CRIMINAL LAW NOVEMBER 7
He only said do you have
So uhm Sge lets review. Number one, Juanito
liable? Juanito is only 14 right so his minority is
exempting. He is exempted from criminal liability. The
key words we would look for in the answers are; No he
is not liable, 14 years old he is exempted. It does not
matter whether *inaudible kay ni ubo si fiscal* Okay so
for Juanito the discernment does not matter. Even if he
acted with discernment he will still be not criminally
liable. So, the discussion on discernment has no bearing
to the answer. Letter b, is he criminally liable, most of
you answered no and yet you said that If he acted with
discernment then he could be liable. Kay? So from the
facts of the case alone can you determine if there was
discernment or not? The facts are very clear because
some of you are rather undecided on whether he should
be liable or not. He is liable. Do not say that if he acted
with discernment because the facts already stated that
he wanted to impress and *inaudible*. Despite
therefore knowing that he should not do it but still he
did it. So anyway, the key words that we are looking for
were mitigating 17 years old acting with discernment.
Is this instigation of entrapment all the sections did not
do well in this because many of you said instigation.
Kinsa man gi instigate ni Mario? He instigated pedrito?
Okay let us say he instigated pedrito. Under the facts of
the case was it pedrito who delivered the shabu? No. So
who delivered the shabu. Juanito. So Juanito was the
one who delivered the shabu did Mario instigate Mario
to deliver the shabu? No he didn’t. Ang iya gi instigate
si pedrito but it’s not even instigation because Mario did
not tell pedrito to call juanito.
shabu? Then he didn’t have shabu. That would be the
end of the story but what he did was on his own because
he wanted to impress on his own without Mario telling
him to do it he called juanito. So Mario did not order
neither pedrito nor Juanito to give the shabu. Diba we
said in instigation there must be the
influencing/convincing to the point it is an order to
commit the crime even if the offender has not decided to
commit the crime the only reason why he committed the
crime was because he was order to comit the crime.
That’s instigation. Do you still have questions?
Did Mario order pedrito/juanito? No. Therefore
there is no instigation. Do you have any questions? Is
something bothering you? Nganu but why is it na
daghan instigation? *Mark Pena asnwers* Murag for us
man gud fiscal the act of asking that he had shabu is
part of instigation. Fiscal replies, diba we discussed in
the casio case remember casio? Casio did not have chix
she didn’t have chix. She said chicks mo dong? Then the
policemen said naa kay chix? Where are you chix? At
the time she offered, she didn’t have chix. The only
reason why she brought chix was because the policemen
asked asa man na imo chix. Okay so. But yet the SC
said that is entrapment not because casio was ordered
to get the chix. At the time the policemen asked asa
imong chix, tanawon ta na imong chix. In essence mura
na gi orderan si casio. And that was the reason why ni
kuha siyag chix. The Sc said no even before the
policemen asked where the chix are, you were already
decided to commit the crime because you offered. You
follow? The point that you should remember is that did
Mario order juanito no he didn’t. Did Mario order
pedrito to call juanito? No it was his own volition. You
follow? Any other question? Because I think something
is bothering you there *audri asked* What would it
change to instigation? Fiscal replies, Mario will ask
pedrito naa kay shabu? Wala? Sige pangitai kog shabu.
Because now you are ordering him to produce shabu.
Because he did not decide yet to commit the crime.
Okay? You follow. But it was said here that he was
trying to impressa and So he was not ordered. Okay?
You follow? Any questions? Yes. *someone asked* Is it
enough for a drug addict to be caught by drug
*inaudible* using Drugs. Under the dangerous drugs
act there several acts constituting different acts these
are different crimes. When you have in your possession
drugs, then that’s a crime of illegal possession. You may
not be an addict but you have in your possession drugs.
But necessarily, when you are an addict you must have
possession of drugs. Obvious? Hahaha.
Fiscal an example of some kind of drug.
“SHAMTE or XANTHE or AMTY” there are also
instances when you don’t possess drugs kay all you have
to do is present your arms and they will inject you. So
you are not in possession. But in shabu necessarily you
have to own in. Do you know how to use shabu? Hahaha
So when you are user and therefore you are an addict
you must also be in possession. Here’s the thing. In
using, you must not be. In order for you to be charged
for using. Do you know the saying Jail the pusher save
the user? So that if you are addict the thrust of the
government is used to be that saying. I don’t know any
more if it still applies. And so with that in mind under
the law the penalty for using for the first time is rehab.
Provided if you are caught in using you must not be in
possession. Because in using the charge of using there
must be no other crimes. Because in possession there is
a penalty. Now here, we are not talking about
possession. We are talking about another crime. The
transaction to sell. Now if it was pedrito who was
buying? It is a crime. If juanito was the one selling?
There is a crime. So pedrito can be criminally liable for
buying. In this case, pedrito will not be charged for the
selling because he did not sell anything to Mario? It was
juanito who sold to Mario so therefore si juanito who
will not liable because he is only 14 but if it pedrito was
the one buying even if he is 17 because he acted with
discernment wala sia g sugo to buy and yet ni buy then
he can be liable but his minority will become a
privileged mitigating circumstance. The crime will be
buying as far as pedrito is concerned. Those are the
important question you need to ask. Determine whether
was the accused already decided to commit the crime.
So Mario will not be liable because this is entrapment.
X liable for robbery number 2? So now you will
notice whether you answered accomplice you will have
points or when you answer principal by indispensable
cooperation you still have points as well. So it does not
matter. But ofcourse if you answer conspirator then
that’s minus points. X is not a conspirator here. E
liable? Ofcourse. Why is he liable? Because he profited
from the proceeds of the crime. Is he a conspirator? The
facts are very clear ha. E was the driver of the getaway
vehicle was not aware of the conspiracy you do not make
a conspirator the facts are very clear already ha do not
make your own facts.
Okay, number 3 nighttime have an effect? That’s
a little confusing here, I thought the explanation for a
while that the explanation was very clear already. Here
there was already a killing. The killing was done during
the night but it was specifically sought so that the
victim will not be able to put up a defense. Now, we said
over and over again that nighttime is not a qualifying
circumstance it is merely ordinary aggravating.
However, even if nighttime is not qualifying because it
is only ordinary aggravating if the purpose of
employing nighttime so that the victim will not be able
to put up a defense that will make nighttime now called
treachery. And so because this is treachery, and
treachery is a qualifying circumstance to murder. So if
youre being asked here, does nighttime have an effect?
Yes of a qualifying circumstance not anymore
aggravating and now the crime will change its nature.
Would your answer be the same? Im reffering to the
first question, will your answer to the first question be
the same? It means letter b refers to the nighttime.
Nganu na abot ta praeter intentionem. Right I know
you know. Peru morattle mo. Okay so, the point of the
question here is that, if the victims did not die the
nighttime will not anymore become qualifying even if
the nighttime is converted to treachery basta the victim
didn’t die and there was no intent to kill it cannot be
qualifying ever ever. It can only be ordinary
aggravating. Some of you said generic ordinary
aggravating. Generic is not quite correct. Remember
generic means it applies to all crimes. Treachery is an
aggravating that only applies to crimes to all persons.
So it’s not generic. Generic is like recidivism. Nighttime
and treachery may not be qualifying if there is no intent
to kill and the victim did not die. But is not generic it is
specific. But never mind. Maybe what you’re trying to
implying is ordinary aggravating. Dili tanan ordinary
aggravating generic. *angelus* So Modifying
circumstances, most of you got the mitigating but there
is no aggravating here right? So if you say therefore
there is no dwelling because they live in the same house.
No self-defense either or defense relatives because there
was no unlawful aggression. But if you said incomplete
self-defense that may be correct. No defense because no
unlawful aggression.
We discussed already complex already complex
and also graduation of penalty so we will go back to
graduation of penalties so that we can relate it to
ISLAW.
Ari ta sa sayun ha, sa penalties which are
divisible. Because here It is indivisible. When the
penalty is indivisible the ordinary mitigating and
ordinary aggravating or even the special aggravating
will not matter. Because we cannot divide. So let us say
that the crime is homicide because here the penalty is
divisible. Now there are two kinds of lowering, degree
and period. So if we lower reclusion temporal because
the crime is only frustrated then we will go there. But if
we lower it because the person is an accomplice we will
go down by a degree. But if the crime is committed by a
person who enjoys privileged mitigating, we always
take into consideration privileged mitigating before
taking into consideration anything else. Remember
special mitigating.
Ang special mitigating lahi ug effect sa special
aggravating why because the effect of Special
Aggravating is to always make it maximum. Example if
it committed by a band/syndicate, if a person is a quasi-
recidivist, always max. This is also the penalty if a
crime is also a complex crime. Diba? Max of what? Max
of the griever crime. So if we say direct assault with
homicide. The griever is homicide that will be the basis.
The penalty will not be here anymore. It will be based
here. Because this is not complex crime. So ordinary
complex crime not special complex crime ha. The
penalty is always maximum. If there are ordinary
aggravating ordinary mitigating we will off set them
and then now will go to the periods. We lower, we
graduate, we either lower or higher, depende asang
daghan mitigating or aggravating. But sometimes the
penalty is not always this. Sometimes the penalty is a
combination. So how do we graduate when the penalty
is a combination. So article 62 and the rest will say that
if diba sa RPC naa pay death. So if the penalty is
Reclusion Perpetua to Death.
Nevermind death anymore. Now there are also
penalties that are queer for example reclusion temporal
max to reclusion perpetua mao nay gi prescribe sa law
you cannot change it because that’s what the law
prescribes ayaw pag buot. Sige, so, this is the penalty
prescribed by law, because these words have different
meanings. Prescribed is different from imposable is
different from imposed. Okay? These are 3 different
meanings. When we say prescribed by law ayaw pag
buot. That’s what the law says. Imposable is the penalty
arrived at after graduating okay so mao na gi ingon sa
law pananglitan homicide plain and simple this is the
penalty prescribed by law but this will not be the
penalty actually imposed because here it will be wrong
for the court to impose this penalty if the crime is
homicide. Is it the penalty prescribed? Yes it the penalty
imposed no. Because in order to impose you have to take
into effect the ordinary aggravating ordinary
mitigating. So if it is homicide you cannot impose the
whole. If there are aggravating mitigating then you can
only impose this. Only this. Okay? Now.
Mao na siyay imposable. Nya dili paman na maoy
ma impose. It’s not yet the penalty the court will
impose. The law decided congress decided to make your
life miserable. And so they made the Indeterminant
Sentence Law. Kay? Under the IPR after graduating
after taking into consideration the different modifying
circumstances. You only arrive at the maximum. So how
do we graduate. Let us say for example that the crime
is homicide committed by a minor who acted with
discernment maybe let us say 16 years old. He pleaded
guilty. Ok? Now, this is the penalty prescribed by law.
Being a minor. Minority is a privileged mitigating. So
we lower 1 degree. Because plea of guilty is an ordinary
mitigating you will now find this penalty. Right? Okay.
This is not the imposable penalty. After you graduate,
you will not yet arrive at the imposable penalty you will
only arrive at the maximum range of the imposable
penalty. You have to find the minimum range and what
is the minimum range? Under the law it should be 1
degree lower from the penalty prescribed. What is the
penalty prescribed for homicide.
Temporal does that mean 1 degree lower is
presion mayor? No. Nganu man? Because if there is a
privileged mitigating okay that is only true if there is
no privileged or there is no circumstance which has the
same effects as privileged. What are circumstance that
has the same effect as privileged? Special mitigating.
Meaning two or more ordinary without aggravating of
any kind. Now, the rule is when there is privileged or
special mitigating or any other kind of mitigating which
has the same effect as privileged. You will have to take
it into consideration. First, that’s why it’s called
privileged. Hawod gyud na siya entitled. So now it
becomes the sort of penalty you have to reckon the
penalty 1 degree lower not from this but this. Minimum
range under islaw will not be here. But here. Otherwise,
you will have a situation where ang imong maximum
mas ubos pa sa imong minimum. Because ISLAW says
the penalty prescribed by law anywhere. Anywhere
within that degree. It can be min, med, max. That’s why
we call it indeterminate because we cannot determine.
It is left at the discretion of the judge. So let us for
example that, what was the whole range of Presion
mayor gani? 6 and 1 to 12 noh? Which means to say that
the range of this is 6 to 8, 8 to 10, 10 to 12. Right? So
mao na siya. Kani siya. Ang minimum range under
ISLAW, remember 6 baya na siya, kana 6 months kani
6 years right? Okay. So now. It means that the judge
will only say because the judge is not allowed to say,
your penalty is Presion correctional to presion mayor.
Because that is not a penalty that is specific. And so if
you’ve read your cases you will find that the judge will
actually say the number of years and months. So since
we are identifying this as the maximum range it means
that the judge can say 6 years and 5 months 7 years 2
months or 7 years 8 months wa ta kahibaw basin mao
na ki tayan sa swer tres. But of course not, it will
depend on the facts of the case. There are some facts of
the case which are not clear. Maybe something else was
said or was done. Mo ingon ang judge for example 1 year
to 7 years. Will that be a correct penalty? the answer
would be yes. Because 1 year is within the minimum
range. This is the minimum range and 1 year is sakto.
Kay sa minimum range it can be anywhere, never mind
max med min. So if the judge will say 1 year of PC med
or min to 7 years of PM min that would be a correct
penalty because that penalty is within the range.
Within the range of the min and the range of the max.
Now, like I said nay mga quirky na penalties it does not
usually follow this thing. Na mao ragyud ni mao ragyud
na. So for example if this is the penalty RT max to RP
kay. First of all it is a divisible penalty? Why is it
important for us to determine if this is divisible or
indivisible because here’s the thing you know that
under the ISLAW you don’t apply ISLAW in indivisible
penalties. That means that no ISLAW for Life
imprisonment or RP wala nagyud na minimum range. mathematics There is a formula therefore. This is what
Mao ragyud na siya fixed price. Hahaha okay? Now so, pp vs liang call a complex penalty. Can we now
but so therefore the penalty is RP never mind finding therefore apply islaw here? The answer is yes because
the minimum range or max. When it is indivisible islaw the law says it is now divisible. So this is now divisible
does not apply. The ordinary mitigating and ordinary the 1 degree lower is now this anywhere. So now in this
aggravating will not apply as well to indivisible illustration this is the penalty prescribed. This is the
penalties. However, privileged mitigating, entitled, so penalty imposable and the actual number of years
therefore even if this is the penalty where there is a according to the judge is the actually penalty imposed.
privileged mitigating you will have to go down and once This is also important because this will be the basis for
you go down the penalty will now be divisible. And once probation. So we will continue tomorrow. Please read up
it is divisible you can now apply ISLAW right? Kay to succession.
manaog naman ka. Special mitigating is also true. But
that’s the easy part. So it is possible that the prescribed
penalty is this one. So if the prescribed penalty is
divisible or indivisible because if it is indivisible then
we cannot apply ISLAW anymore. So is this divisible or
indivisible? Now according to pp vs liang and other
cases this is divisible. Divisible ni ha. How do we divide
that? The law says, article 62. Basta mao na siya haha.
That’s one degree lower. Now how do we divide this into
periods? Because now were are saying this is divisible,
the max will be RP having already arrived at the max
what is now our medium, according to pp vs liang says
yes you will have to find the minimum and medium. It
is incorrect to prescribe or impose the penalty of RP max
just because there is no aggravating. If there is
aggravating no problem. But if walay aggravating or
mitigating it is incorrect to impose this penalty.
Therefore this should be divided by 2 the max will be
divided by 2. The lower half will constitute the min and
the higher half will be medium. You follow? The
principle is whats important. Lawyers are not good at