CRIMINAL PROCEDURE

PART III

Criminal Procedure

5.1. General matters

Venue in criminal case

Venue in criminal cases is jurisdictional. The place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. (Isip vs People)

Criminal Jurisdiction of Regional Trial Courts as Special Agrarian Courts; jurisdiction in criminal offenses for violation of RA No. 6657 is excluded from the power of DAR

Special Agrarian Courts, which are Regional Trial Courts, are given original and exclusive jurisdiction over two categories of cases, to wit: (1) "all petitions for the determination of just compensation to landowners" and (2) "the prosecution of all criminal offenses under [R.A. No. 6657]." The provisions of §50 must be construed in harmony with this provision by considering cases involving the determination of just compensation and criminal cases for violations of R.A. No. 6657 as excepted from the plenitude of power conferred on the DAR. Indeed, there is a reason for this distinction. The DAR is an administrative agency which cannot be granted jurisdiction over cases of eminent domain (for such are takings under R.A. No. 6657) and over criminal cases. (LBP vs. Belista)

Jurisdiction to issue hold-departure orders within the RTC

Circular No. 39-97 limits the authority to issue hold-departure orders to criminal cases within the jurisdiction of second level courts. Paragraph No. 1 of the said circular specifically provides that "hold- departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the regional trial courts." (Mondejar vs. Buban)

Venue in Libel Cases

The criminal and civil action for damages in cases of written defamations shall be filed simultaneous or separately with the Regional Trial Court of the province or city where the libellous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense. (Mary Rose A. Boto vs. Senior Assistant City Prosecutor Villena, A.C. No. 9684, September 18, 2013)

Venue in estafa

In criminal cases, venue is jurisdictional. A court cannot exercise jurisdiction over a person charged with an offense committed outside its limited territory. The prosecution must not only prove that the offense was committed, it must also prove the identity of the accused and the fact that the offense was committed within the jurisdiction of the court. In this case, the prosecution failed to show that the offense of estafa under sec. 1(b) of Art. 315 of the Revised Penal Code (“RPC”) was committed within the jurisdiction of the Regional Trial Court of Makati City. Other than the lone allegation in the information, there is nothing in the prosecution evidence which even mentions that any of the elements of the offense were committed in Makati. The Affidavit of Complaint executed by Elizabeth does not contain any allegation as to where the offense was committed, and there is nothing in the documentary evidence offered by the prosecution that points to where the offense, or any of its elements, was committed. Although the prosecution alleged that the check issued by petitioner was dishonored in a bank in Makati, such dishonor is not an element of the offense of estafa under Article 315, par. 1(b) of the RPC. There being no showing that the offense was committed within Makati, the Regional Trial Court of that city has no jurisdiction over the case. (Hector Trenas v. People of the Philippines, G.R. No. 195002, January 25, 2012)

5.1.1. Distinguish jurisdiction over subject matter from jurisdiction over person of the Accused

The jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction. (Foz vs. Fajardo)

5.1.2. Criminal jurisdiction

What is criminal jurisdiction?

It is the authority to hear and try a particular offense and impose the punishment for it (People v. Marinao, 71 SCRA 600, 604).

Requisites:

1. Jurisdiction over the subject matter – is the power to hear and determine cases of the general class to which the proceedings in question belong (Reyes v. Diaz, 73 Phil 484); by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of; conferred by law.

2. Jurisdiction over the territory where the offense was committed – the offense must have been committed within the territorial jurisdiction of the court; jurisdiction over the territory; cannot be waived

3. Jurisdiction over the person of the accused – the person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court

5.1.3. Jurisdiction of criminal courts

Jurisdiction of the Sandiganbayan

In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter must be committed by, among others, officials of the executive branch occupying positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided that they hold the positions thus enumerated by the same law. (People vs. Sandiganbayan)

Powers included in the primary jurisdiction of the Office of the Ombudsman

The Constitution and R.A. No. 6770 endowed the Office of the Ombudsman with wide latitude, in the exercise of its investigatory and prosecutory powers, to pass upon criminal complaints involving public officials and employees. Specifically, the determination of whether probable cause exists is a function that belongs to the Office of the Ombudsman. Whether a criminal case, given its attendant facts and circumstances, should be filed or not is basically its call. (Jesse Philip B. Eijan Santos vs. Special Presidential Task Force 156, represented by Atty. Allan U. Ventura, G.R. No. 203696, June 2, 2014)

Section 15 of the Ombudsman Act of 1989 provides that the Office of the Ombudsman has “primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of the Government, the investigation of such cases.” This power to take over a case at any time is not given to other investigative bodies. This means that the power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot claim equal power. (DOJ vs. Liwag)

Powers of the Ombudsman to investigate and prosecute

The Ombudsman has the power to investigate and prosecute any act or omission of a public officer or employee when such act or omission appears to be illegal, unjust, improper, or inefficient. It has been the consistent ruling of the court not to interfere with the Ombudsman’s exercise of his investigatory and prosecutory powers as long as his rulings are supported by substantial evidence. (Presidential Fact Finding vs. Desierto)

General rule: Court will not interfere with the Ombudsman’s exercise of jurisdiction

Well-settled is the rule that this Court will not ordinarily interfere with the Ombudsman's exercise of his investigatory and prosecutory powers without good and compelling reasons that indicate otherwise (Antonino vs. Ombudsman)

5.1.4. When injunction may be issued to restrain criminal prosecution

General rule:

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final.

Exceptions

There are, however, exceptions to this rule. Among the exceptions are enumerated in Brocka vs. Enrile, 74 as follows:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al.,L-19272, January 25, 1967, 19 SCRA 95);b.When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez,43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);c.When there is a prejudicial question which is sub-judice (De Leon vs. Mabanag, 70 Phil. 202);d.When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);e.Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);f.When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140);g.Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-2579S, October 29, 1966, 18 SCRA 616);

h.Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);

Instance of a case of persecution rather than prosecution:

The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners that the instant case in a matter of persecution rather than prosecution(Teodoro C. Borlongan, Jr. Et Al. Vs. Magdaleno M. Peña, Et Al. G.R. No. 143591, May 5, 2010) i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); andj.When there is clearly no prima facie case against the accused and a motion to quash on that

ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438).

Unlawful arrest may be enjoined by an injunction

Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953, cited in REGALADO, REMEDIAL LAW COMPENDIUM, p. 188, 1988 Ed.)

Supreme Court in exceptional cases may resolve existence of probable cause:

In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation, as it did in Salonga vs. Paño (187 SCRA 788), Allado and Webb; Paul G. Roberts et al., vs. The Court of Appeals, et al., G.R. No. 113930, March 5, 1996)

5.2. Prosecution of offenses

Filing of the complaint or information interrupts the prescriptive period

With respect to offenses penalized by special laws, the filing of the complaint or information in court is the one that interrupts the prescriptive period and not the filing of the complaint in the proper office for purposes of conducting a preliminary investigation (Zaldivar v. Reyes, 211 SCRA 277).

5.2.2. Who may file them, crimes that cannot be prosecuted de officio

Who may prosecute cases for abduction, seduction and acts of lasciviousness

Sec. 5, paragraph 3, Rule 110 of the Revised Rules of Criminal Procedure provides for the rule that criminal cases for seduction, abduction and acts of lasciviousness shall be prosecuted by the private offended party, her parents, grandparents or guardian or in the absence of any relative the State may prosecute under the principle of parens patriae. It states that:

“The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents of guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.”

5.2.3. Criminal actions, when enjoined

5.2.4. Control of prosecution

It is well-settled that prosecution of crimes pertains to the executive department of the government whose principal power and responsibility is to insure that laws are faithfully

executed. Corollary to this power is the right to prosecute violators. Thus, all criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors. In the prosecution of special laws, however, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor; but this designation does not detract from the public prosecutor having control and supervision over the case. (Bureau of Customs v. Peter Sherman, et al, G.R. No. 190487, April 13, 2011.)

5.2.5. Sufficiency of complaint or information

When is a complaint or information sufficient?

For complaint or information to be sufficient, one of the requirements is that it must allege the acts or omissions complained of as constituting the offense. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. (People vs. Dimaano)

A complaint is substantially sufficient if it states the known address of the respondent, it is accompanied by complainant’s affidavit and his witnesses and supporting documents, and the affidavits are sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or in their absence or unavailability, a notary public who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (Sasot vs. People)

Error in the name of the accused

An error in the name of the accused is not reversible as long as his identity is sufficiently established. This defect is curable at any stage of the proceedings as insertion of the real name of the accused is merely a matter of form (People v. Padica, 221 SCRA 362)

Rule in case some of the witnesses are not included in the information

The non-inclusion of some of the names of the eyewitnesses in the information does not preclude the prosecutor from presenting them during trial. (People v. Dela Cruz)

Aggravating circumstance must be alleged in the information or complaint

It should be remembered that every aggravating circumstance being alleged must be stated in the information. Failure to state an aggravating circumstance, even if duly proven at trial, will not be appreciated as such. It was, therefore, incumbent on the prosecution to state

the aggravating circumstance of "wearing masks and/or other forms of disguise" in the information in order for all the evidence, introduced to that effect, to be admissible by the trial court.(People of the Philippines vs. Danilo Feliciano Jr., et. al, G.R. No. 196735, May 5, 2014)

Documents attached to the information or complaint

An information filed in court shall be supported by affidavits and counter-affidavits of the parties and their witnesses, other supporting documents and the resolution of the case. The reason for this rule is because the law aims not only to acquit the innocent but to like insulate the clearly innocent from false charges and from the strong arm of the law. (OKABE VS. GUTIERREZ)

Test of sufficiency of information

The test of sufficiency of Information is whether it enables a person of common understanding to know the charge against him, and the court to render judgment properly. x x x The purpose is to allow the accused to fully prepare for his defense, precluding surprises during the trial. (People of the Philippines vs. Danilo Feliciano Jr., et. al, G.R. No. 196735, May 5, 2014)

Failure to object in the defect of information is deemed a waiver thereof

Appellants aver that the information filed before the trial court was substantially defective considering that it accuses Abdul and Ampuan as one and the same person when in fact they were identified as different persons. As such, Ampuan was not able to comprehend the information read to him. However, appellants failed to raise the issue of the defective Information before the trial court through a motion for bill of particulars or a motion to quash the information. Their failure to object to the alleged defect before entering their pleas of not guilty amounted to a waiver of the defect in the Information. Records even show that the information was accordingly amended during trial to rectify this alleged defect but appellants did not comment thereon. Moreover, objections as to matters of form or substance in the information cannot be made for the first time on appeal. (People of the Philippines v. Renandang Mamaruncas and Pendatum Ampuan, G.R. No. 179497, January 25, 2012)

5.2.6. Designation of offense

Designation of the offense

An information is valid as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. In other words, if the offense is stated in such a way that a person of ordinary intelligence may immediately know what is meant, and the court can decide the matter according to law, the inevitable conclusion is that the information is valid. It is not necessary to follow the language of the statute in the information. The information will be sufficient if it describes the crime defined by law. (Lasoy vs. Zenarosa)

Variance doctrine

In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls (People v. Oso, 62 Phil 271)

Application in rape cases

However, since the charge in the Information for the December 2003 incident is rape through carnal knowledge, Pareja cannot be found guilty of rape by sexual assault even though it was proven during trial. This is due to the material differences and substantial distinctions between the two modes of rape; thus, the first mode is not necessarily included in the second, and vice-versa. Consequently, to convict Pareja of rape by sexual assault when what he was charged with was rape through carnal knowledge, would be to violate his constitutional right to be informed of the nature and cause of the accusation against him.

Nevertheless, Pareja may be convicted of the lesser crime of acts of lasciviousness under the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Criminal Procedure, to wit:

SEC. 4. Judgment in case of variance between allegation and proof. – When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. (PEOPLE OF THE PHILIPPINES vs. BERNABE PAREJA y CRUZ, G.R. No. 202122, January 15, 2014)

When variance between allegation and fact proved is deemed binding

A variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence showing that the crime was committed in a different manner than what was alleged. While the information clearly states that the crime was committed by appellant's insertion of his penis inside AAA's vagina, the latter solemnly testified on the witness stand that appellant merely put his penis in her mouth. Nevertheless, appellant failed to register any objection that the Information alleged a different mode of the commission of the crime of rape. Thus, appellant's conviction for rape by sexual assault must be sustained, the variance notwithstanding. (PEOPLE vs. GULLERMO LOMAQUE, GR 189297, June 5, 2013)

Defect in the complaint court may still acquire jurisdiction

Even when a complaint is defective for being signed and filed by the chief of police and not by the complainant, the court may still acquire jurisdiction over the case. The complaint required in Art. 344 of the RPC is but a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. The complaint simply starts the prosecutory proceeding but does not confer jurisdiction in the court to try the case. Art. 344 is not determinative of the jurisdiction of courts over private offenses because the same is governed by the Judiciary Law and not the RPC. (People v. Yparraguire)

Minority is a special and qualifying circumstance in rape cases

In rape cases, the concurrence of the minority of the victim and her relationship with the offender is a special qualifying circumstance which should be both alleged (People v. Cantos) and proved (People v. Manggasin) with certainty in order to warrant the imposition of the [maximum] penalty.

Facts alleged in the information is controlling

It is not the designation of the offense in the complaint or information that is controlling (People v. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine the nature of the crime (People v. Magdowa, 73 Phil 512).

The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat v. Court of Appeals, 265 SCRA 701).

An accused could not be convicted under one act when he is charged with a violation of another if the change from one statue to the other involves:

a. a change in the theory of the trial; b. requires of the defendant a different defense; or c. surprise the accused in any way. (U.S. v. Panlilio, 28 Phil 603).

5.2.7. Cause of the accusation

PURPOSE:

1. To enable the court to pronounce a proper judgment; 2. To furnish the accused with such a description of the charge as to enable him to make

a defense; 3. As a protection against further prosecution for the same cause. ( U.S. v. Karelsen).

5.2.8. Duplicity of the offense; exception

General rule:

An information or complaint must charge only one offense, unless the law prescribes a single punishment for various offenses

Exceptions to the rule on duplicity

1. continuing crimes 2. complex crimes 3. special complex crimes 4. crimes susceptible of being committed in various modes 5. crimes of which another offense is an ingredient

Requisites of continuous crimes:

1. Plurality of acts performed separately during a period of time; 2. Unity of penal provision infringed upon or violated; 3. Unity of criminal intent which means that two or more violations of the same penal

provision are united on one and the same intent leading to the perpetration of the same criminal purpose or claim (People v. Ledesma).

Rule on duplicity of offense: Effects:

A defectively crafted information, such as that alleging multiple offenses in a single complaint or information transgresses Rule 110, 13. A. However, failure to make a timely objection to such a defect is deemed to be a waiver of the said objection. (People v. Santiago)

Effects of failure to object on the duplicity of offenses

Under Sec. 3, Rule 120, failure on the part of the accused to object on the duplicity of offense as charged in the information, he may be convicted as many crimes as charged in the information or complaint.

5.2.9. Amendment or substitution of complaint or information

Preliminary investigation not required in case of amendment

There are also no substantial amendments in the information warranting a new preliminary investigation. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is

upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence. (Saludaga vs. Sandiganbayan)

Venue in libel cases

Where the complainant is a private individual, the venue of libel cases is limited to only either of the 2 places, namely: (1) where the complainant actually resides at the time of the commission of the offense; or (2) where the alleged defamatory article was printed and first published. (Bonifacio vs. RTC of Manila)

When amendments to information may be allowed?

a. it does not deprive the accused of the right to invoke prescriptionb. it does not deprive the accused of the right to invoke prescription c. it does not affect or alter the nature of the offense originally charged d. it does not involve a change in the basic theory of the prosecution so as to require the

accused to undergo any material charge or modification in his defense e. it does not expose the accused to a charge which would call for a higher penalty f. it does not cause surprise or deprive the accused of an opportunity to meet the new

averment.

5.2.10. Venue of criminal actions

Purpose of venue:

Not to compel the defendant to move to and appear in a different court from that of the territory where the crime was committed as it would cause him great inconvenience in looking for his witnesses and other evidence in another place.

GENERAL RULE:

Penal laws are territorial; hence Philippine courts have no jurisdiction over crimes committed outsidethe Philippines.

5.2.11. Intervention of offended party

GENERAL RULE:

Offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111.

EXCEPTIONS:

1. Where from the nature of the crime and the law defining and punishing it, no civil liability arisesin favor of the offended party;

2. Where the offended party has waived the right to civil indemnity; or 3. Where the offended party has already instituted an action.

5.3. Prosecution of civil action

The prime purpose of the criminal action is to punish the offender to deter him and others from committing the same or similar offense, to isolate him from society, reform or rehabilitate him or, in general, to maintain social order. The purpose, meanwhile, of the civil action is for the restitution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. (Buntiong vs. Balboa)

When private prosecutor can intervene in the trial

Under the Rules, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. Rule 111(a) of the Rules of Criminal Procedure provides that, “[w]hen a criminal action is instituted, the civil action arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately, or institutes the civil action prior to the criminal action.”

Private respondent did not waive the civil action, nor did she reserve the right to institute it separately, nor institute the civil action for damages arising from the offense charged. Thus, we find that the private prosecutors can intervene in the trial of the criminal action.(Lee Pue Liong vs. Chua Pue Chin Lee, 703 SCRA 240)

5.3.1. Rule on implied institution of civil action with criminal action

Sec. 1, Rule 111 of the Revised Rules on Criminal Procedure provides for the rule that in case a criminal action is instituted, the civil liability resulting therefrom shall be deemed impliedly instituted in the said criminal action unless there is waiver or a reservation to institute a separate civil action before the institution of the said criminal case. It states that:

“Section 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.”

5.3.2. When civil action may proceed independently

ACQUITTAL IN A CRIMINAL CASE DOES NOT

BAR THE FILING OF THE CIVIL CASE WHERE: 1. The acquittal is based on reasonable doubt, if the civil case has been reserved. 2. The decision contains a declaration that the liability is not criminal but only civil in nature. 3. The civil liability is not derived from or based on the criminal act of which the accused is acquitted. (Sapiera v. Court of Appeals, 314 SCRA 370)

An Independent Civil Action Cannot Give Rise to Prejudicial Question

It is well settled that a civil action based on defamation, fraud and physical injuries may be independently instituted pursuant to Article 33 of the Civil Code, and does not operate as a prejudicial question that will justify the suspension of a criminal case. This was precisely the Court's thrust in G.R. No. 148193, thus: Moreover, neither is there a prejudicial question of the civil and the criminal action can, according to law, proceed independently of each other. Under Rule 111, Section 3 of the Revised Rules on Criminal Procedure, iun the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. xxx In the instant case, Civil Case No. 99-95381, for Damages and Attachment on account of alleged fraud committed by respondent and his mother in selling the disputed lot to PBI is an independent civil action under Article 33 of the Civil Code. As such, it will not operate as a prejudicial question that will justify the suspension of the criminal case at bar. (Rafael Jose Consing, Jr. vs. People of the Philippines, G.R. No. 161075, July 15, 2013)

5.3.3. When separate civil action is suspended

Sec. 2 of Rule 111 of the Revised Rules on Criminal Procedure provides for the rule on the suspension of civil action after the commencement of the criminal action. It states that:

“Section 2. When separate civil action is suspended. — After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.”

When suspension of the civil action allowed?

In Gandiongco vs. Penaranda [155 SCRA 725], it was held that suspension is allowable only if the civil action arises from the criminal act subject of the criminal case. The civil action must be intended to enforce civil liability arising from the offense charged.

5.3.4. Effect of death of the accused or convict on civil action

Finally, we observe that the Court of Appeals did not rule on the effect of the death of Eddie Malogsi during the pendency of this case. Considering that no final judgment had been rendered against him at the time of his death, whether or not he was guilty of the crime charged had become irrelevant because even assuming that he did incur criminal liability and civil liability ex delicto, these were totally extinguished by his death, following Article 89(1) of the Revised Penal Code and, by analogy, our ruling in People v. Bayotas. Therefore, the present criminal case should be dismissed with respect only to the deceased Eddie Malogsi. (PEOPLE OF THE PHILIPPINES vs. MARCELINO DADAO, et al., G.R. No. 201860, January 22, 2014)

5.3.5. Prejudicial question

Prejudicial Question – meaning; rationale

A prejudicial question is understood in law to be that which arises in a case the resolution of which is a logical antecedent of the issue involved in the criminal case, and the cognizance of which pertains to another tribunal. It is determinative of the criminal case, but the jurisdiction to try and resolve it is lodged in another court or tribunal. It is based on a fact distinct and separate from the crime but is so intimately connected with the crime that it determines the guilt or innocence of the accused. The rationale behind the principle of prejudicial question is to avoid conflicting decisions. (San Miguel Properties, Inc. vs. SEC. Hernando B. Perez, et al., GR No. 166836, September 4, 2013)

Elements of Prejudicial Question

The essential elements of a prejudicial question are provided in Section 7, Rule 111 of the Rules of Court, to wit: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (San Miguel Properties, Inc. vs. SEC. Hernando B. Perez, et al., GR No. 166836, September 4, 2013)

Action for specific performance is a prejudicial question in criminal case for violation of Sec. 25, PD No. 957

BF Homes’ posture that the administrative case for specific performance in the HLURB posed a prejudicial question that must first be determined before the criminal case for violation of Section 25 of the PD No. 957 could be resolved is correct.

Raising prejudicial question is hypothetical admission of sufficiency of the information

A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of the crime have been adequately alleged in the information, considering that the Prosecution has not yet presented a single piece of evidence on the indictment or may not have rested its case. A challenge to the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit. (San Miguel Properties, Inc. vs. SEC. Hernando B. Perez, et al., GR No. 166836, September 4, 2013)

Action for Rescission of Contract not a prejudicial question to violation of BP 22

To properly appreciate if there is a prejudicial question to warrant the suspension of the criminal actions, reference is made to the elements of the crimes charged. The violation of Batas Pambansa Blg. 22 requires the concurrence of the following elements, namely: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. The issue in the criminal actions upon the violations of Batas Pambansa Blg. 22 is, therefore, whether or not Reyes issued the dishonoured checks knowing them to be without funds upon presentment. On the other hand, the issue in the civil action for rescission is whether or not the breach in the fulfillment of Advanced Foundation’s obligation warranted the rescission of the conditional sale. If, after trial on the merits in the civil action, Advanced Foundation would be found to have committed material breach as to warrant the rescission of the contract, such result would not necessarily mean that Reyes would be absolved of the criminal responsibility for issuing the dishonored checks because, as the aforementioned elements show, he already committed the violations upon the dishonor of the checks that he had issued at a time when the conditional sale was still fully binding upon the parties. His obligation to fund the checks or to make arrangements for them with the drawee bank should not be tied up to the future event of extinguishment of the obligation under the contract of sale through rescission. Indeed, under Batas Pambansa Blg. 22, the mere issuance of a worthless check was already the offense in itself. Under such circumstances, the criminal proceedings for the violation of Batas Pambansa Blg. 22 could proceed despite the pendency of the civil action for rescission of the conditional sale. (Teodoro A. Reyes vs. Ettore Rossi, GR No. 159823, February 18, 2013)

5.3.6. Rule on filing fees in civil action deemed instituted with the criminal action

Payment of filing fees in case civil aspect is deemed impliedly instituted in the criminal action

The amendments were deliberated on and adopted by this Court after the Manchester doctrine has been enunciated. Yet, observe that the last two (2) paragraphs prescribe a rule different from that in Manchester, and in the 1985 Rules on Criminal Procedure. Under the 1985 Rule, the filing fees for the civil action impliedly instituted with the criminal had to be paid first to the Clerk of Court where the criminal action was commenced, without regard to whether the claim for such damages was set out in the information or not. Under the 1988 Rules however, it is only when the amount of damages, other than the actual, is alleged in the complaint or information that the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. In any other case — i.e., when the amount of damages other than actual is NOT alleged in the information — the filing fees for the civil action “to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages x x x shall merely constitute a first lien on the judgment except in an award for actual damages.’’ This Court’s plain intent — to make the Manchester doctrine, requiring payment of filing fees at the time of the commencement of an action applicable to impliedly instituted civil actions under Section 1, Rule 111 only when the amount of damages other than actual is alleged in the complaint or information — has thus been made manifest by the language of the amendatory provisions.

In any event, the Court now makes that intent plainer, and in the interest of clarity and certainty, categorically declares for the guidance of all concerned that when the civil action is deemed impliedly instituted with the criminal in accordance with Section 1, Rule 111 of the Rules of Court — because the offended party has not waived the civil action, or reserved the right to institute it separately, or instituted the civil action prior to the criminal action — the rule is as follows: (1) when the amount of the damages, other than actual, is alleged in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon filing thereof in court for trial; and (2) in any other case, however — i.e., when the amount of damages is not so alleged in the complaint or information filed in court the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except in an award for actual damages. (Honesto General vs. Hon. Graduacion Reyes Claravall, et al., 195 SCRA 623)

5.3.7 Extinguishment/Maintenance of civil liability despite acquittal

The civil action based on delict may be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist or where the accused did not commit the acts or omission imputed to him. (Lee Pue Liong vs. Chua Pue Chin Lee, 703 SCRA 240)

Civil liability in case of estafa

An accused, though acquitted of estafa, may still be held civilly liable where the preponderance of the established facts so warrants. (People of the Philippines vs. Gilbert Reyes Wagas, GR NO. 157943, September 4, 2013)

5.4. Preliminary investigation

Nature of Preliminary Investigation

A preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of the case on the merits and has no purpose except to determine whether a crime has been committed, and whether there is probable cause to believe that the accused is guilty of that crime. A preliminary investigation is not the occasion for a full and exhaustive display of the parties’ evidence, which needs to be presented only to engender a well-grounded belief that an offense has been committed, and that the accused is probably guilty thereof (Community Rural Bank vs. Judge Telavera)

Resolution on the motion for reinvestigation

We rule that the trial court in a criminal case which takes cognizance of an accused’s motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutor’s finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken therefrom to the Department of Justice. (Serag vs. CA)

Preliminary investigation not part of the trial

It is not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. The dismissal of the case by the investigator will not constitute double jeopardy and will not bar the filing of another complaint for the same offense , but if re-filed, the accused is entitled to another preliminary investigation (U.S. v. Marfori, 35 Phil 666).

Reply is not mandatory in preliminary investigation; hence, no deprivation of due process if denied

There is no provision in Rule 112 of the Rules of Court that gives the Complainant or requires the prosecutor to observe the right to file a Reply to the accused’s counter-affidavit. To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint even without a counter-affidavit, viz: “(d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.” On the other hand, petitioner was entitled to receive a copy of the Counter-affidavit filed by Aguillon. (P/Insp. Ariel S. Artillero v. Orlando C. Casimiro, etc., et al, G.R. No. 190569, April 25, 2012)

5.4.1. Nature of right of the Ombudsman to conduct preliminary investigation

The Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. § 15 of RA 6770 (Ombudsman Act of 1989) does not make any distinction. “Any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public officer or employee. Such grant of primary jurisdiction over cases cognizable by the Sandiganbayan does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by the other courts (Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001)

5.4.2. Purposes of preliminary investigation

Probable cause – meaning and determinationProbable cause, for the purpose of filing a criminal information, exists when the facts are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. It does not mean “actual and positive cause” nor does it import absolute certainty. Rather, it is based merely on opinion and reasonable belief. Accordingly, probable cause does not require an inquiry whether there is sufficient evidence to procure a conviction; it is enough that it is believed that the act or omission complained of constitutes the offense charged. (Iris Kristine Balois Alberto vs. CA, GR No. 182130, June 19, 2013)

Probable cause for purposes of filing a criminal information is defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. The prosecution evidence fails to establish probable cause against petitioner HPG officers. (P/C Insp. Lawrence B. Cajipe, P/C Insp. Joell. Mendoza, P/C Insp. Gerardo B. Balatucan, PO3 Jolito P. Mamanao, Jr., P03 Fernando Reys. Gapuz, Po2 Eduardo G. Blanco, Po2 Edwin Santos And Po1 Josil Rey I. Lucena, G.R. No. 203605, April 23, 2014)

Evidence required in finding of probable cause

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. The term does not mean “actual and positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. (Cruz v. Hon. Gonzales, et al, G.R. No. 173844, April 11, 2012)

The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits.28 As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. (Century Chinese Medicine Co., et al. vs. People of the Philippines and Ling Na Lau, GR No. 188526, November 22, 2013)

5.4.3. Who may conduct determination of existence of probable cause

The determination of probable cause for the filing of an information in court is an executive function which pertains at the first instance to the public prosecutor and then to the Secretary of Justice. As a rule, in the absence of any grave abuse of discretion, courts are not empowered to substitute their own judgment for that of the executive branch; the public prosecutor alone determines the sufficiency of evidence that will establish probable cause in filing a criminal information and courts will not interfere with his findings unless grave abuse of discretion can be shown. In this case, the Supreme Court found no error in the public prosecutor’s determination that no probable cause existed to justify the filing of a criminal complaint. (Manila Electric Company, represented by Manolo C. Fernando v. Vicente Atilano, et al., G.R. No. 166758, June 27, 2012)

Authority of the Ombudsman to conduct preliminary investigation

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary investigation of crimes involving public officers, without regard to its commission in relation to office, had long been settled in Sen. Honasan II vs. The Panel of Investigating Prosecutors of DOJ, and affirmed in subsequent cases: The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers and employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors, however, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan may take over, at any stage, from any investigating agency of the government, the investigation of such cases. (Alfredo Romulo A. Busuego vs. Office of the Ombudsman, GR No. 196842, October 9, 2013)

5.4.4. Resolution of investigation prosecutor

Sec. 4, Rule 112 of the Revised Rules on Criminal Procedure, provides for the duties of the investigating officer in resolving the case under preliminary investigation in which he may

either dismiss the case or file it in court together with the proper information. It states:

“Section 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.”

5.4.5. Review

Principle of non-interference in the review of the DOJ Secretary

In this case, the Supreme Court affirmed the decision of the Court of Appeals in line with the principle of non-interference with the prerogative of the Secretary of Justice to review the resolutions of the public prosecutor in the determination of the existence of probable cause. The Secretary of Justice found sufficient evidence to indict petitioner. It was adequately established by DBP and found by the Secretary of Justice that the funds would not have been released pursuant to the subsidiary loan agreement if HSLBI had no sub-borrowers/Investment Enterprises to speak of. As it turned out, not only were the collaterals submitted inexistent, all the purported sub-borrowers/Investment Enterprises were also fictitious and inexistent. In fact, the signatures of the sub-borrowers and the supporting documents submitted to DBP by petitioner and her co-respondents were all forged. The findings of probable cause against petitioner was based on the document showing that petitioner’s opinion was instrumental in the deceit committed against DBP. (Cruz v. Hon. Gonzales, et al, G.R. No. 173844, April 11, 2012)

Non-interference of the court in finding probable cause by prosecutor; Exceptions; Remedy of certiorari under Rule 65

Courts of law are precluded from disturbing the findings of public prosecutors and the DOJ on the existence or non-existence of probable cause for the purpose of filing criminal information, unless such findings are tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction. The rationale behind the general rule rests on the principle of separation of powers, dictating that the determination of probable cause for the purpose of indicting a suspect is properly an executive function; while the exception hinges on the limiting principle of checks and balances, whereby the judiciary, through a special civil action of certiorari, has been tasked by the present Constitution “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Iris Kristine Balois Alberto vs. CA, GR No. 182130, June 19, 2013)

The rule is that this Court will not interfere in the findings of the DOJ Secretary on the insufficiency of the evidence presented to establish probable cause unless it is shown that the questioned acts were done in a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion, thus “means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.” The party seeking the writ of certiorari must establish that the DOJ Secretary exercised his executive power in an arbitrary and despotic manner, by reason of passion or personal hostility, and the abuse of discretion must be so patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. (Rosalinda Punzalan vs. Michael Plata, GR No. 160316, September 2, 2013)

We have consistently held in jurisprudence that the resolution of such a factual question is best left to the sound judgment of the trial court, and that, absent any misapprehension of facts or grave abuse of discretion, the findings of the trial court shall not be dismissed. (People of the Philippines vs. Marcelino Dadao, et al., GR No. 201860, January 22, 2014)

Trial Court not bound to adopt resolution of DOJ Secretary

The trial court is not bound to adopt the resolution of the DOJ Secretary since it is mandated to independently evaluate or assess the merits of the case. In other words, the dismissal of the case was based upon considerations other than the judge’s own personal individual conviction that there was no case against the accused. (SAMUEL LEE AND MAYBELLE LIM VS. KBC BANK)

Remedy to assail determination of DOJ Secretary pertaining to existence or non-existence of probable cause

Contrary to respondents’ claim, Rule 65 provides the proper remedy to assail the DOJ’s determination of the presence or absence of probable cause instead of a petition for review under Rule 43. By weighing the evidence submitted by the parties in a preliminary investigation and by making an independent assessment thereof, an investigating prosecutor is, to that extent, performing functions of a quasi-judicial nature in the conduct of a preliminary investigation. However, since he does not make a determination of the rights of any party in the proceeding, or pronounce the respondent’s guilt or innocence (thus limiting his action to the determination of probable cause to file an information in court), an investigating prosecutor’s function still lacks the element of adjudication essential to an appeal under Rule 43. Additionally, there is a “compelling reason” to conclude that the DOJ’s exclusion from the enumeration of quasi-judicial agencies in Rule 43 of the Rules of Court is deliberate. However, the petitioner must allege and show that the DOJ acted with grave abuse of discretion in granting or denying the petition for review. (PCGG Chairman Magdangal B. Elma and Presidential Commission on Good Government v. Reiner Jacobi, Crispin T. Reyes, et al., G.R. No. 155996, June 27, 2012)

5.4.6. When warrant of arrest may issue

Section 5, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal information:

(1) dismiss the case if the evidence on record clearly failed to establish probable cause;

(2) issue a warrant of arrest if it finds probable cause; and

(3) order the prosecutor to present additional evidence within five days from notice in case of doubt as to the existence of probable cause. (People vs. Hon. Dela Torre-Yadao, G.R.

5.4.7. Cases not requiring a preliminary investigation

Sec. 9, Rule 112 of the Revised Rules on Criminal Procedure provides for a situation where preliminary investigation is not required. It states that:

“Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. —

(a)If filed with the prosecutor. — If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.

(b)If filed with the Municipal Trial Court. — If the complaint or information is filed with the Municipal Trial Court, Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.” 5.4.8. Remedies of accused if there was no preliminary investigation

Right to Bail Pending Preliminary Investigation

A person lawfully arrested may post bail before the filing of the information or even after

the filing without waiving his right to PI, provided that he asks for a PI by the proper officer within the period fixed in the said rule. (People v. Court of Appeals, May 29, 1995).

Remedies of the accused in case of denial of his right to preliminary investigation: Waiver

a)The accused who is denied the mandatory preliminary investigation may refuse to enter a plea upon arraignment and to object to the continuation of further proceedings based on lack of preliminary investigation. If he pleads without objection, he cannot raise the issue on appeal. (People vs. Mabuyo, 63 SCRA 532; People vs. Lazo; 198 SCRA 274)

b) Although it is entirely possible that the investigating fiscal may erroneously exercise the discretion and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. (Hegerty vs. Court of Appeals, 409 SCRA 285 [2003])

Habeas Corpus not proper remedy in case of denial of preliminary investigation: Remedies available

a)A petition for habeas corpus is not a proper remedy if the accused was not accorded preliminary investigation which he did not waive. The remedy is a motion to quash the warrant of arrest and/or information or to ask for an investigation/re-investigation of the case. (Ilagan vs. Enrile 139 SCRA; Paredes vs. Sandiganbayan, 193 SCRA 464)

5.4.9. Inquest

A preliminary investigation is a proceeding distinct from an inquest. A “preliminary investigation” is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. “An inquest” is a summary inquiry conducted by a prosecutor for the purpose of determining whether the warrantless arrest of a person was based on probable cause.” (Imelda S. Enriquez vs. Olegario R. Sarmiento, Jr., A.M. No. RTJ-06-2011, August 7, 2006)

5.5. Arrest

Arrest is defined under Sec. 1, Rule 113 of the Rules of Criminal Procedure as:

“Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.”

5.5.1. Arrest, how made

Section 2, Rule 113 of the Revised Rules on Criminal Procedure provides for the manner,

time and conduct of arresting a person who committed a crime. It states that:

“Section 2. Arrest; how made. — An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.”

Arrest in Summary Procedure – when available

Whenever a criminal case falls under the Summary Procedure, the general rule is that the court shall not order the arrest of the accused unless he fails to appear whenever required. In this case, Judge Tormis claimed that the issuance of the warrant of arrest against the accused in the Librando case was justified because of the accused’s failure to appear during her arraignment despite notice. However, as clearly found by the OCA, Judge Tormis’ order requiring the accused to appear and submit her counter-affidavit and those of her witnesses within ten days from receipt of the order was not yet served upon the accused when she issued the warrant. In doing so, Judge Tormis issued the warrant of arrest in violation of the Rule on Summary Procedure that the accused should first be notified of the charges against him and given the opportunity to file his counter-affidavits and other countervailing evidence. (Office of the Court Administrator vs. Hon, Rosabella M. Tormis, AM No. MTJ-12-1817, March 12, 2013)

5.5.2. Arrest without warrant, when lawful

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. (People vs. Laguio)

Warrantless arrest under the Rules on Environmental case

a.When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b.When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

Warrantless search

The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last

includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners.” (Valdez vs. People)

5.5.3. Method of arrest

By officer without warrant

A person may be arrested lawfully even without a warrant of arrest, under any of the circumstances provided under Section 5, Rule 113 of the Revised Rules on Criminal Procedure:

“Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

a.When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b.When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c.When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.”

Circumstances in a valid warrantless arrest:

An arrest made during the commission of a crime does not require a warrant. Such warrantless arrest is considered reasonable and valid under Rule 113, section 5(a) of the Revised Rules on Criminal Procedure. In the instant case, contrary to accused-appellants’ contention, there was indeed a valid warrantless arrest in flagrante delicto. Consider the circumstances immediately prior to and surrounding the arrest of accused-appellants: (1) the police officers received information from an operative about an ongoing shipment of contraband; (2) the police officers, with the operative, proceeded to Villa Vicenta Resort in Barangay Bignay II, Sariaya, Quezon; (3) they observed the goings-on at the resort from a distance of around 50 meters; and (4) they spotted the six accused-appellants loading transparent bags containing a white substance into a white L-300 van. Evidently, the arresting police officers had probable cause to suspect that accused-appellants were loading and

transporting contraband, more so when Hwan, upon being accosted, readily mentioned that they were loading shabu and pointed to Tan as their leader. Thus, the arrest of accused-appellants – who were caught in flagrante delicto of possessing, and in the act of loading into a white L-300 van, shabu, a prohibited drug under RA 6425, as amended – is valid. (People of the Philippines vs. Ng Yik bun, et al, G.R. No. 180452. January 10, 2010.)

Warrantless arrest by private person: Citizen arrest

Moreover, Section 5, par. (a), Rule 113 of the Revised Rules on Criminal Procedure authorizes a warrantless arrest, otherwise called a “citizen’s arrest’’ when, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense.” Thus, although officially assigned in Baguio City, Lt. Ancheta’s act of arresting accused-appellant (after the latter offered to sell him marijuana in San Fernando, La Union) is justified, not only because it is his duty as a law enforcer but also by Section 5 of Rule 113, which authorizes instances of warrantless arrest or citizens’ arrests. (People of the Philippines vs. Jose Rayray Areola, 241 SCRA 1)

A private person may effect an arrest under any of the circumstances provided under Section 9, Rule 113 of the Revised Rules on Criminal Procedure. It states that:

“Section. 9. Method of arrest by private person. — When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest.” (Emphasis supplied)

5.5.4. Requisites of a valid warrant of arrest

Determination of probable cause for issuance of warrant of arrest

“Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.” (Emphasis supplied)

What is probable cause?

Probable cause is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

Reasonable minds may differ on the question of whether a particular affidavit/deposition or testimony of the affiant/deponent establishes probable cause. However, great deference is to be accorded to the Judge’s determination. (Spinelli vs. US, 393 US 410, 89 S.Ct. 584 [1969]; US vs. Leon, supra, note 61) The affidavit/deposition supporting an application for a search warrant is presumed to be valid. (Eliza T. Abuan vs. People, G.R. No. 168773, October 27, 2006)

Distinguish probable cause of fiscal from that of a judge

Determination of probable cause may be either executive or judicial.

The first is made by the public prosecutor, during a preliminary investigation, where he is given broad discretion to determine whether probable cause exists for the purpose of filing a criminal information in court. The second is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. (De Los Santos-Dio vs. CA, GR No. 178947, June 26, 2013)

5.5.7 Waiver of Objection on Irregularity of Arrest

Jurisprudence tells us that an accused is estopped from assailing anyirregularity of his arrest if he fails to raise this issue or to move for thequashal of the information against him on this ground before arraignment,thus, any objection involving a warrant of arrest or the procedure by whichthe court acquired jurisdiction of the person of the accused must be made before he enters his plea; otherwise, the objection is deemed waived. Nevertheless, even if appellant’s warrantless arrest were proven to be indeed invalid, such a scenario would still not provide salvation to appellant’s cause because jurisprudence also instructs us that the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error. (People of the Philippines vs. Roberto Velasco, G.R. No. 190318, November 27, 2013)

Objection should be made before plea:

We cannot uphold the contention of petitioner that his warrantless arrest was illegal. The CA correctly ruled that his failure to question the legality of his arrest before entering his plea during arraignment operated as a waiver of that defense. “It has been ruled time and again that an accused is estopped from assailing any irregularity with regard to his arrest if he fails to raise this issue or to move for the quashal of the information against him on this ground before his arraignment.” In his arraignment before the trial court, petitioner never raised any issue and instead “freely and voluntarily pleaded Not Guilty to the offense charged”. Thus, he was estopped from raising the issue of the legality of his arrest before the trial court, more so on appeal before the CA or this Court. (RODRIGO RONTOS vs. PEOPLE OF THE PHILIPPINES, GR 188024, June 5, 2013)

5.6. Bail

The definition of bail is clearly spelled out under Sec. 1, Rule 114 of the Revised Rules on Criminal Procedure, as amended by S.C. A.M. 05-8-26 dated August 26, 2005. It states that:

“Section 1. Bail defined. — Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.”

5.6.1. Nature

When a matter of right?; exceptions

In MTC/MCTC

Before or after conviction

In RTC

Before conviction

Except:

Those offenses punishable by reclusion perpetua or higher

Right to bail not available to military officers or personnel;

The right to bail is not available to military personnel or officer charged with a violation of the Articles of War. (Aswat v. Galido, 204 SCRA 205)

When a matter of discretion?

“Section 5. Bail, when discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

Exceptions to the grant of discretionary bail

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;b)That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;c)That he committed the offense while under probation, parole, or conditional pardon;d)That the circumstances of his case indicate the probability of flight if released on bail; ore)That there is undue risk that he may commit another crime during the pendency of the appeal.

Power of the appellate court to review

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.”

Burden of proof on bail hearing:

In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong pursuant to § 8 Rule 114. In bail proceedings, the prosecution must be given ample opportunity to show that the evidence of guilt is strong. While the proceeding is conducted as a regular trial, it must be limited to the determination of the bailability of the accused. It should be brief and speedy, lest the purpose for which it is available is rendered nugatory. (People v. Singh, et. al., G.R. No. 129782 (2001)

Sale, etc. of shabu a capital offense

Regardless of quantity, the sale, trade, administration, dispensation, delivery, distribution and transportation of shabu is punishable by life imprisonment to death. Being a capital offense, it is incumbent upon respondent Judge to hold a hearing on the petitions/motions for bail filed by the accused therein to determine whether evidence of guilt is strong. To grant an application for bail and fix the amount thereof without a hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes gross ignorance or incompetence whose grossness cannot be excused by a claim of good faith or excusable negligence. (MABUTAS vs. JUDGE NORMA C. PERELLO)

Rule on bail pending appeal

A finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach. However, if the appellate court determines the existence of any of the circumstances, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed (LEVISTE V. CA)

5.6.4. Hearing of application for bail in capital offenses

The manifestation of the prosecutor that he is not ready to present any witness to prove that the prosecution’s evidence against the accused is strong, is never a basis for the outright grant of bail without a preliminary hearing on the matter. A hearing is required even when the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail (Domingo vs. Pagayatan)

Judge is not allowed to receive bail of the accused

It is undisputed that respondent judge personally received the cash bail bond for the accused. For this act alone, respondent is already administratively liable. Section 14, Rule 114 of the Revised Rules of Criminal Procedure specifies the persons with whom a cash bail bond may be deposited, namely: the collector of internal revenue or the provincial, city or municipal treasurer. A judge is not authorized to receive the deposit of cash as bail nor should such cash be kept in his office. (TRINIDAD LACHICA V JUDGE ROSABELLATORMIS)

Conduct of hearing on bail discretionary

The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the SB of its discretion (SERAPIO V. SANDIGANBAYAN)

5.6.5. Guidelines in Recognizancel

The following are cases where the court may order the release onrecognizance of any person under detention

a. when the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or P2000 fine, under the circumstances provided in RA No. 6036

b. where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or

any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance

c. where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one d. in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD No. 603 as amended. (Espiritu v. Jovellanos, A.M. No. MTJ-97-1139 (1997)

5.6.6. Bail when not required

Instances when bail is no longer required

No bail shall be required in the following instances, to wit:

a)When the law or these Rules so provide;b)When a person has been in custody for a period equal to or more than the possible maximum

imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal;

c)If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment;

d)A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.e) Those offenses punishable by fine f) Cases falling under Summary procedure

5.6.7. Increase or reduction of bail

The prohibition against requiring excessive bail is enshrined in the Constitution. The obvious rationale is that imposing bail in an excessive amount could render meaningless the right to bail. The court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of his movements. Although an increase in the amount of bail while the case is on appeal may be meritorious, the SC found that the setting of the amount at P5.5M is unreasonable, excessive, and constitutes an effective denial of A’s right to bail (Yap v. CA and the People, G.R. No. 141529 (2001)

5.6.8. Forfeiture and cancellation of bail

“Section 21. Forfeiture of bail. — When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:

a)produce the body of their principal or give the reason for his non-production; andb)explain why the accused did not appear before the court when first required to do so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. (Erlinda P. Varcas vs. Judge Rafael P. Orola, Jr., et al. A.M. MTJ-05-1615 February 22, 2006)

Bail may be cancelled upon application of the bondsmen in accordance with Sec. 21, Rule 114 based on the following grounds:

a)Surrender of the accused;b)Proof of his death;c)Acquittal of the accused;d)Dismissal of the case;e)Execution of judgment of conviction.

5.6.9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation

Sec. 26, Rule 114 of the Revised Rules on Criminal Procedure gives us the rule that application for bail by the accused shall not be a bar to question the validity of arrest, or the legality of the warrant, or the absence of preliminary investigation. It provides that:

“Section 26. Bail not a bar to objections on illegal arrest, lack or irregular preliminary investigation. — An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.”

5.6.10. Hold departure order & Bureau of Immigration watchlist

Jurisdiction to issue hold-departure orders within the RTC

Circular No. 39-97 limits the authority to issue hold-departure orders to criminal cases within the jurisdiction of second level courts. Paragraph No. 1 of the said circular specifically

provides that "hold- departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the regional trial courts." (Mondejar vs. Buban)

5.7. Rights of the accused

The legislature may enact that when certain facts have been proved, they shall be prima facie evidence of the existence of guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the other is not unreasonable and arbitrary experience. People v. Mingoa, 92 Phil 856 (1953)

An accused may not be convicted of an offense unless it is clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right. People v. Ortega, 276 SCRA 166 (2003)The accused may waive his right to be present during the trial. However, his presence may be compelled when he is to be identified. Aquino, Jr. v. Military Commission, 63 SCRA 546 (1975)

Right to a speedy trial peculiarly a criminal concept

It must be clarified right off that the right to a speedy disposition of case and the accused's right to a speedy trial are distinct, albeit kindred, guarantees, the most obvious difference being that a speedy disposition of cases, as provided in Article III, Section 16 of the Constitution, obtains regardless of the nature of the case:

Section 16 “All persons shall have the right to speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.”

In fine, the right to a speedy trial is available only to an accused and is a peculiarly criminal law concept, while the broader right to a speedy disposition of cases may be tapped in any proceedings conducted by stage agencies. (Danilo Ursua vs. Republic of the Philippines, G.R. No. 178193, January 24, 2012)

5.7.1. Rights of accused at the trial

An escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses that have testified against him. Gimenez v. Nazareno, 160 SCRA 1 (1988)Non-appearance of the accused on the hearing constitute a waiver

Non appearance of an accused on a day set for hearing would result to the waiver of his right to present evidence only for the particular day or until he has appeared for hearing . There is no reason for the Sandiganbayan to totally foreclose Crisostomo’s right to present evidence merely on an absence of 1 day in view of (1) the provision just cited and (2) the fact

that Crisostomo may possibly face a death sentence. Given the gravity of the penalty, it behooved the Sandiganbayan to have given Crisostomo the opportunity to present evidence. Besides, this was the only time Crisostomo absented himself as he was always faithful present during the prior hearings. (Crisostomo vs. Sandiganbayan)

Inadmissibility of Hearsay Evidence a manifestation of the right to cross-examination

Sec. 36, Rule 130 of the Rules of Court is understandably not the only rule that explains why testimony that is hearsay should be excluded from consideration. Excluding hearsay also aims to preserve the right of the opposing party to cross-examine the original declarant claiming to have a direct knowledge of the transaction or occurrence. If hearsay is allowed, the right stands to be denied because the declarant is not in court. It is then to be stressed that the right to cross-examine the adverse party's witness, being the only means of testing the credibility of the witnesses and their testimonies, is essential to the administration of justice. (Anna Lerima Patula vs. People of the Philippines, G.R. No. 164457, April 11, 2012)

5.7.2. Rights of persons under custodial investigation

If during the investigation the assisting lawyer leaves, comes and goes, the statement signed by the accused is still inadmissible because the lawyer should assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession People v. Morial, 363 SCRA 96 (2001)

Right to remain silent during Custodial Investigation

Appellant claims that his silence should not be used againts him as he was just exercising his constitutional right to remain silent. We agree with the appellant. It should be borne in mind that when appellant was brought to the police station, he was already a suspect to the crime of rape. As such, he was already under custodial investigation. Section 12, Article III of the Constitution explicitly provides, viz: “Any person under investigation for the comission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.” Clearly, when appellant remained silent when confronted by the accusation of “AAA” at the police station, he was exercising his basic and fundamental right to remain silent. At that stage, his silence should not be taken against him. Thus, it was error on the part of the trial court to state that appellant's silence should be deemed implied admission of guilt. (People of the Philippines vs. Jonas Guillen, G.R. No. 191756, November 25, 2013)

5.8. Arraignment and plea

When an accused has already been arraigned, the DOJ must not give the appeal or petition for review due course and must dismiss the same. Arraignment of the accused prior to

the filing of the appeal or petition for review is set forth as one of the grounds for its dismissal (BERNADETTE ADASA VS. CECILLE ABALOS)

Purpose of Arraignment

Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of the accusation against him. The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him. As an indispensable requirement of due process, and arraignment cannot be regarded lightly or brushed aside peremptorily. Otherwise, absence of arraignment results in the nullity of the proceedings before the trial court. (Estrella Taglay vs. Judge Marivic Daray, G.R. No. 164258, August 22, 2012)

Arraignment and plea, how made?

The following rules shall be observed in the conduct of arraignment and plea of the accused in criminal proceedings:

a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.

c)When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

d)When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

e)When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment.

f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in

the offense charged with the conformity of the trial prosecutor alone.g)Unless a shorter period is provided by special law or Supreme Court circular, the

arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.”

Withdrawal of plea discretionary

The withdrawal of a plea of guilty is not a matter of right to the accused but of sound discretion to the trial court. People vs Lambino, 103 Phil 504 (1958)

5.8.2. When should plea of not guilty be entered

5.8.3. When may accused enter a plea of guilty to a lesser offense

Requirements in case the accused would plead to a lesser offense

During the arraignment, the court may allow the accused to make a plea to a lesser offense which is necessarily included in the offense charged, subject to the following rules:

a)The plea to a lesser offense must be to be made by the accused with the consent of the offended party and the prosecutor; and

b)After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.”

5.8.4. Accused pleads guilty to capital offense, what the court should do

Duties of the trial court when the accused pleads guilty to a capital offense

This Court, in People v. Oden, laid down the duties of the trial court when the accused pleads guilty to a capital offense.

The trial court is mandated:

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

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

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

Rationale

The rationale behind the rule is that the courts must proceed with more care where the possible punishment is in its severest form, namely death, for the reason that the execution of such a sentence is irreversible.

Primordial purpose

The primordial purpose is to avoid improvident pleas of guilt on the part of an accused where grave crimes are involved since he might be admitting his guilt before the court and thus forfeiting his life and liberty without having fully understood the meaning, significance and consequence of his plea.

Taking of further evidence as requirement

Moreover, the requirement of taking further evidence would aid this Court on appellate review in determining the propriety or impropriety of the plea.

Anent the first requisite, the searching inquiry determines whether the plea of guilt was based on a free and informed judgement. The inquiry must focus on the voluntariness of the plea and the full comprehension of the consequences of the plea. This Court finds no cogent reason for deviating from the guidelines provided by jurisprudence and thus, adopts the same.

Although there is no definite and concrete rule as to how a trial judge must conduct a “searching inquiry,” we have held that the following guidelines should be observed:

1. Ascertain from the accused himself

(a) how he was brought into the custody of the law;(b) whether he had the assistance of a competent counsel during the custodial and

preliminary investigations; and(c) under what conditions he was detained and interrogated during the investigations.

This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge’s intimidating robes.

2. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty.

3. Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty.

4. Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment.

5. Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process.

6. All questions posed to the accused should be in a language known and understood by the latter.

7. The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details.

As a general rule, convictions based on an improvident plea of guilt are set aside and the cases are remanded for further proceedings if such plea is the sole basis of judgement. If the trial court, however, relied on sufficient and credible evidence to convict the accused, as it did in this case, the conviction must be sustained, because then it is predicated not merely on the guilty plea but on evidence proving the commission of the offense charged.

The manner by which the plea of guilty is made, whether improvidently or not, loses legal significance where the conviction can be based on independent evidence proving the commission of the crime by the accused. (PEOPLE OF THE PHILIPPINES vs. HALIL GAMBAO y ESMAIL, EDDIEKARIM y USO, EDWIN DUKILMAN y SUBOH, TONY ABAO y SULA, RAUL UDAL y KAGUI, THENG DILANGALEN y NANDING, JAMAN MACALINBOL y KATOL, MONETTE RONAS y AMPIL, NORA EVAD y MULOK, THIAN PERPENIAN y RAFON a.k.a LARINA PERPENIAN and JOHNDOES, G.R. No. 172707, October 1, 2013)

Searching inquiry

Anent the first requisite, the searching inquiry determines whether the plea of guilt was based on a free and informed judgement. The inquiry must focus on the voluntariness of the plea and the full comprehension of the consequences of the plea. This Court finds no cogent reason for deviating from the guidelines provided by jurisprudence and thus, adopts the same.

Although there is no definite and concrete rule as to how a trial judge must conduct a “searching inquiry,” we have held that the following guidelines should be observed:

1. Ascertain from the accused himself

(a) how he was brought into the custody of the law;

(b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and

(c) under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge’s intimidating robes. (PEOPLE OF THE PHILIPPINES vs. HALIL GAMBAO y ESMAIL, EDDIEKARIM y USO, EDWIN DUKILMAN y SUBOH, TONY ABAO y SULA, RAUL UDAL y KAGUI, THENG DILANGALEN y NANDING, JAMAN MACALINBOL y KATOL, MONETTE RONAS y AMPIL, NORA EVAD y MULOK, THIAN PERPENIAN y RAFON a.k.a LARINA PERPENIAN and JOHNDOES, G.R. No. 172707, October 1, 2013)

5.8.6. Improvident plea

Accused may at anytime before the judgment of conviction becomes final may be allowed to withdraw his plea of guilty and be changed to a plea of not guilty. Sec. 5, Rule 116 provides that:

“Section 5. Withdrawal of improvident plea of guilty. — At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.”

5.8.7. Grounds for suspension of arraignment

The grounds for suspension of arraignment are (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary his confinement for such purpose; (b) There exists a prejudicial question; and (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; Provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office (Section 11, Rule 116 OF THE Rules of Court). x x x In Samson v. Daway, G.R. Nos. 160054-55, July 21, 2004, 434 SCRA 612, the Court explained that while the pendency of a petition for review is a ground for suspension of the arraignment, the aforecited provision limits the deferment of the arraignment to a period of 60 days reckoned form the filing of the petition with the reviewing office.It follows, therefore, that after the expiration of the said period, the

trial court is bound to arraign the accused or to deny the motion to defer arraignment . (Spouses Alexander Trinidad Vs. Victor Ang, G.R. No. 192898, January 31, 2011)

5.9. Motion to quash

A motion to quash the information is the mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the information. It is the hypothetical admission of the facts alleged in the information. The fundamental test in determining the sufficiency of the material averments in an Information is whether or not the facts alleged therein, which are hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence alliunde or matters extrinsic of the information are not to be considered. To be sure, a motion to quash should be based on a defect in the information which is evident on its face. (People of the Philippines vs. Edgardo V. Odtuhan, G.R. No. 191566, July 17, 2013)

5.9.1. Grounds

The grounds for the quashal of the information are clearly spelled out under Sec. 3, Rule 117. It states that:

“Section 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds:

a) That the facts charged do not constitute an offense;

b) That the court trying the case has no jurisdiction over the offense charged;

c) That the court trying the case has no jurisdiction over the person of the accused;

d) That the officer who filed the information had no authority to do so;

e) That it does not conform substantially to the prescribed form;

f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

g) That the criminal action or liability has been extinguished;

h) That it contains averments which, if true, would constitute a legal excuse or justification;

i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.”

5.9.2. Distinguish from demurrer to evidence

5.9.3. Effects of sustaining the motion to quash

Thus, if the defect can be cured by amendment or if it is based on the ground that the facts charged do not constitute an offense, the prosecution is given by the court the opportunity to correct the defect by amendment. If the motion to quash is sustained, the court may order that another complaint or information be filed except when the information is quashed on the ground of extinction of criminal liability or double jeopardy. (People of the Philippines vs. Edgardo V. Odtuhan, G.R. No. 191566, July 17, 2013)

Remedy in case of denial of motion to quash

The denial of a motion to quash is not correctible by certiorari. Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari but for petitioners to go to trial without prejudice to reiterating the special defenses invoked in their motion to quash. The fundamental test in reflecting on the viability of a motion to quash on the ground that the facts charged do not constitute an offense is whether or not the facts asseverated, if hypothetically admitted, would establish the essential elements of the crime defined in law. (Lazarte vs. Sandiganbayan)

Order of denial of motion to quash an interlocutory order

An order denying a MTQ is not appealable because such order is merely interlocutory. However, if the court, in denying the MTQ, acts with grave abuse of discretion, the certiorari or prohibition will lie. Newsweek Inc. vs IAC, 142 SCRA 443 (1986)

5.9.5. Double jeopardy

If a single act is punished by two different laws, but each requires proof of an additional fact which the other does not require, conviction or acquittal in one will not bar a prosecution for the other. Perez vs. CA, 163 SCRA 236 (1988)

Requisites

Section 7, Rule 117 of the Rules of Court provides for the requisites for double jeopardy to set in: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as the first. A first jeopardy attaches only (a) after valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused has been acquitted or convicted, or the case be dismissed or otherwise terminated without his express consent.(Philippine National Bank vs. Lilian S. Soriano, G.R. No. 164051, October 3, 2012)

5.9.6. Provisional dismissal

A case is provisionally dismissed if the following requirements concur: 1) the prosecution

with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal; 2) the offended party is notified of the motion for a provisional dismissal of the case; 3) the court issues an order granting the motion and dismissing the case provisionally; and 4) the public prosecutor is served with a copy of the order of provisional dismissal of the case. (LOS BAÑOS V. PEDRO)

5.10. Pre-trial

What is pre-trial?

Itis a procedural device used prior to trial to narrow issues to be tried, to secure stipulations as to matters and evidence to be heard, and to take all other steps necessary to aid in the disposition of the case. Such conferences between opposing attorney’s may be called at the discretion of the court. The actions taken at the conference are made the subject of an order which controls are the future course of the action.

Matters to be considered during pre-trial

The pre-trial conference shall consider the following:

(a)Plea bargaining;(b)Stipulation of facts;(c)Marking for identification of evidence of the parties;(d)Waiver of objections to admissibility of evidence; and(e)Such other matters as will promote a fair and expeditioud trial. (Rule 118, Section 2; 1985 RULES ON CRIMINAL PROCEDURE; PHILIPPINE LEGAL ENCYCLOPEDIA, BY JOSE AGATON R. SIBAL, p.765)

5.10.2. What the court should do when prosecution and offended party agree to the plea offered by the accused

During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of 2002, the trial judge shall consider plea-bargaining arrangements. Where the prosecution and the offended party agree to the plea offered by the accused, the court shall.

a.Issue and order which contains the plea bargaining arrived at;

b.Proceed to receive evidence on the civil aspect of the case; and

c.Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence. (Sec. 5, B)

5.10.3. Pre-trial agreement

“Section 2. Pre-trial agreement. — All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.”

Non-appearance during pre-trial

The court may sanction or penalize counsel for the accused if the following concur : (1) counsel does not appear at the pre-trial conference AND (2) counsel does not offer an acceptable excuse. (Atty.Emelita Garayblas & Atty. Renato G. Dela Cruz, Vs. Hon. Gregory Ong. Et Al,M G.R. Nos. 174507-30, August 3, 2011)

5.10.5. Pre-trial order

The trial judge shall issue a Pre-trial Order within ten (10) days after the termination of the pre-trial setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence marked, the number of witnesses to be presented and the schedule of trial. Said Order shall bind the parties, limit the trial to matters not disposed of and control the course of the action during the trial. (As amended. A.M. No. 03-1-09 SC) [Sec. 10, B]

5.10.6. Referral of some cases for court annexed mediation and judicial dispute resolution

Criminal cases which are mediation-able under the court annexed mediation

To overcome the problem, the Supreme Court in 2001 authorized the use of court-annexed mediation (CAM) as a form of alternative dispute resolution (ADR) for the following in criminal cases:

a. The civil aspect or claim for damages for violation of B.P. 22 (bouncing checks)b. Simple theftc. Libeld. Estafa

Offenses not mediatable

However, (a) acts of violence against women and their children; (b) criminal violation of tax laws; and (c) civil forfeiture under the Anti Money Laundering Law (R.A. No. 9160) cannot be referred to mediation. The prohibition for compromise extends to (d) civil status of persons; (e) validity of marriage; (f) legal separation (counselling is more appropriate), (g) ground for legal separation; (h) future support; (i) legitime; and (j) jurisdiction.

5.11. Trial

Is hearing and trial the same?

A hearing does not necessarily imply the presentation of oral or documentary evidence in open court but that the parties are afforded an opportunity to be heard. Republic v. Sandiganbayan, 416 SCRA 133 (2003)

Time limit of trial

Time limit within which trial must commence after arraignment – see Sec. 6 Rule 119, ROC

“The time limit with respect to the period from arraignment to trial shall be… 80 days.” SC ruled that 111 days have elapsed from the time the accused were arraigned on June 15, 2001 up to the filing of their Motion to Dismiss on October 4, 2001.

When is the right violated?

The right is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. SC held here that the cancellation of hearings by the prosecution w/o any valid ground is certainly vexatious, capricious and oppressive. A dismissal by the court based on this ground is not tantamount to GADLEJ. (PEOPLE vs. JUDGE HERNANDEZ (Pasig RTC), ATTY. SALAYON and ATTY. LLORENTE (2006)_

5.11.1. Instances when presence of accused is required by law

5.11.2. Requisite before trial can be suspended on account of absence of witness

5.11.3. Trial in absentia

The purpose of trial in absentia is to speed up the disposition of criminal cases. People v. Agbulos, G.R. No. 73907 (1993)

5.11.4. Remedy when accused is not brought to trial within the prescribed period

Sec. 9 of Rule 119 of the Revised Rules on Criminal Procedure provides for the remedy of dismissal of the action in violation of the right of the accused to speedy trial in case he is not brought to trial within the time prescribed. It provides that:

“Section 9: Remedy where the accused is not brought to trial within the time limit . — If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this Rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with

the evidence to establish the exclusion of time under Section 3 of this Rule. The dismissal shall be subject to the rules on double jeopardy.

Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section.”

5.11.5. Requisites for discharge of accused to become a state witness

The conditions for the discharge of an accused as a state witness are as follows:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at

any time been convicted of any offense involving moral turpitude. PEOPLE OF THE PHILIPPINES vs. PABLO L. ESTACIO, JR. and MARITESS ANG

Application of subpoena

Even if the witness has been cited to appear before a court sitting outside of the province in which he resides and the distance is more than 50km (now 100km) from his place of residence by the usual course of travel, he is still bound by the subpoena. Rule 23 applies only in civil cases. People v Montejo, 21 SCRA 722 (1967)

Absence of trial judgment is void

The trial judge gravely erred in rendering a judgment of conviction against both accused. Since the trial of B did not take place, the trial court should have rendered a decision only against A. People v. Ellasos and Obillo, G.R. No. 139323(2001)

5.11.6. Effects of discharge of accused as state witness

Sec. 18, Rule 119 of the Revised Rules on Criminal Procedure mandates that the discharge of the accused as a state witness is tantamount to his acquittal. It provides that:

“Section 18. Discharge of accused operates as acquittal. — The order indicated in the proceding section shall amount to an acquittal of the discharged accused and shall be bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge.”

5.11.7. Demurrer to evidence

A demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out the case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient thereto, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused. (Gregorio Singian, Jr. vs. Sandiganbayan 3rd Division, GR No. 195011-19, September 30, 2013)

Effect of grant of demurrer to evidence

A grant of a demurrer to evidence is tantamount to an acquittal and cannot be reviewed on appeal otherwise, the constitutional guarantee against double jeopardy is offended. A demurrer must be filed after the prosecution rests its case. It entails and appreciation of the evidence of the prosecution and when the same if found insufficient to support a conviction beyond reasonable doubt, the demurrer is proper. DAYAP v SENDIONG

Presentation of evidence on the civil aspect in case of granting of demurrer

Once granted, the court must enter a partial judgment of conviction but must continue with the trial for the reception of the defense’ evidence on the civil aspect. This is because at the moment the demurrer is granted, only prosecution’s evidence (both as to the criminal and civil aspect) is on record. However, the grant of a demurrer may still be reviewed by the courts but only on grounds of GADLEJ under rule 65. In this case, there being not finding of GADLEJ on the part of the MTC, the demurrer stands DAYAP v SENDIONG

Remedy of the accused if demurrer to evidence is granted

If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist. (Lee Pue Liong vs. Chua Pue Chin Lee, 703 SCRA 240)

5.12. Judgment

Inconsistencies in the testimonies of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity or the weight of their testimony. In fact, such minor flaws may even enhance the worth of a testimony for they guard against memorized falsities.

Minor inconsistencies not fatal

Minor discrepancies or inconsistencies do not impair the essential integrity of the prosecution’s evidence as a whole or reflect on the witnesses’ honesty. The test is whether the testimonies agree on essential facts and whether the respective versions corroborate and substantially coincide with each other so as to make a consistent and coherent whole. Thus, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime cannot be successfully invoked as grounds for acquittal MERENCILLO V. PEOPLE (2007)

Effect of acquittal

As a corollary to the above rule, an acquittal does not necessarily carry with it the extinguishment of the civil liability of the accused. Section 2(b) of the same Rule, also quoted earlier, provided in part: (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. NICDAO VS CHING

5.12.1. Requisites of a judgment

What is judgment?

Section 1, Rule 120 of the Revised Rules of Criminal Procedure defines and sets forth the requirements for a valid judgment:

Section 1. Judgment; definition and form. — Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and law upon which it is based.

Requirements for a valid judgment

Thus, a judgment, to be valid, must have been personally and directly prepared by the judge, and duly signed by him. Corollarily, a decision or resolution of the court becomes such, for all legal intents and purposes, only from the moment of its promulgation. Promulgation of judgment, in turn, signifies that on the date it was made, the judge or judges who signed the decision continued to support it. If at the time of the promulgation, a judge or member of a collegiate court has already vacated his office, his vote is automatically withdrawn. In criminal cases, promulgation of judgment is made by reading it in the presence of the accused and any judge of the court in which it was rendered. Judgment may be promulgated by the clerk of court only when the judge is absent or outside the province or city.

Effects of death of the judge who penned the judgment

It is clear then, that a judge who takes over the sala of another judge who died during

office cannot validly promulgate a decision penned by the latter. In fact, decisions promulgated after the judge who penned the same had been appointed to and qualified in another office are null and void. To be binding, a judgment must be duly signed and promulgated during the incumbency of the judge whose signature appears thereon. In single courts like the regional trial courts and the municipal trial courts, a decision may no longer be promulgated after the ponente has vacated his office.

The respondent judge cannot, likewise, claim that his only participation in the promulgation of the questioned decision was “merely an exercise of a ministerial duty to enforce the said decision which was already long rendered by the judge who actually and completely heard the above-mentioned criminal cases on the merits.” It must be stressed that the respondent judge had earlier inhibited himself from the cases in question, and that Judge Calderon was designated to hear and try the cases in his stead. The mere fact that the respondent judge was designated as Presiding Judge of Branch 26 following the death of Judge Calderon does not necessarily mean that his previous inhibition in relation to the criminal cases in question has been lifted. That would be an absurdity, as a valid designation presupposes that the judge so designated has not inhibited himself from the cases assigned/raffled to the said branch. (Peter Bejarasco, Jr. and Isabelita Bejarasco, complainants vs. Judge Alfredo D. Buenconsejo, Municipal Trial Court, Dalaguete, Cebu, Secundino Piedad, Clerk of Court, and Leonisa Gonzales, Court Stenographer, Municipal Trial Court, Argao, Cebu, respondents)

5.12.2. Contents of judgment

It is well settled that acquittal, in a criminal case is immediately final and executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy Barbers vs Laguio, Jr., 351 SCRA 606 (2001)

5.12.3. Promulgation of judgment; instances of promulgation of judgment in absentia

Petitioner claims that his right to due process was violated when his counsel failed to assist him during the promulgation of the judgment. He faults the Sandiganbayan for proceeding with the promulgation despite the petitioner not then being assisted by his counsel, and being a layman he is not familiar with court processes and procedure. Section 6, Rule 120 of the Revised Rules of Criminal Procedure, as amended, provides: “The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered.However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative.” There is nothing in the rules that requires the presence of counsel for the promulgation of the judgment of conviction to be valid. While notice must be served on accused and his counsel, the latter’s absence during the promulgation of judgment would not affect the validity of the promulgation. Indeed, no substantial right of the accused on the merits was prejudiced by such absence of his counsel when the sentence was pronounced. (Marino B. Icdang v. Sandiganbayan, et al, G.R. No. 185960, January 25, 2012)

5.12.4. When does judgment become final (four instances)

Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a)”

Finality of judgment vs. Entry of judgment

Thus, it was held that the finality of the judgment was entirely distinct from its entry and the delay in the latter does not affect the effectivity of the former which is counted from the expiration of the period to appeal. (Munnez, et al., vs. CA, et al., L-46040, July 23, 1987)

5.13. New trial or reconsideration

What is new trial?

It is a proceeding whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken. (People vs. Tamayo, 86 Phil. 213)A new invention to temper the severality of a judgment or prevent the failure of justice. (Jose vs. Court of Appeals, 70 SCRA 257)

When available?

Sec. 1, Rule 121 of the Revised Rules on Criminal Procedure provides for the remedy of new trial which may be availed of by the aggrieved party within the period to appeal. It provides that:

“Section 1. New trial or reconsideration. — At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration.”

5.13.1. Grounds for new trial

There are two requisites for a Motion for New Trial to be granted.

1. It is filed on time2. It is based on either of two grounds under Sec 2, Rule 121

Assailing the final judgment with a motion for new trial are reliefs far outside the scope of habeas corpus proceedings. (Writ of Habeas Corpus of Reynaldo De Villa GR 158802)

Fresh period to appeal after denial of the Motion for new trial or reconsideration

In Neypes vs CA., the court allowed a fresh period of 15 days within which to file a notice of appeal in the RTC, counted from receipt of the order dismissing or denying a motion for new trial or motion for reconsideration. SUMIRAN VS SPOUSES DAMASO

What is the fresh period rule?

The “fresh period rule” is a procedural law as it prescribes a fresh period of 15 days within which an appeal may be made in the event that the motion for reconsideration is denied by the lower court. Following the rule on retroactivity of procedural laws, the “fresh period rule” should be applied to pending actions. SUMIRAN VS SPOUSES DAMASO

Grounds for a Motion for Reconsideration

Sec. 3, Rule 121 of the Revised Rules on Criminal Procedure sets forth the grounds for the reconsideration of the judgment in a criminal proceedings. It provides that:

“Sec. 3. Ground for reconsideration. — The court shall grant reconsideration on the ground of errors of law or fact in the judgment which requires no further proceedings.

5.14. Appeal

What is Appeal?

An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a higher court authority. It is not a right but a mere statutory privilege to be exercised only and in the manner and in accordance with the provisions of law. PEOPLE v. ABON

Review jurisdiction of the Court of Appeals

However, the escape of the accused-appellant did not preclude the Court of Appeals from exercising its review jurisdiction, considering that what was involved was capital punishment. Automatic review being mandatory, it is not only a power of the court but a duty to review all death penalty cases. PEOPLE v. FRANCISCO TARUC

Appeal as a Statutory Right; Relaxation of the Rule

Section 6, Rule 122 of the Revised Rules of Criminal Procedure provides for the period when an appeal from a judgment or final order in a criminal case should be taken, viz:

Sec. 6. When appeal to be taken. – An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motions has been served upon the accused or his counsel at which time the balance of the period begins

to run.

In this case, the judgment convicting the petitioner of the crime of Estafa was promulgated on March 25, 2009. Instead of filing a notice of appeal within fifteen (15) days from the promulgation or notice of judgment, the petitioner filed with the RTC a motion to lift warrant of arrest and to reinstate bail bond three (3) months later. It was only in November 2010 or more than a year later since the RTC denied her motion that the petitioner filed with the CA her motion to admit notice of appeal. At that point, her judgment of conviction has already attained finality and cannot be modified or set aside anymore in accordance with Section 7, Rule 120 of the Revised Rules of Criminal Procedure.

The Court has already stressed that “the right to appeal is not a natural right and is not part of due process. It is merely a statutory privilege, and may be exercised only in accordance with the law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost.”

Grounds for relaxation of the period to appeal

In exceptional cases, the Court has in fact relaxed the period for perfecting an appeal on grounds of substantial justice or when there are other special and meritorious circumstances and issues.

Thus, in Remulla v. Manlongat, the Court considered the one-day late filing of the prosecution’s notice of appeal as excusable given the diligent efforts exerted by the private prosecutor in following up its filing with the public prosecutor.(ANITA RAMIREZ vs. PEOPLE OF THE PHILIPPINES, G.R. No. 197832, October 2, 2013)

5.14.1. Effect of an appealOnly judgments of conviction can be reviewed in an ordinary appeal or a Rule 45

petition. As explained by the Supreme Court in People v. Nazareno, the constitutional right of the accused against double jeopardy proscribes appeals of judgments of acquittal through the remedies of ordinary appeal and a Rule 45 petition. However, the rule against double jeopardy cannot be properly invoked in a Rule 65 petition, predicated on two (2) exceptional grounds, namely: in a judgment of acquittal rendered with grave abuse of discretion by the court; and where the prosecution had been deprived of due process. The rule against double jeopardy does not apply in these instances because a Rule 65 petition does not involve a review of facts and law on the merits in the manner done in an appeal. In certiorari proceedings, judicial review does not examine and assess the evidence of the parties nor weigh the probative value of the evidence. It does not include an inquiry on the correctness of the evaluation of the evidence. A review under Rule 65 only asks the question of whether there has been a validly rendered decision, not the question of whether the decision is legally correct. In other words, the focus of the review is to determine whether the judgment is per se void on jurisdictional grounds. (Arnold James M. Ysidoro v. Hon. Teresita J. Leonardo-de Castro, et al, G.R. No. 171513, February 6, 2012)

Matters to be raised in petition for certiorari

Applying these legal concepts to this case, the Supreme Court found that, while the People was procedurally correct in filing its petition for certiorari under Rule 65, the petition does not raise any jurisdictional error committed by the Sandiganbayan. On the contrary, what is clear is the obvious attempt by the People to have the evidence in the case reviewed by the Court under the guise of a Rule 65 petition. This much can be deduced by examining the petition itself which does not allege any bias, partiality or bad faith committed by the Sandiganbayan in its proceedings. The petition does not also raise any denial of the People’s due process in the proceedings before the Sandiganbayan. It was also observed by the Supreme Court that the grounds relied in the petition relate to factual errors of judgment which are more appropriate in an ordinary appeal rather than in a Rule 65 petition. The grounds cited in the petition call for the Court’s own appreciation of the factual findings of the Sandiganbayan on the sufficiency of the People’s evidence in proving the element of bad faith, and the sufficiency of the evidence denying productivity bonus to Doller. (Arnold James M. Ysidoro v. Hon. Teresita J. Leonardo-de Castro, et al, G.R. No. 171513, February 6, 2012.)

5.14.2. Where to appeal

Intermediate review of the CA of cases involving death penalty

At the outset, the Court notes that these cases were elevated to Us on automatic review in view of the RTC's imposition of the death penalty upon appellant in its June 25, 1997 Decision. However, with the Court's pronouncement in the 2004 case of People vs. Mateo, providing for and making mandatory the intermediate review by the CA of cases involving the death penalty, reclusion perpetua or life imprisonment, the proper course of action would be to remand these cases to the appellate court for the conduct of an intermediate review.(People of the Philippines vs. Val Delos Reyes, G.R. No. 130714 & 139634, October 16, 2012)

5.14.3. How appeal taken Sec. 3. How appeal taken. – (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion

perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule.

Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.

5.14.4. Effect of appeal by any of several accused

Petitioner likewise erred in contending that Section 8, Rule 124 of the Rules of Court prohibits the dismissal of the certiorari petition when appellant is represented by a counsel de oficio. First, said provision only refers to dismissal of appeal for abandonment or failure to prosecute. Second, the dismissal of the appeal is conditioned on the appellant's failure to file a brief. An appellant's brief is a pleading filed in an ordinary appeal. Clearly, Section 8 contemplates an ordinary appeal filed before the Court of Appeals. DEUS V. PEOPLE

5.14.5. Grounds for dismissal of appeal

5.15. Search and seizure

Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, a motion to quash the warrant/to retrieve things thereunder seized may be filed for the first time in either the issuing court or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. Garaygay v. People, G.R. No. 138758 (2000)

The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into “prohibited” and “regulated” drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act. People v. Ko, G.R. No. 133254-55 (2001)

5.15.1. Nature of search warrant

The validity of the issuance of a search warrant rests upon the following factors: (1) it must issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. CHAN VS. HONDA MOTORS

In the interest of an effective administration of justice and pursuant to the powers vested in theSupreme Court by the Constitution, the following are authorized to act on all applications for search warrants involving heinous crimes, illegal gambling, dangerous drugs and illegal possession of firearms. SPOUSES MARIMLA V. PEOPLE

5.15.2. Distinguish from warrant of arrest

5.15.3. Application for search warrant, where filed

Venue for the filing of the application for the issuance of search warrant

The above-cited rule provides for the venue where the application for the issuance of a search warrant shall be filed, to wit:

a)any court within whose territorial jurisdiction a crime was committed;b)for compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known; or

c)any court within the judicial region where the warrant shall be enforced;d)if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

5.15.4. Probable cause

A search warrant may be issued only if there is probable cause in connection with only one specific offense alleged in an application on the basis of the applicant’s personal knowledge and his or her witnesses. Tan cannot, therefore, utilize the evidence seized by virtue of the search warrants issued in connection with the case of Robbery in a separate case of Qualified Theft, even if both cases emanated from the same incident. SY TAN VS SY TIONG

5.15.5. Personal examination by judge of the applicant and witnesses

The probable cause must be determined personally by the judge himself in the form of searching questions and answers, in writing and under oath of the complainant and the witnesses he may produce, on facts personally known to them. (Roan vs. Gonzales, 145 SCRA 686; Bache vs. Ruiz, 37 SCRA 823)

5.15.6. Particularity of place to be searched and things to be seizedA search warrant must state particularly the place to be searched and the objects to be seized. The evident purpose for this requirement is to limit the articles to be seized only to those particularly described in the search warrant. This is a protection against potential abuse. It is necessary to leave the officers of the law with no discretion regarding what articles they shall

seize, to the end that no unreasonable searches and seizures be committed. (Uy Kheytin vs. Villareal, 42 Phil. 886 [1920]; Microsoft Corporation, et al. vs. Maxicorp, Inc., G.R. No. 140946, September 13, 2004)

5.15.7. Personal property to be seized

“Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal property:

(a)Subject of the offense;(b)Stolen or embezzled and other proceeds, or fruits of the offense; or(c)Used or intended to be used as the means of committing an offense.

Ownership of personal property subject of search warrant not essential

In Burgos vs. Chief of Staff [133 SCRA 319], the ownership of personal property is unessential. The said rule [Sec. 2, Rule 126] does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. As provided, under sub-section (b) of the above-quoted Section 2, one of the properties that may be owned by one other than the person in whose possession it may be at the time of search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants.

5.15.8. Exceptions to search warrant requirement

To constitute a valid in flagrante delicto arrest under paragraph (a) of Section 5 of Rule 113, two requisites must concur:

(1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and(2) such overt act is done in the presence or within the view of the arresting officer. (Ambre vs. People, G.R. No. 191532, August 15, 2012)

a) Search incidental to lawful arrest    Sec. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

b) Consented search

Determination of Voluntary Consent to a Search

Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given:

(1) the age of the defendant;(2) whether the defendant was in a public or a secluded location;(3) whether the defendant objected to the search or passively looked on;(4) the education and intelligence of the defendant;(5) the presence of coercive police procedures;(6) the defendant’s belief that no incriminating evidence would be found;(7) the nature of the police questioning;(8) the environment in which the questioning took place; and(9) the possibly vulnerable subjective state of the person consenting. It is the State that

has the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and voluntarily given. In this case, all that was alleged was that petitioner was alone at the police station at three in the morning, accompanied by several police officers. These circumstances weigh heavily against a finding of valid consent to a warrantless search.(Luz vs. People of the Philippines, G.R. No. 197788, February 29, 2012)

c) Search of moving vehicle

d) Check points; body checks in airport

Airport Frisking

Persons may lose the protection if the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern about airplane high jacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of safety interests involved, and the reduced privacy expectations associated with airline travel. (People of the Philippines vs. Hadji Socor Cadidia, GR No. 191263, October 16, 2013)

e) Plain view situation

Under the plain view doctrine, objects falling in the “plain view” of an officer, who has a right to be in the position to have that view, are subject to seizure and may be presented as evidence. It applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand, and its discovery inadvertent. (Elenita C. Fajardo vs. People of the Philippines., G.R. No. 190889, January 10, 2011)

f) Stop and frisk situation

g) Enforcement of custom laws

h) Remedies from unlawful search and seizure

May non-parties question validity of search warrant?

It is not correct to say that only the parties to the application for search warrant can question its issuance or seek suppression of evidence seized under it – the proceeding for the issuance of search warrant does not partake of an action where a party complains of a violation of his right by another.(Securities and Exchange Commission vs. Rizza G. Mendoza, G.R. No. 170425, April 23, 2012)

5.16. Provisional remedies

5.16.1. Nature

No notice to the adverse party or hearing on the application is necessary before a writ of preliminary attachment may issue. Mindanao Savings, etc. vs CA, 172 SCRA 480 (1989)

5.16.2. Kinds of provisional remedies

Provisional remedies in civil applicable in criminal cases

Section 1. Availability of provisional remedies. – The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action.

Grounds for attachment

Sec. 2. Attachment. – When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases:

(a) When the accused is about to abscond from the Philippines;(b) When the criminal action is based on a claim for money or property embezzled or

fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and

(d) When the accused resides outside the Philippines.