JUSTIFYING OR EXEMPTING CIRC

1. JUSTIFYING OR EXEMPTING CIRC Justifying Circumstances (Art 11) – The actor commits no crime since the circumstances enumerated in Art 11, justify his acts because they are in accordance with law. The actor is neither criminally liable, nor civilly liable for damages, except in Article 11, paragraph 4 when a person commits an act to avoid a greater evil or injury. The basis of his civil liability is found in Art 432 of the Civil Code. Exempting Circumstances (Art 12) – The actor’s exemption is based on either of the following: complete absence of intelligence, freedom of action, criminal intent, or absence of negligence. However, he is civilly liable for damages. Absolutory Causes – The accused commits a crime but by reason of public policy and public sentiment, no penalty is provided for his acts. Art. 432. The owner of a thing has no right to prohibit the interference of another with the same, if it is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner is much greater. But the owner may demand indemnity for the damage from the person benefited

2. SHIFTING OF THE BURDEN OF PROOF • Admission of allegations; cures all defects in the Information – Accused must prove his defense on the strength of his own evidence, not on the weakness of the prosecution; for even if it were weak it could not be disbelieved after he had admitted the killing. [People v. Cario, GR 123325, 31 March 1998, 288 SCRA 404, cited in People vs. Ulep, GR 132547, September 20, 2000] • ANGCACO vs. PEOPLE 378 SCRA 297 • LADIANA vs. PEOPLE (393 SCRA 419, GR 144293, December 4, 2002)

3. SELF DEFENSE • URP: UA whether complete or incomplete • Defense of Property: Arts 429 (self-help), 536, 539 of the Civil Code, PP vs. NARVAEZ • PP vs. Rabanal: Aggression has ceased • ALMEDA v. CA: imminent danger • Battered woman syndrome • Reasonableness: Rabanal on number/nature • Provocation: US vs. LAUREL • Indicators: flight, number/nature of wounds

4. AVOIDANCE OF A GREATER EVIL • NORMA HERNANDEZ • TY vs. PEOPLE (G.R. 149275, September 27, 2004, 439 SCRA 220) – If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable

5. FULFILLMENT OF DUTY OR PERFORMANCE OF RIGHT • Mistake of Fact: OANIS • People vs. DELIMA • Self-Help (Art 429): PP vs. Mamerto Narvaez • PEOPLE vs. ERNESTO ULEP (GR 132547, September 20, 2002) • POMOY vs. PEOPLE (G.R. 150647, September 29, 2004)

6. EXEMPTING CIRCUMSTANCES • Insanity – no temporary insanity • Formigones, Bonoan and Anacito Opuran re Cognition Test or complete absence of intelligence • Somnambulism – PP vs. TANEO and motive

7. RA 9344 • Sec 6 on Minimum Age of Criminal Resp. • Garvida vs. Sales and Art 13CC on 15 years • Discernment (Guevara vs. Almodovar, People v. Alcabao) • ALTERNATIVE: Intervention or Diversion - Under 15 to 15: intervention, released to parents - Over 15 to under 18, w/o D: intervention - Over 15 to under 18, w/ D: depending on penalty if not more than 6 years – extrajud. Diversion more than 6 years, not more than 12 – Jud. Diversion • Suspension of Sentence – automatic, even if 18 at promulgation but under 21, but see Declaratur vs. Gubaton on Art 192 and disqualification for suspension

8. ABSOLUTORY CAUSES • Art 247: PP vs. Francis Abarca • Instigation vs Entrapment (US vs. Phelps and PP vs. Lua Chua): facilities & decoys • PP vs. SY (GR No. 171397, September 27, 2006), objective test to determine validity of test buy

9. EFFECTS OF AC-MC (Indiv. Pen.) Art 63 • RA 9346: apply only when proper penalty is death • Single indivisible: Apply regardless of MC-AC • No MC or AC: apply lower penalty • 1 or more AC no MC: apply higher penalty (RA 9346) • 1 or more MC no AC: apply lower penalty • Both AC-MC: offset then apply

10. EFFECTS AC-MC (Div. Pen.) Art 64 • When there are neither AC nor MC – medium (par 1) • When there is only 1 MC and no AC – minimum (par 2) • When there is only 1 AC and no MC – maximum (par 3) • If both AC and MC are present – offset (par 4) In People vs. Oraza, 83 Phil 633, even if there are 4 MC and no MC, the accused cannot demand that 2 MC’s would be used to lower the penalty by 1 degree and then apply the 2 remaining MC’s to lower the same to the minimum period. The law allows the court to fix the penalty in the period that it may deem applicable. • When there are 2 or more MC and no AC – apply penalty next lower in degree in the period that court may deem applicable

11. EFFECTS OF AC or MC on penalty • AC which are not taken into account in increasing the penalty: • AC constituting a crime • AC in defining a crime and prescribing a penalty • AC which are inherent – necessarily accompany its commission (e.g. use of fire in arson, EP in robbery or estafa) • AC or MC which shall only aggravate or mitigate liability of persons to whom they are attendant: • AC/MC arising from moral attributes (evident premeditation) • AC/MC arising from private relations with offended party (relationship, obvious ingratitude, abuse of confidence) • AC/MC arising from personal cause (Taking advantage of public position, Insult or disrespect of rank, age or sex, crime committed in the dwelling of the offended party, if the latter has not given provocation) • AC or MC which shall aggravate or mitigate the liability of persons who had KNOWLEDGE of them at the time of execution or their cooperation therein: • Those consisting in the material execution • Those constituting means to accomplish the crime

12. KINDS OF MITIGATING CIRC. • Ordinary MC – Lowers the penalty to the minimum period. These are offset by a generic aggravating circumstances • Privileged MC • Art 68. above 15 but under 18 - 1 degree • Art 69. Incomplete justifying or mitigating – 1 or 2 degrees (unlawful aggression required in incomplete self-defense, defense of relatives or strangers) • Art 67. Incomplete accident – penalty akin to Art 365 • Other PMIC applicable only to certain crimes, i.e. illegal detention for less than 3 days, infanticide to conceal dishonor, abortion to conceal dishonor • Art 64(5) Lowering the penalty by 1 degree is not a privileged MC because it only applies to divisible penalties

13. PROVOCATION vs. VINDICATION • Provocation can only be committed against the accused while the grave offense could be committed against spouse, etc. • Provocation need not constitute a grave offense • Provocation must immediately precede the act while the grave offense need only be proximate, allowing a certain time interval

14. PASSION AND OBFUSCATION Passion & obfuscation must arise from lawful sentiments and not in the spirit of revenge, resentment or unlawful motives – COMMON LAW RELATIONS: US vs. Hicks, general rule: People vs. De la Cruz, 22 Phil 429, with another man in flagrante, impulse from revelation of unfaithfulness People vs. Engay (CA, 47 OG 4306), 15 years when the man married another woman P & O not mitigating when committed in a spirit of lawlessness: People vs. Sanico (CA 46 OG 98), PEOPLE vs. MARCELO BATES (400 SCRA 95; GR 139907, March 28, 2003)

15. Voluntary Surrender and Plea of Guilty • Voluntary Surrender; The surrender must be voluntary: • JOEL LUCES vs. PEOPLE (395 SCRA 524; GR 149492, January 20, 2003) – fled from the crime scene • Plea of Guilt; The offender should have spontaneously confessed his guilt: In People v. Sabilul, a conditional plea of guilty is not a mitigating circumstance. • Plea of guilt; That the confession must be made before the presentation of evidence for the prosecution: • PEOPLE vs. DANIELA (401 SCRA 519; GR 139230, April 24, 2003) – improvident plea of guilty after prosecution started presenting its evidence

16. KINDS OF AGGRAVATING CIRC. • Generic Aggravating Circumstances: • Qualifying Circumstances: • Inherent Aggravating Circumstances: • Specific Aggravating Circumstances: People vs. Escote, GR 140756, April 4, 2003 • Special Aggravating Circumstances: These are considered in imposing the death penalty for those offenses under RA 7659 or qualified rape under RA 8353. This AC imposes a mandatory imposable penalty which is not offset by ordinary mitigating circumstances. Example: Abusing public position or a crime committed by an organized crime group or crime syndicate under Art 62 (par. 1), ransom for kidnapping (Art 267); All types of AC should be alleged in the Information: Under Rule Sec 9 110, all qualifying and aggravating circumstances must be stated in ordinary concise language, in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its QC and AC and for the court to pronounce judg

17. ABUSE OF PUBLIC OFFICE • Not aggravating when the offender’s public office is an element of the offense: This is not aggravating in malversation or falsification by public officials, because it is inherent in these crimes. Another example is Art. 171, where falsification is committed by a public officer, either because: he prepared the falsified document, or he is the custodian of the document, or that he simply participated in making the falsified document. • The mere fact that a gun is used by a policeman to commit the crime is not aggravating: There must be independent proof that he abused his public position in committing the crime. • This is a special aggravating circumstance: Art 62 (1A) provides that if advantage is taken by the offender of his public position while committing a felony, the maximum penalty shall be imposed. Thus, this cannot be offset by an Ordinary Mitigating Circumstance. • Death as mandatory imposable penalty in rape: RA 8353 imposes the death penalty if the offender is a member of the AFP, PNP or other law enforcement or penal institution and he takes advantage of his public position to facilitate the rape

18. DWELLING • Offended Party Must Give No Provocation:If the provocation is not immediate, the AC can still be appreciated. • Inherent in robbery with force upon things: These crimes are necessarily committed inside the dwelling of the victim. • The dwelling must be used exclusively for residential purpose: It is not aggravating if the dwelling is utilized for commercial purposes since the house is no longer used exclusively for peace and serenity. • Dwelling also includes dependencies of the house such as the foot of the staircase and the enclosure under the house – in People v. Joya (237 SCRA 9) dependency arises when there is a common door between a store and a house. If the door is separate, then they are separate and there is no AC of dwelling. It has also been held that even if a store were not used exclusively for rest and comfort but shares a common door, dwelling would still be attendant. The store is a dependency and is incidental to the house [some houses may occasionally sell certain goods and wares]. But in People v. Caliso, it is not appreciated if both parties are occupants of the same house.

19. REPEAT OFFENDERS • RECIDIVISM – At the TIME OF TRIAL, previously convicted by final judgement of another crime embraced in the same title • Reiteracion or Habitualitypreviously punished for an offense equal or greater penalty; or 2 or more crimes to which it attaches a lighter penalty • Habitual Delinquency or Multi-Recidivism in Art 62 – w/n 10 years, 3rd time: serious or less serious physical injuries, robbery, theft, estafa (not a separate offense but a separate and additional penalty) • Quasi-Residivism (Art 160) – committing a crime while serving sentence (another offense)

20. EVIDENT PREMEDITATION • PEOPLE vs. FELICIANO (GR. 127759-60, September 24, 2001) police men at police station; no EP – When there is no showing how and when the plan to kill was decided or what time had elapsed before it was carried out, there is no evident premeditation. • PEOPLE vs. FELIX VENTURA (GR 148145-46, July 5, 2004) walked for 3 to 4 kilometers for more than 1 hour – dark, conscious – EP - act of arming themselves with a gun and a knife constitutes direct evidence of a careful and deliberate plan to carry out a killing.

21. TREACHERY • TREACHERY SPECIFIC TO CRIMES AGAINST PERSONS (People vs. Escote, supra) • Means-methods-forms must be consciously adopted • People vs. Inocencio Gonzales (GR 139542, Jun 21’01) • Treachery refers to the means, hence present in aberration ictus - People vs. Gilbert Basao, GR 128286, July 20, 1999 – assassination of PC Lieutenant, wife • CONTINUOUS AGGRESSION: (a) when the aggression is continuous, treachery must be present in the beginning of the assault, or at the incipient stage or at the offset (People v. Cañete); and (b) when the assault was not continuous in that there was an interruption, it is sufficient that treachery was present at the moment the fatal blow was given (US v. Baluyot)

22. IGNOMINY • People vs. Torrifiel – cogon grass • People vs. Saylan – dog style • People vs. Bumidang – rape in front of father