Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 188191               March 12, 2014

ENRIQUE ALMERO y ALCANTARA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, MIRASOL BARTOLOME, CLARITA P. MATIAS, ROSENDO P.
MATIAS, and ANTONIO P. MATIAS, Respondents.

RESOLUTION

SERENO, CJ:

We resolve the petition filed under Rule 45 of the 1997 Rules of Civil Procedure by Enrique Almero y
Alcantara from the Decision of the Court of Appeals (CA) dated 26 September 2008 and Resolution
dated 29 May 2009 in CA-G.R. SP. No. 103030. 1

THE MTC RULING IN CRIMINAL CASE No. 96-6531

Petitioner is the accused in Criminal Case No. 96-6531 for reckless imprudence resulting in
homicide and multiple physical injuries. After private respondents reserved the right to institute a
separate action for damages, trial ensued. On 8 January 2007, the Municipal Trial Court (MTC) of
Labo, Camarines Norte found petitioner guilty and sentenced him to suffer prision correccional in its
medium and maximum periods.

Petitioner filed an Application for Probation on 7 September 2007, reasoning that he was informed of
his conviction only upon being served the warrant for his arrest.  Prosecutor Analie Velarde opposed
2

his application on the ground that he was known to be uncooperative, habitually absent, and had
even neglected to inform the court of his change of address. On 22 February 2007, the MTC denied
his application, prompting petitioner to file a special civil action with the Regional Trial Court (RTC).
While his first Petition raised the sole issue of the denial of his application for probation, he filed a
Supplemental Petition,  which a) assailed the validity of the promulgation of the 8 January 2007
3

judgment; and b) impleaded private complainants Mirasol Bartolome, Clarita P. Matias, Rosendo P.
Matias and Antonio P. Matias.

THE RTC RULING IN SPECIAL CIVIL ACTION NO. 07-0012

In his supplemental Petition, petitioner stated that upon close scrutiny, he discovered that the
judgment itself was premature and flawed, because the MTC never ruled upon his Formal Offer of
Exhibits.  The RTC found that the MTC committed grave abuse of discretion in rendering judgment
4

without first ruling on his Formal Offer of Exhibits since, technically, petitioner had not yet rested his
case. It also ruled that the promulgation of judgment was similarly tainted with grave abuse of
discretion, because petitioner was not present at the time, in violation of Section 6, Rule 120 of the
Rules of Court. Without addressing the issue of probation, the dispositive portion states:
WHEREFORE, premises considered, the instant petition for Certiorari is hereby GRANTED. The
judgment promulgated on 22 February, 2007 is hereby SET ASIDE AND NULLIFIED and the case is
remanded to the Municipal Trial Court of Labo, Camarines Norte for further proceedings.

The Director of the Bureau of Corrections, Muntinlupa City or any person acting in his behalf to
release immediately petitioner ENRIQUE ALMERO Y ALCANTARA from detention by virtue of the
property bond posted by him for his provisional liberty in Criminal Case No. 96-6531, unless he is
being detained for some other lawful cause or causes.

No costs.

SO ORDERED. 5

THE CA RULING

The CA ruled that the RTC should have confined itself to determining whether or not the MTC
committed grave abuse of discretion in denying petitioner’s application for probation. Since no
appeal or other plain, speedy and adequate remedy in the ordinary course of law is available against
the denial of probation, a Rule 65 petition is clearly the appropriate remedy. However, the trial court
erred in taking cognizance of supplemental grounds assailing the judgment of conviction, because
an application for probation is a waiver of the right to appeal from the judgment of conviction and
effectively renders the same final. The CA ruled that even assuming petitioner failed to be present at
the promulgation of judgment, he had no one but himself to blame for failing to inform the MTC of his
change of address. 6

On the argument that private respondents possessed no legal personality to represent the State in a
criminal case, the CA held that petitioner himself impleaded them in the certiorari petition before the
RTC. The CA also found that petitioner filed his application for probation only on 7 September 2007,
or more than one month after he received notice of the judgment of conviction. Inasmuch as the
grant of probation rests solely on the discretion of the court, the denial thereof cannot be considered
grave abuse, viz.:

WHEREFORE, premises considered, the trial court’s appealed January 28, 2008 Decision is
REVERSED and SET ASIDE. In lieu thereof, another is entered ordering the DISMISSAL of
appellee’s petition for certiorari.
7

Petitioner comes before this Court, assigning the following errors:

I. The Court of Appeals committed an error of law in ruling that private complainants have
personality to appeal the 28 January 2008 Decision of the RTC.

II. The Court of Appeals committed an error of law in ruling that the RTC reversibly erred in
nullifying petitioner’s judgment of conviction.

III. The Court of Appeals committed an error of law in ruling that petitioner is not entitled to
probation. 8

OUR RULING

The Petition lacks merit.

Anent the first issue, petitioner argues that in criminal cases, the offended party is the State, and that
private complainants’ interest is limited to the civil liability arising therefrom. Petitioner's application
for probation purportedly did not involve the civil aspect of the case. Heirs of the Late Francisco
Abueg v. Court of Appeals cited by the CA allegedly cannot apply, since it does not even discuss the
right of private complainants to interpose an appeal.

In the Comment  it filed, the Office of the Solicitor General (OSG) reiterated that what petitioner filed
9

with the RTC was a petition for certiorari, which is a special civil action. It cannot be considered an
appeal in a criminal case over which only the State has an interest, but an appeal in a civil action
from which private persons can appeal in the event of an adverse outcome. Private respondents, in
their Comment,  argued that the CA correctly applied Abueg, which is on all fours with the present
10

case. In Abueg, the accused was convicted of reckless imprudence resulting in homicide and
damage to property for crashing against and killing Francisco Abueg. Instead of filing an appeal, the
accused applied for probation. After the CA affirmed the grant of probation, the Supreme Court
entertained and acted upon the petition for certiorari filed by the victims’ heirs.11

We agree with the submission of the respondents. While the present petition originated from a
criminal proceeding, what petitioner filed with the RTC was a special civil action, in which he himself
impleaded private respondents. He cannot now belatedly change his stance to the prejudice of
private respondents, who would otherwise be deprived of recourse in a civil action they did not
initiate. In any case, this Court has consistently ruled that private parties may be clothed with
sufficient personality if the facts show that the ends of substantial justice would be better served, and
if the issues in the action could be determined in a more just, speedy and inexpensive manner.

In Narciso vs. Sta. Romana-Cruz,  citing People v. Calo, Jr.,  the Supreme Court ruled:
12 13

While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend
actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal
proceeding pending in this Court and the Court of Appeals, the ends of substantial justice would be
better served, and the issues in this action could be determined in a more just, speedy and
inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case,
private petitioner has sufficient personality and a valid grievance against Judge Adao’s order
granting bail to the alleged murderers of his (private petitioner’s) father.  (Citations omitted.)
14

Furthermore, in Paredes v. Gopengco, it was held that parties in criminal cases have sufficient
personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under
Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the rules, to
wit:

Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be
gainsaid that respondents have sufficient interest and personality as ‘person(s) aggrieved’ by
petitioner judge’s ruling on his non-disqualification to file the special civil action under sections 1 and
2 of Rule 65. Recently in line with the underlying spirit of a liberal construction of the Rules of Court
in order to promote their object, as against the literal application of Rule 110, section 2, we held,
overruling the implication of an earlier case, that a widow possesses the right as an offended party to
file a criminal complaint for the murder of her deceased husband. 15

Petitioner’s second and third arguments are brought by an erroneous understanding of the nature of
probation and shall be discussed jointly.

Probation is not a right but a mere privilege, an act of grace and clemency conferred by the State,
and may be granted by the court to a deserving defendant. Accordingly, the grant of probation rests
solely upon the discretion of the court. It is to be exercised primarily for the benefit of organized
society, and only incidentally for the benefit of the accused.16

In Francisco v. Court of Appeals, the Court explained:

Probation is a special privilege granted by the state to a penitent qualified offender. It essentially
rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and
save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of probation. This outlaws the
element of speculation on the part of the accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal… he now applies for probation as an "escape
hatch" thus rendering nugatory the appellate court's affirmance of his conviction. 17

Aside from the goals of according expediency and liberality to the accused, the rationale for the
treatment of appeal and probation as mutually exclusive remedies is that they rest on diametrically
opposed legal positions. An accused applying for probation is deemed to have accepted the
judgment. The application for probation is an admission of guilt on the part of an accused for the
crime which led to the judgment of conviction.  This was the reason why the Probation Law was
18

amended: precisely to put a stop to the practice of appealing from judgments of conviction – even if
the sentence is probationable – for the purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid.
19

Similarly, in the present case, petitioner cannot make up his mind whether to question the judgment,
or apply for probation, which is necessarily deemed a waiver of his right to appeal.  While he did not
20

file an appeal before applying for probation, he assailed the validity of the conviction in the guise of a
petition supposedly assailing the denial of probation. In so doing, he attempted to circumvent P.D.
No. 968, as amended by P.D. 1990, which seeks to make appeal and probation mutually exclusive
remedies.

The assignment of errors in the Petition before us reflects the diametrically opposed positions taken
by accused petitioner. On the one hand, he bewails the defects committed by the trial court during
the promulgation of the judgment, thus casting doubt on the judgment itself. Yet in the same breath,
he persists in his application for probation, despite the waiver and admission of guilt implicit in any
procedure for probation – precisely the unhealthy wager the law seeks to prevent.

Petitioner applied for probation beyond the reglementary period, yet the trial court still allowed the
filing before ultimately denying it for lack of merit. Regarding this delay and the other defects imputed
by petitioner to the RTC, we concur with the findings of the CA:

(W)e find that public respondent committed no grave abuse of discretion in denying appellee’s
application for probation. Granted that appellee had not received the notice of the January 8, 2007
decision rendered in Criminal Case No. 06-6531, it appears from the record that appellee had no
one but himself to blame for the procedural quagmire he subsequently found himself in. In denying
appellee’s motion for reconsideration of the September 18, 2007 denial of the application for
probation, public respondent distinctly ruled as follows:

x x x. (T)he application has been filed out of time as accused himself admitted in the motion.  He1âwphi1

blames Atty. Evan D. Dizon, his former counsel, for not notifying the court of his change of address
but Atty. Dizon himself had been trying to contact accused since 2001 even before he filed his formal
offer of evidence since all notices sent to the accused’s given address have been returned to this
court since 2001. If it is true that he moved to Cavite only in 2003, why were said notices returned
with notations ‘unknown,’ ‘unclaimed,’ or ‘moved’? 21
This Court will not countenance pleas for liberality in adverse outcomes caused by the negligence
and evasiveness of the parties themselves.

WHEREFORE, in view of the foregoing, we deny the instant Petition for lack of merit. The Court of
Appeals Decision and Resolution in CA-G.R. SP No. 103030 dated 26 September 2008 and 29 May
2009 are hereby AFFIRMED, respectively.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice, Chairperson

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

 Rollo, pp. 31-46 Penned by Associate Justice Rebecca de Guia-Salvador and concurred in
1

by Associate Justices Vicente S.E. Veloso and Ricardo R. Rosario.

2
 Id. at 33.

3
 Id. at 67; Dated 28 December 2007.

4
 Id.

 Id. at 64-70; Penned by Presiding Judge Erwin Virgilio P. Ferrer and dated 28 January
5

2008.
6
 Rule 120 of the Rules of Court, sec. 6, par. 3 and 4 states: "The proper clerk of court shall
give notice to the accused personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the decision. If the accused was tried in
absentia because he jumped bail or escaped from prison, the notice to him shall be served
at his last known address.

"In case the accused fails to appear at the scheduled date of promulgation of
judgment despite notice, the promulgation shall be made by recording the judgment
in the criminal docket and serving him a copy thereof at his last known address or
through his counsel."

7
 Rollo, p. 45.

8
 Id. at 17.

9
 Id. at 118-131.

10
 Id. at 104-117.

11
 G.R. No. 96803, 17 February 1993, 219 SCRA 78.

12
 385 Phil. 208 (2000).

13
 264 Phil. 1007 (1990).

14
 Supra note 12 at 222.

15
 Paredes v. Gopengco, 140 Phil. 81 (1969).

16
 Bala v. Martinez, 260 Phil. 488 (1990).

17
 Francisco v. Court of Appeals, 313 Phil. 241, 254-255 (1995).

18
 Cal v. Court of Appeals, 321 Phil. 914 (1995).

19
 People v. Judge Evangelista, 324 Phil. 80, 86-87 (1996).

 Presidential Decree No. 968, Sec. 4, as amended by P.D. 1990 in order to make appeal
20

and probation mutually exclusive remedies.

21
 Rollo, p. 43.
 October 20, 2015

G.R. No. 206513

MUSTAPHA DIMAKUTA MARUHOM, Petitioner

vs.
PEOPLE OF THE PHIILPPINES, Respondent

DECISION

PERALTA, J.:

The Court is now faced with one of the predicaments I discussed in my Dissenting and Concurring
Opinion in Colinares v. People.  The question regarding the application of the Probation Law is again
1

inescapably intertwined with the present petition. Consequently, I must reiterate my assertions and
arguments in Colinares to the case at bar.

In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet was indicted for
Violation of Section 5 Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special
Protection of Children Against Abuse, Exploitation and Discriminatory Act. The Information reads:

That on or about the 24th day of September 2005, in the City of Las Piñas, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and
there willfully, unlawfully and feloniously commit a lascivious conduct upon the person of one AAA,
who was then a sixteen (16) year old minor, by then and there embracing her, touching her breast
and private part against her will and without her consent and the act complained of is prejudicial to
the physical and psychological development of the complainant. 2

After trial, the RTC promulgated its Decision  which convicted petitioner of the crime charged and
3

sentenced him to suffer an indeterminate penalty of imprisonment ranging from ten (10) years of
prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum, with the accessory penalty of perpetual absolute disqualification. In addition,
he was directed to pay a fine of ₱20,000.00, civil indemnity of ₱25,000.00, and moral damages of
₱25,000.00. 4

Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing, among other
things, that even assuming he committed the acts imputed, still there is no evidence showing that
the same were done without the victim’s consent or through force, duress, intimidation or violence
upon her. Surprisingly, when asked to comment on the appeal, the Office of the Solicitor General
(OSG), relying heavily on People v. Abello,  opined that petitioner should have been convicted only
5

of Acts of Lasciviousness under Article 336 of the Revised Penal Code (RPC) in view of the
prosecution’s failure to establish that the lascivious acts were attended by force or coercion because
the victim was asleep at the time the alleged acts were committed.

On June 28, 2012, the CA rendered a Decision  adopting the recommendation of the OSG. In
6

modifying the RTC Decision, petitioner was found guilty of Acts of Lasciviousness under Article 336
of the RPC and was sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.
Likewise, he was ordered to pay ₱20,000.00 as civil indemnity and ₱30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012.  Instead of further appealing the case, he
7

filed on July 23, 2012 before the CA a manifestation with motion to allow him to apply for probation
upon remand of the case to the RTC.  Petitioner invoked the case of Colinares v. People  which
8 9

allowed petitioner therein to apply for probation after his sentence was later reduced on appeal by
the Supreme Court.

The CA issued a Resolution on September 3, 2012 denying petitioner’s manifestation with motion.10
It was ruled that Colinares is inapplicable since petitioner therein raised as sole issue the
correctness of the penalty imposed and claimed that the evidence presented warranted only a
conviction for the lesser offense.  Instead, the appellate court viewed as appropriate the case
1âwphi1

of Lagrosa v. People,  wherein the application for probation was denied because petitioners therein
11

put in issue on appeal the merits of their conviction and did not simply assail the propriety of the
penalties imposed.

Petitioner filed a motion for reconsideration,  but it was denied in a Resolution  dated March 13,
12 13

2013; hence, this petition.

The petition should be denied.

At the outset, tracing the evolution of the present Probation Law is warranted in order to better
understand and apply the wisdom of its framers to cases invoking its application.

In this jurisdiction, the concept of probation was introduced during the American colonial period.  For
14

juvenile delinquents, Act No. 3203  was enacted on December 3, 1924. It was later amended by Act
15

Nos. 3309,  3559,  and 3725.  As to offenders who are eighteen years old and above, Act No.
16 17 18

4221  was passed by the legislature and took effect on August 7, 1935. Said Act allowed defendants
19

who are convicted and sentenced by a Court of First Instance or by the Supreme Court on appeal,
except those who are convicted of offenses enumerated in Section 8 thereof,  to be placed on
20

probation upon application after the sentence has become final and before its service has
begun.  However, We declared in People v. Vera  that Act No. 4221 is unconstitutional and void as
21 22

it constitutes an improper and unlawful delegation of legislative authority to the provincial boards.

During the martial law period, then President Ferdinand E. Marcos issued Presidential Decree (P.D.)
No. 968  on July 24, 1976. Originally, P.D. No. 968 allowed the filing of an application for probation
23

at any time after the defendant had been convicted and sentenced. Section 4 of which provides:

SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court may, after it shall
have convicted and sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or
denying probation shall not be appealable. 24

Later, the filing of an application for probation pending appeal was still allowed when Section 4 of
P.D. No. 968 was amended by P.D. No. 1257  on December 1, 1977 by providing that such
25

application may be made after the defendant had been convicted and sentenced but before he
begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the court may, after it shall
have convicted and sentenced a defendant but before he begins to serve his sentence and
upon his application, suspend the execution of said sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best.

The prosecuting officer concerned shall be notified by the court of the filing of the application for
probation and he may submit his comment on such application within ten days from receipt of the
notification.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine with
subsidiary imprisonment in case of insolvency. An application for probation shall be filed with the trial
court, with notice to the appellate court if an appeal has been taken from the sentence of conviction.
The filing of the application shall be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal. In the latter case, however, if the application is filed on or after the
date of the judgment of the appellate court, said application shall be acted upon by the trial court on
the basis of the judgment of the appellate court.

An order granting or denying probation shall not be appealable. 26

On October 5, 1985, Section 4 was subsequently amended by P.D. No. 1990.  Henceforth, the
27

policy has been to allow convicted and sentenced defendant to apply for probation within the 15-day
period for perfecting an appeal. As modified, Section 4 of the Probation Law now reads:

SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable. 28

The reason for the disallowance may be inferred from the preamble of P.D. No. 1990, thus:

WHEREAS, it has been the sad experience that persons who are convicted of offenses and who
may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court,
only to pursue their application for probation when their appeal is eventually dismissed;

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too
much time and effort, not to mention the huge expenses of litigation, on the part of the State;

WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting
accused persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory
when, after the appellate Court finally affirms the judgment of conviction, the defendant applies for
and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and
delay the administration of justice, but should be availed of at the first opportunity by offenders who
are willing to be reformed and rehabilitated;

WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our

probation

system[.]

Observing the developments in our Probation Law, the Court settled in Llamado v. Court of
Appeals: 29

Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had established a
prolonged but definite period during which an application for probation may be granted by the trial
court. That period was: "After [the trial court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence." Clearly, the cut-off time – commencement of service of
sentence – takes place not only after an appeal has been taken from the sentence of conviction, but
even after judgment has been rendered by the appellate court and after judgment has become final.
Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 provides that "the application
[for probation] shall be acted upon by the trial court on the basis of the judgment of the appellate
court"; for the appellate court might have increased or reduced the original penalty imposed by the
trial court. x x x

xxxx

In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4
establishes a much narrower period during which an application for probation may be filed with the
trial court: "after [the trial court] shall have convicted and sentenced a defendant and – within the
period for perfecting an appeal –." As if to provide emphasis, a new proviso was appended to the
first paragraph of Section 4 that expressly prohibits the grant of an application for probation "if the
defendant has perfected an appeal from the judgment of conviction." It is worthy of note too that
Section 4 in its present form has dropped the phrase which said that the filing of an application for
probation means "the automatic withdrawal of a pending appeal." The deletion is quite logical since
an application for probation can no longer be filed once an appeal is perfected; there can, therefore,
be no pending appeal that would have to be withdrawn.

xxxx

We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel and the
dissenting opinion. We are unable to persuade ourselves that Section 4 as it now stands, in
authorizing the trial court to grant probation "upon application by [the] defendant within the period for
perfecting an appeal" and in reiterating in the proviso that

"no application for probation shall be entertained or granted if the defendant has perfected an

appeal from the judgment of conviction."

did not really mean to refer to the fifteen-day period established, as indicated above, by B.P. Blg.
129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on Criminal
Procedure, but rather to some vague and undefined time, i.e., "the earliest opportunity" to withdraw
the defendant's appeal. The whereas clauses invoked by petitioner did not, of course, refer to the
fifteen-day period. There was absolutely no reason why they should have so referred to that period
for the operative words of Section 4 already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly speaking; they are not part of
the operative language of the statute. Nonetheless, whereas clauses may be helpful to the extent
they articulate the general purpose or reason underlying a new enactment, in the present case, an
enactment which drastically but clearly changed the substantive content of Section 4 existing before
the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific terms of
the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not purport to control or
modify the terms of Section 4 as amended. Upon the other hand, the term "period for perfecting an
appeal" used in Section 4 may be seen to furnish specification for the loose language "first
opportunity" employed in the fourth whereas clause. "Perfection of an appeal" is, of course, a term of
art but it is a term of art widely understood by lawyers and judges and Section 4 of the Probation
Law addresses itself essentially to judges and lawyers. "Perfecting an appeal" has no sensible
meaning apart from the meaning given to those words in our procedural law and so the law-making
agency could only have intended to refer the law-making agency could only have intended to refer to
the meaning of those words in the context of procedural law. 30

In Sable v. People, et al.,  this Court stated that Section 4 of the Probation Law was amended
31

precisely to put a stop to the practice of appealing from judgments of conviction even if the sentence
is probationable, for the purpose of securing an acquittal and applying for the probation only if the
accused fails in his bid.  The Probation Law "expressly requires that an accused must not have
32

appealed his conviction before he can avail himself of probation. This outlaws the element of
speculation on the part of the accused – to wager on the result of his appeal – that when his
conviction is finally affirmed on appeal, the moment of truth well nigh at hand and the service of his
sentence inevitable, he now applies for probation as an ‘escape hatch,’ thus rendering nugatory the
appellate court's affirmance of his conviction."33

Verily, Section 4 of the Probation Law provides that the application for probation must be filed with
the trial court within the 15-day period for perfecting an appeal. The need to file it within such period
is intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail
themselves of probation at the first opportunity.  If the application for probation is filed beyond the
34

15-day period, then the judgment becomes final and executory and the lower court can no longer act
on the application for probation. On the other hand, if a notice of appeal is perfected, the trial court
that rendered the judgment of conviction is divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and executory.

In view of the latest amendment to Section 4 of the Probation Law that "no application for probation
shall be entertained or granted if the defendant has perfected an appeal from the judgment of
conviction," prevailing jurisprudence  treats appeal and probation as mutually exclusive remedies
35

because the law is unmistakable about it.  Indeed, the law is very clear and a contrary interpretation
36

would counter its envisioned mandate. Courts have no authority to invoke "liberal interpretation" or
"the spirit of the law" where the words of the statute themselves, and as illuminated by the history of
that statute, leave no room for doubt or interpretation.  To be sure, the remedy of convicted felons
37

who want to avail of the benefits of probation even after the remedy of an appeal is to go to the
Congress and ask for the amendment of the law. To surmise a converse construal of the provision
would be dangerously encroaching on the power of the legislature to enact laws and is tantamount
to judicial legislation.

With due respect, however, to the ponente and the majority opinion in Colinares,  the application of
38

the Probation Law in the said case deserves a second hard look so as to correct the mistake in the
application of the law in that particular case and in similar cases which will be filed before the courts
and inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond what is allowed
by the Probation Law, albeit erroneously, the accused was deprived of his choice to apply for
probation and instead was compelled to appeal the case. The reprehensible practice intended to be
avoided by the law was, therefore, not present when he appealed the trial court’s decision. Taking
into account that the accused argued in his appeal that the evidence presented against him
warranted his conviction only for attempted, not frustrated, homicide, the majority of the Court opined
that the accused had purposely sought to bring down the impossible penalty in order to allow him to
apply for probation.

It was obvious then, as it is now, that the accused in Colinares should not have been allowed the
benefit of probation. As I have previously stated and insisted upon, probation is not a right granted to
a convicted offender; it is a special privilege granted by the State to a penitent qualified
offender,  who does not possess the disqualifications under Section 9 of P.D. No. 968, as
39

amended.  Likewise, the Probation Law is not a penal law for it to be liberally construed to favor the
40

accused. 41

In the American law paradigm, probation is considered as an act of clemency and grace, not a
matter of right.  It is a privilege granted by the State, not a right to which a criminal defendant is
42

entitled.  In City of Aberdeen v. Regan,  it was pronounced that:

43 44

The granting of a deferred sentence and probation, following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of right but is a matter of grace, privilege, or
clemency granted to the deserving.

As such, even in the American criminal justice model, probation should be granted only to the
deserving or, in our system, only to qualified "penitent offenders" who are willing to be reformed and
rehabilitated. Corollarily, in this jurisdiction, the wisdom behind the Probation Law is outlined in its
stated purposes, to wit:

(a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less probable
if he were to serve a prison sentence; and

(c) prevent the commission of offenses. 45

As I have previously indicated in Colinares, if this Court will adopt as jurisprudential doctrine the
opinion that an accused may still be allowed to apply for probation even if he has filed a notice of
appeal, it must be categorically stated that such appeal must be limited to the following grounds:

1. When the appeal is merely intended for the correction of the penalty imposed by the lower court,
which when corrected would entitle the accused to apply for probation; and

2. When the appeal is merely intended to review the crime for which the accused was convicted and
that the accused should only be liable to the lesser offense which is necessarily included in the crime
for which he was originally convicted and the proper penalty imposable is within the probationable
period.

In both instances, the penalty imposed by the trial court for the crime committed by the accused is
more than six years; hence, the sentence disqualifies the accused from applying for probation. The
accused should then be allowed to file an appeal under the afore-stated grounds to seek a review of
the crime and/or penalty imposed by the trial court. If, on appeal, the appellate court finds it proper to
modify the crime and/or the penalty imposed, and the penalty finally imposed is within the
probationable period, the accused should still be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the accused should
first file a motion for reconsideration of the decision of the trial court anchored on the above-stated
grounds and manifest his intent to apply for probation if the motion is granted. The motion for
reconsideration will give the trial court an opportunity to review and rectify any errors in its judgment,
while the manifestation of the accused will immediately show that he is agreeable to the judgment of
conviction and does not intend to appeal from it, but he only seeks a review of the crime and/or
penalty imposed, so that in the event that the penalty will be modified within the probationable limit,
he will immediately apply for probation. Without such motion for reconsideration, the notice of appeal
should be denied outright.

The notice of appeal should contain the following averments:

(1) that an earlier motion for reconsideration was filed but was denied by the trial court;

(2) that the appeal is only for reviewing the penalty imposed by the lower court or the conviction
should only be for a lesser crime necessarily included in the crime charged in the information; and

(3) that the accused-appellant is not seeking acquittal of the conviction.

To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment of conviction,
which involves a review of the merits of the case and the determination of whether the accused is
entitled to acquittal. However, under the recommended grounds for appeal which were enumerated
earlier, the purpose of the appeal is not to assail the judgment of conviction but to question only the
propriety of the sentence, particularly the penalty imposed or the crime for which the accused was
convicted, as the accused intends to apply for probation upon correction of the penalty or conviction
for the lesser offense. If the CA finds it proper to modify the sentence, and the penalty finally
imposed by the appellate court is within the probationable period, or the crime for which the accused
is eventually convicted imposes a probationable penalty, application for probation after the case is
remanded to the trial court for execution should be allowed.

It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation
Law, which expressly prohibits only an appeal from the judgment of conviction. In such instances,
the ultimate reason of the accused for filing the appeal based on the afore-stated grounds is to
determine whether he may avail of probation based on the review by the appellate court of the crime
and/or penalty imposed by the trial court. Allowing the afore-stated grounds for appeal would give an
accused the opportunity to apply for probation if his ground for appeal is found to be meritorious by
the appellate court, thus, serving the purpose of the Probation Law to promote the reformation of a
penitent offender outside of prison.

On the other hand, probation should not be granted to the accused in the following instances:

1. When the accused is convicted by the trial court of a crime where the penalty imposed is within
the probationable period or a fine, and the accused files a notice of appeal; and

2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even
if there is an alternative prayer for the correction of the penalty imposed by the trial court or for a
conviction to a lesser crime, which is necessarily included in the crime in which he was convicted
where the penalty is within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits
granting an application for probation if an appeal from the sentence of conviction has been perfected
by the accused.

In this case, petitioner appealed the trial court’s judgment of conviction before the CA alleging that it
was error on the part of the RTC to have found him guilty of violating Section 5(b), Article III of R.A.
No. 7610. He argued that the RTC should not have given much faith and credence to the testimony
of the victim because it was tainted with inconsistencies. Moreover, he went on to assert that even
assuming he committed the acts imputed on him, still there was no evidence showing that the
lascivious acts were committed without consent or through force, duress, intimidation or violence
because the victim at that time was in deep slumber. It is apparent that petitioner anchored his
appeal on a claim of innocence and/or lack of sufficient evidence to support his conviction of the
offense charged, which is clearly inconsistent with the tenor of the Probation Law that only qualified
penitent offender are allowed to apply for probation. The CA, therefore, did not err in applying the
similar case of Lagrosa v. People  wherein the protestations of petitioners therein did not simply
46

assail the propriety of the penalties imposed but meant a profession of guiltlessness, if not complete
innocence.

To be sure, if petitioner intended in the first instance to be entitled to apply for probation he should
have admitted his guilt and buttressed his appeal on a claim that the penalty imposed by the RTC
was erroneous or that he is only guilty of a lesser offense necessarily included in the crime for which
he was originally convicted. Unfortunately for him, he already perfected his appeal and it is late in
the day to avail the benefits of probation despite the imposition of the CA of a probationable penalty.

As regards the CA Decision convicting petitioner of the crime of Acts of Lasciviousness under Article
336 of the RPC, such conclusion clearly contravenes the law and existing jurisprudence.

Petitioner was charged and convicted by the trial court with violation of Section 5(b), Article III of
R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for allegedly molesting her by
touching her breast and vagina while she was sleeping. The provision reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for
money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon
the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subject to other sexual abus; Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lasciviousconduct when the victim is under twelve
(12) years of age shall be reclusion temporal I its medium period; x x x(Emphasis supplied)
The elements of sexual abuse are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to sexual abuse.

3. The child, whether male or female, is below 18 years of age. 47

Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other sexual abuse
when he or she indulges in lascivious conduct under the coercion or influence of any adult.  This
48

statutory provision must be distinguished from Acts of Lasciviousness under Articles 336 and 339 of
the RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the following elements:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived or reason or otherwise unconscious; or

c. When the offended party os under 12 years of age; and

That the offended party is another person of either sex. 49

Article 339 of the RPC likewise punishes acts of lasciviousness committed with the consent of the
offended party done by the same persons and under the same circumstances mentioned in Articles
337 and 338 of the RPC, to wit:

1. if committed against a virgin over twelve years and under eighteen years of age by any person
in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any
capacity, shall be entrusted with the education or custody of the woman; or

2. if committed by means of deceit against a woman who is single or a widow of good

reputation, over twelve but under eighteen years of age.

Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and under eighteen
(18) years of age shall be liable for:

1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the victim
is single or a widow of good reputation and consents to the lascivious acts through deceit, or;

2. Acts of lasciviousness is not covered by lascivious conduct as defined in R.A. No. 7610. In case
the acts of lasciviousness is covered by lascivious conduct under R.A. No. 7610 and it is done
through coercion or influence, which established absences or lack of consent, the Art.336 of the
RPC is no longer applicable

3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part of the victim to
the lascivious conduct, which was done through the employment of coercion or influence. The
offender may likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at least eighteen
(18) years and she is unable to fully take care of herself or protect herself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or condition.50

Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth
or anal orifice, or any instrument or object, into the genital or anal orifice of another person if the
victim did not consent either it was done through force, threat or intimidation; or when the victim is
deprived of reason or is otherwise unconscious; or by means of fraudulent machination or grave
abuse of authority as sexual assault as a form of rape. However, in instances where the lascivious
conduct is covered by the definition under R.A. No 7610, where the penalty is reclusion temporal
medium, and the act is likewise covered by sexual assault under Article 266-A, paragraph 2 of the
RPC, which is punishable by prision mayor, the offender should be liable for violation of Section 5(b),
Article III of R.A. No. 7610, where the law provides for the higher penalty of reclusion temporal
medium, if the offended party is a child victim. But if the victim is at least eighteen (18) years of age,
the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the
victim is at least eighteen (18) years and she is unable to fully take care of herself or protect herself
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability
or condition, in which case, the offender may still be held liable for sexual abuse under R.A. No.
7610.

There could be no other conclusion, a child is presumed by law to be incapable of giving rational
consent to any lascivious act, taking into account the constitutionally enshrined State policy to
promote the physical, moral, spiritual, intellectual and social well-being of the youth, as well as, in
harmony with the foremost consideration of the child’s best interests in all actions concerning him or
her.  This is equally consistent with the with the declared policy of the State to provide special
51

protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination,

and other conditions prejudicial to their development; provide sanctions for their commission and
carry out a program for prevention and deterrence of and crisis intervention in situations of child
abuse, exploitation, and discrimination.  Besides, if it was the intention of the framers of the law to
52

make child offenders liable only of Article 266-A of the RPC, which provides for a lower penalty than
R.A. No. 7610, the law could have expressly made such statements.

As correctly found by the trial court, all the elements of sexual abuse under Section 5(b), Article III of
R.A. No. 7610 are present in the case at bar. 1âwphi1

First, petitioner’s lewd advances of touching the breasts and vagina of his hapless victim constitute
lascivious conduct as defined in Section 32, Article XIII of the Implementing Rules and Regulations
(IRR) of R.A. No. 7610:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the
genitals or pubic area of a person. 53

Second, petitioner clearly has moral ascendancy over the minor victim not just because of his
relative seniority but more importantly due to the presumed presence of mutual trust and confidence
between them by virtue of an existing employment relationship, AAA being a domestic helper in
petitioner’s household. Notably, a child is considered as sexually abused under Section 5(b) of R.A.
No. 7610 when he or she is subjected to lascivious conduct under the coercion or influence of any
adult. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of the offended party.  The
54
law does not require physical violence on the person of the victim; moral coercion or ascendancy is
sufficient.  On this point, Caballo v. People  explicated:
55 56

As it is presently worded, Section 5, Article III of RA 7610 provides that when a child indulges in
sexual intercourse or any lascivious conduct due to the coercion or influence of any adult,
the child is deemed to be a "child exploited in prostitution and other sexual abuse." In this
manner, the law is able to act as an effective deterrent to quell all forms of abuse, neglect, cruelty,
exploitation and discrimination against children, prejudicial as they are to their development.

In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the
coercion or influence of any adult exists when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended party’s free will. Corollary
thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the
element of influence which manifests in a variety of forms. It is defined as:

The employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or
assist another person to engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.

To note, the term "influence" means the "improper use of power or trust in any way that deprives a
person of free will and substitutes another’s objective." Meanwhile, "coercion" is the "improper use of
x x x power to compel another to submit to the wishes of one who wields it." 57

Finally, the victim is 16 years of age at the time of the commission of the offense. Under Section 3
(a) of R.A. No. 7610, "children" refers to "persons below eighteen (18) years of age or those over but
unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or condition."

The decision of the trial court finding the petitioner guilty of Violation of Section 5(b), Article III R.A.
No. 7610 should have been upheld by the CA instead of erroneously adopting the recommendation
of the OSG, which inaccurately relied on People v. Abello.  In said case, the decisive factor for the
58

acquittal of the accused was not the absence of coercion or intimidation on the offended party, who
was then sleeping at the time the lascivious act was committed, but the fact that the victim could not
be considered as a "child" under R.A. No. 7610. This Court held that while the twenty-one year old
woman has polio as a physical disability that rendered her incapable of normal function, the
prosecution did not present any testimonial or documentary evidence - any medical evaluation or
finding from a qualified physician, psychologist or psychiatrist - attesting that the physical condition
rendered her incapable of fully taking care of herself or of protecting herself against sexual abuse.

Thus, it is clear that petitioner could not have been entitled to apply for probation in the first place.
Regrettably, since neither the accused nor the OSG questioned the CA Decision, it has attained
finality and to correct the error at this stage is already barred by the right of the accused against
double jeopardy.

Based on the above disquisitions, the petitioner should be denied the benefit of the Probation Law
and that the Court should adopt the recommendations above-stated in situations where an accused
files an appeal for the sole purpose of correcting the penalty imposed to qualify him for probation or
where he files an appeal specifically claiming that he should be found guilty of a lesser offense
necessarily included with the crime originally filed with a prescribed penalty which is probationable.

SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

i join dissentof Justice Mendoza

On official leave
and register also my Dissenting Opinion
ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.
Associate Justice
Associate Justice

Associate JusticeI join the dissenting

opinion of Justice Mendoza ARTURO D. BRION
TERESITA J. LEONARDO-DE CASTRO Associate Justice
Associate Justice

On official leave
LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

On official leave
MARTIN S. VILLARAMA, JR.
JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice

See Dissenting Opinion

BIENVENIDO L. REYES
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

See concurring opinion

ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

No part
FRANCIS H. JARDELEZA
Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes

*
 On official leave.

**
 No part.

1
 678 Phil. 482 (2011).

2
 Rollo, p. 33.

3
 Penned by Presiding Judge Joselito dj. Vibandor (Id. at 33-43).

4
 Id. at 42-43.

5
 601 Phil. 373 (2009).

 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate Justices Vicente

6

S.E. Veloso and Stephen C. Cruz concurring (Rollo, pp. 117-130).

7
 Id. at 132.

8
 Id. at 132-144.

9
 678 Phil. 482 (2011).

10
 Rollo, pp. 26-29.

11
 453 Phil. 270 (2003).

12
 Rollo, pp. 146-155.

13
 Id. at 31.

14
 1898-1945.

 AN ACT RELATING TO THE CARE AND CUSTODY OF NEGLECTED AND

15

DELINQUENT CHILDREN; PROVIDING PROBATION OFFICERS THEREFOR; IMPOSING

PENALTIES FOR VIOLATIONS OF ITS PROVISIONS AND FOR OTHER PURPOSES.

16
 Effective on December 2, 1926.

17
 Effective on November 26, 1929.

18
 Effective on November 21, 1930.

 AN ACT ESTABLISHING PROBATION FOR PERSONS, EIGHTEEN YEARS OF AGE OR

19

ABOVE, CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE

ISLANDS; PROVIDING PROBATION OFFICERS THEREFOR; AND FOR OTHER
PURPOSES, Dated August 7, 1935.
20
 SEC. 8. This Act shall not apply to persons convicted of offenses punishable by death or
life imprisonment; to those convicted of homicide, treason, conspiracy or proposal to commit
treason; to those convicted of misprision of treason, sedition or espionage; to those
convicted of piracy, brigandage, arson, or robbery in band; to those convicted of robbery with
violence on persons when it is found that they displayed a deadly weapon; to those
convicted of corruption of minors; to those who are habitual delinquents; to those who have
been once on probation; and to those already-sentenced by final judgment at the time of the
approval of this Act.

 Sec. 1.
21

 65 Phil. 56 (1937).

22

 ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS THEREFOR AND

23

OTHER PURPOSES.

 Emphasis supplied.
24

 AMENDING CERTAIN SECTIONS OF PRESIDENTIAL DECREE NUMBERED NINE

25

HUNDRED AND SIXTY-EIGHT, OTHERWISE KNOWN AS THE PROBATION LAW OF

1976, Effective on December 1, 1977.

 Emphasis supplied.
26

 AMENDING PRESIDENTIAL DECREE NO. 968, OTHERWISE KNOWN AS THE

27

PROBATION LAW OF 1976, Issued on October 5, 1985.

 Emphasis supplied
28

 256 Phil. 328 (1989).

29

 Llamado v. Court of Appeals, supra, at 335-339. 31 602 Phil. 989 (2009).

30

 Sable v. People, et al., supra, at 997.

32

 Id.
33

 Id. at 996.
34

 Sable v. People, et al., supra note 31; Francisco v. Court of Appeals, 313 Phil. 241 (1995);
35

and Llamado v. Court of Appeals, supra note 29.

 Sable v. People, et al, supra note 31.

36

 Llamado v. Court of Appeals, supra note 29, at 339-340.

37

 The Court En Banc voted 9-6 in favor of Justice Roberto A. Abad, ponente.
38

Corona (then C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Perez,
Mendoza, and Reyes, JJ., concur.
 Brion, J., joining J. Peralta’s Concurring and Dissenting Opinion.

Peralta, J., Concurring and Dissenting Opinion.

Bersamin, J., joining J. Peralta’s Concurring and Dissenting Opinion.

Villarama, Jr., Concurring and Dissenting Opinion.

Sereno, J. (now C.J.), joining Justices Peralta and Villarama.

Perlas-Bernabe, J., joining J. Villarama.

 Sable v. People, et al., supra note 31, at 995.

39

 SEC. 9. Disqualified Offenders. – The benefits of this Decree shall not be extended to
40

those:

a. sentenced to serve a maximum term of imprisonment of more than six years;

b. convicted of subversion or any crime against the national security or the public
order;

c. who have previously been convicted by final judgment of an offense punished by

imprisonment of not less than one month and one day and/or a fine of not less than
Two Hundred Pesos;

d. who have been once on probation under the provisions of this Decree; and

e. who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof.

 Pablo v. Castillo, 391 Phil. 873, 878 (2000); Llamado v. Court of Appeals, supra note 28, at
41

338.

 People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).

42

 Dean v. State, 57 So.3d 169 (2010)

43

 170 Wash. 2d 103, 239 P.3d 1102 (2010). (Emphasis supplied)

44

 P.D. No. 968, Sec. 2. (Emphasis supplied)

45

 453 Phil. 270 (2003).

46

 People v. Larin, 357 Phil. 987, 997 (1998). See also Imbo v. People, G.R. No. 197712,
47

April 20, 2015; People v. Gaduyon, G.R. No. 181473, November 11, 2013, 709 SCRA 129,
149; Caballo v. People, G.R. No. 198732, June 10, 2013, 698 SCRA 227, 238; Navarrete v.
People, 542 Phil. 496, 510 (2007); and Amployo v. People, 496 Phil. 747, 758 (2005).
  Olivarez v. Court of Appeals, 503 Phil. 421, 432 (2005), citing People v. Larin, supra,
48

and Amployo v. People, supra.

 People v. Bonaagua, G.R. No. 188897, June 6, 2011, 650 SCRA 620, 638; Flordeliz v.
49

People, 628 Phil. 124, 140-141 (2010); Navarrete v. People, supra note 47, at 506;
and Amployo v. People, supra note 47, at 755.

 R.A. No. 7610, Sec. 3(a).

50

 See Malto v. People, 560 Phil. 119, 139-142 (2007)

51

 R.A. No. 7610, Art. I, Sec. 2.

52

 People v. Larin, supra note 47, at 1005-1006. See also Imbo v. People, G.R. No. 197712,
53

April 20, 2015; People v. Gaduyon, supra note 47, at 148; Navarrete v. People, supra note

47, at 511; and Amployo v. People, supra note 47, at 759.

 People v. Gerandoy, G.R. No. 202838, September 17, 2014, 735 SCRA 520, 540; Caballo
54

v. People, supra note 47, at 242-243; Garingarao v. People, 669 Phil. 512, 524

(2011); People v. Rellota, 640 Phil. 471 (2010); People v. Abello, supra note 5, at 393;
and Amployo v. People, supra note 47, at 759.

 People v. Larin, supra note 47, at 1008.

55

 Supra note 47.
56

 Caballo v. People, supra note 47, at 242-243.

57

 Supra note 5.
58