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Exam guide 2006 Finals

I a) State those who cannot avail of the benefits of Indeterminate Sentence Law? (5 pts) b) State the steps on how to fix the Indeterminate Sentence (5 pts)

Answer: (a) Those who cannot avail the benefits of the ISL are as follows: i. Persons whose offenses are punished by death or life imprisonment. ii. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art 115) iii. Those convicted of misprision of treason (Art 116), rebellion (Art 134), sedition (Art 139), or espionage (Art 117). iv. Those convicted of piracy (Art 122) v. Habitual delinquents (Art 62, par. 5) vi. Those escaped from confinement or those who evaded sentnce (Art 157) vii. Those who violated the terms of the conditional pardon. viii. Those whose maximum period of imprisonment does not exceed one year. ix. Those who are already serving final judgment upon the approval of the ISL. Note: (1) Recidivists are entitled to ISL (People vs. Jaranilla) (2) The offender is not disqualified to avail the benefits of the law even if the crime is committed while he is on parole. (3) The ISL does not apply if the penalty is Destierro because it does not involve imprisonment (people. vs. Laler)

(b) The four simplified yet very effective steps in fixing the indeterminate sentence are the following. (1) Determine the crime committed and the Penalty imposable (PI) (2) Fix the proper degree (PD) by determining if the provision of Art 64 (5), Art 68 and Art. 69 are applicable. Lower the penalty by degree or degrees; (3) Fix the minimum penalty by lowering the penalty by one degree from the penalty imposable (PI) to the offense committed or from the proper degree (PD) if Articles 64 (5), 68 and 69 is applicable without reference to any period. The judge has the discretion to fix the minimum in any period of the minimum penalty; (4) Fix the maximum penalty by going up one degree higher from the minimum particularly to the penalty imposable (PI_ or proper degree (PD) where you immediately came from and look for remaining mitigating or aggravating circumstances if any, and apply them. Fix the proper period. This is the maximum of the indeterminate sentence.

II State the rules as to when and how the death penalty is to be executed including notification and execution? (10 pts) Answer: The rules as to when and how the death penalty is to be executed are as follows. (1) The death penalty shall be executed with preference to any other penalty and shall consist in putting the person under sentence to death by lethal injection. (2) The death sentence shall be executed under the authority of the Director of Bureau of Corrections ensuring that the execution to be administered is sufficient to cause the instantaneous death of the convict. (3) All personnel involved in the administration of lethal injection shall be trained prior to the performance of such task. (4) The authorized physician of Bureau of Corrections, after thorough examination, shall officially make a pronouncement of the convicts death and shall certify thereto in the records of the BC. (5) The death sentence shall be carried out not earlier than one year nor later than 18 months after the judgment has become final and executory without prejudice to the exercise by the President of his executive clemency powers at all times. With respect to the notification and execution of the death sentence, the following rules are followed. (1) The court shall designate a working day for the execution, but not the hour thereof; and such designation shall not be communicated to the offender before sunrise of said day, and the execution shall not take place until after the expiration of at least eight hours following the notification, but before sunset. (2) During the interval between notification and execution, the culprit shall, in so far as possible, be

a. b.

Furnished such assistance as he may request in order to be attended in his last moments by priest or ministers of the religion he professes And to consult lawyers, as well as in order to make will and confer with members of his family or person in charge of the management of his business, of the administration of his properties or of the care of his descendants.

Alternative answer when the question asked: How death penalty is to be executed in consideration with its notification and execution? (1) (2) (3) (4) (5) (6) Death penalty shall be executed with preference to other penalties. The court shall set date of execution, but not the hour thereof. The convict shall not be notified of the execution before sunrise. The execution shall take place after 8 hours from the time of the notification, but before sunset. In between, the convict may be visited by persons authorized by law and may execute a will. Executed not less than a year but not more than 18 months. III Rod, a minor of 14 years of age who acted with discernment, punishable with Reclusion Perpetua to Death. During the trial, he was able to prove the presence of the circumstances of voluntary surrender and passion or obfuscation. Determine his Indeterminate Sentence if he is entitled to the benefits of the ISL? (10 pts) Answer: No. he is not criminally liable. RA 9344 prescribes that person over nine to 15 years of age are not criminally liable. Thus, since ROD is only 14 years of age, regardless if he acted with discernment, is not criminally liable for murder pursuant to the Juvenile Delinquency Act (RA 9344). Moreover, even if he is over 15, he is not still criminally liable because as the ISL dictates, persons convicted and punished by death or RP, (because as held in the People vs. Narvasa, RP is deemed included in the term Life imprisonment, are disqualified from the benefits of the ISL.

IV A and B engaged in a fight. A stabbed B to death. During the arraignment, A pleaded guilty. He was also able to prove the circumstances of lack of intent to commit a grave so wrong and voluntary surrender. It was establish though that the killing happened at nighttime and at the residence of B who give not give provocation. If you were the judge, what penalty are you going to impose upon A? Why? Explain.(10 pts) Answer: I will impose upon A the penalty of Reclusion temporal in its minimum period being guilty in the crime of Homicide. Firstly, A committed Homicide because there is an absence of a qualifying aggravating circumstance of treachery nor evident premeditation to catapult the crime to murder. Homicide is punishable by reclusion Temporal. Secondly, there being three mitigating circumstances, namely, plea of guilty, lack of intent so grave a wrong and voluntary surrender and one aggravating circumstance of dwelling. Dwelling is appreciated because B has not given any provocation.Nighttime cannot be counted as aggravating circumstance because the facts only disclosed that the killing happened at night but never taken advantage by A to facilitate the crime, nighttime is only incidental. Thus, there are three mitigating and only one aggravating circumstances. The law contemplates that if this is the case, the court shall offset each other according to weight and their nature, and apply the foregoing procedures. Thus, the remaining circumstances that can be accounted would be two mitigating circumstances. Therefore, there being two mitigating circumstances, the penalty would be Reclusion Temporal in its minimum period.

V After a heated argument, X fired his gun at Y. As X was not able to take a careful aim Y was not hit. Elmer, a 15-year old boy who was at the right side of Y was however hit. Elmer died as a result. X voluntarily surrendered and during the arraignment, he pleaded guilty. What crime/crimes did x commit? Determine the imposable penalty taking into consideration the ISL. (10 pts) Answer: X is liable in the complex crime of Homicide with Attempted Homicide since this complex crime were the result of a single act by X. Pursuant to Art 48 prescribing the penalty for complex crime, taking into consideration the ISL, the penalty imposable to a complex crime is the penalty of the higher offense. In the case at bar, it would be reclusion temporal being the penalty imposable to the more serious crime of Homicide. Taking into consideration the ISL in determining the minimum period of the penalty, there having two mitigating circumstance of voluntary surrender and plea of guilty without any aggravating circumstance, the penalty should be first lowered by one degree pursuant to Art 64 (5) from reclusion Temporal, which is Prision Mayor. Prision Mayor will then be the starting point in determining the minimum penalty. Thus, applying rule two, the minimum penalty will be fixed to prision Correccional in any of its period as may be determine by the Judge as its minimum of the indeterminate sentence.

Applying rule three in fixing the maximum period of the indeterminate sentence, going up by one degree from prision correccional would be Prision mayor, to be impose on its maximum period as maximum of the indeterminate sentence. There is no remaining circumstance to be considered to apply rule number 4. The maximum period would still be prision mayor on its maximum because under Art 48, the maximum of the ISL in complex crime is always the maximum regardless of any mitigating circumstance that attended the commission of the offense.

VI A was placed on probation for two years. One of the condition imposed was that he should not commit any offense during this period of his probation, After four (4) years. A committed theft. May his probation be revoked? Why? Explain (10 pts) Answer: Yes. The law reflects that the expiration of the probation period alone does not automatically terminate probation. Probation is not coterminous with its period. There must first be issue by the court, an order of final discharge base on the report and recommendation of the probation officer. Only from such issuance can the case of the probationer be deemed terminated and shall operate to restore the probationers all civil rights lost or suspended. In the case at bar, provided that the court has not yet issued an order of final discharge based on the report and recommendation of the probation officer, then the probation of A can be revoked. Otherwise, if there has already an issued final discharge by the court, probation of A cannot be revoked.

VII What is the three-fold rule? Give an example. (10 pts) Answer: It is a rule that when the accused is to suffer several penalties, the maximum duration of his sentence should not exceed three times the length of the most severe. Such maximum period shall in no case exceed forty years. Moreover, the law also contemplates that the three fold-rule applies only when the convict has to serve at least four sentences. Example. Pogi was convicted in five criminal offenses and was sentenced to suffer imprisonment of 6 months, 1 year, 10 years, 12 years and 15 years respectively. Pursuant with the three-fold rule, the most severe penalty is 15 years. Thus, the maximum duration of his sentence shall not exceed 45 years. However since the law contemplates that in no case, the maximum period exceed 40 years, thus, the maximum period of his imprisonment shall not exceed 40 years/

X What is the penalty one (1) degree lower from Arresto Mayor. Explain. (10 pts) Answer: It depends. As held in the Dingalasan Case (Uy Chin Hua vs Dingalasan) In accordance with the order of severity of penalties, the penalty one degree lower from arresto mayor is arresto menor. This is so since Arresto menor is more severe than Destierro, because the former involves imprisonment and the latter, though longer in period/duration, it only involves banishment. However, in accordance with the Graduated scale of penalty, the penalty one degree lower from arresto mayor is Destierro and not arresto menor since the former has a longer duration than the latter.

VIII What is the penalty two (2) degrees lower from Reclusion Temporal Maximum to Reclusion Perpetua? Illustrate. (10 pts) Answer: Prision Correccional in its maximum as minimum to prision mayor to its minimum and medium periods as maximum. This is because the law contemplates that if the penalty compose of one or two indivisible period with a divisible period imposed in its fullest extent, the penalty next lower in degree shall compose of the minimum and medium period of the proper divisible penalty and the maximum period of the divisible penalty of that immediately following in the respective graduated scale. Thus Penalty in Degree Death Penalty imposable RT max to RP Max Reclusion Temporal Med Min Max Prision Mayor Med Min Max Prision Correccional Med Min 2 degrees lower PC max to PM min and med periods 1 degree lower PM max to RT min and med periods Penalty in period Proper degree

Reclusion Perpetua

IX a) What is the effect of death on the criminal and civil liabilities of a convict? Explain (5 pts) b) What is prescription of crime? Explain (5 pts)

a)

The general rule is that, when an accused dies, whether before or after final judgment, his criminal liability is extinguished because one of the juridical conditions of penalty is that it is personal. However, with respect to the accuseds civil liability, the answer becomes qualified. One is that, civil liability may only be extinguished if and only if death occurs before final judgment. This is because the guilt has not yet been proven and the conviction is not yet final and executory. Thus, if death occurs after final judgment, then civil liability is not extinguished. Second is that, during pending appeal, if civil liability is predicated on a source of obligation other than delict or based solely on the crime committed, like contracts, quasi-contracts and torts, then the claim for civil liability survives, despite of the death of the convict.

b)

Prescription of crime refers to the loss or forfeiture of the right of the State to prosecute an offender because of the lapse of time. It is not waivable. Since it is for the benefit of the accused, the period of prescription cannot be extended.

As contemplated by the law, crimes punishable by light penalties like those punishable by arresto menor shall prescribe in two months. Thus, if Pogi committed a light offense punishable by arresto menor on March1, 2007. then the state has two months or 60 days or until April 30, 2007 to prosecute offender. Otherwise, from May 1 onwards, the State has lost or forfeited its right to prosecute Pogi.