to the crime of
theft; where both material and juridical possessions are
transferred, misappropriation of the property would
constitute estafa; and when in addition to the material
possession, the ownership of the property is transferred,
misappropriation would only give rise to a civil
obligation.
o PP v. Aquino, 36 Off Gaz. 1886
CRIME WHEN WHAT IS TRANSFERRED IS:
 Physical and material possession – Theft or Qualified
Theft (e.g. Bank Teller, store clerk, PP v. Lacson)
 Juridical possession – where the delivery of the goods
to be sold on commission involved a transfer of juridical
possession thereof, the crime resulting from the
misappropriation of the goods or of the proceeds thereof
would be estafa and not theft, simple or qualified.
 Ownership – there is only civil liability
One way of committing estafa if by abuse of confidence, one way of
committing qualified theft is also by abuse of confidence. So what’s the
difference then?
The difference would be in the nature of the possession. (more on this
when we discuss about estafa)
ROBBERY
 Robbery is the taking of personal property belonging to
another, with intent to gain, by means of violence
against, or intimidation of any person, or using force
upon things.
Same elements as in theft but it becomes robbery depending on the
manner of commission or how the taking was done.
CLASSIFICATIONS OF ROBBERY:
1. Robbery with violence against or intimidation of
persons (Arts. 294, 297 & 298);
2. Robbery by the use of force upon things (Arts. 299 &
302)
 What if both circumstances are present in a
robbery?
Which of the two kinds of robbery is the graver or the more
serious?
SC decided that between the two kinds, the more serious is the
robbery with violence against or intimidation of persons.
But what if both circumstances are present?
With the amendment of the RPC, there is no need to apply the Napolis
case anymore. Since the amount involved in robbery has been
increased, it is likely that if the courts will apply the penalty of robbery
with violence against or intimidation of persons, the penalty will already
be higher. No more need of the complexing.
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WHEN IS UNLAWFUL TAKING COMPLETE?
 As to Robbery with violence or intimidation of persons –
from the moment the offender gains possession of the
thing, even if the culprit has had no opportunity to
dispose of the same.
 As to Robbery with force upon things – the thing must
be taken out of the building/premises to consummate
the crime.
SINGLE LARCENY DOCTRINE
 Robberies/Thefts committed upon different victims on
the same occasion and in the same place constitute only
1 crime. These are incidents to only 1 criminal intent.
 If committed in different house belonging to different
victims, there are as many Robberies or Thefts as there
are incidents.
Here, if there are repetitive acts of taking, under one single criminal
intent, it will only result in one simple crime. Not complexed.
 Santiago v. Garchitorena, GR 109266, Dec. 2, 1993
 The trend in theft case is to follow the “single larceny”
doctrine, the taking of several things, whether belonging
to the same or different owners, at the time and place
constitutes but one larceny.
 Many courts have abandoned the “separate larceny
doctrine,” under which there are distinct larceny as to
the property of each victim.
SPECIAL COMPLEX CRIMES OF ROBBERY
1. Robbery with Homicide;
2. Robbery with Rape;
3. Robbery with Mutilation;
4. Robbery with Serious Physical Injuries;
(any person)
a. Insane, imbecile, impotent, blind
b. Lost use of speech, hear, smell; lost an eye, hand,
foot, arm, leg or use thereof, or incapacitated for
work that he was habitually engaged in
(injuries inflicted on person not responsible for its
commission)
c. Deformity
d. More than 30 days
5. Robbery with physical injuries by band
6. Attempted (or frustrated?) Robbery with Homicide
7. Robbery with Arson under RA 7659
Take note that in Robbery with Serious Physical Injuries in a or b
above, the victim may be ANY PERSON. But if the injury inflicted is c
or d, the victim must NOT BE A CO-ROBBER.
ROBBERY WITH HOMICIDE
 Generic interpretation of homicide in complex crimes of
Robbery
 There is Robbery with Homicide even if the killing was
not premeditated. What is determinative is the killing
took place “by reason or on the occasion of” the
robbery.
COMPLEXING
 There is no Robbery in band with Murder; Robbery with
Multiple Homicides or Robbery with Homicide in band.
 The band or the qualifying circumstance to Murder will
only constitute an ordinary aggravating circumstance in
this special complex crime.
Special complex crimes are indivisible.
 Therefore, even if 5 people died, the crime will just be
robbery with homicide.
 If 5 people died and 3 people were raped in the course of the
robbery, robbery being the main purpose, the crime will just
be robbery with homicide. Because the crime is single and
indivisible, you cannot change the name.
Serious physical injuries here is generic in a sense that we do not take
into consideration the presence or absence of intent to kill.
So even if there is intent to kill, we do not call the crime robbery with
frustrated homicide. It will still be robbery with serious physical injuries.
So, it is generic only insofar as the intent to kill is concerned.
NOT GENERIC insofar as the nature of the injuries is concerned,
because the injury must be serious. Because if not serious, not
anymore be a special complex crime.
FOR ROBBERY WITH HOMICIDE – all conspirators are
liable for the Homicide which is a “foreseeable offense”
in Robbery. (Regalado).
 All that is needed to be proven is that there was a
conspiracy to commit the robbery. (PP v. Lascuna,
GR 90626, Aug. 18, 1993)
FOR ROBBERY WITH RAPE BY A BAND – Art. 296
(2) applies. Rape being an “unforeseeable offense” in
Robbery, only band members who committed the rape
or who knew of the rape but did not prevent the same
can be held liable. (Regalado)
 Other band members will only be liable for Robbery in
Band.
 This was applied in PP v. Canturia (non-participants
who did not know were not held liable); and in PP v.
Pizzaras, Oct. 30, 1981 (one who held the legs but did
not rape was held liable).
What important is that the main purpose is robbery. If not, we do not
special complex.
Example:
 So if the main purpose is to kill then afterwards the personal
belongings are taken. The crime is MURDER and THEFT.
 Therefore if 5 people were killed (intention is to kill) – 5
counts of murder.
 If the main intention is to rob and 5 people were killed –
one robbery with homicide.
 Rape AND Murder AND Theft – If the main purpose is to kill
and before killing the victim was raped and then taking
robbed.
 Special complex crime of Robbery with Homicide (rape
aggravating) – Main purpose was to rob and the victim was
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killed as well as valuables were taken and the victim was
raped.
 Special Complex Crime of Robbery with Rape – if the
purpose is to rob and the woman was raped 5 times
 Forcible Abduction AND 4 counts of rape – Woman was
taken first with lewd design and thereafter raped 5 times,
there will be an ordinary complex crime. And in ordinary
complex crime you can have as many crimes as there are
acts or victims, you will still have 5 crimes.
Everybody will be liable for all other crimes even if not the subject of
robbery when it is committed by a band.
If there are other crimes committed that are not agreed upon,
everybody in the band will be liable if they were PRESENT AND THEY
DID NOT PREVENT THE OTHER CRIME FROM BEING
COMMITTED.
CUADRILLA THEORY
The law specifies robbery by a band but SC, in several cases, that the
same law can also be applied when the crime is a special complex
crime. So the robbery by a band provision is given application in other
Special Complex Crime like Kidnapping with Rape or Homicide.
Even if there is no band provided that the crime is single and
indivisible.
FOR ROBBERY WITH RAPE:
 In PP v. Mendoza, July 9, 1998, citing US v. Tiongco,
the conspirators who was not present during the rape
was held liable for the rape because there was proof of
conspiracy to rob.
 Mendoza cannot seek sanctuary in our jurisprudence
that where there is no evidence that the accused was
aware of his co-accused’s (lustful intent and his
consummation thereof so that he could have attempted
to prevent the same, the former should be held only for
robbery and not for the rape.
In a special complex crime, you can have multiple people killed and
several raped – one special complex crime with one penalty.
COMPLEXING AND CONSPIRACY
 In the newer case of PP v. Suyu, GR 170191 Aug. 16,
2006, Willy and Clarissa were held up by 4 accused.
Then 2 accused committed rape by sexual assault
intercourse on Clarissa and 1 accused committed rape
by sexual assault.
 Once conspiracy is established, accused would all be
equally culpable for the rape committed by any of them
on the occasion of the robbery, unless any of them
proves that je endeavored to prevent the other from
committing rape.
 PP v. Suyu
 Although 2 people committed rape by sexual
intercourse, there is only 1 single and indivisible felony
of Robbery with Rape and any crimes committed on the
occasion and by reason of the robbery are merged and
integrated into a single and indivisible felony of Robbery
with Rape.
In the case of Soyu, for example:
The victim were robbed by the accused. Two of the accused raped the
victim. The case said that once it is established that the main purpose
is not to rape but to rob and there is rape committed – special complex
crime, everybody is liable even if they did not agree on the rape.
So long as they were present and did not do anything to prevent it, the
rape is act of one is the act of all is not only limited to crimes agreed
upon and crimes foreseeable.
 Celerino Chua v. PP GR 172193, Dec. 7, 2017
 Although Chua was not present during the Robbery and
Carnapping, he was found guilty for both, being the
mastermind and conspirator.
 In this case, the argument of the court seems to reiterate
the ruling that once conspiracy is proven, every
conspirator, including those who were not present, are
liable for injuries inflicted even if not previously agreed
upon. However, the crime here was not a special
complex crime as the injuries were only less serious.
ROBBERY WITH RAPE, ROBBERY WITH HOMICIDE
 The true intent must be determined – which is to commit
the Robbery. This must precede the Rape or Homicide.
 If otherwise, there will be two separate crimes of
Robbery and Rape or Theft and Homicide or Murder.
 Robbery cannot anymore be committed after the victim
is killed. He cannot anymore be “intimidated”.
 There is no complex crime of Robbery with Attempted
Rape.
 Even if the victim of Rape marries the rapist, the crime
of Robbery with Rape will not change.
Even if he was not present in the place where the crime is committed,
but because he was the mastermind, he was found him guilty even for
other crimes that are not subject of conspiracy.
In robbery cases, it is the intent or main purpose is important.
If it is robbery with rape, rape can be committed before or after the
taking. What comes first is not important factor. The important factor is
what is the main purpose of the accused. If the main purpose is to rob:
robbery with rape. If the main purpose is to rape: rape and robbery.
ROBBERY, HOMICIDE, RAPE
 Pp v. Tapales, GR L-35281, Sept. 10, 1979
 When Rape and Homicide co-exist in the
commission of Robbery, it is Art. 294 (1) which
applies, the Rape to be considered as an
aggravating circumstance.
 While there may have been an appreciable interval of
time between the robbery and the killing and the rape,
there was a direct relation, an intimate connection
between them such that it can be stated that is was by
reason or on occasion of the robbery that Homicide and
Rape were committed.
TAPALES CASE:
When rape and homicide co-exist in the commission of robbery, rape is
only aggravating circumstance because the crime is designated as
robbery with homicide.
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2. PD 532
ROBBERY WITH RAPE; WHEN COMMITTED
PD 532
 Pp v. Napud, Jr. GR 123058, Sept. 26, 2001
 RAPE MAY BE COMMITTED BEFORE, DURING OR Under PD 532, it is not necessary there is band or group of robbers. In
AFTER THE ROBBERY – when appellant forcibly highway robbery, the robbery must be indiscriminate which means that
entered the chicken coop and took the chickens, anybody who is in the highway can be the victim. The place is part of
while his confederate was threatening the victims, the element of the crime.
he committed the crime of robbery.
RPC
Though robbery appears to have preceded the rape of Evelyn, it is
enough that robbery shall been accompanied by rape to be In brigandage under RPC, it is not indiscriminate. The place has no
punished under the RPC for the Code does not differentiate relevant or bearing.
whether the rape was committed before, during, or after the
robbery. Note: Mere conspiracy to commit robbery is already crime

Rape can be committed before, after and during the robbery. What is
the important is that the main purpose is to rob.
CRIMES AGAINST PROPERTY
 Pp v. Porcare, GR L-37235, Feb. 5, 1983
 Robbery with rape is a crime against property.
 Same also with Rape with Homicide. Here, treachery
can be appreciated as aggravating, even if ordinarily this
circumstance only applies to crimes against persons.
The Robbery with rape and robbery with homicide are both crimes
against property. SPL involving robbery are crimes against property.
Even if crimes against property, there are certain aggravating
circumstances that may apply.
This is one of the instances where the conspiracy is already a crime
and therefore punishable. Because we said that the conspiracy that is
already a crime is when there is conspiracy to commit treason,
rebellion, etc. Because in brigandage, it is not required that the crime is
committed. The mere formation of group to commit robbery is already
punishable.
ESTAFA
A. Defraudation by abuse of confidence or by means of
deceit;
 Modes of commission:
1. With unfaithfulness or abuse of confidence;
2. By means of false pretenses or fraudulent
acts;
3. Through fraudulent means

Relevance of this is for instance, recidivism can be appreciated

because they are under the same title. However, No recidivism can be B. Damage or prejudice of pecuniary estimation is
appreciated if the first crime is rape, and the next crime committed is caused to the victim
robbery with rape.

Two main elements of Estafa

ROBBERY WITH ARSON – RA 7659
 There can only be Robbery with Arson under RA 7659 if
there is, in this order:
o No Robbery with Homicide
o No Robbery with Rape
o No Robbery with Intentional Mutilation
There can only be Robbery with arson under PD 7659 (special penal
law) if there is NO robbery with homicide, rape, etc
1. Fraud or abuse of confidence
2. Damage
Note: There are specific acts of estafa.
Estafa is punishable not only under Art. 315 but until Article 318, RPC.
SYNDICATED ESTAFA
There is also estafa punished as special penal law. This syndicated
Estafa is the only estafa where the penalty can reach up to reclusion
perpetua.

Example: If main purpose is to rob, and someone is killed and a house
is burn. The crime is robbery with homicide. (Not robbery with arson)
BRIGANDAGE
o Brigandage in the RPC – mere formation of the group
is punished; can only be committed by 4 or more armed
persons
o Brigandage/Highway Robbery in PD 532 – the actual
robbery is punished; maybe committed by only 1 person;
robbery must be indiscriminate
o Ordinary Robbery in the highway – committed on the
highway but not indiscriminate
BRIGANDAGE (RPC) VS. HIGHWAY ROBBERY (PD 532)
ESTAFA UNDER RPC
This provides for a generic definition of estafa with two main elements.
But there are also Specific acts of estafa which have their own specific
elements as well
Three Modes of commission under Article 315:
1. Unfaithfulness/ abuse of confidence
2. False pretenses/ fraudulent acts
3. Fraudulent means
These three constitute fraud. Defraudation may embrace two and
three. One is abuse of confidence.
Deceit only pertains to number 2. The importance is this because there
are cases where one is sued under number 1, but convicted under
number 2.

Note: PD 532 is not listed in the Bar Exam syllabus.

Two laws punishing brigandage or highway robbery:

1. RPC
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ESTAFA par. 1 – UNFAITHFULNESS OR ABUSE OF
CONFIDENCE
o Altering, substance, quantity or quality of anything of
value which the offender shall delivery by virtue of an
obligation.
o Misappropriating or converting xxx property received by
the offender in trust or commission or for administration,
or under any obligation involving the duty to deliver or
return the same xxx
o Taking advantage of the signature in blank, and by
writing any document above such signature in blank.
CRIMES INVOLVING DOCUMENTS!
ART. 298. Any person who, with intent to defraud another, by
means of violence or intimidation, shall compel him to sign,
execute or deliver any public instrument or documents, shall be
held guilty of ROBBERY.
ART. 315 (1)(c) ESTAFA by taking undue advantage of the
signature of the offended party in blank, and by writing any
document above such signature in blank, to the prejudice of the
offended party or of any third person.
ART. 315 (3)(a) ESTAFA by inducing another by means of deceit
to sign a document.
ART. 315 (3)(c) ESTAFA by removing, concealing or destroying in
whole or in part, any court record, office files, document or any
other papers.
ART. 316 OTHER FORMS OF SWINDLING by a person who, to
the prejudice of another, shall execute any fictitious contract.
ESTAFA par. 2 – FALSE PRETENSES
o By using fictitious name, or falsely pretending to
possess, power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or
other similar deceits
o By altering the quality, fineness or weight of anything
pertaining to his art or business
o By pretending to have bribed any Government employee
o By post-dating a check, or issuing a check in payment of
an obligation when the offender therein were not
sufficient to cover the amount of the check.
o By obtaining any food, refreshment or accommodation
at a hotel, inn, restaurant, boarding house, lodging
house, or apartment house without paying with intent to
defraud.
Let us say 1 but convicted under 2. Or maybe 2, you have 5 instances
under paragraph 2. Nga gi file-an for issuance of checks but was
convicted under 2(a). Therefore, there may be differences in the
elements.
ESTAFA par. 2 – FALSE PRETENSES
xxxx
d. By post-dating a check, or issuing a
check in payment of an obligation when the
offender therein were not sufficient to cover
the amount of the check.
NOTICE OF DISHONOR REQUIREMENT
For example, in 2(D), for the issuance of checks. When a check is
issued for the payment of an obligation, which is existing, that can give
rise to Estafa. Now, in that kind of Estafa there is the requirement of
Notice of Dishonor. But Notice of Dishonor is only required for Estafa
2(d). It is only unique for 2(d). And of course, BP 22. But for 2D, you
need to have a Notice of Dishonor.
Why? Because the criminal liability will not ripen. It will only be in its
INCIPIENT STAGE. It does not mean to say that it is not
consummated. It is already consummated.
Incipient is different from consummated. When you say consummated
it means that the accused has already performed all the acts of
execution. The accused already performed all the acts of execution but
in incipient stage, even if the acts are already consummated, it will not
ripen into a criminal liability; unless, not the accused, but the victim
must still do something more. Insofar as the accused is concerned, he
already performed all the acts of execution. That’s why consummated
because he already performed everything. But, so that it will ripen, the
victim, the offended party, must do one more thing.
And that is, for 2(d) Estafa, he must give a notice of dishonor. Now,
unless the notice of dishonor is given, which is kind of a grace period,
the criminal liability will not ripen.
ESTAFA par. 1 – UNFAITHFULNESS OR
ABUSE OF CONFIDENCE
xxx
b. Misappropriating or converting xxx
property received by the offender in trust or
commission or for administration, or under
any obligation involving the duty to deliver or
return the same xxx
DEMAND REQUIREMENT
In Paragraph 1(b), there is misappropriation. There is trust and
confidence reposed by the victim and by reason of the trust and
confidence, the offender receives a personal property with the
obligation to return it and he fails to return it because he
misappropriates. That would be Estafa 1(b). In this kind of Estafa,
there is also the requirement of DEMAND. Without the demand, the
criminal liability will not ripen. It will be merely in its incipient stage.
While we have the 2 general elements of Estafa, there are specific acts
under each mode. There are 3 modes or means of committing Estafa.
For par. 1, there are 5 acts that constitute Estafa by abuse of
confidence. For number 2, there are 3 kinds of Estafa by deceit. For
different acts, for different felonies, there are different specific
elements.
But for whatever the kind of Estafa, there must be damage. Without the
damage, there will be merely ATTEMPTED ESTAFA.
Qualified Theft or Estafa?
So, let’s go to Estafa number 1. Unfaithfulness or abuse of confidence.
We mentioned earlier that when there is abuse of confidence, abuse of
confidence is not only a mode of committing Estafa but it is also a
mode of committing qualified theft.
So when is the crime Qualified Theft and when is the crime Estafa?
Because abuse of confidence could be a mode of committing EITHER
qualified theft or Estafa.
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QUALIFIED THEFT: GRAVE ABUSE OF CONFIDENCE
 People v. Syou Hu, GR 45765, Jan. 29, 1938
 Grave abuse of discretion is mere circumstance which
aggravates and qualified the crime. It is not necessary
for said circumstance to be premediated in order to be
taken into consideration. Its presence in the commission
of the crime is sufficient.
It would depend on the nature of the possession. If the nature of the
possession of the offender is merely physical or material possession,
then the crime would be merely Qualified Theft. Which actually carries
a higher penalty.
But if the possession is juridical in nature in that the offender has
become the agent of the lawful owner; meaning there is a contract,
then the offender commits Estafa.
The most basic way of illustrating this is like this:
Maria is the owner of jewelries and amiga sila ni Juana and because
they are friends she trusted Juana. Maria asked Juana to give the
jewelries to Pedro because Pedro already bought them. Maria said,
“Kindly tunul this to Pedro. I will entrust it to you so that you will deliver
it to Pedro.” Juana did not deliver the jewelry to Pedro. What is the
crime? The crime would be QUALIFIED THEFT.
Was there abuse of confidence?
Yes. She was entrusted with the thing.
But what was the nature of her possession?
Purely physical. She was not authorized to do anything with the
jewelries. She was not authorized to enter into a contract. She was not
authorized to sell. She was merely authorized to deliver. Therefore, her
possession is only physical.
If Juana sells it to Jose. Jose, if he knew that the thing does not belong
to Juana, could be liable under the Anti-Fencing Law. Because Juana
was not authorized.
So the crime committed by Juana would be qualified theft. There was
physical possession; there was taking; there was no consent; and the
taking was made possible because of abuse of confidence.
Now, Maria the owner of the jewelries, trusted Juana and so she said
“Juana, I have pieces of jewelry. You can sell these pieces of jewelry
for me. I will entrust to you these jewelries and you can sell this to
whoever. If you are unable to sell, please return the same jewelry.”
Remember that the wording of the law is “the same”. When the
property is to be returned or there is an obligation to return, it must be
the same thing. But if you sell it, then you have to remit the proceeds.
ESTAFA QUALIFIED THEFT
Nature of
Juridical possession Material possession
possession
Juana misappropriated the thing or the proceeds, what will the
crime be?
The crime will be estafa. Estafa because there was abuse of
confidence, she was able to receive the thing because there was trust
and confidence and there was obligation to return but there was
misappropriation.
In this kind of estafa, there is an additional element of demand.
Without the demand the criminal liability would only be in its incipient
stage. Thus, if the case is filed without the necessary demand, then the
case will not prosper.
If Maria, the owner of the jewelries, tells Juana, “Juana, I have
jewelries. You can do 10 installments.” Anyways, Juana did not make
the payments and it caused damage to Maria.
What is the crime?
None, because we only have a sale. For non-payment, the liability will
only be civil and not criminal.
It is the nature of the possession which determines whether the abuse
of the confidence gives rise to the crime of estafa or qualified theft.
Possession is only an issue for 1(B), not an issue for Estafa 2 or 3
because in Estafa number 2 or 3, if a person pretends to possess a
property or business and by reason of which he was able to deceive
the victim and caused damage to the victim. The possession now will
not matter if there is deceit.
You will notice that 1(A) – altering substance, quantity or quality of
anything of value which the offender shall deliver by virtue of an
obligation, which is the same in 2(B) – by altering the quality, fineness
or weight of anything pertaining to his art or business, its more or less
the same.
The difference is the mode of commission:
 In 1(A), the altering was made because of the abuse of
confidence. Nisalig siya nimo na di ka binuangan mupalit ko
nimog jewelry and then nagbinuang.
 Whereas in 2(B), the altering was because of the false
pretenses. Palit mo ani, rolik ni. Rolik.
There’s no double jeopardy so I don’t think there can be any legal
obstacle.
Q: Is it not a violation of the right of the accused to be informed of
the nature of accusation against him? Since what was alleged
was Estafa but what was proven was Qualified Theft and he was
convicted of Qualified theft (graver penalty).
Fiscal: Remedy is substitution since there is re-arraignment (impliedly
Fiscal said it is a violation of the right to be informed).
Another act constituting estafa is taking advantage of a signature in
blank. In estafa 1 (c) the taking advantage of a signature in blank
would constitute estafa but inducing another to sign a document by
deceit is also another kind of esatafa.
EXAMPLES:
 ESTAFA THROUGH ESTAFA
If mangilad ka “pirmahi ni kay maka kobra ka ani” and then you use
that para mag himo kag deed of sale. The crime would be it would be
an ordinary complex crime of estafa through estafa! Estafa by inducing
another by means of deceit to sign a document. As a means, para mo
take advantage ka of the signature in blank. Wa man siyay gi falsify.
Nangilad ka kay magpa pirma kag blanko unya imo na gi take
advantage.
 ESTAFA THROUGH ROBBERY
What you did was you compelled the person to sign. That is robbery!
Compelling a person to sign is robbery by means of violence or
intimidation for the purpose of defrauding him. So now you have a
signature and you take advantage of that what is now the crime?
Estafa through robbery (medjo inaudible kay saba si Kerven).
 ESTAFA THROUGH THEFT
In the case of Yusai (?) there was estafa through theft. He stole a
pawnshop receipt nangilad siya sa pawnshop nga “ako to”. SC said it
was impossible for him na maka ilad if he did not steal the receipt.
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Q: Why is the Single Impulse Doctrine cannot be applied?
A: Simple Impulse doctrine is the exception rather than the General
Rule. So because it is an exception, it is applied in Crimes against
Person and when there are several acts committed with one intent
(several persons were killed with one intent and there is no Conspiracy
e.g The Maguindanao Massacre).
But the doctrine we apply in Crimes against Property is Single
Larceny Doctrine. When crimes against property will not result into a
Complex Crime, the Single Larceny doctrine will result into a simple,
single crime.
Here, there is one act as a means of committing another.
It is not single larceny because the latter talks about repetition of the
same act which would have been separate crimes except that they
were performed repeatedly under a single criminal intent. So in Single
Larceny, remember the Manok situation lol.
ESTAFA par. 2 – FALSE PRETENSES
a. By using fictitious name, or falsely pretending to
possess, power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or
other similar deceits
b. By altering the quality, fineness or weight of anything
pertaining to his art or business
c. By pretending to have bribed any Government employee
d. By post-dating a check, or issuing a check in payment of
an obligation when the offender therein was not
sufficient to cover the amount of the check.
e. By obtaining any food, refreshment or accommodation
at a hotel, inn, restaurant, boarding house, lodging
house, or apartment house without paying with intent to
defraud.
2(D) POSTDATING A CHECK
Do not be misled by the word postdating because it may be an old date
check. What is really important is that a check is drawn or issued,
payment upon an obligation (so there must consideration) and the
check then bounces. In order to constitute Estafa, the law specifically
provides that it should be made as a payment for something. SO here,
the check must be a tool for deceit.
Example: Juan wants to buy a car from Pedro. Pedro cannot give the
car unless Juan gives him check. So the reason why Pedro gave the
car was because of the check. Was it not because of the check, Pedro
would not have parted with his property. So in essence, if a thing is
given because of the check and it was later on proved that it was a
worhles check then there is deceit. And such tool of the deceit was the
check.
Q: What if Juan gave 36 worthless checks for the Car? How many
crimes?
A: There is only one criminal intent of deceit so there is only ONE
crime of Estafa but 36 crimes of B.P 22. So these 2 crimes are two
different things.
Q. What if Juan a USC student said Pedro, “I am a USC student. I am
important than you. I like your car but I don’t have a check right now.
Can you give it to me and I will just issue the check after?” So Juan got
the car and 1 month after Juan issued the check but it turned out
unfunded.
Is there Estafa? If so, what kind of estafa?
A: There is Estafa but Estafa under 2(A) because he got the car kay
nailad siya. 2(A) By using fictitious name, or falsely pretending to
possess, power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or other similar deceits
ARSON
 Arson is the malicious burning of property.
Under Art. 320 RPC, as amended, and PD 1613, Arson is
classified into two kinds:
1. Destructive Arson (Art. 320, as amended) and
2. Simple or Other cases of arson (PD 1613).
 This classification is based on the kind, character and
location of the property burned, the viciousness of the
commission thereof, and the peril to life, regardless of
the value of the damage caused.
We now have two laws in Arson. We have Article 320 of the Revised
Penal Code and PD 1613. The rest of the provisions in the RPC in
relation to Arson has been repealed by PD 1613.
PD 1613 punishes what we call simple or other kinds of arson. Then
we have Destructive arson which is the only kind of Arson punished
under the RPC. But the acts constituting destructive arson are
enumerated not only in Article 320 but also in PD 1613 as well. So
there are two sets. Not all those enumerated in Article 320 are
enumerated in PD 1613 and vice versa. But the only law punishing
simple Arson is PD 1613.
Arson is a malicious burning of property that is why it has to be
INTENTIONAL. If not intentional, it may punished only as damage to
property.
Now, the general description of the nature of the two kinds of arson is
that it is based or its classification is based on the kind, character,
location of the property burned but more precise definition of
destructive arson are those enumerated in the law itself. It is not just
the nature but it must fall in one of the enumerations in the RPC. It
must be one of those. If not one those, then it is not destructive arson.
As amended by the death penalty law, when then burning of the
structure results into a death, we do not complex because the law for
arson already provides for its penalty. It would be simply arson but the
penalty will be different.
STAGES OF ARSON
We mention that when we took up the stages of crimes under Article 6.
There can be attempted, frustrated and consummated.
In consummated, even slightest burning will already consummate the
crime. But the burning, however slight, must be on the structure itself
or part of the structure. Because if what is burned is not part of the
structure, it cannot be arson.
So, if a person throws a torch in the building and burned the curtains
but no part of the building is burned, then, it cannot be arson because
in consummated arson there must be the slightest burning. The case
may be considered as attempted arson if not all the acts of execution
were performed but if all acts of execution were already done like gi
ligo ug gasolina ang usa ka gasoline station and the structure were not
burned then it may be frustrated arson.
But if nasunog ang curtain wala kalahos sa house, then it could not be
arson because curtain is not part of the house.
However, there is a contrary opinion on that sa Reyes but hello!!
curtain is not part of the house, it is only an accessory of the house. It
can only be attempted arson though.
Would you complex attempted arson with malicious mischief?
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Depends on the value of the curtain. Because if the value of the curtain
is not so expensive, then it would not be considered less grave. You
can only complex grave or less grave felonies.
DESTRUCTIVE ARSON
 ART. 320 RPC, as amended by RA 7659, contemplates
the malicious burning of structures, both public and
private, hotel, buildings, edifices, trains, vessels, aircraft,
factories and other military, government or commercial
establishments by any person or group of persons. This
is heinous crime punishable by reclusion perpetua to
death.
 If as a consequence of the commission of any of the
acts penalized under Art. 320, death should result, the
maximum penalty (used to be death) shall be imposed.
 Luminda’s degree of perversity and viciousness
o Essential characteristics of destructive arson
o Is shown by the following:
a. He and 30 other armed persons
surrounded the house and fired at it;
b. They instigated Angel to burn the Pajero;
c. They were indifferent to the resulting
effects of also burning the house nearby.
 PP v. Luminda, GR 200954,
Oct. 14, 2015
In the case of Luminda, there were many people and all armed. Their
intention is to burn only a car but it resulted to the burning of houses.
The SC said that this is a case of destructive arson. Here, residential
houses were burned.
In another case, husband was a fight with the wife and the husband
threatened to burn the house as he in fact burned the house a few
hours after. With the intention of burning only their house but it resulted
in burning the neighboring houses as well. So, there was already more
than 1 house burned.
The SC said this is not destructive arson and only a simple arson even
though there were many houses that were burned because the
intention was not to burn the other houses but only intended to burn his
own house.
There are special aggravating circumstances:
1. When the offender is motivated by spite and hatred towards
the owner of the property and the penalty will be imposed in
its maximum.
In that case, where the husband burned their property resulting in the
burning of other neighboring houses, the SC said that there is no
special aggravating. No spite or hatred. Rather, there is mitigating
circumstance of passion or obfuscation.
SIMPLE ARSON
 Sec. 4 of PD 1613, special aggravating circumstances in
Simple Arson, the penalty under Sec. 3 shall be
imposed in its maximum period:
a. If committed with intent to gain;
b. If committed for the benefit of another;
c. If the offender is motivated by spite or hatred
towards the owner or occupant of the property
burned; and,
d. If committed by a syndicate, or group of 3 or more
persons.
 If by reason, or on the occasion of Simple Arson death
results, the penalty of reclusion perpetua to death shall
be imposed.
NO ARSON WITH HOMICIDE
 There is no complex crime of arson with (multiple)
homicide.
 If main objective is to burn but death results, ARSON,
homicide absorbed
 If objective is to kill by fire, MURDER only
 If objective is to kill, and afterwards fire is resorted to
cover up the killing MURDER/HOMICIDE AND ARSON
 PP v. Abayon, GR 204891, Sept 14, 2016
Nor arson with homicide because homicide will be absorbed.
PEOPLE vs. ABAYON
If the main objective is to burn, it is only ARSON, even if death results.
If the main objective is to kill by fire or murder; to kill and then
thereafter conceal the corpus delicti by burning the house, the case
would be separate – it could be homicide, murder or arson. Two
separate crimes.
NO COMPLEX CRIME OF ARSON WITH HOMICIDE
 PP v. Malngan, GR 170470, Sept. 26, 2006
a. If the main objective is the burning of the building,
but death results, the crime is simply arson, and the
resulting homicide is absorbed;
b. If the main objective is to kill a person in a building
or edifice, when fire is resorted to as the means to
accomplish such goal, the crime is murder;
c. If the objective is to kill a particular person, but fire
is resorted to as a means to cover up the killing,
then there are two separate and distinct crimes
committed – homicide/murder and arson.
PEOPLE vs. MALNGAN
If the main objective is the burning, the crime is simply Arson. Same as
Abayon case.
CONSPIRACY IN ARSON
 Under PD 1613, there can be conspiracy in Arson
 Under Art. 320, conspiracy applies
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MALICIOUS MISCHIEF
Elements:
1. Offender deliberately caused damage to the property of
another;
2. Such act does not constitute arson or other crimes
involving destruction;
3. The act of damaging another’s property was committed
merely for the sake of damaging it;
4. There is destruction of the property of another but there
is no misappropriation. Otherwise, it would be theft if he
gathers the effects of destruction.
If imong gi-guba ang koral sa silingan kay imong isugnod, that would
NOT be malicious mischief, because the purpose is simply not for
destroying but there is an intent to gain. If there is intent to gain, the
crime would be THEFT.
(A question was asked but I can't hear anything. Sorry)
Fiscal: I think it was asked in one of the Bar Exams nga ang cow sa
neighbor iyang gipatay kay it was eating his crops. The cow was eating
his crops so the guy killed the cow; then he gave the meat of the cow
to his neighbor. Then the neighbor cooked the meat and they also took
part in the eating.
The question was what was the crime committed?
It cannot be malicious mischief nor theft because there is another law,
which is the cattle rustling law. Under that law, intent to gain is NOT
necessary, so there can be taking for the purpose of destroying.
SPECIAL CAUSES OF MALICIOUS MISCHIEF – ART. 321
1. Causing damage to obstruct the performance of public
functions;
2. Using any poisonous or corrosive substance;
3. Spreading any infection or contagion among cattle;
4. Causing damage to the property of the National
Museum or National Library, or to any archive or
registry, waterworks, road, promenade, or any other
thing used in common by the public.
ABSOLUTORY CAUSE UNDER ART. 332.
Crimes:
1. Theft
2. Swindling
3. Malicious mischief
Relatives:
1. SAD, also by affinity, includes common-law spouse,
adoptive and stepchildren, parents-in-law
2. Widowed spouse
3. Brothers and sisters including in-laws, living together
ABSOLUTORY CAUSES UNDER ART. 332
Whereby a relative, spouse, ascendants, descendants (SAD) – no
legitimacy is required here - when the crime is THEFT, SWINDLING,
MALICIOUS MISCHIEF, any of these would NOT be criminally liable.
Brothers and sisters even. Including in-laws, provided they're living
together.
But the crimes listed here is EXLUSIVE.
Example:
If the son threatened his mother to give him money, that would not be
anymore ABSOLUTORY. There would be no more absolutory cause
because once there is intimidation, that would not be theft anymore.
That would already be ROBBERY, and that is a crime not included in
the list.
If mangupit mo's pitaka sa imong mama, okay ra na. Mangayo mo's
imong mama ug kwarta para palit ug dispenser, okay ra na.
CARUNGCONG v. PP, GR 181409, Feb 11, 2010
 Does Art. 332 apply to variations of the crimes
mentioned therein?
 The coverage of Art. 332 is strictly limited to the felonies
mentioned therein. The plain, categorical and
unmistakable language of the provision shows that it
applies exclusively to the simple crimes of theft,
swindling and malicious mischief. It does not apply in
complex crimes.
 Does Art. 332 still apply even with the death of the
common relative by affinity, e.g. crime committed
between in-laws where the spouse is already dead?
We already discussed the CARUNGCONG CASE when we were
talking about defense of relatives insofar as the two views on relatives;
and in the case, Art. 332 also applies even if the common relative by
affinity is already dead. So if we are talking about brothers and sisters
in law, even if the common relatives by affinity are dead, provided they
are living together, it still applies to them by virtue of the CONTINUING
AFFINITY VIEW.
In view of the PRO REO principle, we interpret the law in favor of the
accused and strictly against the State.
Two view re termination of relationship by death:
1. Terminated Affinity View – relationship by affinity
terminates with the dissolution of marriage, except when
there is a surviving issue.
2. Continuing Affinity View – relationship by affinity
endures even after the dissolution of marriage.
For purposes of Art. 332, the 2nd view applies, in view of the in
dubio pro reo principle, which interprets the law in case of doubt in
favor of the accused.
TITLE 11 – CRIMES AGAINST CHASTITY
ADULTERY
Elements:
1. Woman is married;
2. She has sexual intercourse with a man not her husband;
3. The paramour must know her to be married.
The third requisite is important since in both Adultery and
Concubinage, both the wife/husband and the paramour must be
impleaded accused. As such, there must be knowledge on the part of
the paramour that his/her lover is married.
This is one of those crimes where only the offended spouse can file the
case. So if nangabit ang mother, the son cannot file the case.
Abandonment is merely mitigating; it will not absolve the woman from
criminal liability.
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CONCUBINAGE:
Elements:
1. Man must be married;
2. He either;
 Kept a mistress in the conjugal dwelling;
 Has sexual intercourse with a woman who is
not his wife under scandalous circumstances
 Cohabited with her in another place
3. Concubine must know the man to be married.
For example: Juan has 3 girlfriends, Lorna, Aida and Fe. Iyang i-meet
on different days. He has 5 children from each woman. He is also
married.
Is there concubinage?
No. Requisites have not been complied with.
If Lorna is married, and Juan knew of this fact.
Is there adultery?
Yes.
In private crimes, the offended spouse must include both of the guilty
parties, unless, one of them is dead. Consent / pardon of the offended
party will negate criminal liability.
ACTS OF LASCIVIOUSNESS
 Acts of lasciviousness under Art. 336 must be
committed by the same means as Rape under the old
law (or Art. 335, RPC). Only rape was amended by RA
8353.
 If the Acts of Lasciviousness is committed with the
consent of the offended party, it is a crime only if the
victim is a virgin and over 12 but below. 18. (Art. 339,
RPC) Crime is committed regardless of consent if victim
is below 12 y/o.
Acts of lasciviousness can be committed against the will or consented.
This is the same with Abduction.
Virginity under this provision is not physical virginity. The woman must
be chaste.
SEDUCTION
 Seduction involves carnal knowledge. The victim must
be a woman. For obvious reasons, the offender must be
a man.
 Art. 337. In Qualified Seduction, the victim must be a
woman; a virgin above 12 y/o and less than 18 y/o, the
offender is a person in authority, priest, home-servant,
domestic, guardian, teacher, or any person entrusted
with the education or custody of the woman seduced.
There is always carnal knowledge, whether Simple or Qualified. The
difference with Rape is that, there are means to commit rape. When
we discussed rape, we mentioned that it can be committed by fraud;
this fraud is a mode of committing seduction.
Can only be committed by a man against a woman.
LEGAL VIRGINITY FROM PHYSICAL VIRGINITY
 As in Consented Abduction, Qualified Seduction does
not require physical virginity (virgo intacta).
 One who maintains illicit relations with other men is not
legally a virgin; one who had sexual relations with one
and the same man who was the accused is legally
considered a virgin. (US v. Suan, Phil 12 and US v
Casten, Phil 808)
HOUSE-SERVANT FROM DOMESTIC
 A domestic is any person living under the same roof as
a member of the same household, including long-term
boarders who are not transients. (US v. Santiago, 41
Phil 793; Pp v. Subingsubing, GR No. 104942-43,
Nov. 25, 1993)
In Qualified Seduction – the offender must be a person in authority,
priest, home - servant, domestic, guardian, teacher, or any person
entrusted with the education or custody of the woman.
When the law says, domestic, it does not mean domestic servant.
House servant is mentioned separately from domestic.
In Qualified Theft – It specifically says that the offender must be a
domestic servant for him to commit Qualified Theft.
ELEVENTH WEEK OF DISCUSSIONS (APRIL 3, 2019)
TITLE 12 – CRIMES AGAINST THE CIVIL STATUS OF
PERSONS
Art 347. Simulation of births, substitution of one child for another
and concealment and abandonment of a legitimate child
(4 ACTS ARE PUNISHED)
 For the first 2 acts, legitimacy is not required.
 For the last 2, it is required.
 The purpose is to cause the loss of civil status, or affect
or obtain the civil status of another. If this is not the
purpose, but merely to extort, the crime could be estafa.
That’s actually simulation of birth. That’s a crime which could be a part
from other crimes such as falsification of document and other acts.
There is also the crime of substitution of one child of another wherein a
child who probably dies.
Art. 348. Usurpation of civil status
ART. 349 BIGAMY
 Can be committed through negligence (a judicial
declaration is required. Domingo Vs CA, Mercado vs.
Tan)
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Montanez vs Cipriano, GR 181089, 22 Oct 2012
The elements of the crime of bigamy are:
a. The offender has been legally married;
b. The marriage has not been legally dissolved;
c. He contracts a second or subsequent marriage;
d. The second or subsequent marriage has all the
essential requisites for validity.
The felony is consummated on the celebration of the subsequent
marriage. It is essential in the prosecution for bigamy that the
alleged second marriage, having all the essential requirements,
would be valid were it not for the subsistence of the first marriage.
In the past there used to be a prejudicial question where the criminal
case is bigamy and the civil case would probably be annulment of
marriage. All those jurisprudence involving that has changed because
of the rulings of these cases.
Now there can be no subsequent marriage if there is no judicial
declaration of nullity. So even if eventually the civil case will declare
the first marriage void there will still be bigamy.
Before when the spouse who contracted the subsequent marriage, if
he/she was the victim of the previous marriage that such fact can be
used as a defense in the bigamy case and that if he was the guilty
person in the first marriage, he cannot use that as a defense. Now that
will not matter anymore.
SECOND MARRIAGE
Let’s talk about the second marriage because in the first marriage it will
not matter whether void ab initio or voidable. In the second marriage in
order that there be bigamy it must have all the essential requisites for
validity of marriage except the existing of a prior marriage.
Meaning that the second marriage must have all the requisites such as
legal age, consent, marriage ceremony between a man and a woman,
marriage license and solemnizing officer. It should have been a valid
marriage were it not for the existence of the second marriage. If the
2nd marriage is void, there will be no bigamy.
PARTIES
In the case of TERRY (? Not in the slides) who was a lawyer he said
that my marriage was void so therefore I can remarry. The spouse was
previously married. He got married subsequently without judicial
declaration. From then on, it has been held that there should be a
judicial declaration.
REPEAT: The validity or invalidity of the first marriage will not negate
bigamy. What is important is the 2nd which must be valid were it not
for the existence of the previous marriage.
It should have been void because it lacks an essential requisite, but
the Supreme Court said, you cannot make your own foolishness as
your own defense in the Bigamy. So even if, in this particular case, the
second marriage was actually null and void because it did not have the
requisite of marriage license which it should be required of them
because they were not cohabiting for more than 5 years – the parties
are still liable for Bigamy.
The Second Spouse – because of the existence of the first valid
marriage is liable as an accomplice.
Take Note: Bigamy is NOT a private crime. So it doesn't need to be
filed by a private offended party and you don't need to sue both of
them.
Bangayan vs Bangayan, GR No. 201061, July 3, 2013
Q1. What is the effect on the Bigamy case of lack of requisites
of the second marriage?
For bigamy to exist, the second or subsequent marriage must
have all the essential requisites for validity except for the existence
of a prior marriage.
Santiago vs People, GR 200233, July 15, 2015 (applying
Tenebro vs. CA)
The legal effects in a criminal case of a deliberate act to put a flaw
in the marriage.
Here, the 2nd marriage was defective (absence of marriage license)
the 1st was valid. SC said there is no bigamy.
“The State’s penal laws on bigamy should not be rendered
nugatory by allowing individuals“ to deliberately ensure that each
marital contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while beguiling
throngs of hapless women with the promise of futurity and
commitment.”
Here, the parties to the 2nd marriage deliberately lied that they
cohabited for more than 5 years and got married without a license.
This nullity cannot be a defense in the Bigamy.
This nullity cannot be a defense in the Bigamy.
1st marriage was valid.
2nd marriage defective (absence marriage license)
SC ruled differently from Bangayan because here the reason why they
were not able to submit was because instead of presenting a marriage
license, they executed an affidavit of cohabitation by reason of which
marriage license is not anymore required. But in truth and in fact, they
were not cohabiting for that length of time but only less than 5 years.
So therefore the 2nd marriage should have been void.
TITLE 13 – CRIMES AGAINST HONOR
 Art. 353. Libel
Libel is a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status or
circumstance tending to cause the dishonor, discredit or contempt
of a natural or juridical person, or to blacken the memory of one
who is dead.
What's important in Libel and Slander (Oral Defamation) is that there
must be a third party. So, in Libel, there must be publication but not
necessarily that you have to publish it in Sunstar or Facebook, etc.
Publication – there is a third person who knew about this malicious
imputation. It means it is made public, even if it is made known to at
least one other person. So it must be malicious and made publicly.
WHO CAN BE VICTIMS OF LIBEL?
 Natural persons
 Juridical Persons (Corporations/Business Entities)
 Somebody who is dead
In order that the allegation be libelous, not only must it be malicious but
it must involve a vice, crime or defect. It seems that the coverage of
libel is quite broad.
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For example: body shaming "Ikaw, putot" "Ikaw tambok" Why is it
such a bad thing? We don't really know. There is yet no jurisprudence
for that.
ELEMENTS OF LIBEL:
1. The allegation of a discreditable act or condition
concerning another;
2. Publication of the charge;
3. Identity of the person defamed;
4. Existence of malice
(Brillantes vs. CA, 440 SCRA 541)
The victim must be identifiable. If not identifiable, there is no libel.
So, if muingon na kanang mga 4th year sa law kay (inaudible jud siya
kay saba ang people huhu so assume nalang ta na mga absenot since
mao ako madungog sa mga sabaan sa recording haha)
Would we be able to identify them? Basta let’s say na it is a libelous
remark, can we file libel? Are the victims identifiable?
Yes. Daghan ramo. Kamong tanang identifiable. But can everybody file
a case? No. Only one of or all of you but there is only ONE LIABLE.
What is meant by publication?
Publication in Libel
 Publication means making the defamatory matter know
to someone other than the person to whom it has been
written. If it was sent straight to the person for whom it is
written, there is no publication. (Alonzo vs. CA, 441
SCRA 51)
 The wife of the person defamed is considered a third
person. (Magno vs People, Jan. 27, 2006)
In the case of Magno vs People, the only other person, apart from the
offended party and victim, who knew about it was the wife of the victim.
Here, the SC still considers it as sufficient publication.
So if there is at least one other third party, then it would already be
libelous.
But the law itself says that if it is made in good faith as part of the
official report, there is no libel even if such allegation is said or read by
the third person because there is no malice there.
“Putang ina mo” is not libelous. It is considered as expression of
profanity. I’m not saying that it is okay as it is not okay but what I am
saying is it is not a crime. The Cebuano equivalent to that is “buang
ka”. Diba you usually do that?
Must the accused be the author?
 In fact, the victim may be the author, as when love
letters written by a married woman was circulated by the
accused. (US vs Eguia, 38 Phil 857)
TRUTH AS PROOF
Truth may only be received if:
1. The imputation is against a public official and the same
relates to his public functions;
2. There is imputation of a crime against a person
Truth is not per se a defense. Good faith can be a defense because
this is mala in se. So if you like a facebook post that is libelous, under
cybercrime law it is not considered as libel. But if you share it, then,
you can be held liable for libel. Because the accused in the libel case
need not be the author of the libelous statement.
In the case of Eguia, the victim here is actually the author of the
libelous letter. She wrote a love letter to another man despite being
married. Then, somebody exposed that.
How many counts of libel?
 If done on separate occasions, there are as many
crimes as there are acts and persons affected.
 If done one a single occasion:
o There are as many crimes are there are
identifiable victims (PP vs Gil, Oct 31, 1968)
o If the victims are identifiable but not specific
(you “Merrera lawyers”), there is only 1 Libel
(PP vs Aquino, 99 Phil 713)
o If the victims belong to a class, but
identifiable, only those in the class to whom it
was directly addressed can bring 1 suit. (PP
vs. Marquez, CA 51, OG 239)
There are as many crimes are there are identifiable victims (PP vs
Gil, Oct 31, 1968)
So if in one occasion, muingon ka na si Juan, Pedro ug si kuan kay
kana sila xxx so each one of them can file a libel case.
If the victims are identifiable but not specific (you “Merrera
lawyers”), there is only 1 Libel (PP vs Aquino, 99 Phil 713)
So if muingon ka na kanang pamilya kay so and so, the victims are
identifiable but not specific. Then, there is only one libel. Any one of
them can file.
Malice in law (presumed malice)
 If on its face the article is defamatory, even if the facts
are true, malice is presumed.
 If the article is not defamatory on its face or is
ambiguous, malice in fact (not malice in law) should be
proved. Surrounding circumstances have to be
considered.
 Articles referring to the victim’s public life or conduct as
public officer or public figure does not require malice in
law. Malice in fact has to be proven in such cases.
We have malice in law and malice in fact.
What is malice in law?
It is malice that is presumed. So, you would know that there are
different standards in libel. The standard is higher if the victim is a
celebrity or a public figure. It has a different standard. But for private
persons, the malice can be at a lower level.
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So, when then utterance or article is highly insulting, not necessary or
not related to the public function or public life of an individual, then
malice is presumed already.
What does that mean?
It means that the victim does NOT have to prove the malice because
the law itself presumes that there is already malice, that the utterance,
the article could not have been made without malice in the mind of the
offender.
But if it involves a conduct of a public official or a public figure, in order
to be libelous, malice in fact should be proven by the prosecution,
meaning the victim will have to prove that there is malice.
That burden, that onus probandi is not necessary when the victim is a
NOT a public figure, because malice is already presumed in law,
especially when it is highly insulting in nature. But for public officials,
they have to prove malice in law.
No Attempted Libel
 Libel is a formal crime. It has no attempted stage.
 Threatening to publish or offering to prevent publication
for compensation is punished under Art. 356 (similar to
blackmail)
 However, there is a hairline difference between art. 356
and robbery with Intimidation (extortion).
No attempted libel. "Ikaw, Juan! Aarrrrggghhh!!" No attempted stage,
but threatening to publish libel is already a crime. Sometimes, we call it
extortion.
Rule of Procedure in Libel
 Constitutionally, ROP are formulated by the SC
 In Libel, the rules are in the RPC., a substantive law
enacted by Congress.
 The court having jurisdiction in Libel is the RTC
(substantive jurisdiction)
 Venue for libel is the place of residence (procedural
jurisdiction)
So, libel can only be brought before the RTC even if the penalty is only
2 years. Why? Because the law says so.
VENUE
It should be the place of residence of the victim OR it could be of the
defendant. So, it's like in the civil case, where the place of commission
is not necessarily the venue.
Example: Juan wrote an article in The Freeman which is situated in
Cebu. He wrote it and published it in Cebu City; but he resides in
Manila. He can file the case in Manila because venue in criminal
cases, here, insofar as libel is concerned, is similar to civil cases.
If the crime is committed on the internet, Cyber Libel may apply. In
which case, it can be brought anywhere in the Philippines, even by or
against parties who do not reside in the Philippines; because it is a
TRANSNATIONAL CRIME. So long as any of the parties is Filipino or
affects a business in the Philippines, the crime may be brought in the
Philippines.
(1) If Juan wrote for Freeman or Sunstar, your intention was only
to write on Freeman or Sunstar but Freeman or Sunstar are all
already digital, so your article that was meant to be in a
newspaper can be accessed online. So, can Cyber Crime apply?
Does it make the libel Cyber Libel if the intention was not to post
online but to only publish in a printed newspaper?
So, it means that the author has no control whether the act would
constitute Libel under the Revised Penal Code or Cyber Libel under
the Cyber Crime Law; because so long as the article can be accessed
online, the Cyber Crime Law will apply.
(2) What is the prescriptive period now? Because the prescriptive
period under the RPC is only 2 years whereas under Cyber Crime,
it is longer. Besides, in newspapers, TV or radio, you would know
exactly when to start counting.
So, when it appears that April 3, it began publication, you start on April
3.
BUT if it's online, and it was published on April 3 and it stays
there for 10 years, when do you count?
As long as it's there, you can always file a case.
There can be Cyber Libel if, for that matter Cyber Crime, if there is a
use of a computer or the use of internet. Once there is a use of the
computer or the internet, there is already a Cyber Crime. Therefore, if
it's a Facebook post, there can be Cyber Crime.
How about a text message? Is that a Cyber Crime or would that be
merely Libel under RPC?
General Rule: When you use a smartphone, that is considered a
COMPUTER. But if you use a keystone (or burner phone), it's not.
But the problem is I used a 3310 but the one who received it was using
a smartphone. So, there's a hairline of difference there. I don't know.
We don't know. So far, the definition of Cyber Libel, CYBERCRIME is
committed if it involves the computer or the internet. If there is Libel
committed, with the use of computer or internet, it constitutes
cybercrime.
You can also opt to file the case under the provision of the RPC. If the
case is prosecuted under the Cybercrime Law, the penalty is higher by
one degree.
Q: Venue of libel cases.
A: Residence is the basis of the venue; If it affects people who are not
residents, they can file anywhere.
If for example, one of the victims is an OFW in HK and another victim
is an OFW in US, they cannot probably file Libel there if it isn’t a crime
there, but it can be filed here.
FISCAL: Even if committed outside Phil. Territory, it can be prosecuted
here since it is a transnational crime.
The same person cannot file the same case twice in several places;
but if for example, three persons who are residing in different places
are affected, they can file separate cases in different places.
Q: Can Duterte be prosecuted after his term for his statements on
shooting drug lords?
A: Depending on the prescription; IF not an official act, the immunity
will only be during the presidency. If by the time his term ends, he
could be prosecuted if the crime has not yet prescribed by then.
[ REITERATION BY FISCAL ]
In Malang vs Moson (August 22, 2000), the guidelines on when there
can be bigamy when the parties are muslim and have multiple spouses
or when there can be a parricide.
In an old case which was enunciated before the effectivitiy of the
Shari’ah law, the SC held that there can only be bigamy insofar as the
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first marriage is concerned and in order to be considered a parricide,
the victim should be the first wife.
Note that now, with the Shari’ah law, multiple marriages have already
been legally recognized. There is now a timeline. The Supreme Court
has already set forth a guideline involving multiple marriages.
TITLE 14 – QUASI-OFFENSES
 Reckless imprudence consists in voluntary, but without
malice, doing or falling to do an act from which material
damage results by reason of inexcusable lack of precaution
on the part of the person performing of failing to perform such
act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
 Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to
be caused is not immediate not the danger clearly manifest.
 The penalty next higher in degree to those provided for in this
article shall be imposed upon the offender who fails to lend
on the spot to the injured parties such help as may be in this
hand to give.
Art. 365 Quasi offenses
In intentional crimes, the act itself is punished in negligence or
imprudence, what is penalized is the mental attitude or condition
behind the act, the dangerous recklessness, the lack of care or
foresight, the imprudenceia punible. Much of the confusion has
arisen from the common use of such descriptive phrase as
“homicide through reckless imprudence” and the like, when the
strict technical sense is, “reckless imprudence resulting in
homicide.
(Reyes Trucking Corp vs. People, cited in Sevilla v. People, GR
no 194490, Aug 13, 2014)
Reckless imprudence; simple imprudence
The last paragraph of Art. 365 graduates the penalty if the offender,
especially in a vehicular accident, fails to render assistance to his
victim (e.g. hit and run).
In Reyes Trucking vs. People (cited in Sevilla case), the injury was
caused through reckless or simple imprudence. Hence, Art. 365 was
applied to punish the reckless imprudence or simple imprudence.
Note: The legally precise terminology is reckless imprudence resulting
to homicide because what is punished is the reckless imprudence. The
law itself provides for the penalty - it penalized the lack of care or
foresight. It is a crime in itself and not a mode of committing a crime.
To reiterate, reckless imprudence or simple imprudence is not
only defined but also penalized.
SPECIAL PENAL LAWS
Characteristics of crimes punished under special penal laws:
1. They are (or used to be) usually mala prohibita;
2. Rules and principles applicable to crimes punished
under the RPC’s are not usually applicable, such as;
a. The usual application of principal,
accomplices and accessories have no
bearing;
b. The usual stages of the crime as
consummated, frustrated, and attempted as
defined under RPC do not apply. The SPL
may have its own definition of what is
attempted or frustrated e.g Attempted child
trafficking);
c. Art 48 on ordinary complex crimes does not
apply, but the SPL may itself penalize certain
special complex crimes.
d. JEMAA do not usually apply they usually do
not adopt the penalties under the RPC
e. The rules on graduation of penalties do not
apply
When the SPL uses the penalty of the RPC, the rules on
graduation of penalties shall apply. Thus, in the application of ISL,
it shall not stop at the minimum of the penalty imposable, but
rather must still go down one degree lower.
SPLs are generally mala prohibita. But now, a good number of SPLs
are mala in se.
The difference is important because if the crime is malum prohibitum,
good faith is not a defense. If malum inse, good faith is a defense.
Knowledge or lack of knowledge is different from good faith. In good
faith, there is knowledge and lack of malice.
Example:
Laglag bala, if you do not know that someone put a bullet in your
luggage, you can use the defense of lack of knowledge even if malum
prohibitum. In this case, there is no animus possidendi.
But if you say that “wa manggud ko kahibaw na di diay pwede na.”
This is only good faith which is a defense only in mala inse.
SUPPLETORY CHARACTER OF RPC
Also, there are certain principles that may or may not apply in SPLs.
The RPC states that provisions of RPC can have suppletory
application to SPLs when it would make sense.
If it will be disadvantageous of the accused, it may not apply
suppletorily.
STAGES OF A CRIME
The stages in the commission of felonies are found in the RPC. They
do not necessarily exist in SPLs.
When can they apply?
If the SPL expressly states.
Dangerous Drugs Law – Sec 26 of that law says that attempt to sell,
perate a drug den, to manufacture, to prescribe etc.
- A mere attempt would already constitute a crime
Child Abuse Law – mere attempt to commit child abuse is already a
crime.
Human Trafficking – mere attempt would already constitute a crime.
The law now says that mere attempt to commit human trafficking is
already punishable.
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Example:
You want to smuggle or import shabu. The importation did not
materialize because the law enforcement authorities were able to
intercept (not nga naa nay shabu). No shabu yet, no corpus delicti yet.
Can there be a crime already?
Yes, because there is an attempted importation or selling uner the
SPL. But the frustrated stage is not punished.
CONSPIRACY
As a general rule, conspiracy is a mode of incurring criminal liability
under the RPC. But it is also a crime under certain circumstances.
So conspiracy is a mode of incurring criminal liability under the RPC.
But not necessarily under the SPL.
ILLEGAL GAMBLING/ NUMBERS GAME
You could say that the financier and the coordinator and the usher,
have agreed to commit the crime of sale of illegal games. They are in
conspiracy. The usher will derive his income from the financier.
Everybody will derive from income from that there is a ladder
conspiracy or a chain conspiracy.
That is not the way it operates in illegal gambling EACH AND EVERY
PARTICIPANT is liable for his own specific act so the usher will be
liable for selling, coordinator for his own, financier for the financing.
Each will have his own crime. We do not invoke conspiracy where in
the act of one Is the act of all. So not necessarily true that conspiracy
theory is true in special penal law
ILLEGAL POSSESSION OF FIREARMS
Just because I’m with you does not necessarily mean that I am also
penalized. It’s just you. So whenever there is a special penal law,
forget about ordinary complex crime.
How about special complex crime?
Yes there can be special complex crime involving special penal laws,
but not ordinary complex.
“JEMAA do not usually apply they usually do not adopt the
penalties under the RPC”
General rule: Modifying circumstances will not apply.
Exceptions: Generic modifying circumstances
Remember though that there are modifying circumstances that are
generic. So when the modifying circumstance such as surrender or
voluntary plea of guilty, minority, habituality or habitual delinquency,
these are generic and may apply in special penal laws.
“The rules on graduation of penalties do not apply if the penalty
is not borrowed from revised penal law.”
ISLAW always applies.
RA 9775
AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY,
PRESCRIBING PENALTIES THEREFOR AND FOR OTHER
PURPOSES
CHILD, DEFINITION
 A person below 18 years old
 A person 18 years of age, who is unable to take care of
himself/herself
 A person who is depicted as a child
 A computer-generated, digitally or manually crafted
images or graphics of a person who is represented or
who is made to appear to be a child.
Child under 9344 the definition to be exempt is he must be 15 below.
Over 15 to below 18, he must act with discernment.
For child abuse law, a child is somebody who is below 18 or a person
who is over 18 provided that he has some mental issues such as being
retarded or having the mental age of a child.
Definition of child may defer. Under the child pornography law (see
above)
Example: “Sweetheart”
There was this operation involving a digitally crafted girl named
Sweetheart but she was just digitally crafted. But behind Sweetheart is
an NBI personnel. Sweetheart was posted in the website and less than
24 hours there were already several pedophiles who wanted to have
cybersex with Sweetheart. But it was really an entrapment operation.
By using Sweetheart, these NBI agents were able to entrap the
pedophiles.
Can they be sued for violation of RA 9775 considering there was
no actual child involved?
Yes. The child may not be a real child.
Also, if participants in a sexual activity are depicted as children, even if
they are not children like for example nag cosplay, in costumes as
children. They can also be sued for violation of Child Pornography.
Even gani if cartoons or comics.
CHILD PORNOGRAPHY, DEFINED
 Refers to any representation, whether visual, audio, or
written combination thereof, by electronic, mechanical,
digital, optical, magnetic or any other means of child
engaged or involved in real or simulated explicit sexual
activities.
ACPA’s definition of child pornography in fact already covers the use of
“electronic, mechanical, digital, optical, magnetic or any other means.”
So, under the Child Pornography law, there has to be a sexual activity.
This is different from the SPL on photo and video voyeurism because
under that law, it is NOT necessary that there be an activity. It is
enough that there is a body part that is being videoed and probably
shared when there is an expectation of privacy.
But for child pornography, there must be a sexual activity whether the
activity is simulated or real.
WHAT ARE THE STEPS? (ALREADY PUNISHABLE)
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(a) To hire, employ, use, persuade, induce or coerce a child to

“GROOMING” refers to the act of preparing a child or someone
who the offender believes to be a child for sexual activity or sexual
relationship by communicating any form of child pornography. It
includes online enticement through any other means.
“LURING” refers to the act of communication, by means of a
computer system, with a child or someone who the offender
believes to be a child for the purpose of facilitating the commission
of sexual activity or production of any form of child pornography
"PANDERING" refers to the act of offering, advertising, promoting,
representing or distributing through any means any material or
purported material that is intended to cause another to believe that
the material or purported material contains any form of child
pornography, regardless of the actual content of the material or
purported material.
GROOMING
By saying can you wear this thing? Can you do this? That is already
punished.
LURING
It is the second step. For example, after telling the child to wear this
thing it like communicating with the child to facilitate now the doing of
the act.
PANDERING
Again, it is an act punished under this law.
perform in the creation or production of any form of child
pornography;
Using the child to make porn
(b) To produce, direct, manufacture or create any form of child
pornography;
The video, the movie, the whatever.
(d) To possess any form of child pornography with the intent to
sell, distribute, publish, or broadcast: Provided. That possession
of three (3) or more articles of child pornography of the same
form shall be prima facie evidence of the intent to sell, distribute,
publish or broadcast;
Possession of child porn with intent to sell and distribute. So it would
seem here that there would only be a crime involving possession if it is
coupled with the intent to sell or distribute.
(l) To possess any form of child pornography.
Mere possession even without the intent to sell or distribute is
punishable provided that the material constitutes child porn. If the
material does not involve child porn but pornography, then, the
applicable law is RPC – the illegal distribution or showing of obscene
acts.
But the possession of pornographic material is with intent to sell. So if
kept for confidential purposes, it is not punished, unless it is child
pornography. The mere possession is punished under letter (l).

JURISDICTION
PROHIBITED ACTS:
(a) To hire, employ, use, persuade, induce or coerce a child
 Family Court which has territorial jurisdiction over the
to perform in the creation or production of any form of
place where the offense or any of its essential elements
child pornography;
was committed.
(b) To produce, direct, manufacture or create any form of
child pornography;
(c) To publish offer, transmit, sell, distribute, broadcast,
This is a transnational crime, hence, even if one of the accused
advertise, promote, export or import any form of child
committed the crime abroad, provided that Filipino is involved or one
pornography;
of the acts were performed in the Philippines, then the person who
(d) To possess any form of child pornography with the intent
performed the crime abroad can be held to curt in the PH and
to sell, distribute, publish, or broadcast: Provided. That
prosecuted under our laws.
possession of three (3) or more articles of child
pornography of the same form shall be prima facie
evidence of the intent to sell, distribute, publish or
broadcast;
(e) To knowingly, willfully and intentionally provide a venue
for the commission of prohibited acts as, but not limited
to, dens, private rooms, cubicles, cinemas, houses or in
establishments purporting to be a legitimate business;
(f) For film distributors, theaters and telecommunication
companies, by themselves or in cooperation with other
entities, to distribute any form of child pornography;
(g) For a parent, legal guardian or person having custody or
control of a child to knowingly permit the child to
engage, participate or assist in any form of child
pornography;
(h) To engage in the luring or grooming of a child;
(i) To engage in pandering of any form of child
pornography;
(j) To willfully access any form of child pornography;
(k) To conspire to commit any of the prohibited acts stated
in this section. Conspiracy to commit any form of child
pornography shall be committed when two (2) or more
persons come to an agreement concerning the
commission of any of the said prohibited acts and
decide to commit it; and
(l) To possess any form of child pornography.

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DUTIES OF AN INTERNET SERVICE PROVIDER (ISP):
 All internet service providers (ISPs) shall notify the PNP
or NBI within 7 days from obtaining facts and
circumstances that child pornography is being
committed using its server.
 Nothing in this section may be construed to require an
ISP to engage in the monitoring of any user or the
content of any communication of any such person:
 That no ISP shall be held civilly liable for damages on
account of any notice given in good faith Furthermore,
an ISP shall preserve such evidence for purpose of
investigation and prosecution by relevant authorities.
 An ISP shall, upon the request of proper authorities,
furnish the particulars of users who gained or attempted
to gain access to an internet address which contains any
form of child pornography.
 All ISPs shall install available technology, program or
software to ensure that access to or transmittal of any
form of child pornography will be blocked or filtered.
 An ISP who shall knowingly, willfully and intentionally
violate this provision.
 The (NTC) shall promulgate within ninety (90) days from
the effectivity of this Act the necessary rules and
regulations for the implementation of this provision
which shall include, among others, the installation of
filtering software that will block access to or transmission
of any form of the child pornography.
Example: Globe, Smart (ones providing for the internet)
Where is child pornography committed in Cebu?
Answer: In Cordova. The houses there are small huts. Engaged in this
business. Nganong gitagaan man silag post-paid internet? This
involves live streaming. The possibility there, they are using post-paid
internet, then it seems that there are ISDs sleeping on the job because
they are supposed to notify the NBI within 7 days.
DUTY TO REPORT
They cannot however monitor because it would be a violation of
privacy. But once they notice they must alert the PNP or NBI and even
take down the website just like how Facebook is doing to fake news.
The NBI and Government cannot do take down the website. This is
actually the issue in the case of Disini v. DOJ, the first draft of the law it
provided that the secretary of justice can block a website for
committing a cybercrime but the Supreme Court ruled that the
government cannot take down anything unless there is a court order.
But this will not apply to private persons since they are not guarantors
of the rights under the bill of rights.
If ISP are not doing it?
Under the law, they can be held liable. There is a civil liability and there
is a penalty.
DUTIES OF AN INTERNET CONTENT HOST
 Not host any form of child pornography on its internet
address;
 Within seven (7) days, report the presence of any form
of child pornography, as well as the particulars of the
person maintaining, hosting, distributing or in any
manner contributing to such internet address, to the
proper authorities; and
 Preserve such evidence for purposes of investigation
and prosecution by relevant authorities
There is a duty to report and preserve evidence as well. Failure of the
ICH to remove the child porn content within 48 hours shall be evidence
of its violation.
Q: for ICH is usually located outside, how can they enforce such
law?
A: PCP is part of the Interpol. They share intelligent units through the
Interpol. Therefor there was a crime committed by Sweden. He was
the mastermind of the child pornography and the actors are in
Cordova. He was the one created the website, created the bank
accounts and how to pay the websites.
He was the one who created the website, the banks accounts and how
to pay the websites. So there was no extradition treaty. And in fact,
what happened there was the co-offenders here were not arrested
here. The Swedish enforcement knew about it so they arrested the guy
in Sweden and tried him under their own laws given that the crime was
committed there. He was convicted there. By virtue of that, SC said
yeah, they share it.
QUESTIONS FROM CLASS:
What would qualify as possession? What if you were sent a link
containing child pornography? Would that be considered as
possession?
Fiscal: If you were sent a link, you would not know if it’s child
pornography if you do not open it.
What if it’s not just a link but the actual video that was sent and I
did not ask for it?
Fiscal: Here’s the thing. I think in the future there will be a definitive
and clearer definition of possession because it seems to me that when
we talk about possession, our understanding of possession is physical
possession of something that is tangible; something that we can have
under our control.
But things have changed because of technology so if it is already in
your mailbox, does that mean you already have possession? It gets to
your mailbox without you not doing anything. Unlike when the thing is a
tangible because you have with you the book or the firearm, it is very
clear that you have possession because we can say really that there is
animus possidendi. But that is rather a gray area if we talk about the
digital things.
Bisag ako ha. Diba naa muy spam nga mamaligya ug Viagra? We do
not know how it got into our mailbox or our spam. SC said in a case
(Disini vs. SOJ) that they cannot prevent spam because it is your right
to read your spam. That would violate your right against expression.
So, here’s the thing. In possession, it would be easier if you have a
tangible. It would be very hard if you have just a digital content. But
here is the thing, even if this is mala prohibita and that mere
possession can be a crime already, therefore, good faith is not a
defense; but at least we should have knowledge. We should know.
Then, in the animus possidendi, you must have the intention to keep it
for yourself. Once you receive it, if you delete it, then there is no
animus possidendi. Yes, it went to your mailbox or it was shared to you
or you were tagged. So, that will be something that would be debated
later on if there is animus possidendi.
Lack of knowledge could be a defense. If it gets into your spam,
mailbox or you receive a link, remember accessing or even attempting
to access is already a crime under this law.
But I still would say, you must know that it is child porn. Or if you do not
know that it is child porn because it is just a link; kay diba ilarun ta
usahay? They will tell you to please open this link and you do not
know that is in the link, is that tantamount already to accessing child
pornography?
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CHILD PORNOGRAPHY AS A TRANSNATIONAL CRIME
DOJ may act on a request of a foreign state for assistance in the
investigation or prosecution of child pornography by;
(1) Conducting a preliminary investigation against the
offender and, if appropriate, to file the necessary
charges in court;
(2) Giving information needed by the foreign state;
(3) To apply for an order of forfeiture of any proceeds or
monetary instrument or properly located in the
Philippines used in connection with child pornography in
the court;
That the principles of mutuality and reciprocity shall, for this
purpose, be at all times recognized.
DOUBLE JEOPARDY
 If the elements are the same, there is double jeopardy;
otherwise, none
 Child porn is a manner of committing trafficking, but the
elements are not necessarily the same.
No double jeopardy when the elements are different.
Can you file you file child abuse?
Yes, if there is a real child.
If there is a child involved, you can file child abuse and you can even
file rape, if the child was rape. You can file even anti-voyeurism if there
is a photo and video spread.
YES, THERE CAN BE SEVERAL, provided there are different
elements.
CYBERCRIME v. CHILD PORN
 In the case of Disini v. SOJ, the SC ruled that Liber and
Child Pornography cannot be filed both under the RPC
and the Cybercrime Law, or RA 9775 and Cybercrime
Law, as that would constitute double jeopardy.
 With the exception of the crimes of online libel and
online child pornography, the Court would rather leave
the application of Sec. 7 to actual cases.
 The same is true with child pornography committed
online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in cyberspace.
ACPA’s definition of child pornography in fact already
covers the use of “electronic, mechanical, digital, optical,
magnetic or any other means.
BUT in DISINI v. SOJ, the court categorically stated that if the child
porn is committed with the use of the computer. You CANNOT file
under both you must choose only one.
The same with cyber libel, you must choose only one.
WHY IS THAT?
Because they have the same elements. Under the Cybercrime Law,
while it punishes child pornography, it did not make any other
definition. It just borrowed the definition under the child pornography
law. The same with Libel, while cybercrime punishes cyber libel, it did
not make its own definition of libel. It borrowed the definition under the
RPC, resulting in the same definition, the same elements EXCEPT
with the video/computer.
If filed under the Cybercrime Law then the penalty would be one
degree higher.
But so far, what the SC declared in the DISINI case, is only double
jeopardy with respect to cybercrime and libel. Insofar as others, they
would just wait for you to become lawyers. (LOL).
TWELFTH WEEK OF DISCUSSION (APRIL 10-11, 2019)
REPUBLIC ACT NO. 10591
AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON
FIREARMS AND AMMUNITION AND PROVIDING PENALTIES
FOR VIOLATIONS THEREOF
 Firearm refers to any handheld or portable weapon, whether
a small arm or light weapon, that expels or is designed to
expel a bullet, shot, slug, missile or any projectile, which is
discharged by means of expansive force of gases from
burning gunpowder or other form of combustion or any similar
instrument or implement.
 For purposes of this Act, the barrel, frame or receiver is
considered a firearm.
Barrel, frame, or receiver are not a firearm, merely a part of firearm but
is considered as one firearm for purposes of imposing a penalty.
A person was arrested and caught in the possession of two firearms
and one barrel.
What is the significance?
Under the law, if you have three firearms, the penalty would be
Reclusion Perpetua.
 Loose firearm refers to an unregistered firearm, an obliterated
or altered firearm, firearm which has been lost or stolen,
illegally manufactured firearm, registered firearm in the
possession of an individual other than the licensee and those
with revoked licenses in accordance with the rules and
regulations.
 Firearm with expired registration or one in the possession of a
person with expired license is not covered in the definition.
We do not anymore use the term unlicensed firearm because
technically we do not license the firearm. We register the firearm.
In that definition of loose firearm, a firearm with an expired registration
is not considered a loose firearm. To be considered loose, there must
be revocation of registration.
Firearms can be classified into small or light weapons. It used to be
low caliber and high caliber which were not in accordance with the
international treaties. Now, small arms include low caliber and high
caliber.
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FIREARMS COVERED ARE CLASSIFIED AS:
1. Small arms – intended or designed for individual use, or
to be fired from the hand or shoulder, which are not
capable of fully automatic bursts or discharge, such as
handgun, rifle, shotgun.
2. Light weapons:
 Class A – self-loading pistols, rifles, carbines,
submachine guns, assault rifles and light
machine guns not exceeding 7.62 MM fully
automatic
 Class B – designed for use by 2 or more
persons, rifles or machine guns exceeding
7.62 MM, mortars of caliber less than 100
MM.
 SEC. 7. A permit to carry firearms outside of residence shall
be issued by the Chief of the PNP or duly authorized
representative to any qualified person whose life is under
actual threat or his life is imminent danger due to the nature
of his profession, occupation or business.
 It shall be the burden of the applicant to prove that his life is
under actual threat by submitting a threat assessment
certificate from the PNP.
Small arms can be handheld or fired from the shoulder such as rifle.
Light weapons which are further classified into two: class A and B.
A person may be granted to possess firearm and carry such outside
his residence provided he justifies the necessity of carrying the firearm
outside of his residence. Who can these persons be? These are those
who are in imminent danger or threatened species.
Note that in the enumeration, you cannot find politicians because they
have police protection.
Professionals considered to be in imminent danger due to the
nature of their profession, occupation or business:
a. Members of the Philippine Bar;
b. Certified Public Accountant;
c. Accredited Media Practitioners;
d. Cashiers, Bank Tellers;
e. Priests, Ministers, Rabbi, Imams;
f. Physicians and Nurses;
g. Engineers; and
h. Businessmen, who by the nature of their business are
exposed to high risk of being targets of crimes.
PENALTIES:
 Regardless of classification, possession of loose firearm
is a crime cognizable with the RTC.
 The penalty is 1 degree higher if:
a. Firearm is loaded with ammo or magazine
b. Firearm is fitted with laser or gadget used to guide
the shooter to hit the target;
c. Fitted with sniper scopes, firearm muffler or firearm
silencer;
d. Accompanied with an extra barrel; and
e. Converted to be capable of firing full automatic
bursts.
It used to be that when the firearm is low caliber, the case is filed
before the MTC as it carried the penalty of imprisonment below 6
years. Now, regardless of the caliber, possession of loose firearm is a
crime cognizable with the RTC and punished with at least Prision
Mayor. However, such can go up to Reclusion Temporal if the firearm
is loaded with a bullet.
If there are three or more firearms, the penalty would be Reclusion
Perpetua. Hence, non-bailable.
Note: If there is another crime committed, there will be no more
penalty for firearm.
EFFECTS OF LOOSE FIREARM IF ANOTHER CRIME IS
COMMITTED:
USE OF LOOSE FIREARM IN COMMISSION OF OFFENSE
 Aggravating – when inherent in the commission of a
crime; no separate info for the possession of loose
firearm
 If penalty for the other crime is lower, the penalty for
illegal possession of firearm shall be imposed in lieu of
the penalty for the crime charged.
 If penalty for other crime is the same, the penalty of
prision mayor in its minimum period shall be imposed in
addition to the penalty for the crime.
 The firearm used must have been seized. Without it,
Sec. 29 cannot apply.
 If the violation of this Act is in furtherance of, or incident to, or
in connection with the crime of rebellion or 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.
 Ladjaalam and Agote abandoned
NOTE: If there is another crime committed, there will be no more
penalty for firearm.
When confronted with 2 crimes involving a loose firearm,
there are 3 possibilities – illegal possession is either:
1. Absorbed – in rebellion and attempted coup d’etat.
2. Aggravating – if inherent in the commission in the other
crime, whether punished in the RPC or special penal
laws.
e.g., COMELEC gun ban and loose firearm
3. Separate – if not inherent in the commission of the other
crime, not rebellion nor attempted coup d’etat.
QUESTION:
1. Where do we file an Alarms and Scandals case if the
crime was committed with the use of a firearm?
2. What is the penalty if the Homicide is committed with a
loose firearm?
BEFORE: If there is another crime committed, there will be no penalty
for firearm. Even unlawful vexation.
NOW: Not anymore. If there is another crime committed, the firearm
will be aggravating if its use if inherent in the crime.
Example:
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Murder with use of firearm or Alarms and Scandals
If it is not inherent, it will be separate. So if there is a search warrant,
you go to the house of Juan and found a firearm and shabu, gambling
paraphernalia. The previous rulings of the SC said that once there are
other crimes such as drug, mawagtang ang firearm even if it totally
unrelated with the crime.
BUT NOW, if there is another crime committed and the other crime
committed is not related to the firearm or not inherent, they will be
separated. NO ABSORPTION.
If inherent, aggravating ha.
But here’s the thing: if the penalty for the firearm is greater than
the other crime,
Example:
Alarms and Scandal’s penalty (arresto mayor) is lesser than the
penalty (prision mayor or reclusion temporal) for firearm.
If we follow the ordinary rules on aggravating circumstance, the penalty
would be only arresto mayor at its maximum which is a bit unfair
considering that there is a firearm.
THIS law now made it clear that the firearm is an aggravating
circumstance, we would now take a look at the crime having the higher
penalty.
So even if the crime is Alarms and Scandal (with firearm), the penalty
should be the penalty for firearm because it is the higher penalty in
which case it is cognizable with the RTC. You do not file it with the
MTC if there is loose firearm.
Same is true with grave threats.
GUN BAN
The penalty for gun ban is one to six years. The penalty for the loose
firearm is at the minimum prision mayor.
If both committed: The firearm is only aggravating to gun ban
(inherent), thus the crime to be charge is gun ban, but the penalty shall
be the penalty for the loose firearm.
TAKE NOTE:
1. Gun Ban is cognizable with RTC as it was expressly stated
under the law.
2. Also you can actually be liable with Gun Ban even if you are
carrying a knife. The law says “weapons”.
Because the firearm is now aggravating only to the other crime,
because it is inherent to gunban, so in that case the case to be filed
will be gunban, but the penalty will be for the loose firearm. You cannot
separately file them because loose firearm is inherent to gunban.
So the penalty will not be for the main case. The penalty that shall be
imposed shall be that for the loose firearm.
If the penalty for the loose firearm is higher than the higher crime. If
they are the same, it would be PLUS prision mayor in the minimum in
addition to the penalty.
Example:
So let’s say reclusion temporal ang duha then its reclusion temporal
PLUS prision mayor minimum. It’s not two reclusion temporal.
That is when the loose firearm can be aggravating – if it is
inherent. If it is not inherent, then separate filing.
There are also instances when the firearm is neither aggravating nor
does it give rise to separate filing and that is the crime is rebellion,
insurrection, coup d’etat, the firearm will be absorbed. Of course, they
can be absorbed because the law says so and because of the principle
of political offense doctrine.
So when there are 2 or more crimes involving a loose firearm = Loose
firearm is aggravating in inherent, if not filing of separate crime. If
political offense then absorbed.
 If the Homicide is committed with a loose firearm and
the firearm was seized, the penalty would:
o Be reckoned from Homicide Reclusion
Temporal, in its maximum (only aggravating if
PM is the penalty for the firearm?
o Be Reclusion Temporal plus Prision Mayor
minimum if the small arm was loaded with
ammos, etc. (increased to RT med, same as
Homicide)
The penalty for the homicide is reclusion temporal, then the firearm if it
is simple if the penalty for the firearm would have been prision mayor,
then the penalty would be reclusion temporal maximum.
But if the firearm contains a bullet, the penalty for that firearm would
not be prision mayor, it would now be reclusion temporal. So pariha na
nag homicide ug firearm with bullet is temporal. If the penalties are the
same, add prision mayor.
 Absence of permit to carry outside of residence – the
penalty of prision correccional and a fine of P10,000.00 shall
be imposed upon any person who is license to own a firearm
but who shall carry the registered firearm outside his/her
residence without any legal authority therefor.
You need a permit to carry outside even if the firearm is covered with a
license. Even if there is the LTOP, you still need a permit to carry
outside. In case of failure, the penalty will be prision correctional.
If the firearm is a loose firearm and no permit to carry (actually no
permit to carry if loose firearm) so the penalty will be for the loose
firearm.
 Use of an imitation firearm – an imitation firearm used
in the commission of a crime shall be considered a real
firearm and the person who committed the crime shall
be punished.
o e.g., robbery with fake firearm; usurpation of
public functions with fake firearm
Considered as a real firearm if used in the commission of a crime. if a
person robs a jeepney or its passenger or a bank. The penalty would
be the same as in real firearm.
Which means that if the robbery is only punished with prision mayor
(depending on amount) and the firearm is loaded, therefore the penalty
for the loaded firearm is reclusion temporal.
The case would be robbery in relation to 10951 sec 29. It means that
the firearm is aggravating in the robbery. And because the firearm
carries a higher penalty than the robbery, if convicted of the robbery,
the penalty to be imposed should be the penalty of the firearm which
should be reclusion temporal even if the penalty for the robbery is not
reclusion temporal.
Even if it is not a real firearm, because if it is used in order to commit a
crime, it will be considered as real. The same is true with grave threats.
Threatening a person with an imitation firearm is grave threats with the
use of a loose firearm; in which case the penalty can be as high up as
prision mayor.
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Injuries caused on the occasion of the conduct of competitions,
sports, games, or any recreation activities involving imitation
firearm shall not be punished.
QUIZ:
1. Juan and Pedro are rebels. In the course of the
rebellion, Juan forced political candidate Dugoy to give
money, and when the latter refused, Juan killed Dugoy’s
wife with the use of a loose firearm. What crime/s
was/were committed by Juan?
2. When Pedro was driving to school as a law student, he
was apprehended for a traffic violation. He attacked the
law enforcer with a cal. 38 loose firearm, and killed him
in the heat of anger. What should be his penalty? No
need to graduate or apply ISLaw.
ANSWER TO NO. 1:
The crime committed is rebellion. Everything else is absorbed.
ANSWER TO NO. 2:
The penalty here would be for the homicide which is reclusion
temporal. And it will be in the maximum because of the use of the
firearm. It can also be direct assault with homicide but again in relation
to the firearm. It would be reclusion temporal maximum in its
maximum.
REPUBLIC ACT NO. 9165
AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425,
OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF
1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND
FOR OTHER PURPOSES
TOOK EFFECT: JUNE 2, 2002
DEFINITIONS:
 Dangerous drugs – those listed in the 1961 Single
Convention on Narcotic Drugs as amended, and 1971
Single Convention on Psychotropic Substances.
 Controlled precursors and essential chemicals –
listed in the 1088 Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.
If you want to sell, don’t ride, just walk. Because if you just walk, the
crime would just be possession – a bailable crime.
When there is maintenance of a drug den, dive, or resort,
normally there is also sec 7 of the law – visiting. The person who
merely visits knowingly a drug den would also be liable even if he is
not doing anything. And the penalty for visiting is the same penalty for
possession. Even if was not in possession, provided that he visited.
What if nasaag ra siya?
This law is malum prohibitum. Good faith is not a defense. But LACK
OF KNOWLEDGE IS A DEFENSE. They are different. Good faith
means you know but you have no bad intention. Lack of knowledge
means you do not know.
 In Sec. 26, conspiracy may refer to selling, delivery, transport,
importation, manufacture of drugs, but not for possession.
 However, in a ruling (PP v Tira, May 28, 2004) under the
previous law, RA 6425, SC convicted both spouses for
possession, stating “The appellants had actual and exclusive
possession and control and dominion over the house,
including the room where the drugs were found by the
policemen. She had full access to the room, including the
space under the bed.”
 The absent husband has constructive possession.
In addition to the acts punished, Sec 26 states that conspiracy is also
punished. Even if she was not herself caught or directly involved in the
trading, but it was alleged that she conspired in the trading.
But if you look at Sec 26, you will not find illegal possession, which
means that conspiracy is only a mode of committing any of the acts
punished or enumerated in Sec 26 EXCEPT POSSESSION.
Does that mean that there can be no conspiracy to possess
dangerous drugs?
In one case, SC convicted the wife of the subject of a search warrant.
Even if the SW is only against the husband. SC said the wife conspired
to possess the shabu. What happened was that Juan, the husband,
had a SW against him. When the police officers went to enforce the
SW, Juan was not around. Only Juana, the wife was there. So there
was a search and Shabu was found. SC said that we can also convict
Juana for the possession even if the Search Warrant did not name her
because Juana also had effective control over the premises.
Therefore, also in possession. Juan can also be sued as he was the
subject of the SW. SC said they conspired to possess.

PP v Mantalaba, GR No. 186227, July 20, 2011

Acts punished:
 Elements of sale of drugs:
1. Importation, Sec. 4
1. The identity of the buyer and the seller, the object,
2. Sale, transport, administration, dispensation, delivery
and the consideration; and
3. Maintenance of den, dive, resort
2. The delivery of the thing sold and the payment
4. Employees and visitors of den, dive, resort
therefor is necessary.
5. Manufacture
6. Illegal chemical diversion
7. Manufacture or delivery of equipment
There must be a transaction. There must be meeting of minds. We
8. Illegal possession of dangerous drugs (Secs. 11 & 13)
must know the buyer and seller. The buyer has to perform certain
9. Illegal possession of paraphernalia (Secs. 12 & 14)
protocols and guidelines.
10. Illegal use of drugs
11. Cultivation or culture of plants
CHAIN OF CUSTODY
12. Illegal prescription
The first person who will possess the drugs, he must affix his signature
in that chain of custody. Everybody who got hold of it must sign.
Even if the courier has not reached the destination yet, he intended to Therefore, it is not anymore allowed that any civilian asset. They only
sell the shabu but before reaching his destination he was caught, the serve as informant. They cannot participate anymore in entrapment.
crime would be for transport. The penalty for selling and transporting And then the object – corpus delicti. What if there is no drug seized,
are the same. there is no violation of the RA 9165.

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RA 9165 – DANGEROUS DRUGS, aab RA 10640
 Possession is not only actual, but may also be
constructive.
 Constructive possession – when the drug is under the
dominion and control of the accused or he has the right
to exercise such dominion or control over the place
where it is found. Exclusive possession or control of the
place is not necessary. (PP v Tira, May 28, 2004)
 Animus possidendi as an element – free and conscious
awareness of being in possession of a drug.
I would say that there can be a conspiracy to possess even if it is not
found in Sec 26 because SC said but it would be kind of rare. But you
can find Sec 13, 9165, it says there that there can be an illegal
possession of dangerous drugs committed in the presence two other
persons.
Example:
Ni-strike ang law enforcer upon a tip and they found 5 people sitting
around a table. Nay shabu sa tunga. Let us say that it was done in a
stanger’s house. there were 5 people but they were not physically
possessing.
Kinsa man ang nagpossess ana?
Go to the definition of possession. There is physical possession and
there is constructive possession – that even if the persion is not
physically possessing the dangerous drugs, that he can be held liable
for possession, nonetheless.
THE ABSENT HUSBAND HAS CONSTRUCTIVE POSSESSION.
So going back to the example of Juan and Juana, even if Juan was not
there during the raid, it is presumed that he owns everything inside the
house, so by reason of this he has constructive possession. He was
committed.
But in the scenario where it is a public place and there are 5 people –
possession in the presence of two other persons. The penalty is
higher. The same is true in a gathering, a party and a meeting. The
mere possession will not only penalize up to 20 years but it will be RP.
Question: what if 3 persons are actually using the drugs?
Answer: In using, the penalty would Sec 15 and it will be actually much
lower because:
- First offense – rehab (principle: You jail the pusher, save
the user because the latter is actually a victim)
- Second offense – prision correccional.
So inig-abot sa police, kan-a na tanan! =)
Question: Can use if you do not possess?
Answer: If you use the crime will be using, the penalties under Sec 15,
which are lighter than possession, will only apply if there is no other
crime committed. If you use but if naa pay sobra – possession.
So that’s why there has to be the corpos delicti. But although the law
requires compensation in order for there to be sale, it does not mean
however that the money be presented as evidence of the crime. Even
if there is no money, there can be a conviction of selling.
Selling is perfected by meeting of the minds. The Supreme Court in
many instances ruled that the presentation of the money is not crucial
to the conviction of the accused. What is crucial is the presentation of
the drugs itself. There was to be a presentation that there was a
transaction involving money.
 A buy-bust operation is not invalidated by mere non-
coordination with the PDEA.
 Neither is the lack of prior surveillance fatal. (People v.
Lacbanes)
o Surveillance is important if maintaining a
drug den.
 Non-compliance by the apprehending/buy-bust team
with Sec. 21 is not fatal as long as there is justifiable
ground therefor, and as long as the integrity and the
evidentiary value of the confiscated/seized items are
properly preserved by the apprehending officer/team.
Lack of prior surveillance is not fatal to buy-bust operation. It is
however important if the crime is maintaining a drug den, there must
be a confirmation that the place is where drugs had been usually used,
possessed or sold. For drug den, there must a prior surveillance. How
would you know if there has been habitual use if there is no
surveillance? But for a buy-bust? There is no surveillance needed.
RA 9165 – DANGEROUS DRUGS, aab RA 10640
 Possession is not only actual, but may also be
constructive.
 Constructive possession – when the drug is under the
dominion and control of the accused or he has the right
to exercise such dominion or control over the place
where it is found. Exclusive possession or control of the
place is not necessary. (PP v Tira, May 28, 2004)
 Animus possidendi as an element – free and conscious
awareness of being in possession of a drug.
The thing can be co-possessed because exclusive possession is not
necessary. Important is the intent to keep it. Therefor if there is no
knowledge, there is no animus possedendi. Lack of knowledge is equal
to lack of animus possedendi which can be a defense. Good faith is
not a defense.
PIMENTEL CASE
 On constitutionality of drug testing
 On whether random drug testing maybe performed on
candidates for senators.
 On whether they can be performed on respondents
under preliminary investigation.
Pimentel challenged the constitutionality of drug testing. Sec 32 of the
law states that there can be drug testing in education places and work
places. The testing can be done to political candidates and those who
are accused in a criminal case and undergoing preliminary
investigation. He argued that the drug test qualification is an additional
requirement not provided in the constitution. Any law which reduces or
adds a qualification would be a violation of the constitution.
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RA 10640: DANGEROUS DRUGS
 Approved July 15, 2014, amending Sec. 21 of RA
9165
 The apprehending team having initial custody and
control of the dangerous drugs, controlled precursors
and essential chemicals, paraphernalia and/or
laboratory equipment shall immediately conduct a
physical inventory of the seized items and photograph
the same in the presence of the accused or the persons
from whom such items were confiscated and/or his
representative or counsel, with an elected public official
and a representative of the National Prosecution Service
or the media who shall be required to sign the copies of
the inventory and be given a copy thereof.
 The physical inventory and photograph shall be
conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures.
 Noncompliance of these requirements under justifiable
grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures and custody over said items.
 A certification of the forensic laboratory examination
results, which shall be done by the forensic laboratory
examiner, shall be issued immediately upon the receipt
of the subject item/s. When the volume of dangerous
drugs does not allow the completion of testing within the
time frame, a partial laboratory examination report shall
be provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic
laboratory. A final certification shall be issued
immediately upon completion of the said examination
and certification.
But if the dangerous drugs were seized during the implementation of a
search warrant, that means the law enforcers had prepared and had
possibly more people involved in the search. When there is a search
warrant, the inventory must be conducted at the crime scene itself.
They cannot go elsewhere in order to do that.
Who must be present during the inventory?
Note that there are two kinds of witnesses during a search and an
inventory.
(a) Witnesses during a search:
During a search, your Rule 126 provides that in the implementation of
a search warrant, the search warrant should be implemented in the
presence of the lawful occupant of the house.
If there is no lawful occupant of the house during the search, can
the law enforcers still search the premises?
Yes, provided there are at least two witnesses.
Who must these 2 witnesses be?
They must be from the place itself. Because the Rules of Court states
that they can only search a house without the lawful occupant being
present if there are 2 witnesses who must be of good moral standing in
the community itself. Otherwise known as the Barangay Tanod.
(b) Witnesses for Inventory under RA 9165, as amended by
RA 10640
1. Elected Public Official
So they can search. BUT the law additionally requires other witnesses
during the inventory. This time, the Brgy. Tanod will not do anymore.
They will not qualify as witnesses to the inventory.
So, in the inventory, the witnesses must be at least two. One must be
an elected public official, who may or may not come from the same
community. He may be a resident of another place.
Why? Because the law makes no distinction. Which means to say that
if the Brgy. Official in that place For whatever reason, kay parente or
amigo or whatever, refused to cooperate and be present during the
inventory (of course, they can be sued later on in the Ombudsman),
inventory should still proceed. In the meantime, if there is no elected
Brgy. Official coming from that place, then another elected official from
another place may serve or act as witness.
2. A representative of the National Prosecution Service OR
the media
Aside from that, it is also required a representative from the National
Prosecution Service. Remember, that it does not need to be a
prosecutor. Under the old law, RA 9165, it did not specify National
Prosecution Service. It merely said representative of the DOJ. But the
NBI is part of the DOJ. So now with the amendment, it is made clear
that the representative must be from the National Prosecution Service.
It does not have to be a prosecutor. It just says prosecutor.
As of now, our janitor, because of lack of people, he doubles in other
jobs such as process server and many other, sometimes mura pud
siyag fiscal. They can be sent as representatives because it says any
representative. But notice that the wording of the law is “an elected
public official and”. “AND” means there must be another.
Who is the other one?
It could be a representative from NPS OR the media. The problem
here with the media is we do not know what kind of media. What if
social media? Tig baligyag tambal sa radio station? Or maghimu kog
akong relihiyun? We do not know what this media is.
Question from Kerven:
Katung walay lawful occupant diba pwede man 2 ka Brgy. Tanod?
Katung isa maapil natus elected?
Fiscal: Dili na kay Brgy. Tanod man to sila. Dili mana elected ang
Brgy. Tanod. Appointed mana sila.
Pero kung ang isa kay Brgy. Captain?
Fiscal: Maapil siya. Siya na ang usa. And they would still need one
more.
Noncompliance of these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team,
shall not render void and invalid such seizures and custody over
said items.
Fiscal: So is it possible nga isa ra?
Let’s read the law. Because all these people should be made to sign
the inventory. The amendment to the law says that non-compliance to
these requirements under justifiable grounds. Non-compliance
provided that it is justified and the integrity of the thing is not
compromised shall not render void or invalidate such seizure and
custody.
Example:
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You were raiding sa kinatung-an sa bukid ug mga marijuana
plantation, pinaka luyu nga bukid. Walay fiscal didto. And then, samut
na walay media. But you cannot stay there. You have to conduct the
inventory there. Because usually this is planned or organized.
Therefore you have to conduct the inventory there. If there is a
certification as to why wala na-comply ang requirements of the law and
the reasons are justifiable, then that should not render invalid the
seizure and custody. That’s what the law says.
Prior to this, there was only 20 to 30 percent conviction rate under
9165 because of failure to comply with section 21.
The purpose of amending section 21 is to emphasize that while we are
going to be very strict on the requisites on the protocols or methods or
processes to be observed, but when such very strict requirements
cannot be met despite efforts, there are just times when it cannot be
met and the reasons are valid, that should not invalidate the seizure
and custody over the dangerous drugs. So physical inventory and
photograph must be conducted in the place where the search warrant
is served or nearest police station where it is not by virtue of a search
warrant.
Now, what are the jurisprudence here? We have a little problem.
Because sometimes Supreme Court can say yeah, we can justify that
or sometimes no, we cannot have that. What is important is that all the
requirements in the law are very clear.
Note:
PDEA it’s the chief law enforcement agency with respect to drugs.
They should be on top of thing when it pertains to the implementation
of drugs law.
However, the police, by virtue of PNP law, has the general mandate to
implement all laws and also to make arrest on any violation on any
crimes, that includes apprehension on violations of dangerous drugs
act.
There is no inconsistency because in buy bust cases and in search
warrant cases police must make a proper and prior coordination with
PDEA. They cannot plan on an operation without securing the per
mission and approval of PDEA. Such coordination must be presented
as evidence during the trial.
Dangerous Drugs Board (DDB) – Formulates the rules and
guidelines and grants licenses and permits.
Example:
A person needs a certain drug and the drug cannot be dispensed with
without doctor’s prescription or the drug is a prohibited drug or
regulated, and the doctor who can prescribe it must be licensed with
the DDB.
In relation to criminal cases, it states that if use of the dangerous drugs
played a role in the commission of the crime, it is always aggravating.
Unlike in intoxication, which can be an alternative meaning it can be
aggravating or mitigating. In section 92 of RA 9165, you will find that
law enforcers and even prosecutors bungle(inefficiently) who will their
cases shall be criminally liable.
PLEA BARGAINING
The law says we cannot plea bargain. However, it was declared
unconstitutional because plea bargaining involves rules of procedure.
Rules of procedure, under the constitution can only be promulgated by
the Supreme Court. The judges though have to coordinate with other
officers of the court including the prosecutors because when we plea
bargain there has to be an agreement of all the parties involve. In a
drug case, this is a victimless crime.
Thus, there is no private offended party. When there is plea bargaining
both the victim and the offender will come to an agreement and it has
to be approved by court. However, in drug cases, the private offended
party id the people of the Philippines represented by the prosecutor.
DOJ came out with certain guideline as to when plea bargaining is
allowed.
The problem with these guidelines is that when the police will agree
with the plea bargain, the plea bargaining must comply with the rules of
court. The guidelines of DOJ shall not prevail over the guidelines set
forth by the Supreme Court.
Example:
Under the Rules, in bargaining, it should be for a lesser offense. The
lesser offense is usually the offense which is included in the higher
offense.
What does that mean? Kung mag possession ka, ngano dili man
included ang using? Or kung mag selling ka, ngano dili man
included ang possession?
For the longest time there has been an issue to that, so they keep on
changing the guidelines. But never mind the guideline, that can
change, that’s none of the business of the Supreme Court. In so far as
the Supreme Court is concern, plea bargaining as govern by the rules
of court and the guidelines of the Supreme Court, it’s a judicial matter.
CYBERCRIMES
 One of the world’s worst computer-related disasters
involve a virus that was “Made in the Philippines”.
o The “I Love You” virus.
o This was created by Onel de Guzman and
Reonel Ramones in May 2000.
o It is estimated that the damage caused by this
virus exceeded $15Billion, including the
amount spent to remove the worm.
 Computer crimes, or cybercrimes are crimes that involve
a computer and/or a network.
1. The computer device or network as target;
2. The computer device or network
Cybercrime law, was passed in 2012.
What are cybercrimes?
Loosely, when we say cybercrime, not in accordance with our laws,
loosely, when we say cybercrime, they either are crimes that involve a
computer or a network, meaning the internet. So either the computer
device or network is the target, it will destroy your computer or your
network, such as when a worm is introduced and it will crash the
computer, or the computer is the tool to commit a crime, such as when
libel is committed with the use of a computer. What is computer
device? It has been opined by the cybercrime unit, that a smart phone
is a computer.
REPUBLIC ACT NO. 10175
AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE
PREVENTION, INVESTIGATION, SUPPRESSION AND THE
IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER
PURPOSES
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3 PROVISIONS DECLARED UNCONSTITUTIONAL:
1. Sec. 4(c)(3) which pertains to unsolicited commercial
communications
2. Sec. 12 which pertains to real-time collection of traffic
data
3. Sec. 19 which pertains to restricting or blocking access
to computer data
 SEC. 6. All crimes committed by, through and with the use of
information and communications technologies shall be
covered by this Act. The penalty shall be 1 degree higher
than that provided for by the RPC and special laws.
 SEC. 7. Liabilities under Other Laws. – A prosecution under
this Act shall be without prejudice to any liability for violation
of any provision of the RPC or special laws.
 In the case of Disini v. SOJ, the SC ruled that Libel and Child
Pornography cannot be filed both under the RPC and the
Cybercrime Law, or RA 9775 and Cybercrime Law,
respectively, as that would constitute double jeopardy.
 With the exception of the crimes of online libel and online
child pornography, the Court would rather leave the
application of Sec. 7 to actual cases.
 If the published material on print, said to be libelous, is again
posted online or vice versa, that identical material cannot be
the subject of two separate libels. The two offenses, one a
violation of Art. 353, RPC and the other violation of RA 10175
involve the same elements. Sec. 4(c)(4) merely establishes
the computer system as another means of publication.
 Charging the offender under both laws would be a blatant
violation of the proscription against double jeopardy.
The law is known as the cybercrime prevention act of 2012, RA 10175.
Three of the provisions of the law has been declared unconstitutional,
because this law was already passed by congress. After it was passed,
it was then challenged by several groups, including Disini. So for a
while the implementation of the cybercrime law was put on hold, there
was a moratorium in its implementation, while the law was being
challenged before the Supreme Court. Eventually the Supreme Court
ruled that three of the provisions of the law are unconstitutional.
What are these?
These are Sec. 4(c) (3) on unsolicited commercial communications
and Sec.12 on real time collection of traffic data, and sec. 19 which
pertains to restrictive or blocking access to computer data.
Sec. 4(c)(3) is otherwise known as spam. In the law, it states that it can
block spam. The Supreme Court said, NO you cannot block spam,
because blocking spam would violate their constitutional right of the
reader or the sender to their freedom of speech.
Sec. 12 pertains to real time collection of traffic data, because under
the law, law enforcers can collect data involving traffic of
communications, Supreme Court, this is a violation of privacy, you
cannot do that, unconstitutional.
Sec. 19 is restricting or blocking access to computer data, otherwise
known as the automatic takedown clause, meaning that law enforcers,
under the Secretary of Justice, can take down access to computer
data.
 Sec. 4 Cybercrime Offenses:
o 3 general categories:
a. Offenses against the confidentiality, integrity and
availability of computer data and systems
b. Computer-related Offenses
c. Content-related Offenses (usually also punished in
other penal laws)
Cybercrime offenses have been divided into three categories. First is
(a) offenses against the confidentiality, integrity and availability of the
computer data system. Next is (b) computer related offenses, and next
is (c) content related offenses.
Content related offenses has nothing to do with computer, it has
something to do with what is being posted with the use of computer.
Example:
If you use the computer in order to spread libel, then that’s a content
related offense. The content is a crime already, but you used the
internet to perpetrate the crime, or if you use the computer in order to
distribute pornographic or child pornography, then the content is
already a crime, it’s just that the medium used is the computer.
Usually in content related offenses, the offenses are already punished
under other penal laws, it could be the RPC, such as Libel already
punished under the RPC, or Child pornography is already punished
under the child pornography law. It could also involve crimes involving
trade and commerce, such as you sell fake Gucci, through the internet,
there is a violation of the law.
 Sec. 4 Cybercrime Offenses:
a. Offenses against the confidentiality, integrity
and availability of computer data and systems:
1. Illegal Access – Access to the whole or part of
a computer system without right.
2. Illegal Interception – Interception made by
technical means without right of any non-
public transmission of computer data to, from,
or within a computer system including
electromagnetic emissions from a computer
system carrying such computer data.
3. Data Interference – The intentional or reckless
alteration, damaging, deletion or deterioration
of computer data, electronic document, or
data message, without right, and the
introduction of viruses.
4. System Interference – The intentional
alteration or reckless or interference with the
functioning of a computer or network by
transmitting, damaging, deleting, deteriorating,
altering or suppressing computer data or
program, electronic document or data
message, without right or authority, and the
introduction of viruses.
5. Misuse of Devices
6. Cyber-squatting – the acquisition of a domain
name in bad faith to profit, mislead, destroy
reputation, and deprive others from registering
the same, if it is:
i. Similar, identical, or confusingly
similar to an existing trademark
registered with the government
agency
ii. Identical or similar with the name of
a person other than the registrant;
and
iii. Acquired without right or intellectual
property
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These are the specific acts constituting the crimes in each category.
Under category (a) we have illegal access. Illegal access is accessing
a computer without a right, probably this means, hacking.
Then, illegal interception, could also be hacking, after gaining access,
you interfere with the traffic.
In data interference, let’s say a message that is supposed to be sent, is
misdirected, or something that is not supposed to be sent, is sent.
And then in system interference is more on the direction of the traffic
(fiscal: I’m not really sure what I’m talking about)
We have misuse of devices and cyber-squatting. In cybercrime
squatting, the company or a person does not really own the site, and
makes it look like that it is the site, but actually is a fake site.
Example: bd0.com
So you visit BDO Website, but it's actually BD[0] the number. It looks a
like really BDO and when you go to it, it starts asking your personal
information. So that maybe Cybercrime that later on it may also lead to
Cybertheft.
b. Computer-related Offenses:
 Computer-related Forgery -
i. The input, alteration, or deletion of
any computer data without right
resulting in inauthentic data with the
intent that it be considered or acted
upon for legal purposes as if it were
authentic; or
ii. The act of knowingly using
computer data which is the product
of computer-related forgery.
c. Content-related Offenses:
i. Cybersex – the willful engagement,
maintenance, control, or operation,
directly or indirectly, of any
lascivious exhibition of sexual
organs or sexual activity, with the
aid of a computer system, for favor
or consideration.
ii. Child Pornography – acts defined
and punishable by RA 9775
committed through a computer
system. The penalty shall be 1
degree higher than that provided for
in RA 9775.
iii. Declared Unconstitutional
iv. Libel – the unlawful or prohibited
acts of libel as defined in Article 355
of the RPC, committed through a
computer system or any other
similar means which may be
devised in the future.
Such as Cybersex and child pornography. Regarding spam - according
to SC, the reader has the right to read "Spam". So deleting spam is
unconstitutional.
LIBEL
There was an attempt by Senator Sotto to include Libel in the
Cybercrime law because that was the time he was bullied because of
the alleged plagiarism.
This was contested by Disini but SC said, we will not redefined Libel
from the Revised Penal Code. Therefore, because they have the same
definition, you cannot sue under both. You only have to choose only
one. The penalty for Online Libel under Cybercrime Law is one degree
higher as are other crimes.
 SEC. 7. Liabilities under Other Laws. – A prosecution
under this Act shall be without prejudice to any liability
for violation of any provision of the RPC or special laws.
 In the case of Disini v. SOJ, the SC ruled that Libel and
Child Pornography cannot be filed both under the RPC
and the Cybercrime Law, or RA 9775 and Cybercrime
Law, respectively, as that would constitute double
jeopardy.
 With the exception of the crimes of online libel and
online child pornography, the Court would rather leave
the application of Sec. 7 to actual cases.
 If the published material on print, said to be libelous, is
again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two
offenses, one a violation of Art. 353, RPC and the other
violation of RA 10175 involve the same elements. Sec.
4(c)(4) merely establishes the computer system as
another means of publication.
 Charging the offender under both laws would be a
blatant violation of the proscription against double
jeopardy.
Question from Class:
Regarding Child pornography, diba dili man ma-complex and
Special Law. Can you sue both?
NO. Child Pornography cannot be filed under both. Choose only one.
But remember that not all Libel or Child pornography are Cybercrime.
For example, it is in newspaper or magazine then that is not under
Cybercrime. But if the computer or internet is used in order to distribute
the child porn, ow you have both. If you choose Cybercrime, the
penalty would be one degree higher. You cannot have both because
they have the same element.
Cybercrime is transnational crime. Even if the parties do not reside in
the Philippines or even if the parties committed the crime outside of
Philippine territory, Cybercrime may still be prosecuted in the
Philippines because it is a transnational crime.
If Juan will post on facebook: "Kini si A,B ug C, mga kawatan ni sila"
How many crimes?
3 crimes.
Venue is RESIDENCE, not place of commission.
So let us say, Juan committed the crime while he was a seaman on a
boat. Let us say A is a resident of Cebu City, B in Manila and C in
Bacolod. They can file a separate case of Libel in Cebu, Manila and
Bacolod because this is not a case where there is only one victim.
There are three victims with different residence which is the venue for
filing the case.
This is I think, the only crime where the venue is not place of
commission but the residence of the victim and of course at the option
of the victim. So even if one posting, there can be several counts
because there are several victims.
In the Revised Penal Code, prescription of the crime is reckoned from
either the date of the commission of the crime OR the date of the
discovery of the crime. Therefore if there is a libelous article in the
Freeman and the article appeared in January issue for example
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If there is a libelous article in the Freeman and it appeared in the
January issue, then from January, you already start counting the
prescriptive period. But in Facebook, once it is posted, it does not go
away, right? It will always be there.
Example: Juana writes for a newspaper but the newspaper without
telling her, digitized the article.
Now, can she insist that she be sued under the RPC?
This is still in issue now.
Q: What if i-take down ang post?
A: But the crime is already consummated. So even if I take down ang
post, the crime was already done. But we still don’t know if the
voluntary taking down of the post can be considered as mitigating. We
still don’t know.
In the Disini case, the SC said that in so far as other crimes are
concern, we will just cross the bridge when we get there. We will only
talk about libel and child pornography.
Example:
There is a child who was made to perform sexual act, video was taken
and was distributed online. We can choose whether it is child porn or
cybercrime but it doesn’t mean that the crime is limited there. There
can still be child abuse, white slavery or libel but we cannot have child
porn and cybercrime.
Question: What are the parts of Cybercrime law that were
declared unconstitutional and why?
1. Art. 4(c)(3) on spam
o Unsolicited advisements are legitimate forms
of expressions. The recipient has the option of
not opening or reading these mail ads. To
prohibit the transmission of unsolicited ads
would deny a person the right to read his
emails.
o Commercial speech is a separate category of
speech which is not accorded the same level
of protection as that given to other
constitutional guaranteed forms of expression
but is nonetheless….
The SC said that it would be unconstitutional to block spam because
unsolicited advertisements are still considered as legitimate form of
expression and it is part of commercial speech which protected by the
constitution.
2. Section 12 on real-time collection of traffic data.
o It threatens the right of individuals to privacy.
Although it limits the collection of traffic data to
those “associated with specified
communications”, this is no limitation at all
since it is the LEAs that would specify the
target communications. The power is virtually
limitless, enabling law enforcement authorities
to engage in “fishing expedition,” choosing
whatever specified communication they want.
This is also considered unconstitutional because it would be a violation
to one’s privacy.
3. Section 19 on the automatic take-down clause or
restricting or blocking access to computer data by
DOJ
o This is violative of the constitutional
guarantees to freedom of expression and
against unreasonable searches and seizures.
For an executive officer to seize content
alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the
opinion that such content violated some law,
for to do so would make him judge, jury, and
executioner all rolled into one.
o The LEA shall also certify that no duplicated
or copies have been made, or if made, that all
such duplicates or copies are included in the
package deposited with the court. The
package so deposited shall not be opened, or
the recordings replayed, or used in evidence,
or then contents revealed, except upon order
of the court, which shall not be granted except
upon motion, with due notice and opportunity
to be heard to the person or persons whose
conversation or communications have been
recorded.
This is also considered unconstitutional because it would be
tantamount to unreasonable search and seizures. It is also a violation
of privacy and violation to freedom of expression as in automatic take
down, the DOJ will automatically take down the offending data.
However, this can be done by private person as what Facebook did
with some accounts and Facebook can do that. In the US, the
providers can also do that and they call it “notice and take down”
whereby when there is an offending website like there is a seller of
fake goods online.
What the provider do it to notify that it will take down and it would not
be a violation in so far as they are concern because they are not public
officers. Being private persons, they are not considered as the
guarantors of people’s human rights. Here, since this is DOJ, it
considered as public official, thus, state actors.
REPUBLIC ACT NO. 9995
AN ACT DEFINING AND PENALIZING THE CRIME OF PHOTO
AND VIDEO VOYEURISM, PRESCRIBING PENALTIES
THEREFOR, AND FOR OTHER PURPOSES
RA 9995: THE ANTI-PHOTO AND VIDEO VOYEURISM LAW
 Photo or video voyeurism means the act of taking
photo or video coverage of a person or group of persons
performing sexual act or any similar activity or of
capturing an image of the private area of a person or
persons without the latter’s consent, under
circumstances in which such person/s has/have a
reasonable expectation of privacy.
 No particular form of consent required.
 Or the act of selling, copying, reproducing,
broadcasting, sharing, showing or exhibiting the
photo or video coverage or recordings of such sexual
act or similar activity through VCD/DVD, internet, cellular
phones and similar means or device without the written
consent of the person/s involved, notwithstanding that
consent to record or take photo or video coverage
of same was given by such person.
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So, here, we can relate the child porn, the cybercrime with the photo
and video voyeurism. However, not all photo and video voyeurism are
cybercrime. It will only be a cybercrime if the computer or internet is
used.
However, if somebody takes a picture of somebody and distribute such
picture, it would still be a violation of the law.
WHAT IS MEANT BY PHOTO OR VIDEO-VOYEURISM?
TWO ASPECTS:
1. Taking of the photo or video without consent of a sexual
act or a private area of a person under such
circumstances in which such person has a reasonable
expectation of privacy
What if at the beach, you take a picture of somebody exposing
whatever, would that be a violation?
NO, because no expectation of privacy.
If there is that expectation, such as when it is performed in a bed room
and someone is performing a sexual activity or an exhibition, naay mu-
take ug video or picture, note that the consent here is not required to
be in writing.
Therefore, it may be verbal or maybe even implied, such as kung ni-
pusing jud diay ka, musayaw ka'g Careless Whisper in front of the
camera. That means that the taking was with consent. There is no
specific form required as to the manner of consent.
2. The act of selling, copying, reproducing, broadcasting,
sharing, showing, or exhibiting the photo or video
coverage or recordings of such sexual act or similar
activity
This time, in order for not to be criminal, the act mentioned must be
with WRITTEN CONSENT.
Example:
Careless Whisper. Even if the taking was consented, you posed before
the camera, if the distribution was not consented but even if consented
but not in writing, it could still be liable. The taker may not be liable but
the distributor.
With respect to selling, the requirement is more stringent.
What gadgets are we talking about?
If it is a cellphone that is capable of taking a photo or a camera (kay
similar means or device man), and then you share it then you show it,
that can be actually TWO CRIMES - (1) taking and (2) broadcasting or
sharing.
PROHIBITED ACTS:
 Prohibited Acts. – it is hereby prohibited and declared
unlawful for any person:
a. To take photo or video coverage of a person or
group of persons performing sexual act or any
similar activity or to capture an image of the private
area of a person/s such as the naked or
undergarment clad genitals, pubic area buttocks or
female breast without the consent of the person/s
involved and under circumstances in which the
person/s has/have a reasonable expectation of
privacy;
b. To copy or reproduce, or to cause to be copied or
reproduced, such photo or video or recording of
sexual act or any similar activity with or without
consideration;
c. To sell or distribute, or cause to be sold or
distributed, such photo or video or recording of
sexual act, whether it be the original copy or
reproduction thereof; or
d. To publish or broadcast, or cause to be published
or broadcast, whether in print or broadcast media,
or show or exhibit the photo or video coverage or
recordings of such sexual act or any similar activity
through VCD/DVD, internet, cellular phones and
other similar means or device.
 The prohibition under paragraphs (b), (c) and (d) shall
apply notwithstanding that consent to record or take
photo or video coverage of the same was given by such
person/s. Any person who violates this provision shall be
liable for photo or video voyeurism as defined herein.
Example:
Nya ang mama mu-take ug picture sa iyang baby nya i-post sa
FB? If it wasn't focused on a private area then it may not
Art is usually made as an excuse, for example, the reason for
distributing or showing a person that is naked, (It should be a real
person, not just a drawing).
Question:
Is the taking of a picture of a bikini-clad woman in a beach, and
posting it on Facebook a crime?
 Note that there are 2 acts here:
1. The taking;
2. The posting
Photo of bikini-clad women, no crime committed because there is no
reasonable expectation of privacy
Can it be CYBERCRIME?
It may be because remember in Disini, Supreme Court held that we
cannot decide yet whether we can have double jeopardy in other
cases. We can only declare that we cannot have two prosecutions for
Libel and Cybercrime as well as Child Porn and Cybercrime. Insofar as
other crimes, they will just take it up when a real controversy presents
itself.
Question:
Juan and his 16-year-old girlfriend agreed to have their sexual
activity captured on video. Juan’s wife got hold of the video, and in
her anger, she posted the video on youtube.
What crimes are committed?
What are the crimes here?
Child Abuse, either Cybercrime or Child Pron, Voyeurism
It could be Child Porn or Cybercrime for Child Porn. There could also
be Libel here. You can choose between Libel and Cyberlibel.
There can actually be two cybercrimes here: (1) One for the libelous
content; and (2) for the Child Porn content, because these are content-
related cybercrimes.
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Can there be also a violation of Art. 201 (Obscene Publications)?

Yes.  SEC. 6 All crimes committed by, through and with the
use of information and communications technologies
Can they be complexed (Special Penal Laws)? shall be covered by this Act. The penalty shall be 1
NO. degree higher than that provided for by the RPC and
special laws.
Once they use the same definition, according to Disini, you have to  SEC. 7 Liability under other laws – A prosecution under
choose, because once the same elements, that means that filing one this Act shall be without prejudice to any liability for
will bar the filing of the other. violation of any provision of the RPC or special laws.

STUDENT: Can you apply the RPC in complexing?

FISCAL: No, we cannot complex. Let me go back to Cybercrime, so in

Section 6 and 7 of Cybercrime law (CCL) states that “All crimes
committed with the use of computer and internet shall be considered
as Cybercrime.” This is what we can as content related. Now Section 7
further says that a prosecution under CCL shall be without prejudice to
any prosecution under the RPC or other special laws.

Now here comes Disini. It states that if a crime is already punished

under one law, it cannot anymore be prosecuted under the other IF
they are materially the same. That would constitute double jeopardy.

That SC said that the term “child pornography” as used in the ACPA is
the same definition, there is a cybercrime. That is why if it is essentially
the same act with essentially the same elements, you cannot use CCL
and the other law at the same time. Same with libel, because the
definition of libel is the same in the RPC.

However, Section 7 says, even when you file cybercrime, you can file
in another law, provided that there is no double jeopardy. So if it’s the
same definition, there is double jeopardy. If the definition is different,
you can.

Example: If the child pornography is filed as Cybercrime, you can still

file Child Abuse. There is no double jeopardy.

When we read Section 7, we should read it together with the ruling in

Disini. Even if the law says you can still file under cybercrime when it is
already penalized under the RPC, that only applies if filing both will not
constitute double jeopardy.

Example:

Let’s say Juan is an illegal recruiter. He recruited Juana for the

purpose of commercial sexual exportation. He recruited using the
computer as a means. There is illegal recruitment with the use of a
computer.

So can we file under Migrant Worker’s Act for illegal recruitment?

Yes.

Can we file under Cybercrime? Yes.

Can we file both for the same act of recruiting? Applying Disini,
maybe not.

If you file under Cybercrime for recruitment however, you can still file
for Human Trafficking. Human Trafficking is different from recruitment
which has been considered a cybercrime.

If you make Human Trafficking the Cybercrime, that is also possible.

There are now two Cybercrimes, similar to our earlier example with
Child pornography and libel. The only time you cannot file both is if
there would be double jeopardy. You can file a cybercrime as two
different offenses even if they arise from one act.

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