People v. Temporada

EN BANC

[G.R. No. 173473. December 17, 2008.]

PEOPLE OF THE PHILIPPINES, appellee, vs. BETH TEMPORADA, appellant.

D E C I S I O N

YNARES-SANTIAGO, J p:

Before us for review is the February 24, 2006 Decision 1 of the Court of Appeals (CA), affirming with modification the May 14, 2004 Decision 2 of the Regional Trial Court (RTC) of Manila, Branch 33, convicting accused-appellant Beth Temporada of the crime of large scale illegal recruitment, or violation of Article 38 of the Labor Code, as amended, and five (5) counts of estafa under Article 315, par. (2) (a) of the Revised Penal Code (RPC). aAHDIc

The antecedents, as found by the appellate court, are as follows:

From September 2001 to January 2002, accused Rosemarie "Baby" Robles, Bernadette Miranda, Nenita Catacotan and Jojo Resco and appellant Beth Temporada, all employees of the Alternative Travel and Tours Corporation (ATTC), recruited and promised overseas employment, for a fee, to complainants Rogelio Legaspi, Jr. as technician in Singapore, and Soledad Atle, Luz Minkay, Evelyn Estacio and Dennis Dimaano as factory workers in Hongkong. The accused and appellant were then holding office at Dela Rosa Street, Makati City but eventually transferred business to Discovery Plaza, Ermita, Manila. After complainants had submitted all the requirements consisting of their respective application forms, passports, NBI clearances and medical certificates, the accused and appellant, on different dates, collected and received from them placement fees in various amounts, viz.: a) from Rogelio Legaspi, Jr. — 57,600.00; b) from Dennis Dimaano — P66,520.00; c) from Evelyn Estacio — P88,520.00; d) from Soledad Atle — P69,520.00 and e) from Luz Minkay — P69,520.00. As none of them was able to leave nor recover the amounts they had paid, complainant lodged separate criminal complaints against accused and appellant before the City Prosecutor of Manila. On November 29, 2002, Assistant City Prosecutor Restituto Mangalindan, Jr. filed six (6) Informations against the accused and appellant, one for Illegal Recruitment in Large Scale under Article 38 (a) of the Labor Code as amended, and the rest for five (5) counts of estafa under Article 315 paragraph 2 (a) of the Revised Penal Code.

The Information for large scale illegal recruitment reads:

Criminal Case No. 02-208371:

"The undersigned accuses ROSEMARIE "BABY" ROBLES, BERNADETTE M. MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO . . . .

That in or about and during the period comprised between the months of September 2001 and January 2002, inclusive, in the City of Manila, Philippines, the said accused, representing themselves to have the power and capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully, unlawfully for a fee, recruit and promise employment to REGELIO A. LEGASPI, JR., DENNIS T. DIMAANO, EVELEYN V. ESTACIO, SOLEDAD B. ATTE and LUZ MINKAY without first having secured the required license from the Department of Labor and Employment as required by law, and charge or accept directly or indirectly from said complainant[s] the amount of PH57,600.00, PH66,520.00, PH88,520.00, PH69,520.00, PH69,520.00, respectively, as placement fees in consideration for their overseas employment, which amounts are in excess of or greater than that specified in the scheduled of allowable fees prescribed of the POEA and without reasons and without fault of the said complainants, failed to actually deploy them and failed to reimburse them the expenses they incurred in connection with the documentation and processing of their papers for purposes of their deployment.

Contrary to law."

Except for the name of private complainant and the amount involved, the five (5) Informations for estafa contain substantially identical averments as follows:

Criminal Case No. 02-208372:

"The undersigned accuses ROSEMARIE "BABY" ROBLES, BERNADETTE M. MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO . . . .

That in or about and during the period comprised between November 23, 2001 and January 12, 2002, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud ROGELIO A. LEGASPI, JR., in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representations which they made to said ROGELIO A. LEGASPI, JR., prior to and even simultaneous with the commission of the fraud, to the effect that they have the power and capacity to recruit and employ ROGELIO A. LEGASPI, JR., as technician in Singapore and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, induced and succeeded in inducing said ROGELIO A. LEGASPI, JR., to give and deliver, as in fact he gave and delivered to said accused the amount of P57,600.00 on the strength of said manifestations and representations said accused well knowing that the same were false and fraudulent and were made solely for the purpose of obtaining, as in fact they did obtain the amount of P57,600.00, which amount, once in their possession, with intend to defraud, they willfully, unlawfully and feloniously misappropriated, misapplied and converted the same to their own personal use and benefit, to the damage and prejudice of said ROGELIO A. LEGASPI, JR. in the aforesaid amount of P57,000.00 Philippine Currency. EHaCID

Contrary to law."

The other four (4) Informations for estafa involve the following complainants and amounts:

1.	DENNIS T. DIMAANO	P66,520.00
2.	EVELYN V. ESTACIO	P88,520.00
3.	SOLEDAD B. ATLE	P69,520.00
4.	LUZ T. MINKAY	P69,520.00 3

Only appellant was apprehended and brought to trial, the other accused remained at large. Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. After joint trial, on May 14, 2004, the RTC rendered judgment convicting appellant of all the charges:

WHEREFORE, the prosecution having established the GUILT of accused Beth Temporada BEYOND REASONABLE DOUBT, judgment is hereby rendered CONVICTING the said accused, as principal of the offenses charged and she is sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of Five Hundred Thousand Pesos (P500,000.00) for illegal recruitment; and the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum, to nine (9) years and one (1) day of prision mayor, as maximum for the estafa committed against complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum to ten (10) years and one day of prision mayor as maximum each for the estafas committed against complainants, Dennis Dimaano, Soledad B. Atte and Luz T. Minkay; and the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum, to eleven (11) years and one (1) day of prision mayor as maximum for the estafa committed against Evelyn Estacio.

The accused is also ordered to pay jointly and severally the complainants actual damages as follows: ESTAIH

1.	Rogelio A. Legaspi Jr.	P57,600.00
2.	Dennis T. Dimaano	66,520.00
3.	Evelyn V. Estacio	88,520.00
4.	Soledad B. Atte	66,520.00
5.	Luz T. Minkay	69,520.00

SO ORDERED. 4

In accordance with the Court's ruling in People v. Mateo, 5 this case was referred to the CA for intermediate review. On February 24, 2006, the CA affirmed with modification the Decision of the RTC: CaEATI

WHEREFORE, with MODIFICATION to the effect that in Criminal Cases Nos. 02-208373, 02-208375, & 02-208376, appellant is sentenced to suffer the indeterminate penalty of six (6) years of prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum; and in Criminal Case No. 02-208374, she is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum, to twelve (12) years and one (1) day of reclusion temporal minimum, as maximum, the appealed decision is AFFIRMED in all other respects. 6

Before this Court, appellant ascribes the lone error that the trial court gravely erred in finding her guilty of illegal recruitment and five (5) counts of estafa despite the insufficiency of the evidence for the prosecution.

We affirm the Decision of the CA, except as to the indeterminate penalties imposed for the five (5) counts of estafa.

Article 13 (b) of the Labor Code defines recruitment and placement thusly:

ART. 13. Definitions. — . . .

(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.

To constitute illegal recruitment in large scale, three (3) elements must concur: (a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; (b) the offender undertakes any of the activities within the meaning of "recruitment and placement" under Article 13 (b) of the Labor Code,or any of the prohibited practices enumerated under Article 34 of the said Code (now Section 6 of R.A. No. 8042); and, (c) the offender committed the same against three (3) or more persons, individually or as a group. 7 cTIESD

In the case at bar, the foregoing elements are present. Appellant, in conspiracy with her co-accused, misrepresented to have the power, influence, authority and business to obtain overseas employment upon payment of a placement fee which was duly collected from complainants Rogelio Legaspi, Dennis Dimaano, Evelyn Estacio, Soledad Atle and Luz Minkay. Further, the certification 8 issued by the Philippine Overseas Employment Administration (POEA) and the testimony of Ann Abastra Abas, a representative of said government agency, established that appellant and her co-accused did not possess any authority or license to recruit workers for overseas employment. And, since there were five (5) victims, the trial court correctly found appellant liable for illegal recruitment in large scale.

Appellant insists that she was merely an employee of ATTC and was just "echoing the requirement of her employer". She further argues that the prosecution failed to prove that she was aware of the latter's illegal activities and that she actively participated therein. In essence, she controverts the factual findings of the lower courts.

The contention is untenable.

An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. 9 Appellant actively took part in the illegal recruitment of private complainants. Rogelio Legaspi testified that after introducing herself as the General Manager of ATTC, appellant persuaded him to apply as a technician in Singapore and assured him that there was a job market therefor. In addition to the placement fee of P35,000.00 which he paid to accused Bernadette Miranda, he also handed the amount of P10,000.00 to appellant who, in turn, issued him a receipt for the total amount of P45,000.00. Upon the other hand, Soledad Atle and Luz Minkay, who applied as factory workers in Hongkong through co-accused, Emily Salagonos, declared that it was appellant who briefed them on the requirements for the processing of their application, and assured them and Dennis Dimaano of immediate deployment for jobs abroad. For her part, Evelyn Estacio testified that aside from the placement fee of P40,000.00 that she paid to co-accused "Baby" Robles in connection with her purported overseas employment, she also gave appellant P10,000.00 for which she was issued a receipt for the amount of P5,000.00. CIAacS

The totality of the evidence, thus, established that appellant acted as an indispensable participant and effective collaborator of her co-accused in the illegal recruitment of complainants. As aptly found by the CA:

Without doubt, all the acts of appellant, consisting of introducing herself to complainants as general manager of ATTC, interviewing and entertaining them, briefing them on the requirements for deployment and assuring them that they could leave immediately if they paid the required amounts, unerringly show unity of purpose with those of her co-accused in their scheme to defraud private complainants through false promises of jobs abroad. There being conspiracy, appellant shall be equally liable for the acts of her co-accused even if she herself did not personally reap the fruits of their execution. We quote with approval the trial court's findings on the matter:

". . . It is clear that said accused conspired with her co-accused Rosemarie "Baby" Robles, Bernadette M. Miranda, Nenita Catacotan, and Jojo Resco in convincing complainants . . . to apply for overseas jobs and giving complainants Soledad Atle, Luz Minkay and Dennis Dimaano guarantee that they would be hired as factory workers in Hongkong, complainant Rogelio Legaspi, as Technician in Singapore and Evelyn Estacio as quality controller in a factory in Hongkong, despite the fact that the accused was not licensed to do so.

It should be noted that all the accused were connected with the Alternative Travel and Tours Corporation (ATTC). Accused Beth Temporada introduced herself as ATTC's General Manager. Said accused was also the one who received the P10,000.00 given by complainant Rogelio Legaspi, Jr. and the P10,000.00 given by complainant Evelyn Estacio as payment for their visa and plane ticket, respectively." 10

Consequently, the defense of appellant that she was not aware of the illegal nature of the activities of her co-accused cannot be sustained. Besides, even assuming arguendo that appellant was indeed unaware of the illegal nature of said activities, the same is hardly a defense in the prosecution for illegal recruitment. Under The Migrant Workers and Overseas Filipinos Act of 1995, a special law, the crime of illegal recruitment in large scale is malum prohibitum and not malum in se. 11 Thus, the criminal intent of the accused is not necessary and the fact alone that the accused violated the law warrants her conviction. 12 TSDHCc

In the instant case, we find no reason to depart from the rule that findings of fact of the trial court on the credibility of witnesses and their testimonies are generally accorded great respect by an appellate court. The assessment of credibility of witnesses is a matter best left to the trial court because it is in the position to observe that elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying, which opportunity is denied to the appellate courts. 13 Further, there is no showing of any ill-motive on the part of the prosecution witnesses in testifying against appellant. Absent such improper motive, the presumption is that they were not so actuated and their testimony is entitled to full weight and credit.

Section 7 (b) of R.A. No. 8042 prescribes the penalty of life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00 for the crime of illegal recruitment in large scale or by a syndicate. The trial court, therefore, properly meted the penalty of life imprisonment and a fine of P500,000.00 on the appellant.

Anent the conviction of appellant for five (5) counts of estafa, we, likewise, affirm the same. Well-settled is the rule that a person convicted for illegal recruitment under the Labor Code may, for the same acts, be separately convicted for estafa under Article 315, par. 2 (a) of the RPC. 14 The elements of estafa are: (1) the accused defrauded another by abuse of confidence or by means of deceit; and (2) the offended party or a third party suffered damage or prejudice capable of pecuniary estimation. 15 The same evidence proving appellant's criminal liability for illegal recruitment also established her liability for estafa. As previously discussed, appellant together with her co-accused defrauded complainants into believing that they had the authority and capability to send complainants for overseas employment. Because of these assurances, complainants parted with their hard-earned money in exchange for the promise of future work abroad. However, the promised overseas employment never materialized and neither were the complainants able to recover their money. HaIATC

While we affirm the conviction for the five (5) counts of estafa, we find, however, that the CA erroneously computed the indeterminate penalties therefor. The CA deviated from the doctrine laid down in People v. Gabres; 16 hence its decision should be reversed with respect to the indeterminate penalties it imposed. The reversal of the appellate court's Decision on this point does not, however, wholly reinstate the indeterminate penalties imposed by the trial court because the maximum terms, as determined by the latter, were erroneously computed and must necessarily be rectified.

The prescribed penalty for estafa under Article 315, par. 2 (d) of the RPC, when the amount defrauded exceeds P22,000.00, is prisión correccional maximum to prisión mayor minimum. The minimum term is taken from the penalty next lower or anywhere within prisión correccional minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 months). Consequently, the RTC correctly fixed the minimum term for the five estafa cases at 4 years and 2 months of prisión correccional since this is within the range of prisión correccional minimum and medium.

On the other hand, the maximum term is taken from the prescribed penalty of prisión correccional maximum to prisión mayor minimum in its maximum period, adding 1 year of imprisonment for every P10,000.00 in excess of P22,000.00, provided that the total penalty shall not exceed 20 years. However, the maximum period of the prescribed penalty of prisión correccional maximum to prisión mayor minimum is not prisión mayor minimum as apparently assumed by the RTC. To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor minimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 65 17 of the RPC. Following this procedure, the maximum period of prisión correccional maximum to prisión mayor minimum is from 6 years, 8 months and 21 days to 8 years. 18 The incremental penalty, when proper, shall thus be added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court. 19

In computing the incremental penalty, the amount defrauded shall be subtracted by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a year shall be discarded as was done starting with the case of People v. Pabalan 20 in consonance with the settled rule that penal laws shall be construed liberally in favor of the accused. The doctrine enunciated in People v. Benemerito 21 insofar as the fraction of a year was utilized in computing the total incremental penalty should, thus, be modified. In accordance with the above procedure, the maximum term of the indeterminate sentences imposed by the RTC should be as follows:

In Criminal Case No. 02-208372, where the amount defrauded was P57,600.00, the RTC sentenced the accused to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 9 years and 1 day of prisión mayor as maximum. Since the amount defrauded exceeds P22,000.00 by P35,600.00, 3 years shall be added to the maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can be validly imposed is 9 years, 8 months and 21 days of prisión mayor, and not 9 years and 1 day of prisión mayor.

In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where the amounts defrauded were P66,520.00, P69,520.00, and P69,520.00, respectively, the accused was sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 10 years and 1 day of prisión mayor as maximum for each of the aforesaid three estafa cases. Since the amounts defrauded exceed P22,000.00 by P44,520.00, P47,520.00, and P47,520.00, respectively, 4 years shall be added to the maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can be validly imposed is 10 years, 8 months and 21 days of prisión mayor, and not 10 years and 1 day of prisión mayor. IcCDAS

Finally, in Criminal Case No. 02-208374, where the amount defrauded was P88,520.00, the accused was sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 11 years and 1 day of prisión mayor as maximum. Since the amount defrauded exceeds P22,000.00 by P66,520.00, 6 years shall be added to the maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can be validly imposed is 12 years, 8 months and 21 days of reclusión temporal, and not 11 years and 1 day of prisión mayor.

Response to the dissent.

In the computation of the indeterminate sentence for estafa under Article 315, par. 2 (a) of the Revised Penal Code (RPC), the Court has consistently followed the doctrine espoused in Pabalan and more fully explained in Gabres. The dissent argues that Gabres should be reexamined and abandoned.

We sustain Gabres.

I.

The formula proposed in the Dissenting Opinion of Mr. Justice Ruben T. Reyes, i.e., the maximum term shall first be computed by applying the incremental penalty rule, and thereafter the minimum term shall be determined by descending one degree down the scale of penalties from the maximum term, is a novel but erroneous interpretation of the ISL in relation to Article 315, par. 2 (a) of the RPC. Under this interpretation, it is not clear how the maximum and minimum terms shall be computed. Moreover, the legal justification therefor is not clear because the meaning of the terms "penalty", "prescribed penalty", "penalty actually imposed", "minimum term", "maximum term", "penalty next lower in degree", and "one degree down the scale of penalties" are not properly set out and are, at times, used interchangeably, loosely and erroneously. SEcAIC

For purposes of this discussion, it is necessary to first clarify the meaning of certain terms in the sense that they will be used from here on. Later, these terms shall be aligned to what the dissent appears to be proposing in order to clearly address the points raised by the dissent.

The RPC provides for an initial penalty as a general prescription for the felonies defined therein which consists of a range of period of time. This is what is referred to as the "prescribed penalty". For instance, under Article 249 22 of the RPC, the prescribed penalty for homicide is reclusión temporal which ranges from 12 years and 1 day to 20 years of imprisonment. Further, the Code provides for attending or modifying circumstances which when present in the commission of a felony affects the computation of the penalty to be imposed on a convict. This penalty, as thus modified, is referred to as the "imposable penalty". In the case of homicide which is committed with one ordinary aggravating circumstance and no mitigating circumstances, the imposable penalty under the RPC shall be the prescribed penalty in its maximum period. From this imposable penalty, the court chooses a single fixed penalty (also called a straight penalty) which is the "penalty actually imposed" on a convict, i.e., the prison term he has to serve.

Concretely, in U.S. v. Saadlucap, 23 a pre-ISL case, the accused was found guilty of homicide with a prescribed penalty of reclusión temporal. Since there was one ordinary aggravating circumstance and no mitigating circumstances in this case, the imposable penalty is reclusión temporal in its maximum period, i.e., from 17 years, 4 months and 1 day to 20 years. The court then had the discretion to impose any prison term provided it is within said period, so that the penalty actually imposed on the accused was set at 17 years, 4 months and 1 day of reclusión temporal, 24 which is a single fixed penalty, with no minimum or maximum term.

With the passage of the ISL, the law created a prison term which consists of a minimum and maximum term called the indeterminate sentence. 25 Section 1 of the ISL provides —

SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; . . . .

Thus, the maximum term is that which, in view of the attending circumstances, could be properly imposed under the RPC. In other words, the penalty actually imposed under the pre-ISL regime became the maximum term under the ISL regime. Upon the other hand, the minimum term shall be within the range of the penalty next lower to the prescribed penalty. To illustrate, if the case of Saadlucap was decided under the ISL regime, then the maximum term would be 17 years, 4 months and 1 day of reclusión temporal and the minimum term could be anywhere within the range of prisión mayor (6 years and 1 day to 12 years) which is the penalty next lower to reclusión temporal. Consequently, an indeterminate sentence of 10 years of prisión mayor as minimum to 17 years, 4 months and 1 day of reclusión temporal as maximum could have possibly been imposed. TCIHSa

If we use the formula as proposed by the dissent, i.e., to compute the minimum term based on the maximum term after the attending or modifying circumstances are considered, the basis for computing the minimum term, under this interpretation, is the imposable penalty 26 as hereinabove defined. This interpretation is at odds with Section 1 of the ISL which clearly states that the minimum of the indeterminate sentence shall be "within the range of the penalty next lower to that prescribed by the Code for the offense". Consequently, the basis for fixing the minimum term is the prescribed penalty, 27 and not the imposable penalty.

In People v. Gonzales, 28 the Court held that the minimum term must be based on the penalty prescribed by the Code for the offense "without regard to circumstances modifying criminal liability". 29 The Gonzales' ruling that the minimum term must be based on the prescribed penalty "without regard to circumstances modifying criminal liability" is only a restatement of Section 1 of the ISL that the minimum term shall be taken from within the range of the penalty next lower to the prescribed penalty (and from nowhere else). 30

Further, the dissent proceeds from the erroneous premise that its so-called "regular formula" has generally been followed in applying the ISL. To reiterate, according to the dissent, the "regular formula" is accomplished by first determining the maximum term after considering all the attending circumstances; thereafter, the minimum term is arrived at by going one degree down the scale from the maximum term. As previously discussed, this essentially means, using the terms as earlier defined, that the minimum term shall be taken from the penalty next lower to the imposable penalty (and not the prescribed penalty.) In more concrete terms and using the previous example of homicide with one ordinary aggravating circumstance, this would mean that the minimum term for homicide will no longer be based on reclusión temporal (i.e., the prescribed penalty for homicide) but reclusión temporal in its maximum period (i.e., the imposable penalty for homicide with one ordinary aggravating circumstance) so much so that the minimum term shall be taken from reclusión temporal in its medium period (and no longer from prisión mayor) because this is the penalty next lower to reclusión temporal in its maximum period. The penalty from which the minimum term is taken is, thus, significantly increased. From this example, it is not difficult to discern why this interpretation radically departs from how the ISL has generally been applied by this Court. The dissent's "regular formula" is, therefore, anything but regular.

In fine, the "regular formula" espoused by the dissent deviates from the ISL and established jurisprudence and is, thus, tantamount to judicial legislation.

II.

There is no absurdity or injustice in fixing or "stagnating" the minimum term within the range of prisión correccional minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 months). Preliminarily, it must be emphasized that the minimum term taken from the aforementioned range of penalty need not be the same for every case of estafa when the amount defrauded exceeds P12,000.00. In People v. Ducosin, 31 the Court provided some guidelines in imposing the minimum term from the range of the penalty next lower to the prescribed penalty:

We come now to determine the "minimum imprisonment period" referred to in Act No. 4103. Section 1 of said Act provides that this "minimum which shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for the offense". 32 We are here upon new ground. It is in determining the "minimum" penalty that Act No. 4103 confers upon the courts in the fixing of penalties the widest discretion that the courts have ever had. The determination of the "minimum" penalty presents two aspects: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits. cCAaHD

xxx xxx xxx

We come now to the second aspect of the determination of the minimum penalty, namely, the considerations which should guide the court in fixing the term or duration of the minimum period of imprisonment. Keeping in mind the basic purpose of the Indeterminate Sentence Law "to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness" (Message of the Governor-General, Official Gazette No. 92, vol. XXXI, August 3, 1933), it is necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order.

Considering the criminal as an individual, some of the factors that should be considered are: (1) His age, especially with reference to extreme youth or old age; (2) his general health and physical condition; (3) his mentality, heredity and personal habits; (4) his previous conduct, environment and mode of life (and criminal record if any); (5) his previous education, both intellectual and moral; (6) his proclivities and aptitudes for usefulness or injury to society; (7) his demeanor during trial and his attitude with regard to the crime committed; (8) the manner and circumstances in which the crime was committed; (9) the gravity of the offense (note that section 2 of Act No. 4103 excepts certain grave crimes — this should be kept in mind in assessing the minimum penalties for analogous crimes).

In considering the criminal as a member of society, his relationship, first, toward his dependents, family and associates and their relationship with him, and second, his relationship towards society at large and the State are important factors. The State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends. In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal law to a degree not heretofore known in these Islands. With the foregoing principles in mind as guides, the courts can give full effect to the beneficent intention of the Legislature. 33 IAETSC

Admittedly, it is possible that the court, upon application of the guidelines in Ducosin, will impose the same minimum term to one who commits an estafa involving P13,000.00 and another involving P130 million. In fact, to a lesser degree, this is what happened in the instant case where the trial court sentenced the accused to the same minimum term of 4 years and 2 months of prisión correccional in Criminal Case Nos. 02-208372, 02-208373, 02-208375, 02-208376, and 02-208374 where the amounts defrauded were P57,600.00, P66,520.00, P69,520.00, P69,520.00 and P88,520.00, respectively. However, there is no absurdity and injustice for two reasons.

One, while it is possible that the minimum term imposed by a court would be the same, the maximum term would be greater for the convict who committed estafa involving P130 million (which would be 20 years of reclusion temporal) than the convict who swindled P13,000.00 (which could be anywhere fromprisión correccional maximum to prisión mayor minimum or from 4 years, 2 months and 1 day to 8 years). 34 Assuming that both convicts qualify for parole after serving the same minimum term, the convict sentenced to a higher maximum term would carry a greater "burden" with respect to the length of parole surveillance which he may be placed under, and the prison term to be served in case he violates his parole as provided for in Sections 6 35 and 8 36 of the ISL. Under Section 6, the convict shall be placed under a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release and discharge by the Board of Pardon and Paroles. Further, the convict with the higher maximum term would have to serve a longer period upon his re-commitment in prison in case he violates his parole because he would have to serve the remaining portion of the maximum term, unless the Board of Pardon and Paroles shall, in its discretion, grant a new parole to the said convict as provided for in Section 8. cDHCAE

Although the differences in treatment are in the nature of potential liabilities, to this limited extent, the ISL still preserves the greater degree of punishment in the RPC for a convict who commits estafa involving a greater amount as compared to one who commits estafa involving a lesser amount. Whether these differences in treatment are sufficient in substance and gravity involves a question of wisdom and expediency of the ISL that this Court cannot delve into.

Two, the rule which provides that the minimum term is taken from the range of the penalty next lower to the prescribed penalty is, likewise, applicable to other offenses punishable under the RPC. For instance, the minimum term for an accused guilty of homicide with one generic mitigating circumstance vis-à-vis an accused guilty of homicide with three ordinary aggravating circumstances would both be taken from prisión mayor — the penalty next lower to reclusion temporal. Evidently, the convict guilty of homicide with three ordinary aggravating circumstances committed a more perverse form of the felony. Yet it is possible that the court, after applying the guidelines in Ducosin, will impose upon the latter the same minimum term as the accused guilty of homicide with one generic mitigating circumstance. This reasoning can be applied mutatis mutandis to most of the other offenses punishable under the RPC. Should we then conclude that the ISL creates absurd results for these offenses as well?

In fine, what is perceived as absurd and unjust is actually the intent of the legislature to be beneficial to the convict in order to "uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness". 37 By the legislature's deliberate design, the range of penalty from which the minimum term is taken remains fixed and only the range of penalty from which the maximum term is taken changes depending on the number and nature of the attending circumstances. Again, the reason why the legislature elected this mode of beneficence to a convict revolves on questions of wisdom and expediency which this Court has no power to review. The balancing of the State's interests in deterrence and retributive justice vis-à-vis reformation and reintegration of convicts to society through penal laws belongs to the exclusive domain of the legislature.

III.

People v. Romero, 38 De Carlos v. Court of Appeals, 39 Salazar v. People, 40 People v. Dinglasan, 41 and by analogy, People v. Dela Cruz 42 do not support the formula being proposed by the dissent.

The instant case involves a violation of Article 315, par. 2 (a) of the RPC. 43 The penalty for said violation is —

ART. 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be. . . .

In contrast, Romero, De Carlos, and Salazar involved violations of Article 315 of the RPC as amended by Presidential Decree (P.D.) No. 1689 44 because: (1) the funds defrauded were contributed by stockholders or solicited by corporations/associations from the general public, (2) the amount defrauded was greater than P100,000.00, and (3) the estafa was not committed by a syndicate. Section 1 of P.D. No. 1689 provides — TCIHSa

Sec. 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Article 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by corporations/associations from the general public.

When not committed by a syndicate as above defined, the penalty imposable shall be reclusión temporal to reclusión perpetua if the amount of the fraud exceeds 100,000 pesos. (Emphasis supplied)

Since the prescribed penalty is reclusión temporal to reclusión perpetua, the minimum terms were taken from prisión mayor, which is the penalty next lower to the prescribed penalty. 45 As can be seen, these cases involved a different penalty structure that does not make use of the incremental penalty rule due to the amendatory law. Thus, the comparison of these cases with Gabres is improper.

Meanwhile, in Dinglasan, the felony committed was estafa through bouncing checks which is punishable under Article 315 par. 2 (d) of the RPC as amended by Republic Act (RA) No. 4885 — 46

Sec. 1. Section Two, Paragraph (d), Article Three hundred fifteen of Act Numbered Thirty-eight hundred and fifteen is hereby amended to read as follows:

"Sec. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

"(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act." HcACST

and P.D. No. 818 — 47

Sec. 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by:

1st. The penalty of reclusión temporal if the amount of the fraud is over 12,000 pesos but not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusión perpetua; . . . (Emphasis supplied)

Here, the prescribed penalty of prisión correccional maximum to prisión mayor minimum was increased to reclusión temporal by the amendatory law. Consequently, the penalty next lower to reclusión temporal is prisión mayor from which the minimum term was taken. This is the reason for the higher minimum term in this case as compared to Gabres. In fact, Dinglasan is consistent with Gabres —

Since the face value of Check No. 029021, for which appellant is criminally liable for estafa, exceeds P22,000, the penalty abovecited must be "imposed in its maximum period, adding 1 year for each additional P10,000". Pursuant to People vs. Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate sentence shall be imposed on the accused, computed favorably to him. In this case, the indeterminate sentence should be computed based on the maximum period of reclusión temporal as maximum, which is from 17 years, 4 months, and 1 day to 20 years. The minimum period of the sentence should be within the penalty next lower in degree as provided in the Revised Penal Code, i.e., prisión mayor, which is from 6 years and 1 day to 12 years imprisonment. Considering that the excess of the fraud committed, counting from the base of P22,000, is only P4,400, which is less than the P10,000 stated in P.D. 818, there is no need to add one year to the maximum penalty abovecited. 48 (Emphasis supplied) ISDHcT

As in Gabres, the penalty next lower (i.e., prisión mayor) was determined without considering in the meantime the effect of the amount defrauded in excess of P22,000.00 on the prescribed penalty (i.e., reclusión temporal).

Finally, Dela Cruz involved a case for qualified theft. The prescribed penalty for qualified theft is two degrees higher than simple theft. Incidentally, the penalty structure for simple theft 49 and estafa is similar in that both felonies (1) requires that the prescribed penalty be imposed in its maximum period when the value of the thing stolen or the amount defrauded, as the case may be, exceeds P22,000.00, and (2) provides for an incremental penalty of 1 year imprisonment for every P10,000.00 in excess of P22,000.00. It should be pointed out, however, that the prescribed penalty for simple theft is prisión mayor minimum and medium while in estafa it is lower at prisión correccional maximum to prisión mayor minimum.

Being two degrees higher, the prescribed penalty for qualified theft is, thus, reclusión temporal medium and maximum, while the minimum term is taken from the range of prisión mayor maximum to reclusión temporal minimum, which is the penalty next lower to reclusión temporal medium and maximum. The penalty next lower to the prescribed penalty is determined without first considering the amount stolen in excess of P22,000.00 consistent with Gabres. In fact, Dela Cruz expressly cites Gabres —

Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be anywhere within the range of the penalty next lower in degree to that prescribed for the offense, without first considering any modifying circumstance attendant to the commission of the crime. Since the penalty prescribed by law is reclusión temporal medium and maximum, the penalty next lower would be prisión mayor in its maximum period to reclusión temporal in its minimum period. Thus, the minimum of the indeterminate sentence shall be anywhere within ten (10) years and one (1) day to fourteen (14) years and eight (8) months. SHCaEA

The maximum of the indeterminate penalty is that which, taking into consideration the attending circumstances, could be properly imposed under the Revised Penal Code. Since the amount involved in the present case exceeds P22,000.00, this should be taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence, not in the initial determination of the indeterminate penalty. (citing Gabres) Thus, the maximum term of the indeterminate penalty in this case is the maximum period of reclusión temporal medium and maximum, which ranges from eighteen (18) years, two (2) months, and twenty one (21) days to twenty (20) years, as computed pursuant to Article 65, in relation to Article 64 of the Revised Penal Code. 50 (Emphasis supplied)

Clearly, none of these cases supports the Dissenting Opinion's thesis that the minimum term should be computed based on the maximum term. Quite the contrary, Dinglasan and Dela Cruz are consistent with Gabres.

IV.

The argument that the incremental penalty rule should not be considered as analogous to a modifying circumstance stems from the erroneous interpretation that the "attending circumstances" mentioned in Section 1 of the ISL are limited to those modifying circumstances falling within the scope of Articles 13 and 14 of the RPC. Section 1 of the ISL is again quoted below — IcEaST

SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; . . . (Emphasis supplied)

The plain terms of the ISL show that the legislature did not intend to limit "attending circumstances" as referring to Articles 13 and 14 of the RPC. If the legislature intended that the "attending circumstances" under the ISL be limited to Articles 13 and 14, then it could have simply so stated. The wording of the law clearly permits other modifying circumstances outside of Articles 13 and 14 of the RPC to be treated as "attending circumstances" for purposes of the application of the ISL, such as quasi-recidivism under Article 160 51 of the RPC. Under this provision, "any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony". This circumstance has been interpreted by the Court as a special aggravating circumstance where the penalty actually imposed is taken from the prescribed penalty in its maximum period without regard to any generic mitigating circumstances. 52 Since quasi-recidivism is considered as merely a special aggravating circumstance, the penalty next lower in degree is computed based on the prescribed penalty without first considering said special aggravating circumstance as exemplified in People v. Manalo 53 and People v. Balictar. 54

The question whether the incremental penalty rule is covered within the letter and spirit of "attending circumstances" under the ISL was answered in the affirmative by the Court in Gabres when it ruled therein that the incremental penalty rule is analogous to a modifying circumstance.

Article 315 of the RPC pertinently provides —

ART. 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be. . . .

Under Gabres, prisión correccional maximum to prisión mayor minimum is the prescribed penalty 55 for estafa when the amount defrauded exceeds P22,000.00. An amount defrauded in excess of P22,000.00 is effectively considered as a special aggravating circumstance in the sense that the penalty actually imposed shall be taken from the prescribed penalty in its maximum period without regard to any generic mitigating circumstances. Consequently, the penalty next lower in degree is still based on the prescribed penalty without in the meantime considering the effect of the amount defrauded in excess of P22,000.00. CHIScD

What is unique, however, with the afore-quoted provision is that when the amount defrauded is P32,000.00 or more, the prescribed penalty is not only imposed in its maximum period but there is imposed an incremental penalty of 1 year imprisonment for every P10,000.00 in excess of P22,000.00, provided that the total penalty which may be imposed shall not exceed 20 years. This incremental penalty rule is a special rule applicable to estafa and theft. In the case of estafa, the incremental penalty is added to the maximum period of the prescribed penalty (or to anywhere from 6 years, 8 months and 21 days to 8 years) at the discretion of the court, in order to arrive at the penalty actually imposed (i.e., the maximum term, within the context of the ISL).

This unique characteristic of the incremental penalty rule does not pose any obstacle to interpreting it as analogous to a modifying circumstance, and, hence, falling within the letter and spirit of "attending circumstances" for purposes of the application of the ISL. Under the wording of the ISL, "attending circumstances" may be reasonably interpreted as referring to such circumstances that are applied in conjunction with certain rules in the Code in order to determine the penalty to be actually imposed based on the prescribed penalty of the Code for the offense. The incremental penalty rule substantially meets this standard. The circumstance is the amount defrauded in excess of P22,000.00 and the incremental penalty rule is utilized to fix the penalty actually imposed. At its core, the incremental penalty rule is merely a mathematical formula for computing the penalty to be actually imposed using the prescribed penalty as starting point. Thus, it serves the same function of determining the penalty actually imposed as the modifying circumstances under Articles 13, 14, and 160 of the RPC, although the manner by which the former accomplishes this function differs with the latter. For this reason, the incremental penalty rule may be considered as merely analogous to modifying circumstances. Besides, in case of doubt as to whether the incremental penalty rule falls within the scope of "attending circumstances" under the ISL, the doubt should be resolved in favor of inclusion because this interpretation is more favorable to the accused following the time-honored principle that penal statutes are construed strictly against the State and liberally in favor of the accused. 56 Thus, even if the Dissenting Opinion's interpretation is gratuitously conceded as plausible, as between Gabres and the dissent's interpretation, Gabres should be sustained since it is the interpretation more favorable to the accused.

V.

The claim that the maximum term should only be one degree away from the minimum term does not make sense within the meaning of "degrees" under the RPC because the minimum and maximum terms consist of single fixed penalties. At any rate, the point seems to be that the penalty from which the minimum term is taken should only be one degree away from the penalty from which the maximum term is taken.

As a general rule, the application of modifying circumstances, the majority being generic mitigating and ordinary aggravating circumstances, does not result to a maximum term fixed beyond the prescribed penalty. At most, the maximum term is taken from the prescribed penalty in its maximum period. Since the maximum term is taken from the prescribed penalty and the minimum term is taken from the next lower penalty, then, in this limited sense, the difference would naturally be only one degree. Concretely, in the case of homicide with one ordinary aggravating circumstance, the maximum term is taken from reclusión temporal in its maximum period which is within the prescribed penalty of reclusión temporal, while the minimum term is taken from prisión mayor which is the penalty next lower to reclusión temporal; hence, the one-degree difference observed by the dissent. STcAIa

In comparison, under the incremental penalty rule, the maximum term can exceed the prescribed penalty. Indeed, at its extreme, the maximum term can be as high as 20 years of reclusión temporal while the prescribed penalty remains at prisión correccional maximum to prisión mayor minimum, hence, the penalty next lower to the prescribed penalty from which the minimum term is taken remains at anywhere within prisión correccional minimum and medium, or from 6 months and 1 day to 4 years and 2 months. In this sense, the incremental penalty rule deviates from the afore-stated general rule. 57

However, it is one thing to say that, generally, the penalty from which the minimum term is taken is only one degree away from the penalty from which the maximum term is taken, and completely another thing to claim that the penalty from which the minimum term is taken should only be one degree away from the penalty from which the maximum term is taken.

The one-degree difference is merely the result of a general observation from the application of generic mitigating and ordinary aggravating circumstances in the RPC in relation to the ISL. Nowhere does the ISL refer to the one-degree difference as an essential requisite of an "attending circumstance". If the application of the incremental penalty rule deviates from the one-degree difference, this only means that the law itself has provided for an exception thereto. Verily, the one-degree difference is a mere consequence of the generic mitigating and ordinary aggravating circumstances created by the legislature. The difficulty of the dissent with the deviation from its so-called one-degree difference rule seems to lie with the inability to view these "attending circumstances" as mere artifacts or creations of the legislature. It does not make sense to argue that the legislature cannot formulate "attending circumstances" that operate differently than these generic mitigating and ordinary aggravating circumstances, and that, expectedly, leads to a different result from the one-degree difference — for it would be to say that the creator can only create one specie of creatures. Further, it should be reasonably assumed that the legislature was aware of these special circumstances, like the incremental penalty rule or privileged mitigating circumstances, at the time it enacted the ISL as well as the consequent effects of such special circumstances on the application of said law. Thus, for as long as the incremental penalty rule is consistent with the letter and spirit of "attending circumstances" under the ISL, there is no obstacle to its treatment as such. TEDHaA

VI.

Much has been said about the leniency, absurdity and unjustness of the result under Gabres; the need to adjust the minimum term of the indeterminate penalty to make it commensurate to the gravity of the estafa committed; the deterrence effect of a stiffer imposition of penalties; and a host of other similar reasons to justify the reversal of Gabres. However, all these relate to policy considerations beyond the wording of the ISL in relation to the RPC; considerations that if given effect essentially seek to rewrite the law in order to conform to one notion (out of an infinite number of such notions) of wisdom and efficacy, and, ultimately, of justice and mercy.

This Court is not the proper forum for this sort of debate. The Constitution forbids it, and the principle of separation of powers abhors it. The Court applies the law as it finds it and not as how it thinks the law should be. Not too long ago in the case of People v. Veneracion, 58 this Court spoke about the dangers of allowing one's personal beliefs to interfere with the duty to uphold the Rule of Law which, over a decade later, once again assumes much relevance in this case:

Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, the law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor", resist encroachments by governments, political parties, or even the interference of their own personal beliefs. 59

VII.

Mr. Justice Adolfo S. Azcuna proposes an interpretation of the incremental penalty rule based on the phrases "shall be termed prisión mayor or reclusión temporal, as the case may be" and "for the purpose of the other provisions of this Code" found in the last sentence of said rule, viz.:

ART. 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: EHScCA

1st. The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be.. . . (Emphasis supplied)

While this interpretation is plausible, Gabres should still be sustained because in construing penal statutes, as between two reasonable 60 but contradictory constructions, the one more favorable to the accused should be upheld, which in this case is Gabres. The reason for this rule is elucidated in an eminent treatise on statutory construction in this wise:

It is an ancient rule of statutory construction that penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed. This simply means that words are given their ordinary meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to a criminal statute. This canon of interpretation has been accorded the status of a constitutional rule under principles of due process, not subject to abrogation by statute.

The rule that penal statutes should be strictly construed has several justifications based on a concern for the rights and freedoms of accused individuals. Strict construction can assure fairness when courts understand it to mean that penal statutes must give a clear and unequivocal warning, in language people generally understand, about actions that would result in liability and the nature of potential penalties. A number of courts have said: SaCIDT

. . . the rule that penal statutes are to be strictly construed . . . is a fundamental principle which in our judgment will never be altered. Why? Because the lawmaking body owes the duty to citizens and subjects of making unmistakably clear those acts for the commission of which the citizen may lose his life or liberty. Therefore, all the canons of interpretation which apply to civil statutes apply to criminal statutes, and in addition there exists the canon [of strict construction] . . . The burden lies on the lawmakers, and inasmuch as it is within their power, it is their duty to relieve the situation of all doubts.

xxx xxx xxx

Additionally, strict construction protects the individual against arbitrary discretion by officials and judges. As one judge noted: "the courts should be particularly careful that the bulwarks of liberty are not overthrown, in order to reach an offender who is, but perhaps ought not to be, sheltered behind them."

But also, for a court to enforce a penalty where the legislature has not clearly and unequivocally prescribed it could result in judicial usurpation of the legislative function. One court has noted that the reason for the rule is "to guard against the creation, by judicial construction, of criminal offenses not within the contemplation of the legislature". Thus the rule requires that before a person can be punished his case must be plainly and unmistakably within the statute sought to be applied. And, so, where a statute is open to more than one interpretation, it is strictly construed against the state. Courts further rationalize this application of the rule of strict construction on the ground that it was not the defendant in the criminal action who caused ambiguity in the statute. Along these same lines, courts also assert that since the state makes the laws, they should be most strongly construed against it. 61 (Emphasis supplied; citations omitted)

Thus, in one case, where the statute was ambiguous and permitted two reasonable interpretations, the construction which would impose a less severe penalty was adopted. 62 ASHEca

WHEREFORE, the Decision of the Court of Appeals is MODIFIED with respect to the indeterminate penalties imposed on appellant for the five (5) counts of estafa, to wit:

(1) In Criminal Case No. 02-208372, the accused is sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 9 years, 8 months and 21 days of prisión mayor as maximum.

(2) In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, the accused is sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 10 years, 8 months and 21 days of prisión mayor as maximum for each of the aforesaid three estafa cases.

(3) In Criminal Case No. 02-208374, the accused is sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 12 years, 8 months and 21 days of reclusión temporal as maximum. HScAEC

In all other respects, the Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Carpio, Austria-Martinez, Carpio-Morales, Tinga, Nachura, Leonardo-de Castro and Brion, JJ., concur.

Puno, C.J., Pls. see dissent.

Quisumbing, Azcuna and Chico-Nazario, JJ., join the Chief Justice in his dissenting opinion, with separate opinion.

Corona, J., J. Corona filed a separate opinion — RSP.

Velasco, Jr., J., Pls. see dissenting opinion.

Reyes, J., Pls. see dissenting opinion.

Separate Opinions

PUNO, C.J, dissenting:

The Court today basks magnanimous in its application of the rule that penal laws should be construed in favor of the accused. Although I acknowledge that the application of this rule in the interpretation of the Indeterminate Sentence Law (ISL) is properly aligned with the fundamental principle and purpose of the ISL to uplift and redeem human material and to prevent unnecessary and excessive deprivation of personal liberty and economic usefulness, 1 I am constrained to disagree with the reasoning of the majority.

In lieu of a straight penalty, the ISL provides for guidelines for the determination of an indeterminate sentence, which shall be composed of a maximum and a minimum; thus, for crimes punishable under the Revised Penal Code (RPC), Section 1 of the ISL provides that "the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense". 2 (emphasis supplied)

While there is no dispute as to the determination of the maximum of the indeterminate sentence for the crime of estafa, the ponente puts into issue the computation of the minimum when the crime committed calls for the computation of additional or incremental penalties.

The penalty prescribed by the Code for the crime of estafa is worded as follows:

Article 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. (emphasis supplied) AaSTIH

The problematic portion of Section 1 of the ISL in relation to the above-quoted provision is the phrase "prescribed by the Code", which is essential in determining the range within which the minimum of the indeterminate sentence can be pegged. As can be observed from Article 315, the penalty prescribed for estafa in cases involving amounts exceeding P22,000 may be interpreted in two ways: first, that the term "penalty prescribed" in Section 1 of the ISL merely refers to the phrase "the penalty provided in this paragraph", which refers to "prision correccional in its maximum period to prision mayor in its minimum period", without as yet considering the addition of one year for each additional P10,000 involved; or second, that the "penalty prescribed" denotes the whole phrase "the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos".

In essence, the existing jurisprudence 3 which the ponencia staunchly defended and upheld, adheres to the first interpretation. Under this view, since the "penalty prescribed" by the RPC for estafa is prision correccional maximum to prision mayor minimum, the range of the penalty within which the minimum of the indeterminate sentence would be determined would be that degree next lower thereto, or prision correccional in its minimum to medium periods. Accordingly, the incremental penalty or the additional number of years for the corresponding increase in the amounts involved in the fraud is merely considered as a "modifying circumstance" which is considered in the determination of the maximum-but not the minimum-of the indeterminate sentence. Hence, the range within which the minimum of the indeterminate sentence under the current computation can be pegged is permanently set at prision correccional in its minimum to medium periods.

On the other hand, the second interpretation provides that the minimum of the indeterminate sentence should be arrived at by descending one degree down the scale from the principal penalty, after factoring in the incremental penalty into the same. In other words, for purposes of determining the minimum of the indeterminate sentence, the so-called "prescribed penalty" for frauds involving amounts exceeding P22,000 denotes a penalty which has already been computed according to the number of years in excess of P22,000. Necessarily, the distance between the maximum and the minimum shall always be only one degree away.

I find that this second interpretation is more in keeping with the intent and letter of the ISL and the RPC. aEcADH

It is a basic rule in statutory construction that care should be taken that every part of a statute be given effect and a construction that could render a provision inoperative should be avoided, and inconsistent provisions should be reconciled whenever possible as parts of a harmonious whole; for taken in solitude, a word or phrase might easily convey a meaning quite different from the one actually intended and evident when a word or phrase is considered with those with which it is associated. 4

In our jurisdiction, "incremental penalty" as used in relation to crimes against property now refers to the phrase "and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos". I submit that for purposes of determining the minimum of the indeterminate sentence, the "penalty prescribed" for estafa should include the incremental penalty, since the penalty for estafa, as that in theft, hinges on the value or amount involved. 5

People v. Gabres 6 was the first case which expounded on the treatment of the incremental penalty as a modifying circumstance in the computation of the penalty for estafa involving amounts exceeding P22,000.00. It explained thus:

Under the Indeterminate Sentence Law, the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. cSTCDA

The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months while the maximum term of the indeterminate sentence should at least be six (6) years and one (1) day because the amounts involved exceeded P22,000.00, plus an additional one (1) year for each additional P10,000.00. (emphasis supplied)

To my mind, the rationale in Gabres is flawed. A plain reading of the provision on estafa yields the conclusion that the law, as in the crime of theft, 7 intended a graduated penalty, viz.: for estafa involving the amount of P200 and below, the penalty shall be arresto mayor in its medium and maximum periods; for amounts over P200 but not exceeding P6,000, arresto mayor in its maximum period to prision correccional in its minimum period; for amounts over P6,000 but not exceeding P12,000, prision correccional in its minimum and medium periods; and finally, the penalty subject of the controversy herein, "prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000 but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years". Verily, the manner in which Article 315 was crafted lends an insight into the intention of the RPC, which is to ensure that the penalty for the crime committed be commensurate to the amount of the fraud. Hence, I submit that the so-called incremental penalty is exactly that-an incremental penalty-and not a modifying circumstance. Short of the RPC enumerating all the gradations of the penalty for each amount that might be involved, the Code merely provided a formula in order to arrive at the prescribed penalty. Nonetheless, a prescribed penalty had been intended, and that prescribed penalty can still be easily derived after a mechanical application of the given formula. In fact, this is not the first time we treated a modifying circumstance as separate and distinct from the incremental penalty, thus, in the case of People v. Hernando: 8

On the other hand, the minimum of the indeterminate sentence shall be within the range of the penalty next lower in degree to that prescribed by the Code for the offense, without first considering any modifying circumstance nor the incremental penalty for the amount in excess of twenty two thousand (P22,000.00) pesos. Such penalty is prision mayor, with a duration of six (6) years and one (1) day to twelve (12) years. (emphasis supplied)

This position is boosted by the qualifier at the end of the provision on the penalty for frauds involving amounts exceeding P22,000. To revisit Article 315:

Article 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. (emphasis supplied.)

As can be seen, the RPC attempts to limit the penalty prescribed, i.e., the computed penalty, to a maximum of twenty years. Furthermore, the computed penalty is mandated to be termed prision mayor or reclusion temporal, as the case may be, in keeping with the statement of the prescribed penalties for frauds of lower amounts. Had the law intended the incremental penalty to be a modifying circumstance, there would have been no sense in doing so. The more plausible explanation, therefore, is that the RPC is prescribing a penalty for frauds exceeding P22,000. On this note, therefore, I am in agreement with the view that the penalty of prision correccional maximum to prision mayor minimum provided in the Code is merely the initial prescription or the starting point — but not the complete penalty — which should be the basis for determining the range of "the penalty next lower than that prescribed by the Code" in order to determine the minimum of the indeterminate sentence.

The rational backbone and main justification of the first interpretation is founded upon the rule in statutory construction that penal laws should be construed in favor of the accused. Mindful as I am of the woes and wails of our prisoners, I cannot bring myself to ignore the error in this reasoning.

It must be recalled that the construction in favor of the accused is rooted in the presumption of innocence which stems from the constitutional right to due process. Hence, the strict construction against the government as regards penal laws pertains to cases in which the accused stands to be deprived of either life, liberty or property.

In the instant case, I find that the application of this rule is somewhat strained. For one, the threat of losing life, liberty or property without due process of law is more apparent than real, because the subjects of the ISL are no longer merely accused individuals. On the contrary, they are already convicted felons whose guilt had already been proven beyond reasonable doubt. Hence, I do not see how they can still be accorded the presumption of innocence. DcaECT

Further, I am in doubt as to the characterization of the ISL as a penal law that could warrant a presumption of innocence for the accused. A penal law is an act of the legislature that prohibits certain acts and establishes penalties for its violations. 9 A closer look at the ISL, however, reveals that it does not make any act punishable. Its complete title is telling: "An Act to Provide for an Indeterminate Sentence and Parole for All Persons Convicted of Certain Crimes by the Courts of the Philippine Islands; to Create a Board of Indeterminate Sentence and to Provide Funds Therefor; and for Other Purposes". Moreover, the classification of the ISL as penal was made arbitrarily and without clear legal basis. People v. Nang Kay, 10 which cited the Corpus Juris Secundum, points to the U.S. case of State v. Groos 11 as its authority for saying that the ISL is a penal statute. A perusal of the said U.S. case reveals, however, that the penal character of the ISL was not put into issue in that case, and that it was merely assumed that the ISL is a penal law. Accordingly, I submit that the presumption of innocence could not be used in granting leniency in the computation of the minimum in the ISL.

Finally, even if we concede that the ISL is a legislation akin to an act of grace geared towards the rehabilitation of criminals, and it being so, the intention of the lawmakers must be given effect, I still stand firm that the existing interpretation is erroneous and reeks of disrespect to the sacrosanct principles of justice and fairness.

It must be remembered that a statute's clauses and phrases must not be taken separately, but in relation to the statute's totality. Further, each statute must be construed as to harmonize it with the pre-existing body of laws. Provisions of statutes must be reconciled, unless clearly repugnant. 12

In the present case, it is clear that it could not have been the intention of the RPC to do away with the gradations of penalty for the crime of estafa. Yet that is precisely what the majority has decided to do today. To be sure, the existing interpretation disturbs the ladderized penalty scheme provided in the RPC and grants an undeserved protection to felons convicted of frauds involving higher amounts. In effect, this puts in the same category those who merely committed frauds involving lower amounts, thus, defeating the letter and intent of the RPC and the ISL. For these reasons, I am duty bound to register my dissent. ISAaTH

IN VIEW WHEREOF, I vote to AFFIRM the decision of the Court of Appeals.

REYES, R.T., J., dissenting:

THIS is the second time my ponencia on a significant issue narrowly missed the majority vote. I thus write this dissent not without hope that it would one day resurrect given a second look or another chance in a similar case.

ANG Hukuman ay dapat maging mapagbantay at nakahandang maggawad ng pinakamabigat na parusa ng batas sa mga nambibiktima ng mga kapus-palad na pinapangakuan ng mas mabuting buhay, na hindi naman totoo, para lamang ipakain sa kanilang mga pangarap.

The Court must be vigilant and should punish, to the fullest extent of the law, those who prey upon the desperate with empty promises of better lives, only to feed on their aspirations. 1

This exhortation from the eminent Justice Florenz Regalado is at center in this appeal from the Decision 2 of the Court of Appeals (CA) affirming with modification appellant Beth Temporada's conviction for large scale illegal recruitment and five counts of estafa by the Regional Trial Court (RTC), Branch 33, Manila. 3

The Facts

Alternative Travel and Tours Corporation (ATTC) is a land-based recruitment agency with principal business address at Dela Rosa Street, Makati City. The agency later relocated its offices to the Discovery Plaza in Malate, Manila. From September 2001 through January 2002, ATTC was able to recruit for employment abroad private complainants Evelyn Estacio, Soledad Atte, Luz Minkay, Dennis Dimaano, and Rogelio Legaspi. HTScEI

ATTC promised complainants that they would be deployed to Singapore, Hongkong, and Sri Lanka, either as factory workers or technicians, upon payment of their placement fees. In turn, the applicants paid the agency, through its officers and employees Rosemarie "Baby" Robles, Bernadette Miranda, Nenita Catacotan, Jojo Resco, and appellant Beth Temporada, varying amounts ranging from P57,000.00 to P88,520.00.

None of complainants was deployed. Alarmed, they demanded the refund of their placement fees. Despite repeated demands, the agency refused and failed to heed the claims for reimbursement.

On complaint of Estacio, Atte, Minkay, Dimaano, and Legaspi, all said officers and employees of ATTC, namely, Robles, Miranda, Catacotan and Resco, together with appellant Temporada, were indicted for illegal recruitment in large scale, defined and penalized under Article 38 (a) of Presidential Decree (P.D.) No. 1412, otherwise known as the Labor Code of the Philippines, as amended by Republic Act (R.A.) No. 8042, the Migrant Workers Act of 1995. Five separate informations for estafa were likewise lodged against appellant Temporada and her cohorts.

The information for illegal recruitment in large scale (Criminal Case No. 02-208371) bears the following accusation:

That in or about and during the period comprised between the months of September 2001 and January 2002, inclusive, in the City of Manila, Philippines, the said accused, representing themselves to have the power and capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there wilfully and unlawfully for a fee, recruit and promise employment to ROGELIO A. LEGASPI, JR., DENNIS T. DIMAANO, EVELYN V. ESTACIO, SOLEDAD B. ATTE and LUZ T. MINKAY without first having secured the required license from the Department of Labor and Employment as required by law, and charge or accept directly or indirectly from said complainant the amount of P57,600.00, P66,520.00, P88,520.00, P69,520.00, P69,520.00, respectively, as placement fees in consideration for their overseas employment, which amounts are in excess of or greater than that specified in the schedule of allowable fees prescribed of the POEA and without valid reasons and without the fault of the said complainants, failed to actually deploy them and failed to reimburse them the expenses they incurred in connection with the documentation and processing of their papers for purposes of their deployment. ADHcTE

Contrary to law. 4

The informations in Criminal Case Nos. 02-208373, 02-208374, 02-208375, and 02-208376, charging appellant Temporada with estafa in each case, contain substantially the same allegations as those in Criminal Case No. 02-208372, except as to the name of the person defrauded and amount embezzled, viz.: (a) Dennis T. Dimaano, P66,520.00 in Criminal Case No. 02-208373; (b) Evelyn T. Estacio, P88,520.00 in Criminal Case No. 02-208374; (c) Soledad B. Atte, P69,520.00 in Criminal Case No. 02-208375; and (d) Luz T. Minkay, P69,520.00 in Criminal Case No. 02-208376.

The Information in Criminal Case No. 02-208372 recites: acHCSD

That in or about and during the period comprised between November 23, 2001 and January 14, 2002, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously defraud ROGELIO A. LEGASPI, JR. in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representations which they made to said ROGELIO A. LEGASPI, JR. prior to and even simultaneous with the commission of the fraud, to the effect that they have the power and capacity to recruit and employ ROGELIO A. LEGASPI, JR. as technician in Singapore and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, induced and succeeded in inducing said ROGELIO A. LEGASPI, JR. to give and deliver, as, in fact, he gave and delivered to said accused the amount of P57,600.00 on the strength of said manifestations and representations said accused well knowing that the same were false and fraudulent and were made solely for the purpose of obtaining, as, in fact, they did obtain the amount of P57,600.00, which amount, once in their possession, with intent to defraud, they wilfully, unlawfully and feloniously misappropriated, misapplied and converted the same to their own personal use and benefit, to the damage and prejudice of said ROGELIO A. LEGASPI, JR. in the aforesaid amount of P57,600.00, Philippine Currency. DTCSHA

Contrary to law. 5

Only appellant was apprehended. All four other accused remain at large to this day. The cases were consolidated but trial was held only against appellant after she entered a plea of innocence to all charges during her arraignment.

The evidence for plaintiff-appellee was supplied by the combined testimonies of private complainants Evelyn Estacio, Soledad Atte, Luz Minkay, Dennis Dimaano, and Rogelio Legaspi.

Rogelio Legaspi testified that he applied for overseas employment in Singapore as a technician through ATTC. On November 24, 2001, he gave accused Bernadette Miranda the amount of P35,000.00 as processing fee for his application. On January 14, 2002, he gave appellant Temporada P10,000.00 for his visa application. Appellant introduced herself as ATTC General Manager and repeatedly assured him of a job as technician in Singapore. To ensure his early departure, appellant required him to pay an additional amount of P10,000.00 for the air fare. Legaspi promptly complied. 6

Soledad Atte applied as a factory worker in Hongkong. Together with private complainant Luz Minkay, she was introduced to ATTC by a certain Emily Sagalongos. On October 18, 2001, she paid ATTC, through accused Bernadette Miranda, the amount of P30,000.00 as placement fee. This was followed by a payment of P32,000.00 on December 13, 2001 and then again by a sum of P20,000.00 two days later, or on December 15, 2001. Atte disclosed that appellant gave her innumerable assurances that ATTC had the capacity to send her abroad. 7

Luz Minkay, for her part, testified that she paid the P30,000.00 placement fee required by ATTC. She was also promised work as a factory worker in Hongkong. According to her, appellant demanded that she pay an additional amount of money in exchange for the immediate processing of her application. So, Minkay gave accused Bernadette Miranda, in the presence of appellant, the amount of P16,000.00 on December 13, 2001. On December 15, 2001, she gave an additional P20,000.00 to Miranda and Temporada. 8 AIHaCc

Private complainant Evelyn Estacio was recruited for a posting in Sri Lanka by accused Baby Robles. On September 21, 2001, Estacio gave Robles P40,000.00 as placement fee. Despite her submission of all the pertinent documents required of her, she failed to depart for abroad as scheduled. Appellant nevertheless assured her that her documents were already transmitted to the Sri Lankan employer, although her deployment was merely delayed. Appellant subsequently told her that she would instead be deployed to Hongkong as a factory worker. In turn, Estacio gave appellant and accused Miranda the amount of P10,000.00. She likewise gave accused Resco the amounts of P2,600.00 and P920.00 for medical and passport expenses, respectively. 9

Dennis Dimaano disclosed that accused Nenita Catacotan persuaded him to apply for a Hongkong factory worker position at ATTC. On November 16, 2001, he went to the ATTC offices in Malate, Manila, to formalize his application. It was there where he met accused Robles. Robles assured him that there was an available slot at their Hongkong principal for him. The next day or on November 17, 2001, he handed P40,000.00 to accused Miranda, in the presence of accused Catacotan and appellant. On December 14, 2001, he was surprised to learn from appellant that he and several others would not be able to depart for abroad for lack of a prior booking at Philippine Airlines. Despite repeated follow-ups with appellant, Dimaano was never deployed to Hongkong. 10

Expectedly, appellant offered a disparate narration of the facts. The defense version, as presented by the Public Attorney's Office (PAO), is as follows:

BETH TEMPORADA testified that her son Cesar Temporada also applied with ATTC after being prodded by her friends Cora and Vilma. She claimed that together with her son, they were brought to Baby Robles and were told to prepare P80,000 for employment abroad. Incidentally, the brother of accused Baby Robles, Reinier Yulo, her long-time acquaintance and a former neighbor, arrived at ATTC and introduced her to Baby Robles as a trusted campaign leader of the Aguilar clan of politicians from Las Piñas. After the introduction, accused Baby Robles requested her to stay in the ATTC office from morning to afternoon everyday because she was unemployed then. She was also convinced to accept the request so she can personally follow-up her son's application. It was because of the constant follow-ups and her daily stay at ATTC that she met the complainants Atte and Minkay, who were with their agent accused Emily Sagalongos. She insisted that she only offered help to complainants Soledad Atte, Luz Minkay and Evelyn Estacio. As to the receipt issued to Legaspi. (Exhs. "E" & "1" and submarkings), she explained that she was, in fact, surprised to see her name in the receipt although she remembered that site advised accused Baby Robles to issue the receipt. Accused Baby Robles assured her that she only served as a witness to the transaction and that it was a sort of orientation for her in case she will be hired as a staff. AECcTS

She further declared that her son was able to leave the country on January 11, 2002 after giving the amount of P80,000.00 and submitting the necessary documents. But the latter returned ten (10) days after his departure as there was no job for him in Hongkong. She admitted, however, that she did not press charges against accused Baby Robles, and/or ATTC, nor did she request for the refund of the money as according to her, "we were not used to trouble". 11

RTC and CA Dispositions

On May 14, 2004, the RTC convicted appellant as charged, disposing as follows:

WHEREFORE, the prosecution having established the GUILT of accused Beth Temporada BEYOND REASONABLE DOUBT, judgment is hereby rendered CONVICTING the said accused, as principal of the offenses charged and she is sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of Five Hundred Thousand Pesos (P500,000.00 for illegal recruitment; and the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum, to nine (9) years and one day of prision mayor, as maximum for the estafa committed against complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum, to ten (10) years and one day of prision mayor, as maximum for the estafa committed against complainants Dennis Dimaano, Soledad Atte and Luz T. Minkay; and the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum, to eleven (11) years and one day of prision mayor, as maximum for the estafa committed against Evelyn Estacio.

The accused is also ordered to pay, jointly and severally, the complainants' actual damages as follows:

1.	Rogelio A. Legaspi, Jr.	P57,600.00
2.	Dennis T. Dimaano	66,520.00
3.	Evelyn T. Estacio	88,520.00
4.	Soledad B. Atte	69,520.00
5.	Luz T. Minkay	69,520.00

SO ORDERED. 12 (Underscoring supplied) EHaCTA

Conformably with the Court's ruling in People v. Mateo, 13 which amended Sections 3 and 10 of Rule 122, Section 13 of Rule 124 and Section 3 of Rule 125 of the 2000 Rules on Criminal Procedure insofar as they provide for direct appeals from the RTC to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, this case was referred to the CA for intermediate review.

On February 24, 2006, the CA Special First Division, speaking through Associate Justice Rebecca de Guia-Salvador, affirmed with modification the RTC disposition, thus:

WHEREFORE, with MODIFICATION to the effect that in Criminal Case Nos. 02-208373, 208375, & 02-208376 (estafa for P66,520.00, P69,520.00 and P69,520.00, respectively), appellant is sentenced to suffer the indeterminate penalty of six (6) years of prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum; and in Criminal Case No. 02-208374 (estafa for P88,520.00), she is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum, to twelve (12) years and one (1) day of reclusion temporal minimum, as maximum, the appealed decision is AFFIRMED in all other respects.

SO ORDERED. 14 (Underscoring supplied)

By a Resolution dated September 6, 2006, the Court required the parties to submit their respective supplemental briefs, if they so desired. On November 14, 2006, the Office of the Solicitor General manifested that it would no longer file a supplemental brief for plaintiff-appellee, the People. 15 Appellant similarly manifested a desire to adopt her main brief on record. 16

Issue

Through the PAO, appellant submits the lone assignment that "the trial court gravely erred in finding her guilty of illegal recruitment and five (5) counts of estafa despite the insufficiency of evidence for the prosecution". 17 aDSIHc

My Opinion

The appeal cannot succeed.

In essence, appellant anchors her plea for acquittal on denial. She insists she is a mere employee and not a responsible officer of ATTC. Her duties are confined to routinary clerical work. She was not aware that the agency, through her co-accused, was undertaking illegal recruitment activities. Further, she did not gain from the defraudation of private complainants.

On Illegal Recruitment

Illegal recruitment, as defined under R.A. No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, 18 pertains to "any recruitment activities, including the prohibited practices enumerated under Article 34 of the Labor Code,to be undertaken by non-licensees or non-holders of authority". 19 The term "recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, including referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not, provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. 20

The law imposes a higher penalty when the illegal recruitment is committed by a syndicate or in large scale as it is considered an offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme. It is deemed committed in large scale if committed against three or more persons individually or as a group. 21

The essential elements of the crime of illegal recruitment in large scale are as follows:

(1) the accused engages in the recruitment and placement of workers, as defined under Article 13(b) or in any prohibited activities under Article 34 of the Labor Code;

(2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, whether locally or overseas; and EcTIDA

(3) the accused commits the same against three (3) or more persons, individually or as a group. 22

In the case at bench, the People was able to prove beyond reasonable doubt the confluence of these triple elements. The evidence on record amply shows that appellant, together with her co-accused Robles, Miranda, Catacotan, and Resco, engaged in activities that fall within the definition of recruitment and placement under the Labor Code and R.A. No. 8042.

The records bear out that appellant and her co-accused promised overseas employment to private complainants Evelyn Estacio, Soledad Atte, Luz Minkay, Dennis Dimaano, and Rogelio Legaspi. They required private complainants to prepare and submit the necessary documents for their purported deployment abroad. They demanded and accepted amounts ranging from P57,000.00 to P88,520.00 as placement and processing fees from private complainants. However, not one of private complainants was able to depart for abroad.

Philippine Overseas Employment Administration Senior Labor and Employment Officer Ann Abastra Abas testified that based on their records, Beth Temporada or Baby Robles of ATTC was neither authorized nor licensed to recruit workers for overseas employment.

Appellant's posturing that she is not criminally liable for being a mere employee of ATTC deserves scant consideration. The witnesses for the People were categorical in narrating that appellant was actively involved in their recruitment. Private complainant Evelyn Estacio testified that appellant assured her that although her scheduled deployment to Sri Lanka was delayed, her employment documents had been transmitted ahead of her. Estacio likewise disclosed that appellant received money, purportedly intended for ATTC, from her. Dennis Dimaano testified that it was appellant who informed him that his flight schedule was only delayed. It was appellant who rescheduled his departure date to no avail. Private complainants Atte, Minkay, and Legaspi, upon the other hand, consistently disclosed that appellant repeatedly assured them that ATTC had the capacity to send them to various employments abroad. IaDcTC

Time and again, this Court has ruled that the calibration of the testimonies of the witnesses is a matter best left to the discretion of the trial court. For the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. 23

Furthermore, appellant failed to show that private complainants were actuated by any ill motive for them to testify falsely against her. Certainly, it would be against human nature and experience for strangers to conspire and accuse another stranger of a most serious crime just to mollify their hurt feelings. Private complainants had no motivation other than to tell the truth. 24

Clearly, the totality of the evidence shows that appellant was engaged in the recruitment and placement of workers for overseas employment under Article 13 (b) of the Labor Code.25 She can not now be heard to feign ignorance of her actions. Undoubtedly, the acts of appellant showed unity of purpose with those of her co-accused Robles, Catacotan, Miranda, and Resco. All these acts established a common criminal design mutually deliberated upon and accomplished through coordinated moves. There being conspiracy, appellant shall be equally liable for the acts of her co-accused even if she herself did not personally reap the fruits of their execution. 26

Section 7 (b), R.A. No. 8042, 27 amending Article 39 (a) of P.D. No. 1412, penalizes illegal recruitment in large scale in the following tenor:

Sec. 7. Penalties. —

xxx xxx xxx

(b) The penalty of life imprisonment and a fine of not less than Five Hundred Thousand pesos (P500,000.00) nor more than One Million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.

Article 38 (b) of the Decree declares that illegal recruitment committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. HTIEaS

Appellant and her co-accused having recruited five persons, giving them the impression of the ability to send workers abroad, assuring them of their employment in Singapore, Hongkong, and Sri Lanka, and collecting various amounts for processing and placement fees, without license or authority to so recruit, undoubtedly committed large-scale illegal recruitment. 28 Perforce, the RTC and the CA correctly imposed upon appellant the penalty of life imprisonment and a fine of P500,000.00.

On Estafa

The conviction of appellant on five counts of estafa should likewise be affirmed. The rule is well-entrenched in this jurisdiction that a person may be charged with and convicted separately of illegal recruitment under the Labor Code; and estafa under the Revised Penal Code (RPC), Article 315, paragraph 2 (a). The Court, through the ponencia of Mr. Justice Leonardo Quisumbing in People v. Yabut, 29 aptly observed:

In this jurisdiction, it is settled that a person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws. Conversely, conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not bar a conviction for illegal recruitment under the Labor Code. It follows that one's acquittal of the crime of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and vice versa. 30

The prosecution has proven beyond reasonable doubt that appellant is guilty of estafa under the RPC, Article 315, paragraph (2) (a), which provides that estafa is committed "by using fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits".

The records unveil that appellant and her co-accused conspired and confederated with one another in deceiving private complainants into believing that they had the authority and capability to send them abroad for employment; that there were available posts for them in Singapore, Hong Kong, and Sri Lanka for which they would be hired; and that by reason and on the strength of such assurances, private complainants parted with their hard-earned money in payment of the various processing and placement fees.

As all these representations of appellant and her cohorts proved false and empty, her conviction for five counts of estafa under paragraph 2 (a) of Article 315 of the RPC in Criminal Case Nos. 02-208372 to 02-208376 should be upheld.

Now to the imposable penalty in estafa.

In meting out the penalties for the five counts of estafa, the RTC pegged the minimum terms at four years and two months of "prision correctional" (sic), although the maximum terms reached nine years and one day up to eleven years and one day of prision mayor. SIcCEA

Thus, the RTC imposed upon appellant in Criminal Case No. 02-208372 the indeterminate penalty of "four (4) years and two (2) months of prision correctional (sic) as minimum, to nine (9) years and one (1) day of prision mayor, as maximum" for the estafa in the amount of P57,000.00 committed against complainant Rogelio A. Legaspi, Jr.; in Criminal Case Nos. 02-208373, 02-208375, and 02-208376, the indeterminate penalty of "four (4) years and two (2) months of prision correctional (sic) as minimum, to ten (10) years and one (1) day of prision mayor, as maximum" for the estafa in the amounts of P66,520.00, P69,520.00 and P69,520.00, respectively, committed against complainants Dennis Dimaano, Soledad Atte and Luz T. Minkay; and in Criminal Case No. 02-208374, the indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum, to eleven (11) years and one (1) day of prision mayor, as maximum for the estafa in the amount of P88,520.00 committed against Evelyn Estacio.

On the other hand, the CA affirmed the RTC sentence in Criminal Case No. 02-208372 but modified the penalty in four of the five convictions for estafa. The CA ratiocinated:

The penalty for estafa depends on the amount defrauded. Article 315 of the Revised Penal Code prescribes the penalty of prision correccional in its maximum period to prision mayor in its minimum period if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00 pesos. If such amount exceeds the latter sum, the penalty shall be imposed in its maximum period, adding one (1) year for each additional P10,000.00, but the total penalty which may be imposed shall not exceed twenty years.

As the respective amounts defrauded in the estafa cases exceed P22,000.00, the penalty should be imposed in its maximum period, or prision mayor minimum which ranges from six (6) years, eight (8) months and twenty-one (21) days to eight (8) years, plus one (1) year for each additional P10,000.00 in excess of P22,000.00. Applying the Indeterminate Sentence Law, the maximum term should be taken from the aforesaid period, while the minimum term shall be within the range of the penalty next lower in degree to that prescribed by the Code for the offense, in any of its periods.

Accordingly, in Criminal Case No. 02-208372, since the amount defrauded was P57,600.00, the trial court correctly imposed on appellant the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional maximum, as minimum, to nine (9) years and one (1) day of prision mayor medium, as maximum. acHDTE

With respect to Criminal Case Nos. 02-208373, 02-208374, 02-208375 & 02-208376, the indeterminate penalty imposed on appellant needs correction. In said cases, the amounts defrauded were P66,520.00, P69,520.00 and P69,520.00, respectively. Applying the Indeterminate Sentence Law, the minimum of the indeterminate sentence should be anywhere within the range of prision correccional maximum, while the maximum penalty should be ten (10) years and one day of prision mayor maximum.

In Criminal Case No. 02-208374, the amount defrauded was P88,520.00. Applying the Indeterminate Sentence Law, appellant should be meted the indeterminate penalty of eight (8) years of prision mayor medium, as minimum, to twelve (12) years and one (1) day of reclusion temporal minimum, as maximum. 31 (Underscoring supplied)

A review of case law on the calibration of what is labeled as incremental penalty in estafa vis-a-vis the Indeterminate Sentence Law (ISL) yields two schools of thought. They are reflected in the RTC and CA sentences.

First School of Thought

In People v. Pabalan, 32 decided on September 30, 1996, the Court declared for the first time that the maximum penalty in estafa shall be taken from the maximum period of the basic penalty as stated in Article 315 of the RPC, as augmented by the additional years of imprisonment (one year for each additional P10,000.00 in excess of P22,000.00), while the minimum term of the indeterminate sentence shall be within the range of the penalty next lower in degree to that provided by law without considering the incremental penalty for the amounts in excess of P22,000.00. That penalty immediately lower in degree is prision correccional in its minimum and maximum periods, with a duration of six months and one day to four years and two months.

The Court said in Pabalan:

On the imposable penalty for the particular felony of estafa in the present cases, we are constrained to discuss the pertinent provision of Article 315 of the Revised Penal Code. Under the said article, an accused found guilty of estafa shall suffer:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos, but the total penalty which may be imposed shall not exceed twenty years. In such case and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The amount of the fraud in Criminal Case No. 3090-V-93 is P88,500.00; in Criminal Case No. 3091-V-93, P66,000.00; and in Criminal Case No. 3092-V-93, P94,400.00. Subtracting P22,000 from each of the aforesaid amounts will leave P66,500.00, P44,000.00 and P72,400.00 in the respective criminal cases. To determine the additional years of imprisonment prescribed in the above article, each of the latter amounts shall be divided by P10,000.00, disregarding any amount below P10,000.00. Thus, in the foregoing estafa cases, the incremental penalties of six (6) years, four (4) years and seven (7) years should be correspondingly added to the maximum period of the basic penalty provided in the aforequoted paragraph or Article 315. SDIaHE

Applying the mandate of the Indeterminate Sentence Law, the maximum penalty shall therefore be taken from the maximum period of said basic penalty in Article 315 as augmented by the additional years of imprisonment, while the minimum term of the indeterminate sentence shall be within the range of the penalty next lower in degree to that provided by law without considering the incremental penalty for the amounts in excess of P22,000.00. That penalty immediately lower in degree is prision correccional in its minimum and medium periods, with a duration of six (6) months and one (1) day to four (4) years and two (2) months.

Based on the foregoing considerations, the lower court incorrectly imposed the penalty of reclusion perpetua in the illegal recruitment case, and likewise erred in fixing the minimum terms of the indeterminate sentences in the estafa cases. 33 (Underscoring supplied)

In People v. Benemerito, 34 a slightly different formulation for the calibration of the penalty in estafa was prescribed. Said the Court: CHcETA

The amount proved to have been defrauded in Criminal Case No. Q-93-51513 and Criminal Case No. Q-93-51514 was P50,000.00 in each case. Hence, the penalty prescribed above should be imposed in its maximum period. The maximum period thereof following the rule prescribed in the last paragraph of Article 77 of the Revised Penal Code ranges from six (6) years, eight (8) months and twenty-one (21) days to eight (8) years. We add to it two years and nine (9) months for the amount beyond the first P22,000.00 (at the rate of one year for every P10,000.00 and nine months for the remaining P8,000.00 by ratio and proportion). Applying the Indeterminate Sentence Law, the accused-appellant can be sentenced to an indeterminate penalty whose minimum shall be within the range of the penalty next lower in degree than that prescribed by law, viz., prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months) and whose maximum shall be the abovementioned imposable penalty. The indeterminate penalty can range therefore from 2 years, 11 months and 10 days of prision correccional, as minimum to 10 years and 9 months of prision mayor, as maximum.

In Criminal Case No. Q-93-51515, the amount proved to have been defrauded is only P85,000.00 as the receipt for the P10,000.00 is in the name of Shally Flor Gumarang, not the complainant Carlito Gumarang. The principal penalty imposable is likewise the maximum of the prescribed penalty provided for in Article 315 as stated in the immediately preceding paragraph, plus 6 years and 3 months for the amounts beyond P22,000.00 (at the rate of 1 year for every additional P10,000.00 and 3 months for the remaining P3,000.00). Applying the Indeterminate Sentence Law, and the foregoing disquisition, the accused-appellant can be sentenced to an indeterminate penalty ranging from 4 years and 2 months of prision correccional, as minimum, to 14 years and 3 months of reclusion temporal, as maximum. 35 (Underscoring Supplied)

It should be noted, however, that the said formula in Benemerito is similar to that in Pabalan in the sense that the minimum term of the indeterminate sentence remains stationary at prision correccional while the maximum term can reach up to reclusion temporal. But no sufficient rational explanation is given in both cases why the more established rules on penalties have to be disregarded in the process of fixing the minimum term. HTDCAS

People v. Gabres 36 was the first to refer to the incremental penalty in estafa as a modifying circumstance. Pertinent parts of the said ruling read:

Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which, in view of the attending circumstances, could be properly imposed' under the Revised Penal Code, and the minimum shall be 'within the range of the penalty next lower to that prescribed' for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.

The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months while the maximum term of the indeterminate sentence should at least be six (6) years and one (1) day because the amounts involved exceeded P22,000.00, plus an additional one (1) year for each additional P10,000.00.

Accordingly, the Court thus finds some need to modify in part of the penalties imposed by the trial court, viz.:

In Criminal Case No. 93-CR-1800, the amount involved is P45,000.00. Hence, the minimum penalty should be reduced to four (4) years and two (2) months of prision correccional, which is the maximum of the allowable minimum penalty of the indeterminate sentence. The maximum penalty imposed by the court a quo is within lawful range.

In Criminal Case No. 93-CR-1801, the amount involved, as so modified by this Court, is P50,000.00. The minimum penalty should then be reduced to four (4) years and two (2) months of prision correccional (the maximum of the minimum of the indeterminate sentence). The maximum penalty should at least be six (6) years and one (1) day of prision mayor plus a period of two (2) years (one [1] year for each additional P10,000.00) for a total maximum period of eight (8) years and one (1) day of prision mayor. STIcEA

In Criminal Case No. 93-CR-1802 and No. 93-CR-1803, the amounts involved in each total P40,000.00. The minimum penalty of the indeterminate sentence imposed by the court a quo of two (2) years, eight (8) months and one (1) day of prision correccional is within lawful range. The maximum penalty, however, should at least be six (6) years and one (1) day of prision mayor plus a period of one (1) year for a total maximum period of seven (7) years and one (1) day of prision mayor. 37 (Underscoring supplied)

Gabres, taking a cue from Pabalan and Benemerito, added to the foundation for the prevailing view that the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the RPC, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense; that the penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime; that the modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence; that in computing the penalty for estafa, the fact that the amounts involved exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; that instead the matter should be taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence.

In justifying this interpretation of the provisions of the RPC on the penalty in estafa vis-a-vis the application of the ISL, the Court theorized that this is in accord with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for estafa is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its minimum to medium periods. 38

This interpretation was reiterated in, among others, People v. Hernando, 39 People v. Menil, 40 People v. Logan, 41 People v. Gallardo 42 and Garcia v. People. 43

To my mind, this interpretation needs revisiting. It should be reconciled with (1) Article 315; (2) Article 14 of the RPC; (3) the ISL; (4) the basic rules of statutory construction; and (5) the rationalization of penalties. Several reasons support this conclusion. TCaAHI

Second School of Thought

First.Pabalan, Benemerito, and Gabres collectively state that the penalty prescribed by the Code for estafa is prision correccional maximum to prision mayor minimum. That is not true.

The said penalty is only the initial prescription, the starting point. In truth, the penalty for estafa, as in theft, hinges on the value or amount involved. 44 The penalty is determined by the amount of the actual damage suffered, or the potential one, if the act has not been consummated. 45 It is the value of the damage or the prejudice that is the basis for the determination of penalty. 46 As in theft, the penalty is graduated according to the value. 47

Article 315 of the RPC reads:

Article 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

Verily, Article 315 prescribes the penalty of prision correccional maximum to prision mayor minimum if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00. Beyond that, the penalty varies. It may be prision mayor or reclusion temporal, if the amount exceeds P22,000.00 as to call for many additional years — one (1) year for each additional P10,000.00. aTAEHc

In People v. Dela Cruz, 48 the Court had occasion to explain the rudiments of composing the penalty for theft, simple and qualified. Said the Court:

We now discuss the penalty to be imposed. Under Article 310 in relation to Article 309(1) of the Revised Penal Code, qualified theft shall be punished by the penalty next higher by two degrees than those specified in simple theft. Article 309(1) provides that if the value of the thing stolen is more than P12,000.00 pesos but does not exceed P22,000.00 pesos, the penalty of prision mayor in its minimum and medium periods shall be imposed. If the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years.

In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with sidecar valued at P30,000.00. Since this value remains undisputed, we accept this amount for the purpose of determining the imposable penalty. In simple theft, such amount carries the corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the maximum period. Considering that the penalty for qualified theft is two degrees higher than that provided for simple theft, the penalty of prision mayor in its minimum and medium periods must be raised by two degrees. Thus, the penalty prescribed for the offense committed of qualified theft of motor vehicle is reclusion temporal in its medium and maximum periods to be imposed in its maximum period.

Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be anywhere within the range of the penalty next lower in degree to that prescribed for the offense, without first considering any modifying circumstance attendant to the commission of the crime. Since the penalty prescribed by law is reclusion temporal medium and maximum, the penalty next lower would be prision mayor in its maximum period to reclusion temporal in its minimum period. Thus, the minimum of the indeterminate sentence shall be anywhere within ten (10) years and one (1) day to fourteen (14) years and eight (8) months. 49 (Underscoring supplied)

Indeed, the minimum term of the indeterminate sentence is or should be only one degree away from the maximum term. Corollarily, the minimum term varies as the amount of the thing stolen rises and falls. In essence, it goes in the same direction as the maximum term. DHcSIT

May the ruling in People v. Dela Cruz 50 be used as basis for the penology in estafa when what was involved there was qualified, not simple theft? The answer is in the affirmative.

Dela Cruz discussed the rudiments for composing the penalty for both simple and qualified theft. Thus, the pronouncement of the Court on simple theft, which prescribes the same penalty 51 as that for estafa in excess of P22,000.00, may be applied here.

It is of no moment that Dela Cruz involved the crime of qualified theft. What is material is that the Court echoed the fundamental rule that the penalty for theft, as in estafa, hinges on the value or amount involved. 52 It is the value of the damage or prejudice that is the basis for the determination of penalty. 53 In theft as in estafa, the penalty is graduated according to the value. 54

Second. Pabalan, Benemerito, and Gabres, as well as those that came after them, considered the incremental penalty in estafa as a mere modifying circumstance. Said cases projected that the incremental penalty of one year for each P10,000.00 in excess of P22,000.00 is not part of the penalty but is akin to a circumstance aggravating the felony.

To consider the additional amount in excess of P22,000.00 as mere modifying circumstance or one analogous to it is baseless. A modifying circumstance is either mitigating or aggravating. The enumeration of the aggravating circumstances under Article 14 of the RPC is exclusive, as opposed to the enumeration in Article 13 of the same Code regarding mitigating circumstances where there is a specific paragraph (paragraph 10) providing for analogous circumstances. 55 Casus omissus pro omisso habendus est. A case omitted is intentionally omitted.

The view that the incremental penalty in estafa is a mere modifying circumstance or analogous to it runs afoul of Article 14 of the Code that does not so provide. Article 14 is clear and needs no expansion. ETDaIC

There is a view that the "attending circumstances" mentioned in Section 1 of the ISL are not limited to those modifying circumstances falling within the scope of Articles 13 and 14 of the RPC. Quasi-recidivism is cited as an example where the penalty next lower in degree is computed based on the prescribed penalty and not the prescribed penalty in its maximum period.

The citation is inappropriate. It should not be forgotten that quasi-recidivism is a special aggravating circumstance. 56 Thus, it is sui genesis: a class of its own.

Third. Section 1 of Act No. 4103, the ISL, as amended by Act No. 4225, declares:

SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. 57 (Emphasis supplied)

This section may be subdivided into four parts or sub-rules, to wit:

(1) ISL applies mandatorily if the maximum prison sentence exceeds one year, whether the offense is punished by the RPC (or its amendments) or any other law (special law);

(2) The sentence has a minimum term and a maximum term;

(3) If the crime is punished by the RPC, the maximum term shall be the proper penalty under the Code in view of the attending mitigating/aggravating) circumstances and the minimum term shall be within the range of the penalty next lower than that prescribed by the Code;

(4) If the offense is punished by any other law (special law), the maximum term shall not exceed the maximum fixed by said law and the minimum term shall not be less than the minimum prescribed by the same law. CITaSA

By jurisprudence, the basis of application of ISL is the penalty actually imposed. Thus, even in capital offenses, if the sentence is not death or life imprisonment/reclusion perpetua because of a privileged mitigating circumstance, the ISL applies. 58

The minimum term shall be within the range of the penalty next lower than that prescribed by the Code for the offense. 59 In crafting the minimum term, the court cannot impose a minimum penalty that is in the same period and the same degree as the maximum penalty. 60 This is because the ISL expressly mandates that it "shall be within the range of the penalty next lower to that prescribed by the Code for the offense. 61

In interpreting what is the "penalty next lower", the Court, in People v. Co-Pao, 62 held that the penalty next lower in degree consists in the period next following within the same penalty, if any, otherwise within the penalty following in the scale prescribed in Article 70. The Court would later on be more emphatic in People v. Haloot, 63 where it ruled that "the penalty next lower than another should begin where the latter ends because otherwise, if it were to skip intermediate ones, it would be lower but not next lower in degree".

In People v. Gonzales, 64 the Court held for the first time that the minimum of the indeterminate sentence, the penalty next lower, must be based on the penalty prescribed by the Code for the offense, "without considering in the meantime the modifying circumstances". But this phrase is not found in the language of the ISL. Moreover, in actual application, this method has not been followed in most cases outside estafa, as will be shown shortly.

The clause "without considering in the meantime the modifying circumstances" first espoused in Gonzales would become the foundation of the first school of thought in estafa penology. As adverted to earlier, Pabalan, Benemerito, and Gabres would later hold that in composing the penalty in estafa, the fact that the amounts involved exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; that instead, the matter should be taken as analogous to modifying circumstances material only to the imposition of the maximum term of the indeterminate sentence. SEHTIc

This interpretation of the ISL needs a second hard look. It runs counter to the law's express mandate to set the minimum term at the penalty next lower prescribed by the code for the offense.

The first school of thought in estafa penology pegs the minimum term at prision correccional in its minimum and medium periods (which has a range of six months and one day to four years and two months). Under the prevailing rule, the minimum term remains in that vicinity even if the amount of the fraud exceeds the P22,000.00 ceiling set by Article 315 of the Code. Thus, it is not uncommon that a swindler of huge amounts is meted a prison sentence of four years and two months of prision correccional, as minimum, to twenty years of reclusion temporal, as maximum.

This is a clear defiance of, and disobedience to, the basic tenet that the minimum term shall be only one degree away from the maximum term. Section 1 of the ISL is clear. The minimum term shall be "within the range of the penalty next lower to that prescribed by the code for the offense". The rule in Haloot that "the penalty next lower than another should begin where the latter ends because otherwise, if it were to skip intermediate ones, it would be lower but not next lower in degree" is more in keeping with the letter and spirit of the ISL.

Clearly, an indeterminate penalty with a maximum term of reclusion temporal and a minimum term of prision correccional in its minimum or medium periods would not be in keeping with the regular formula of the minimum term being just one degree, not two degrees, lower than the maximum term.

The minimum of the indeterminate sentence should be arrived at by descending one degree down the scale from the penalty actually imposed. In other words, the distance between the maximum and the minimum should always be only one degree.

In People v. Ducosin, 65 the Court had occasion to rule that the minimum of the indeterminate sentence is arrived at by descending one degree lower from the penalty prescribed by law for the felony. The doctrine was reiterated with greater firmness in People v. Alba, 66 Lontoc v. People, 67 People v. Yco, 68 Basan v. People, 69 and Larobis v. Court of Appeals. 70 SHcDAI

In computing the indeterminate sentence for crimes punished under the RPC, the regular formula is to determine first the maximum term, after considering all the attending circumstances. Then, the minimum term is arrived at by going one degree down the scale.

In Sabang v. People, 71 where the accused was convicted of homicide, the Court, with Mr. Justice Tinga as ponente, categorically ruled: "Under Art. 249 of the Revised Penal Code, homicide is punished by reclusion temporal. There being one (1) mitigating circumstance of voluntary surrender, the penalty shall be imposed in its minimum period. Applying the benefits of the ISL, the trial court correctly imposed an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum". Note that here, the penalty actually imposed was reclusion temporal in its minimum period. The minimum term is a degree down the scale of penalties, prision mayor, imposed in its medium period.

In Garces v. People, 72 a prosecution for rape, Mme. Justice Consuelo Ynares-Santiago, speaking for the Court, sentenced accused Pacursa, after considering the mitigating circumstance of minority at the time of the commission of the crime, "to suffer an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to 15 years of reclusion temporal, as maximum". On the other hand, accused Garces was found guilty as an accomplice to the crime of rape, and was sentenced to "suffer an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to 15 years of reclusion temporal, as maximum".

A similar mode of determining the maximum and minimum terms was followed in the following ponencias: People v. Miranda, 73 People v. Candaza, 74 People v. Concepcion, 75 People v. Senieres, 76 People v. Hermocilla, 77 and People v. Abulon. 78

However, to the point of being repetitive, the current penology in estafa is differently formulated. In estafa, the minimum term is not arrived at by descending one degree lower than the maximum term of the indeterminate sentence. The minimum term is fixed at prision correccional minimum and medium periods (six months and one day to four years and two months), regardless of the amount of the fraud. It often happens that a maximum term of the indeterminate sentence is set at twenty years of reclusion temporal, while the minimum term is pegged at four years and two months. EITcaD

I see no cogent justification why the penology in estafa should be divergent from the established formula regularly applied in other crimes penalized under the RPC. Put differently, there is neither rhyme nor reason why the penalty on estafa should be fixed at four years, two months of prision correccional. A uniform standard for the computation of penalties regardless of the crime, would avoid confusion among the Bench and Bar.

My stance is not without precedents. In the 1999 case of People v. Romero, 79 involving estafa of P150,000.00, the Court sentenced the accused to an indeterminate sentence of ten years and one day of prision mayor, as minimum, to sixteen years and one day of reclusion temporal, as maximum. That same year, in De Carlos v. Court of Appeals, 80 on estafa of P895,190.59, the Court upheld both the trial court and CA in the imposition of an indeterminate sentence of eight years and one day of prision mayor, as minimum, to twenty years of reclusion temporal, as maximum.

In People v. Dinglasan, 81 the Court, speaking through Mr. Justice Quisumbing, found the accused guilty beyond reasonable doubt of one count of estafa and sentenced him to "suffer an indeterminate penalty of 6 years and 1 day of prision mayor as minimum to 20 years of reclusion temporal as maximum; and to pay the offended party, Charles Q. Sia, the amount of P26,400.00, the face value of the check, as actual damages". 82 The ponencia was concurred in by Justices Josue Bellosillo, Vicente Mendoza, Romeo Callejo, Sr. and Ma. Alicia Austria-Martinez.

In Salazar v. People, 83 where the Court, per then Mr. Justice (now Chief Justice) Reynato Puno, affirmed the sentence imposed by the court a quo and the CA on the accused which was an "indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as the maximum" 84 for estafa under Article 315 (b) of the RPC, in the amount of $595,259.00. Then Chief Justice Artemio Panganiban and Justices Angelina Sandoval-Gutierrez, Renato Corona, and Conchita Carpio-Morales concurred.

Note that in these cases, the minimum terms imposed on the accused were not pegged at prision correccional minimum and medium periods. The minimum terms were adjusted as the amount of fraud increased. Also, the maximum sentence imposed in both instances was only one degree away from the minimum sentence. This manner of sentencing is what exactly this opinion seeks to follow.

Further, to perpetually set the minimum of estafa at prision correccional minimum or medium periods, is absurd. It would be giving the same minimum penalty to one who commits estafa of P13,000.00 and another who swindles P130 million or more. That runs counter to the sound, rational principle that the penalty must be commensurate with the gravity, or lightness, of the crime committed. No wonder, swindling incidents of huge proportions or scams remain rampant, unabated and unchecked. One big reason could be that the present mode of computing the penalty does not pose any deterrence. cADEIa

Two objections may be raised. First, the burden is greater on one who defrauds in larger amount because while it is possible that the minimum term imposed by a court would be the same, the maximum term would be longer for the convict who committed estafa involving P130 million (which would be twenty years of reclusion temporal) than the convict who swindled P13,000.00 (which could be anywhere from prision correccional maximum to prision mayor minimum or from four years, two months and one day to eight years). Second, assuming that both convicts qualify for parole after serving the minimum term, the convict sentenced to a higher maximum term would carry a greater "burden" with respect to the length of parole surveillance which he may be placed under, and the penalty for a violation of the terms of the parole, as provided in Sections 6 and 8 of the ISL.

On the first, the penalty is considered "indeterminate" because after the convict serves the minimum term, he or she may become eligible for parole under the provisions of the ISL. 85 Thus, it may happen — and this is not farfetched — that a convict who swindled millions may represent himself as reformed inside prison for the duration of the minimum term just so he can avail of parole.

Too, the imposition of the proper penalty or penalties is determined by the nature, gravity, and number of the offenses charged and proved. 86 Thus, the penalty to be imposed upon a person accused must be commensurate with the seriousness or depravity of the felony, offense, or malfeasance being punished. A grave injustice will result if the penalty imposed is disproportionate to the wrong committed. 87

On the second objection, there is never a guarantee that a convict who has swindled several millions will not again swindle while on parole. Worse, in case he does, there is also no guarantee that he will be brought to justice. Why then should he not serve at least a higher minimum sentence than one who has swindled only several thousands? At least, the swindler of millions should have enough time to reform and reflect on the harm he has caused.

Fourth. To extend the benefits of the ISL twice to swindlers is to violate the intent of the framers of the law.

Given the purpose of the ISL, the law implores the courts to sentence the accused to an indeterminate sentence consisting of a minimum term and a maximum term, instead of a single fixed penalty prescribed by the RPC or by a special law. IHcSCA

The minimum term is material to the entitlement of the accused to the benefits of parole. Once an accused has served the minimum term, his fitness to rejoin society is assessed and determined. If warranted, the accused is ordered released, subject to the conditions of the parole.

However, the estafa penology espoused by the first school of thought affords to the accused the benefits of the ISL, not once but twice.

First, the accused is meted an indeterminate sentence. There can be no quarrel there because that is what the law mandates. Second, Pabalan, Benemerito, and Gabres and those succeeding them stagnate the minimum term to prision correccional minimum to medium, which has a range of six months and one day to four years and two months, regardless of the amount of the fraud. Thus, a swindler of millions is given the same minimum term as one who has committed estafa of less than P22,000.00. This is where my stand comes in. CaDSHE

The lofty objective of the ISL is already achieved by setting the minimum and maximum terms of an indeterminate sentence. Certainly, without an indeterminate sentence, an accused will be made to suffer a straight penalty as prescribed by the Code or by the statute for the offense.

Pegging the minimum term in estafa at four years and two months of prision correccional, regardless of the amount of the fraud, is to extend the benefits of the ISL to the accused a second time. Surely, the framers of the ISL did not envision the said law to extend excessive favorable treatment to scammers and swindlers.

The basic purpose of the ISL as stated in People v. Ducosin 88 is "to uplift and redeem human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness". 89 Is my opinion in keeping with said purpose? Yes.

The basic ISL tenet that favors the accused will still be observed even if the minimum of the indeterminate sentence is not constantly pegged at four years, two months of prision correccional. My position does not intend to dispense with the upliftment and redemption of valuable human material. What it hopes to accomplish, however, is to keep the minimum of the indeterminate sentence only one degree away from the maximum term prescribed by the Code for estafa, after considering the incremental penalty.

More importantly, there is no basis in construing the clause "without considering in the meantime the modifying circumstances" in Gonzales in the manner of Pabalan, Benemerito, and Gabres. The clause should only be interpreted to mean that the court is given the widest latitude in the determination of the minimum term of the indeterminate sentence.

In Ducosin, 90 the Court held, per Mr. Justice Butte, that the ISL, in the determination of the minimum penalty, "confers upon the courts the widest discretion that the courts have ever had". 91 To fix at four years and two months of prision correccional the minimum penalty for estafa in excess of P22,000.00 is tantamount to straight-jacketing the courts. That is contrary to the "widest discretion" of the courts.

What is more, there is no need to subject Article 315 to a liberal interpretation because its language is clear and unequivocal. Courts are not at all times duty-bound to construe and interpret the laws. Elementary is the rule in statutory construction that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. 92

Interpretation is only resorted to when there is ambiguity. But there is no ambiguity in Article 315 of the RPC. Hence, there is no need to interpret the said provision. The duty of the Court is to apply the law. When the law is clear and unequivocal, the Court has no other recourse but to apply the law and not interpret it (verba legis).

Fifth. The present mode of computing penalty for estafa detracts from our very concept of the interplay between crime and punishment.

Punitur quia peccatur. Crime as crime must be punished. Justice Mariano Albert, in his commentary on the RPC, stated that a penalty is a punishment inflicted for its violation. 93 It signifies the specific social reaction, the means of defense and resistance by which society, yielding to a natural impulse, seeks to repress the offense, harm, and danger caused by the crime. 94

In imposing penalty on the accused, a three-fold purpose is hoped to be achieved: (1) the expiation of the crime committed; (2) the correction of the culprit; and (3) the defense of society. In fixing the penalty for the commission of a felony, the RPC takes into account the degree of execution of the crime and the participation of the responsible parties. The goal principally is to establish in the most just manner the proportion of the penalty commensurate with the seriousness of the offense. 95 ICAcTa

A lesser punishment than what the law prescribes for an offense is anathema to sound penology. Penalties for crimes should always be commensurate with the gravity or lightness of the offense committed and proved. Estafa of astronomical amounts, meriting a penalty of reclusion temporal, as maximum term, does not deserve a minimum term in the range of prision correccional (six months and one day to six years). Rather, the minimum term should be hiked to prision mayor, in any of its periods (six years and one day to twelve years). Inversely, cases of estafa involving less than P22,000.00 are worthy of a minimum term in the range of prision correccional.

The present mode of computing the penalty for estafa lends too much leniency to swindlers. Those who commit swindling in huge amounts do not deserve any liberality or leniency at all. It is the public — in this case, desperate seekers of employment abroad — who deserve full vindication and protection from the courts. cHCSDa

Estafa of scandalous proportions smacks of serious crimes. Thus, offenders need to be prosecuted and penalized to the full extent of the law. More than any other branch of the government, the Court should see to it that this is accomplished. After all, what the Constitution prohibits is the imposition of excessive fines and the imposition of cruel, degrading, and inhuman punishment, 96 not the meting out of a penalty whose duration depends on the gravity of the offense.

A Call for Change

Sound penology dictates that the penalty be commensurate with the lightness or seriousness of the offense being punished. This Court has, in a number of instances, opted to redeem the suffering of the accused after considering the lightness of the offense charged and proved. Thus, in Vaca v. Court of Appeals, 97 the Court deleted the prison sentence imposed on petitioners and, instead, imposed only a fine double the amount of the check issued. The Court took into consideration that appellants were qualified for probation but chose to appeal, believing in the worthiness of their cause.

In Lim v. People, 98 this Court affirmed the conviction of petitioner for two counts of violation of Batas Pambansa Blg. 22. However, the Court set aside the penalty of imprisonment and sentenced her to pay a fine of P200,000.00 in each case with subsidiary imprisonment, only in case of insolvency or non payment, not to exceed six months.

The rule on libel has followed the same route. Just recently, the Court issued Administrative Circular No. 08-2008 99 which expresses a preference for imposing a fine over imprisonment for those convicted of libel.

But this power of the Court to lighten the penalty of lesser crimes carries with it the responsibility to impose a greater penalty for grave felonies. The Court ought not to shirk from its duty to see to it that the guilty are given what they deserve. The Court should do that here.

I am not unaware of the time-honored principle of stare decisis, et non quieta movere: follow past precedents and do not disturb what has been settled. Be that as it may, idolatrous reverence for precedent, simply as precedent, no longer rules. 100

Thus, when circumstances necessitate a review or adjustment, this Court should not hesitate to do so. The legal problems with which society is beset continually cannot be merely considered in the abstract, but must be viewed in the facets of human experience. 101 So must it be the case here.

Finally, the Court should rather be right than be consistent. Ang Hukuman ay dapat maging tama sa halip na sa paghatol ay walang pagbabago. The only constant in this world is change. Ang tanging di-nagbabago sa mundong ito ay pagbabago.

WHEREFORE, I vote that the appealed Decision of the Court of Appeals be AFFIRMED WITH MODIFICATION in that:

1. In Criminal Case No. 02-208372 (P57,600.00), appellant should be sentenced to an indeterminate penalty of 4 years, 2 months of prision correccional medium period, as minimum term, to 9 years, 8 months and 21 days of prision mayor medium period, as maximum term; cIHDaE

2. In Criminal Cases Nos. 02-208373 (P66,520.00), 02-208375 and 02-208376 (both for P69,520.00) appellant should be sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional maximum period, as minimum term, to 10 years, 8 months and 21 days of prision mayor maximum period, as maximum term; and

3. In Criminal Case No. 02-208374 (P88,520.00), appellant should be sentenced to an indeterminate penalty of 6 years, 1 day of prision mayor minimum period, as minimum term, to 12 years, 8 months and 21 days of reclusion temporal minimum period, as maximum term.

CORONA, J.:

A man cannot suffer more punishment than the law assigns, but he may suffer less. — William Blackstone 1

For when lenity and cruelty play for a kingdom, the gentler gamester is the soonest winner. — William Shakespeare 2

The application of the Indeterminate Sentence Law is one of the more complicated and confusing topics in criminal law. It befuddles not a few students of law, legal scholars and members of the bench and of the bar. 3 Fortunately, this case presents a great opportunity for the Court to resolve with finality a controversial aspect of the application and interpretation of the Indeterminate Sentence Law. It is an occasion for the Court to perform its duty to formulate guiding and controlling principles, precepts, doctrines or rules. 4 In the process, the matter can be clarified, the public may be educated and the Court can exercise its symbolic function of instructing bench and bar on the extent of protection given by statutory and constitutional guarantees. 5

The fundamental principle in applying and interpreting criminal laws, including the Indeterminate Sentence Law, is to resolve all doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the accused. This is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt. 6

Intimately intertwined with the in dubio pro reo principle is the rule of lenity. It is the doctrine that "a court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment". 7

Lenity becomes all the more appropriate when this case is viewed through the lens of the basic purpose of the Indeterminate Sentence Law "to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness". 8 Since the goal of the Indeterminate Sentence Law is to look kindly on the accused, the Court should adopt an application or interpretation that is more favorable to the accused.

It is on the basis of this basic principle of criminal law that I respectfully submit this opinion.

THE BONE OF CONTENTION

The members of the Court are unanimous that accused-appellant Beth Temporada was correctly found guilty beyond reasonable doubt of the crimes of illegal recruitment and estafa by the Regional Trial Court of Manila, Branch 33 and the Court of Appeals. However, opinions differ sharply on the penalty that should be imposed on accused-appellant for estafa. In particular, there is a debate on how the Indeterminate Sentence Law should be applied in a case like this where there is an incremental penalty when the amount embezzled exceeds P22,000 (by at least P10,000).

In this connection, the relevant portion of Article 315 of the Revised Penal Code provides: IAETDc

ART. 315. Swindling (estafa). — Any person who shall defraud another by any means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall in no case exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed prision mayor to reclusion temporal, as the case may be.

xxx xxx xxx

On the other hand, the relevant portion of the Indeterminate Sentence Law provides:

 

SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; . . .

Jurisprudence shows that there are two schools of thought on the incremental penalty in estafa vis-à-vis the Indeterminate Sentence Law. Under the first school of thought, the minimum term is fixed at prision correccional while the maximum term can reach up to reclusion temporal. This is the general interpretation. It was resorted to in People v. Pabalan, 9 People v. Benemerito, 10 People v. Gabres 11 and in a string of cases. 12

On the other hand, under the second school of thought, the minimum term is one degree away from the maximum term and therefore varies as the amount of the thing stolen or embezzled rises or falls. It is the line of jurisprudence that follows People v. De la Cruz. 13 Among the cases of this genre are People v. Romero, 14 People v. Dinglasan 15 and Salazar v. People. 16

The Court is urged in this case to adopt a consistent position by categorically discarding one school of thought. Hence, our dilemma: which of the two schools of thought should we affirm? HacADE

THE FIRST SCHOOL OF THOUGHT IS

Under the Indeterminate Sentence Law, in imposing a sentence, the court must determine two penalties composed of the "maximum" and "minimum" terms, instead of imposing a single fixed penalty. 17 Hence, the indeterminate sentence is composed of a maximum term taken from the penalty imposable under the Revised Penal Code and a minimum term taken from the penalty next lower to that fixed in the said Code.

The maximum term corresponds to "that which, in view of the attending circumstances, could be properly imposed under the rules of the [Revised Penal] Code". Thus, "attending circumstances" (such as mitigating, aggravating and other relevant circumstances) that may modify the imposable penalty applying the rules of the Revised Penal Code is considered in determining the maximum term. Stated otherwise, the maximum term is arrived at after taking into consideration the effects of attendant modifying circumstances.

On the other hand, the minimum term "shall be within the range of the penalty next lower to that prescribed by the [Revised Penal] Code for the offense". It is based on the penalty prescribed by the Revised Penal Code for the offense without considering in the meantime the modifying circumstances. 18

The penalty prescribed by Article 315 of the Revised Penal Code for the felony of estafa (except estafa under Article 315 (2) (d)) 19 is prision correccional in its maximum period to prision mayor in its minimum period if the amount of the fraud is over P12,000 but does not exceed P22,000. If it exceeds P22,000, the penalty provided in this paragraph shall be imposed in its maximum period. Moreover, where the amount embezzled is more than P22,000, an incremental penalty of one year shall be added for every additional P10,000. IETCAS

Thus, the Revised Penal Code imposes prision correccional in its maximum period to prision mayor in its minimum period (or a period of four years, two months and one day to eight years) if the amount of the fraud is more than P12,000 but not more than P22,000. If it exceeds P22,000, the penalty is imposed in its maximum period (or a period of six years, 8 months and 21 days to eight years) with an incremental penalty of one year for each additional P10,000 subject to the limitation that the total penalty which may be imposed shall in no case exceed 20 years.

Strictly speaking, the circumstance that the amount misappropriated by the offender is more than P22,000 is a qualifying circumstance. In People v. Bayot, 20 this Court defined a qualifying circumstance as a circumstance the effect of which is "not only to give the crime committed its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that especially prescribed for said crime". Applying the definition to estafa where the amount embezzled is more than P22,000, the amount involved ipso jure places the offender in such a situation as to deserve no other penalty than the imposition of the penalty in its maximum period plus incremental penalty, if warranted. 21 In other words, if the amount involved is more than P22,000, then the offender shall be sentenced to suffer the maximum period of the prescribed penalty with an incremental penalty of one year per additional P10,000.

However, People v. Gabres considered the circumstance that more than P22,000 was involved as a generic modifying circumstance which is material only in the determination of the maximum term, not of the minimum term:

Under the Indeterminate Sentence Law, the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense". The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. jurcda

The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charged against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two months while the maximum term of the indeterminate sentence should at least be six (6) years and one (1) day because the amounts involved exceeded P22,000.00, plus an additional one (1) year for each additional P10,000.00. (emphasis supplied)

If the circumstance that more than P22,000 was involved is considered as a qualifying circumstance, the penalty prescribed by the Revised Penal Code for it will be the maximum period of prision correccional in its maximum period to prision mayor in its minimum period. This has a duration of six years, 8 months and 21 days to eight years. The penalty next lower (which will correspond to the minimum penalty of the indeterminate sentence) is the medium period of prision correccional in its maximum period to prision mayor in its minimum period, which has a duration of five years, five months and 11 days to six years, eight months and 20 days. 22

If the circumstance is considered simply as a modifying circumstance (as in Gabres), it will be disregarded in determining the minimum term of the indeterminate sentence. The starting point will be prision correccional maximum to prision mayor minimum and the penalty next lower will then be prision correccional in its minimum to medium periods, which has a duration of six months and one day to four years and two months.

From the foregoing, it is more favorable to the accused if the circumstance (that more than P22,000 was involved) is to be considered as a modifying circumstance, not as a qualifying circumstance. Hence, I submit that the Gabres rule is preferable.

On the contrary, the second school of thought is invariably prejudicial to the accused. By fixing the minimum term of the indeterminate sentence to one degree away from the maximum term, the minimum term will always be longer than prision correccional in its minimum to medium periods.

Worse, the circumstance (that more than P22,000 was embezzled) is not a modifying circumstance but a part of the penalty, if adopted, will mean that the minimum term of the indeterminate sentence will never be lower than the medium period of prision correccional in its maximum period to prision mayor in its minimum period, the penalty next lower to the maximum period of prision correccional in its maximum period to prision mayor in its minimum period.

THE SECOND SCHOOL OF THOUGHT

The primary defect of the so-called second school of thought is that it contradicts the in dubio pro reo principle. It also violates the lenity rule. Instead, it advocates a stricter interpretation with harsher effects on the accused. In particular, compared to the first school of thought, it lengthens rather than shortens the penalty that may be imposed on the accused. Seen in its proper context, the second school of thought is contrary to the avowed purpose of the law that it purportedly seeks to promote, the Indeterminate Sentence Law. AIHECa

The second school of thought limits the concept of "modifying circumstance" to either a mitigating or aggravating circumstance listed under Articles 13 and 14 of the Revised Penal Code. It contends that the respective enumerations under the said provisions are exclusive and all other circumstances not included therein were intentionally omitted by the legislature. It further asserts that, even assuming that the circumstance that more than P22,000 was embezzled may be deemed as analogous to aggravating circumstances under Article 14, the said circumstance cannot be considered as an aggravating circumstance because it is only in mitigating circumstances that analogous circumstances are allowed and recognized. 23 The second school of thought then insists that, since the circumstance that more than P22,000 was involved is not among those listed under Article 14, the said circumstance is not a modifying circumstance for purposes of the Indeterminate Sentence Law.

The second school of thought therefore strictly construes the term "attending circumstances" against the accused. It refuses to recognize anything that is not expressed, takes the language used in its exact meaning and admits no equitable consideration.

To the point of being repetitive, however, where the accused is concerned, penal statutes should be interpreted liberally, not strictly.

The fact that there are two schools of thought on the matter by itself shows that there is uncertainty as to the concept of "attending" or "modifying" circumstances. Pursuant to the in dubio pro reo principle, the doubt must be resolved in favor of the accused and not against him.

Moreover, laws must receive sensible interpretation to promote the ends for which they are enacted. 24 The meaning of a word or phrase used in a statute may be qualified by the purpose which induced the legislature to enact the statute. The purpose may indicate whether to give a word or phrase a restricted or expansive meaning. 25 In construing a word or phrase, the court should adopt the interpretation that best serves the manifest purpose of the statute or promotes or realizes its object. 26 Where the language of the statute is fairly susceptible to two or more constructions, that which will most tend to give effect to the manifest intent of the lawmaker and promote the object for which the statute was enacted should be adopted. 27 Taken in conjunction with the lenity rule, a doubtful provision of a law that seeks to alleviate the effects of incarceration ought to be given an interpretation that affords lenient treatment to the accused. cACTaI

The Indeterminate Sentence Law is intended to favor the accused, particularly to shorten his term of imprisonment. 28 The reduction of his period of incarceration reasonably helps "uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness". The law, being penal in character, must receive an interpretation that benefits the accused. 29 This Court already ruled that "in cases where the application of the law on indeterminate sentence would be unfavorable to the accused, resulting in the lengthening of his prison sentence, said law on indeterminate sentence should not be applied". 30 In the same vein, if an interpretation of the Indeterminate Sentence Law is unfavorable to the accused and will work to increase the term of his imprisonment, that interpretation should not be adopted. It is also for this reason that the claim that the power of this Court to lighten the penalty of lesser crimes carries with it the responsibility to impose a greater penalty for grave penalties is not only wrong but also dangerous. cDICaS

Nowhere does the Indeterminate Sentence Law prescribe that the minimum term of the penalty be no farther than one degree away from the maximum term. Thus, while it may be true that the minimum term of the penalty in an indeterminate sentence is generally one degree away from the maximum term, the law does not mandate that its application be rigorously and narrowly limited to that situation.

THE PROPER INDETERMINATE

From the above disquisition, I respectfully submit that the prevailing rule, the so-called first school of thought, be followed. With respect to the indeterminate sentence that may be imposed on the accused, I agree with the position taken by Madame Justice Consuelo Ynares-Santiago.

Accordingly, I vote that the decision of the Court of Appeals be AFFIRMED with the following modifications:

(1) in Criminal Case No. 02-208372, the accused be sentenced to an indeterminate penalty of 4 years and 2 months of prision correccional as minimum, to 9 years, 8 months and 21 days of prision mayor as maximum;

(2) in Criminal Case Nos. 02-208373, 02-208375, and 02-208376, the accused be sentenced to an indeterminate penalty of 4 years and 2 months of prision correccional as minimum, to 10 years, 8 months and 21 days of prision mayor as maximum for each of the aforesaid three estafa cases and

(3) in Criminal Case No. 02-208374, the accused be sentenced to an indeterminate penalty of 4 years and 2 months of prision correccional as minimum, to 12 years, 8 months and 21 days of prision mayor as maximum.

AZCUNA, J.:

I join the Chief Justice in his dissent.

The penalty for estafa is a unique one, in a class by itself. The penalty prescribed by law depends on the amount involved. If it does not exceed P22,000, it is the penalty stated in par. 2 (a) of Art. 315 of the Revised Penal Code, i.e., prision correccional maximum to prision mayor minimum. If it exceeds P22,000, it is that penalty plus one year for every P10,000, but in no case more than 20 years. Then the law states that in that event the penalty should be "termed" prision mayor or reclusion temporal, "as the case may be".

Accordingly, if the amount involved is, say, P500 Million, the penalty prescribed by law is reclusion temporal. Hence, the penalty one degree lower than that is prision mayor and it is within this one-degree lower penalty, i.e., prision mayor, that the minimum of the indeterminate sentence is to be fixed.

 

Footnotes

1. CA rollo, pp. 121-136. Penned by Associate Justice Rebecca de Guia-Salvador, with Associate Justices Amelita G. Tolentino and Aurora Santiago-Lagman, concurring. aACEID

2. Penned by Hon. Reynaldo G. Ros.

3. CA rollo, pp. 121-124.

4. Id. at 125-126.

5. G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

6. CA rollo, p. 135.

7. People v. Gamboa, G.R. No. 135382, September 29, 2000, 341 SCRA 451, 458.

8. Exhibits "A", "L", and "L-1". EcATDH

9. People v. Cabais, G.R. No. 129070, March 16, 2001, 354 SCRA 553, 561.

10. CA rollo, pp. 9-10.

11. Supra note 7 at 462.

12. Id.

13. People v. Guambor, G.R. No. 152183, January 22, 2004, 420 SCRA 677, 683.

14. People v. Ballesteros, G.R. Nos. 116905-908, August 6, 2002, 386 SCRA 193, 212.

15. Id. at 213.

16. 335 Phil. 242 (1997). ECTIHa

17. ARTICLE 65. Rule in Cases in Which the Penalty is Not Composed of Three Periods. — In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions the time included in the penalty prescribed, and forming one period of each of the three portions.

18. People v. Saley, G.R. No. 121179, July 2, 1998, 291 SCRA 715, 753-754.

19. Id. at 755.

20. 331 Phil. 64 (1996).

21. 332 Phil. 710, 730-731 (1996).

22. ARTICLE 249. Homicide. — Any person who, not falling within the provisions of article 246 shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusión temporal.

23. 3 Phil. 437 (1904).

24. Id. at 440.

25. The penalty is considered "indeterminate" because after the convict serves the minimum term, he or she may become eligible for parole under the provisions of Act No. 4103, which leaves the period between the minimum and maximum term indeterminate in the sense that he or she may, under the conditions set out in said Act, be released from serving said period in whole or in part. (People v. Ducosin, 59 Phil. 109, 114 [1933])

26. In the other portions of the dissent though, there is also the impression that the basis is the penalty actually imposed as hereinabove defined. Whether it is the imposable penalty or penalty actually imposed, the dissent's interpretation contravenes the ISL because the minimum term should be fixed based on the prescribed penalty.

27. See Aquino and Griño-Aquino, The Revised Penal Code, Vol. 1, 1997 ed., pp. 772-773; Padilla, Criminal Law: Revised Penal Code Annotated, 1988 ed., pp. 211-214.

28. 73 Phil. 549 (1941).

29. Id. at 552.

30. The dissent cites several cases to establish that Gonzales has not been followed in cases outside of estafa. An examination of these cases reveals that this assertion is inaccurate. DcCIAa

1. Sabang v. People, G.R. No. 168818, March 9, 2007, 518 SCRA 35; People v. Candaza, G.R. No. 170474, June 16, 2006, 491 SCRA 280; People v. Concepcion, G.R. No. 169060, February 6, 2007, 514 SCRA 660; People v. Hermocilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296; People v. Abulon, G.R. No. 174473, August 17, 2007, 530 SCRA 675.

Gonzales was applied in these cases.

2. People v. Miranda, G.R. No. 169078, March 10, 2006, 484 SCRA 555; Garces v. People, G.R. No. 173858, July 17, 2007, 527 SCRA 827 — belongs to the class of cases involving accessories and accomplices as well as the frustrated and attempted stages of a felony.

Strictly speaking, these cases do not deviate from Gonzales. Here, the prescribed penalty for the principal and consummated stage, respectively, should be merely viewed as being lowered by the proper number of degrees in order to arrive at the prescribed penalties for accomplices and accessories as well as the frustrated and attempted stages of a felony. In turn, from these prescribed penalties, the minimum term is determined without considering in the meantime the modifying circumstances, as in Gonzales.

3. Garces v. People, G.R. No. 173858, July 17, 2007, 527 SCRA 827 — belongs to the class of cases involving privileged mitigating circumstances.

These cases are, to a certain extent, an exception to the rule enunciated in Gonzales. Here, the prescribed penalty is first reduced by the proper number of degrees due to the existence of a privileged mitigating circumstance. As thus reduced, the penalty next lower in degree is determined from which the minimum term is taken. To the extent that the privileged mitigating circumstance, as a modifying circumstance, is first applied to the prescribed penalty before the penalty next lower in degree is determined, these cases deviate from Gonzales. However, this interpretation is based on the special nature of a privileged mitigating circumstance as well as the liberal construction of penal laws in favor of the accused. If the privileged mitigating circumstance is not first applied to the prescribed penalty before determining the penalty next lower in degree from which the minimum term is taken, it may happen that the maximum term of the indeterminate sentence would be lower than the minimum term, or that the minimum and maximum term would both be taken from the same range of penalty — absurdities that the law could not have intended. These special considerations which justified a deviation from Gonzales are not present in the instant case. As will be shown later, Gabres is a reasonable interpretation of the ISL in relation to Article 315, par. 2 (a) of the RPC, and any contrary interpretation would be unfavorable to the accused.

31. 59 Phil. 109 (1933).

32. This wording of Act No. 4103 was later amended to the current wording "minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense" by Act No. 4225.

33. Supra note 31 at 116-118. cDEICH

34. Similarly, in the instant case, the maximum term imposed on the accused increased as the amount defrauded increased in the various criminal cases filed against her as a consequence of the incremental penalty rule.

35. Sec. 6. Every prisoner released from confinement on parole by virtue of this Act shall, at such times and in such manner as may be required by the conditions of his parole, as may be designated by the said Board for such purpose, report personally to such government officials or other parole officers hereafter appointed by the Board of Indeterminate Sentence for a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release and discharge by the Board of Indeterminate Sentence as herein provided. The officials so designated shall keep such records and make such reports and perform such other duties hereunder as may be required by said Board. The limits of residence of such paroled prisoner during his parole may be fixed and from time to time changed by the said Board in its discretion. If during the period of surveillance such paroled prisoner shall show himself to be a law-abiding citizen and shall not violate any of the laws of the Philippine Islands, the Board of Indeterminate Sentence may issue a final certificate of release in his favor, which shall entitle him to final release and discharge.

36. Sec. 8. Whenever any prisoner released on parole by virtue of this Act shall, during the period of surveillance, violate any of the conditions of his parole, the Board of Indeterminate Sentence may issue an order for his re-arrest which may be served in any part of the Philippine Islands by any police officer. In such case the prisoner so re-arrested shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison, unless the Board of Indeterminate Sentence shall, in its discretion, grant a new parole to the said prisoner. HESCcA

37. Supra note 31 at 117.

38. G.R. No. 112985, April 21, 1999, 306 SCRA 90.

39. G.R. No. 103065, August 16, 1999, 312 SCRA 397.

40. G.R. No. 149472, October 15, 2002, 391 SCRA 162.

41. G.R. No. 133645, September 17, 2002, 389 SCRA 71.

42. 383 Phil. 213 (2000).

43. Estafa committed by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

44. Effective April 6, 1980.

45. See Article 61 of the RPC.

46. Effective June 17, 1967.

47. Effective October 22, 1975.

48. Supra note 41 at 80. CaDEAT

49. ARTICLE 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prisión mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be. . . .

50. Supra note 42 at 227-228.

51. ARTICLE 160. Commission of Another Crime During Service of Penalty Imposed for Another Previous Offense — Penalty. — Besides the provisions of rule 5 of article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. ESTAIH

Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of seventy years if he shall have already served out his original sentence, or when he shall complete it after reaching said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency.

52. See People v. Perete, 111 Phil. 943, 947 (1961).

53. G.R. No. L-55177, February 27, 1987, 148 SCRA 98, 110.

54. G.R. No. L-29994, July 20, 1979, 91 SCRA 500, 511.

The dissent argues that the use of quasi-recidivism as an example of an "attending circumstance" which is outside the scope of Article 14 of the RPC is inappropriate because quasi-recidivism is sui generis. The argument is off-tangent. The point is simply that quasi-recidivism is not found under Article 14 of the RPC yet it is treated as an "attending circumstance" for purposes of the application of the ISL in relation to the RPC. Hence, there are "attending circumstances" outside the scope of Articles 13 and 14 of the RPC. For the same reason, the incremental penalty rule is a special rule outside of Article 14 which, as will be discussed later on, serves the same function as modifying circumstances under Articles 13 and 14 of the RPC. See also Reyes, L.B., The Revised Penal Code, 14th ed., 1998, p. 766.

55. The common thread in the RPC is to fix the prescribed penalty as the starting point for determining the prison sentence to be finally imposed. From the prescribed penalty, the attending circumstances are then considered in order to finally fix the penalty actually imposed. Further, the designation of a prescribed penalty is made in individual articles, or prescribed penalties are individually designated in separate paragraphs within a single article. Under Article 315, the penalty for estafa when the amount defrauded is over P12,000.00 but does not exceed P22,000.00 and when such amount exceeds P22,000.00 is lumped within the same paragraph. Thus, the penalty of prisión correccional maximum to prisión mayor minimum may be reasonably considered as the starting point for the computation of the penalty actually imposed, and hence, the prescribed penalty when the amount defrauded exceeds P22,000.00. As will be discussed shortly, the amount defrauded in excess of P22,000.00 may then be treated as a special aggravating circumstance and the incremental penalty as analogous to a modifying circumstance in order to arrive at the penalty actually imposed consistent with the letter and spirit of the ISL in relation to the RPC.

56. People v. Ladjaalam, 395 Phil. 1, 35 (2000). SACTIH

57. Cases involving privileged mitigating circumstances would, likewise, deviate from this general rule since the maximum term would be taken from a penalty lower than the prescribed penalty. See note 13.

58. G.R. Nos. 119987-88, October 12, 1995, 249 SCRA 244.

59. Id. at 251.

60. The aforesaid phrases are broad enough to justify Mr. Justice Azcuna's interpretation, however, they are vague enough not to exclude the interpretation under Gabres. The said phrases may be so construed without being inconsistent with Gabres. (See Articles 90 and 92 of the RPC)

61. 3 Sutherland Statutory Construction § 59:3 (6th ed.)

62. Id. citing Buzzard v. Commonwealth, 134 Va. 641, 114 S.E. 664 (1992). DaEcTC

PUNO, C.J., dissenting:

1. People v. Nang Kay, 88 Phil. 515. (1951). THIAaD

2. RPC, Section 1.

3. The "First school of Thought", according to the ponencia.

4. Equatorial Realty Development, Inc. v. Sps. Desiderio & Frogozo, G.R. No. 128563, March 25, 2004, 426 SCRA 271. CSaITD

5. People v. Concepcion, G.R. No. 131477, April 20, 2001, 357 SCRA 168, 182.

6. G.R. Nos. 118950-54, February 6, 1997, 267 SCRA 581.

7. People v. Concepcion, supra note 5.

8. G.R. No. 125214, October 28, 1999, 317 SCRA 617.

9. Yu Oh v. Court of Appeals, G.R. No. 125287, June 6, 2003, 403 SCRA 300, 308, citing Lacson v. Executive Secretary, et al., G.R. No. 128096, January 20, 1999, 301 SCRA 298, 323.

10. No. L-3565, 88 Phil. 515, 520 (1951).

11. 110 Conn. 403, 148 A. 350, January 6, 1930.

12. Supra note 4.

REYES, R.T., J., dissenting:

1. People v. Ortiz-Miyake, G.R. Nos. 115338-39, September 16, 1997, 279 SCRA 180. EHSIcT

2. Rollo, pp. 3-17. Penned by Associate Justice Rebecca de Guia-Salvador, with Associate Justices Amelita G. Tolentino and Aurora Santiago-Lagman, concurring.

3. CA rollo, pp. 26-34. Penned by Presiding Judge Reynaldo G. Ros.

4. Id. at 6.

5. Id. at 8.

6. TSN, March 14, 2003, pp. 4-12.

7. TSN, April 4, 2003, pp. 4-15.

8. Id. at 34-43.

9. TSN, May 5, 2003, pp. 3-19.

10. TSN, May 21, 2003, pp. 7-22.

11. CA rollo, pp. 57-58.

12. Id. at 33-34.

13. G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

14. CA rollo, p. 135. (Words and figures in parentheses.)

15. Rollo, p. 20.

16. Id. at 24.

17. CA rollo, p. 49.

18. Republic Act No. 8042, entitled "An Act to Institute the Policies of Overseas Employment and Establish a Higher Standard of Protection and Promotion of the Welfare of Migrant Workers, Their Families and Overseas Filipinos in Distress and for Other Purposes".

19. Id., Sec. 6.

20. Presidential Decree No. 442, Art. 13, otherwise known as the Labor Code of the Philippines, as amended.

21. Republic Act No. 8042, Sec. 7.

22. People v. Gallardo, G.R. Nos. 140067-71, August 29, 2002, 388 SCRA 121, 129; People v. Reichl, 428 Phil. 643, 657 (2002); People v. Ortiz-Miyake, supra note 1, at 193.

23. See People v. Rayles, G.R. No. 169874, July 27, 2007, 528 SCRA 409; People v. Quijada, G.R. Nos. 115008-09, July 24, 1996, 259 SCRA 191, 212-213; People v. Lua, G.R. Nos. 114224-25, April 26, 1996, 256 SCRA 539, 546. AEIHCS

24. People v. Ong Co, G.R. No. 112046, July 11, 1995, 245 SCRA 733, citing People v. Simon, G.R. No. 56925, May 21, 1992, 209 SCRA 148; People v. Villagracia, G.R. No. 94471, March 1, 1993, 219 SCRA 212.

25. People v. Bautista, G.R. No. 113547, February 9, 1995, 241 SCRA 216; People v. Benemerito, G.R. No. 120389, November 21, 1996, 264 SCRA 677, 691-692.

26. People v. Gallardo, supra note 22; People v. Reichl, supra note 22.

27. Approved June 7, 1995. ITaCEc

28. People v. Benemerito, supra note 25, at 692.

29. G.R. Nos. 115719-26, October 5, 1999, 316 SCRA 237.

30. People v. Yabut, id. at 246-247.

31. CA rollo, pp. 133-135.

32. G.R. Nos. 115350 & 117819-21, September 30, 1996, 262 SCRA 574.

33. People v. Pabalan, id. at 590-592. Reclusion perpetua for large-scale illegal recruitment is incorrect because the special law provides for life imprisonment. Life imprisonment and reclusion perpetua are two different penalties. The Code does not prescribe life imprisonment for any of the felonies defined in it. That penalty is invariably imposed for serious offenses penalized by special laws. Reclusion perpetua entails imprisonment of forty (40) years and carries with it accessory penalties like perpetual special disqualification. Life imprisonment, for one thing, does not carry with it any accessory penalty, and for another, does not have any definite extent or duration. aCcEHS

34. Supra note 25.

35. People v. Benemerito, id. at 693-694.

36. G.R. Nos. 118950-54, February 6, 1997, 267 SCRA 581.

37. People v. Gabres, id. at 595-597.

38. Id. (Underscoring supplied.)

39. G.R. No. 125214, October 28, 1999, 317 SCRA 617.

40. G.R. Nos. 115054-66, September 12, 2000, 340 SCRA 125.

41. G.R. Nos. 135030-33, July 20, 2001, 361 SCRA 581.

42. Supra note 22.

43. G.R. No. 144785, September 11, 2003, 410 SCRA 582.

44. U.S. v. Fernandez, 9 Phil. 199 (1907); U.S. v. Leaño, 6 Phil. 368 (1906).

45. Albert, M., Revised Penal Code, 1946 ed., pp. 726-727.

46. Reyes, L.B., Revised Penal Code, Bk. II, 15th ed., 2001, p. 733.

47. People v. Concepcion, G.R. No. 131477, April 20, 2001, 357 SCRA 168.

48. G.R. No. 125936, February 23, 2000, 326 SCRA 324. Concurred in by Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ.

49. People v. Dela Cruz, id. at 335-336.

50. Id.

51. Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph and one year of each additional ten thousand pesos, but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

52. U.S. v. Fernandez, supra note 44; U.S. v. Leaño, supra note 44. aSTAHD

53. See note 45.

54. People v. Concepcion, supra note 47.

55. People v. Gano, G.R. No. 134373, February 28, 2001, 353 SCRA 126, 135, citing People v. Regala, G.R. No. 130508, April 5, 2000, 329 SCRA 707, 716.

56. Revised Penal Code, Art. 160. Commission of another crime during service of penalty imposed for another previous offense — Penalty. — Besides the provisions of Rule 5 of Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.

Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of seventy years if he shall have already served out his original sentence, or when he shall complete it after reaching said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency.

The elements of quasi-recidivism are:

1) That the offender was already convicted by final judgment of one offense; and

2) That he committed the new felony before beginning to serve such sentence or while serving the same. Luis B. Reyes, Revised Penal Code, Bk. II, 2001 ed., p. 172.

57. Act No. 4103, Sec. 1, as amended by Act No. 4225.

58. People v. Cempron, G.R. No. 66324, July 6, 1990, 187 SCRA 248; People v. Moises, G.R. No. L-32495, August 13, 1975, 66 SCRA 151.

59. Id.

60. Reyes, Revised Penal Code, Bk. I, 2001 ed., p. 770.

61. Id.

62. 58 Phil. 545 (1933).

63. 37 O.G. 2901.

64. 73 Phil. 549 (1941). CAETcH

65. 59 Phil. 109, 117 (1933).

66. 63 Phil. 1058-1059 (1936) (unreported).

67. 74 Phil, 513 (1943).

68. 95 Phil. 951-952 (1954) (unreported).

69. G.R. No. L-39483, November 29, 1974, 61 SCRA 275.

70. G.R. No. 104189, March 30, 1993, 220 SCRA 639.

71. G.R. No. 168818, March 9, 2007, 518 SCRA 35.

72. G.R. No. 173858, July 17, 2007, 527 SCRA 827. ACSaHc

73. G.R. No. 169078, March 10, 2006, 484 SCRA 555. Penned by Mme. Justice Ynares-Santiago. "Appellant is found GUILTY of attempted rape and sentenced to an indeterminate prison term of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, . . . ."

74. G.R. No. 170474, June 16, 2006, 491 SCRA 280. Penned by Mme. Justice Ynares-Santiago. "The decision of the Court of Appeals affirming the decision of Branch 172, Regional Trial Court, Valenzuela City, in Crim. Case No. 677-V-00, finding appellant guilty of acts of lasciviousness, is AFFIRMED with MODIFICATION, in that appellant is sentenced to suffer imprisonment from eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and (1) day of reclusion temporal as maximum, . . . ." caIACE

75. G.R. No. 169060, February 6, 2007, 514 SCRA 660. Penned by Mr. Justice Tinga. Accused was found guilty of homicide and sentenced to suffer "indeterminate penalty of imprisonment ranging from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, . . . ."

76. G.R. No. 172226, March 23, 2007, 519 SCRA 13. Penned by Mr. Justice Tinga. Accused was found guilty of rape and "is sentenced to suffer imprisonment ranging from four (4) years two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, . . . ."

77. G.R. No. 175830, July 10, 2007, 527 SCRA 296. Penned by Mme. Justice Ynares-Santiago. Accused was found guilty of rape through sexual assault and sentenced to suffer the "indeterminate penalty of 12 years of prision mayor, as minimum, up to 20 years of reclusion temporal, as maximum, . . . ." cDACST

78. G.R. No. 174473, August 17, 2007, 530 SCRA 675. Penned by Mr. Justice Tinga. Accused was found guilty of acts of lasciviousness and sentenced to suffer the "indeterminate penalty of imprisonment for six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, . . . ."

79. G.R. No. 112985, April 21, 1999, 306 SCRA 90. Penned by Justice Bernardo Pardo.

80. G.R. No. 103065, August 16, 1999, 312 SCRA 397.

81. G.R. No. 133645, September 17, 2002, 389 SCRA 71.

82. People v. Dinglasan, id. at 81. (Underscoring supplied.)

83. G.R. No. 149472, October 15, 2002, 391 SCRA 162.

84. Salazar v. People, id. at 168. (Underscoring supplied.)

85. People v. Ducosin, supra note 65.

86. People v. Peralta, G.R. No. L-19069, October 29, 1968, 25 SCRA 759.

87. Hong Kong and Shanghai Banking Corporation v. National Labor Relations Commission, G.R. No. 116542, July 30, 1996, 260 SCRA 49. HcaATE

88. Supra note 65.

89. People v. Ducosin, id. at 117.

90. Supra note 65.

91. People v. Ducosin, id. at 116.

92. Baranda v. Gustillo, G.R. No. L-81163, September 26, 1988, 165 SCRA 757; Insular Bank of Asia and America Employees' Union [IBAAEU] v. Inciong, G.R. No. L-52415, October 23, 1984, 132 SCRA 663; Aparri v. Court of Appeals, G.R. No. L-30057, January 31, 1984, 127 SCRA 231.

93. See note 45, at 157, citing People v. Necrow, 13 NE 533.

94. Id.

95. See note 45, at 157. aIcDCT

96. United States Constitution, Eighth Amendment; CONSTITUTION (1987), Art. III, Sec. 19 (1).

97. G.R. No. 131714, November 16, 1998, 298 SCRA 656.

98. G.R. No. 130038, September 18, 2000, 340 SCRA 497.

99. Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases.

100. Philippine Trust Co. and Smith, Bell and Co. v. Mitchell, 59 Phil. 30 (1933).

101. Osmeña v. Commission on Elections, G.R. No. 132231, March 31, 1998, 288 SCRA 447. HIACac

CORONA, J., dissenting:

1. Commentaries on the Laws of England 92.

2. King Henry the Fifth, Act 3, Scene 6, Line 11. ESTCHa

3. A survey of criminal law jurisprudence will show that among the portions of the ruling of trial courts and the appellate court that are most commonly corrected by this Court is the application of the Indeterminate Sentence Law. In fact, even this Court has grappled with the matter. (See People v. Moises, [160 Phil. 845 (1975)] overruling People v. Colman [103 Phil. 6 (1958)]; People v. Gonzales [73 Phil. 549 (1942)] overturning People v. Co Pao [58 Phil. 545 (1933)] and People v. Gayrama (60 Phil. 796 (1934)] and People v. Mape [77 Phil. 809 (1947)] reversing People v. Haloot [64 Phil. 739 (1937)] which followed the Co Pao ruling.)

4. See Salonga v. Cruz Paño, 219 Phil. 402 (1985).

5. Id.

6. See Section 14 (2), Constitution.

7. Black's Law Dictionary, Eighth Edition (2004), p. 1359.

8. People v. Ducosin, 59 Phil. 109 (1933). IDaEHS

9. 331 Phil. 64 (1996).

10. 332 Phil. 710 (1996).

11. 335 Phil. 242 (1997).

12. These cases include People v. Hernando, 375 Phil. 1078 (1999), People v. Menil, 394 Phil. 433 (2000), People v. Logan, 414 Phil. 113 (2001), People v. Gallardo, 436 Phil. 698 (2002), Garcia v. People, 457 Phil. 713 (2003) and Vasquez v. People, G.R. No. 159255, 28 January 2008, 542 SCRA 520. ACTISE

13. 383 Phil. 213 (2000).

14. 365 Phil. 531 (1999).

15. 437 Phil. 621 (2002).

16. 439 Phil. 762 (2002).

17. People v. Ducosin, supra.

18. People v. Gonzales, supra note 3.

19. The penalty for estafa under Article 315 (2) (d) is provided under PD 818 (Amending Article 315 of the Revised Penal Code by Increasing the Penalties for Estafa Committed by Means of Bouncing Checks). AaDSEC

20. 64 Phil. 269 (1937).

21. This is similar to the effect of the circumstance that the offender intended to aid the enemy by giving notice or information that is useful to the enemy in the crime of correspondence with hostile country under Article 120 (3) of the Revised Penal Code (which necessitates the imposition of reclusion perpetua to death) or of the circumstance that the offender be a public officer or employee in the crime of espionage under Article 117 of the Revised Penal Code (which requires the imposition of the penalty next higher in degree than that generally imposed for the crime). cSITDa

22. See Article 61 (5) of the Revised Penal Code. If the penalty is any one of the three periods of a divisible penalty, the penalty next lower in degree shall be that period next following the given penalty. Thus, the penalty immediately inferior to prision mayor in its maximum period is prision mayor in its medium period (People v. Co Pao, supra note 3). If the penalty is reclusion temporal in its medium period, the penalty next lower in degree is reclusion temporal in its minimum period (People v. Gayrama, supra note 3). The penalty prescribed by the Revised Penal Code for a felony is a degree. If the penalty prescribed for a felony is one of the three periods of a divisible penalty, that period becomes a degree, and the period immediately below is the penalty next lower in degree (Reyes, Luis B., The Revised Penal Code, Book Two, Fifteenth Edition [2001], p. 700). AaSIET

23. In particular, Article 13 (10) expressly provides that "any other circumstances of a similar nature and analogous to those above mentioned" are treated as mitigating. Article 14, however, does not have a similar provision.

24. Lo Cham v. Ocampo, 77 Phil. 636 (1946).

25. Krivenko v. Register of Deeds, 79 Phil. 461 (1947). HITEaS

26. Muñoz & Co. v. Hord, 12 Phil. 624 (1909).

27. Ty Sue v. Hord, 12 Phil. 485 (1909).

28. People v. Nang Kay, 88 Phil. 515 (1951). TADcCS

29. Id.

30. Id.