Criminal Law



(and the Indeterminate Sentence Law and the Probation Law)


Silliman University

  READ ARTICLES 21 TO 88 BUT SKIP ARTICLE 48 – include RA 9346, Indeterminate Sentence Law, Probation Law


1.           People vs. De la Cruz, No. L-45485, September 19, 1978, 85 SCRA 285 – life imprisonment vs. reclusion perpetua

2.           PEOPLE vs. LUCAS (GR.. 108172-73, May 25, 1994, 232 SCRA 537) – indivisibility of reclusion perpetua as a penalty

3.           Bayot vs. Sandiganbayan, GR L-61776 to L-61891, Mar 23’84 – retroactive application of preventive suspension

4.           People vs. Larry Mahinay (GR 122485, Feb 1’99) wherein the accused was charged of rape with homicide which has a single penalty of death under Art 335. Note that under the 2000 Rules on Criminal Procedure, aggravating & qualifying circumstances are now required to be alleged in the Information, otherwise they are not considered in raising the penalty.

5.           PEOPLE vs. AVECILLA (GR No. 117033, Feb. 15, 2001)

6.           RA 9346

7.           PEOPLE vs. ALFREDO BON (G.R. No. 166401, October 30, 2006)

8.           Indeterminate Sentence Law

·         People vs. Martin Simon, please check citation, its a 1990’s case

·         People vs. Lampaza, 319 SCRA 422

·         People v. Gonzales (73 PHIL 549)

9.           Probation Law

·         Soriano vs. CA, 304 SCRA; GR 123936; March 4, 1999

·         Pablo Francisco vs. Court of Appeals, et. al., [243 SCRA 348; April 6, 1995; G.R. No. 108747)

·         Pablo vs. Judge Castillo, August 3, 2000


1.       Under Sec 38, RA 9344, sentences are automatically suspended (no need for Motion). If a child is more than 18 at the time of promulgation, his sentence may still be suspended provided he is not yet 21 years of age. But in Declarator vs. Gubaton (GR 159208, August 2006), SC held that if the penalty is RP, D or LI, his sentence shall not be suspended pursuant to Art 192, PD 603, which is still in force and effect.

2.       Under Section 66, RA 9165, the sentence of a child over 15 at the time of commission but not more than 18 at the time of promulgation may be suspended. But the child should not have been convicted of any offense under the RPC or special laws. He shall be under the DDB’s supervision for a term within 6 to 18 months.

·         Said provision does not distinguish nor disqualify offenders penalized by RP, LI or D

3.       Child offenders are always qualified to avail of probation: Under the probation law, offenses with penalties exceeding 6 years are not probationable.

·         However, under Sec 42, RA 9344, a child who is convicted is always eligible for probation regardless of the penalty

·         Sec 70, RA 9165 also provides for the probation of first time minor offenders, regardless of the penalty. But RA 9165 provides that probation shall not be allowed if the accused is convicted of drug trafficking. This applies to minor offenders

4.       Note that under Sec 98, RA 9165, penalty of LI to D shall be considered as RP to D. This is intended to allow minors to avail of the PMC of minority, under the Graduated Scales in Art 71 RPC. By analogy, this may also apply if the penalty is LI.


  1. Sec 70 of RA 9165 (Comprehensive Dangerous Drugs Law of 2002) allows the grant of probation even if the accused is convicted of a penalty exceeding 6 years, provided he is a first time minor offender.

IMPLICATION:  A minor, first time offender can apply for probation in addition to a suspended sentence, even if his penalty is above 6 years..

  1. Sec 98 provides: “Notwithstanding any law, rule or regulation to the contrary, the provisions of the RPC, as amended, shall not apply to the provisions of this Act, except in the case of minor offenders.  While the offender is a minor, the penalty for acts punishable by life imprisonment to death shall be reclusion perpetua to death.

RA 9165 does not follow the technical nomenclature of penalties under the RPC, thus, the penalty for possession of shabu above 50 grams shall be life imprisonment to death and possession of 10 grams to 50 grams thereof is punishable by life imprisonment.

IMPLICATIONS:  The Revised Penal Code shall apply to a minor whose acts are penalized by life imprisonment to death such that if he is caught in possession of shabu exceeding 50 grams, his penalty shall be reclusion perpetua to death.  Thus, he can avail of the benefits of a privilege mitigating circumstance under Art 68 and quite possibly the indeterminate sentence law.

Consider a case of two minors, both 14 years of age. A is caught in possession of 11 grams of shabu while B is caught with 60 grams of shabu.

          What are the benefits available to A?

A can avail of the benefit of a suspended sentence pursuant to Sec 66 of RA 9165.  He can also apply for probation provided he is a first time offender. But if his application for probation is not granted, then he shall suffer the penalty of life imprisonment.  He is not entitled to a privilege mitigating circumstance because Art 68 of the RPC only applies if the penalty follows the technical nomenclature of the RPC (i.e. reclusion perpetua, reclusion temporal, prison mayor etc)

But what are the benefits available to B?

Aside from a possible suspended sentence and probation, B is entitled to a privilege mitigating circumstance that could lower his penalty by two degrees.  Since he is liable for reclusion perpetua to death and he is 14 years old, his penalty can be lowered by two degrees, or prision mayor, albeit the fact that he was caught in possession of a larger amount of shabu.  This being the case, he is also entitled to an indeterminate penalty with a minimum term of anywhere within the range of prision correccional.  Thus, theoretically, B is eligible for parole after only 6 months and 1 day of imprisonment.

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