G.R. No. 238798, March 14, 2023,

♦ Decision,

Zalameda, [J]

♦ Concurring Opinion,

Gesmundo, [CJ]

♦ Concurring Opinion,

Inting, [J]

♦ Concurring Opinion,

J. Lopez, [J]

♦ Concurring and Dissenting Opinion,

Leonen, [J]

♦ Concurring and Dissenting Opinion,

Hernando, [J]

♦ Concurring and Dissenting Opinion,

Kho, [J]

♦ Dissenting Opinion,

Caguioa, [J]

♦ Dissenting Opinion,

M. Lopez, [J]

♦ Dissenting Opinion,

Gaerlan, [J]

♦ Dissenting Opinion,

Lazaro-Javier, [J]

EN BANC

[ G.R. No. 238798, March 14, 2023 ]

CICL XXX, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DISSENT

LAZARO-JAVIER,

J.:

The Ponencia

The

ponencia

disposes of the case, in this wise:

WHEREFORE

, the Petition is

DENIED

. The Decision dated 29 November 2017 and the Resolution dated 19 March 2018 of the Court of Appeals in CA-G.R. CR No. 39196 finding XXX

GUILTY

of the crime of homicide under Article 249 of the Revised Penal Code, are

AFFIRMED

He is sentenced to suffer the indeterminate penalty of six (6) months and one (1) day of

prision correccional

, as minimum, to eight (8) years and one (1) day of

prision mayor

, as maximum.

He is likewise ordered to pay the heirs of AAA the following: (a) Php504,145.01 as actual damages; (b) Php50,000.00 as civil indemnity; and (c) Php50,000.00 as moral damages, with interest on all the damages awarded at the rate of six percent (6%)

per annum

from the date of finality of this judgment until fully paid.

The case is also remanded to the trial court for its appropriate action in accordance with Section 51 of Republic Act No. 9344.

SO ORDERED.

It rationalizes, in my words:

First.

Under Section 6 of Republic Act No. 9344 (Juvenile Justice and Welfare Act), a child above 15 years but below 18 years of age is exempt from criminal liability, unless the child is found to have acted with discernment, in which case, "the appropriate proceedings" in accordance with the Act shall be observed.

Second.

Dorado v. People,

the Court held that when a child in conflict with the law (CICL), above 15 but below 18 years old is charged with a crime, it is rebuttably presumed that the CICL acted without discernment and it is up to the prosecution to prove this

separate circumstance

beyond a reasonable doubt in order to obtain a conviction.

Third.

As held in

Dorado,

discernment is independent of the

actus reus

and

mens rea

of homicide and must thus be proved beyond a reasonable doubt separately from these traditional elements of homicide.

Failure to disprove the rebuttable presumption of lack of discernment by proof beyond a reasonable doubt would lead to an acquittal. This is because a CICL is deemed by statute to lack "the mental capacity to understand the difference between right and wrong."

Dorado

(and the

ponencia

by extension) explains that this mental capacity is different from the mens rea element of intent in crimes by

dolo.

This is because discernment may co-exist with recklessness or negligence in quasi-offenses, e.g., while the CICL did

not

intend to kill the deceased but was merely

reckless,

hence, there was no crime by

dolo

, the CICL is liable for the quasi-offense of recklessness since the CICL recognized that death may result from the reckless act.

I would also opine that discernment is

different

from the mental concept of voluntariness implicit in the

actus reus

of a crime by

dolo

. This is because a CICL may do an act voluntarily (without duress, coercion, or undue influence) but may still lack the recognition that the voluntary act was morally wrong.

Fourth.

I infer from the

ponencia

that lack of proof beyond reasonable doubt of discernment is

not a defense

that a CICL is duty-bound to establish. Rather, it is

up to the prosecution

to show

positively

and

beyond a reasonable doubt

the presence of this

separate circumstance.

This is because the statute rebuttably presumes a CICL's lack of discernment.

CICL XXX v. People

supports this covert ruling in the

ponencia

Fifth.

The foregoing statute and case law must be

applied retroactively

to petitioner since they are

favorable

to him as an alleged criminal offender.

Sixth.

Since records show here that the prosecution failed to overcome its burden to prove beyond a reasonable doubt that petitioner acted with discernment at the time of the commission of the crime,

i.e.

, that petitioner, at the time of the commission of the crime, understood the difference between right and wrong and the consequences of his acts, the Court cannot but

acquit

him for the crime charged.

Proposed recasting of the principles governing the retroactive application statutes, rule/regulation or case law favorable to criminal offenders

Admittedly, when petitioner committed the crime as a minor in 2003, the law prevailing then was that discernment was not an element to be proven beyond reasonable doubt by the prosecution. This is because, while he was a minor when he perpetrated the criminal act, he was already 17 years old.

The relevant law then was Article 12(3), The Revised Penal Code and Article 189 of Presidential Decree 603, as amended:

ARTICLE 12. Circumstances Which Exempt from Criminal Liability. —

The following are exempt from criminal liability:

1aшphi1

A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against

in accordance with the provisions of article 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education; otherwise, he shall be committed to the care of some institution or person mentioned in said article 80.

ARTICLE 189. Youthful Offender. Defined. — A youthful offender is a child, minor or youth, including one who is emancipated in accordance with law who is over nine years but under eighteen years of age at the time of the commission of the offense.

A Child nine years of age or under at the time of the commission of the offense shall be exempt from criminal liability and shall be committed to take care of his or her father or mother, or nearest relative or family friend in the discretion of the court and subject to its supervision.

The same shall be done for a child over nine years and under fifteen years of age at the time of the commission of the offense, unless he acted with discernment, in which case he shall be proceeded against in accordance with Article 192.

The provisions of Article 80 of the Revised Penal Code are hereby repealed by the provisions of this Chapter. (Emphasis supplied)

But the criminal case against petitioner was

overtaken in 2006

by the enactment of

Republic Act No. 9344

Juvenile Justice and Welfare Act of 2006,

which

raised the minimum age of criminal responsibility,

and accordingly,

imposed

the requirement of discernment for the increased ages of above 15 years to below 18 years, thus covering petitioner's age:

SECTION 6. Minimum Age of Criminal Responsibility. — A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability

and be subjected to an intervention program,

unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings

in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. (Emphasis supplied)

Unfortunately, neither the prosecution and the defense nor the trial court happened to canvass the

retroactive application

of this

new element

for any crime committed by a CICL. Hence, the case record is

bereft

any meaningful

reference to petitioner's discernment. In the proceedings before the trial court, the prosecution and the defense were oblivious of the enactment of Republic Act No. 9344 and were all working erroneously under the compelling shadow of the former rules.

The

ponencia

correctly applied the

principle of retroactivity of penal laws

that are

favorable to an accused.

This principle was exhaustively discussed in

Inmates of the New Bilibid Prison v. De Lima

but this case law

limited

the retroactive application to

penal laws

as defined therein and referred to by Article 22 of The Revised Penal Code:

xxx

But what exactly is a penal law?

A penal provision or statute has been consistently defined by jurisprudence as follows:

A penal provision defines a crime or provides a punishment for one.

Penal laws and laws which, while not penal in nature, have provisions defining offenses and prescribing penalties for their violation.

Properly speaking, a statute is penal when it imposes punishment for an offense

committed against the state which, under the Constitution, the Executive has the power to pardon. In common use, however, this sense has been

enlarged to include within the term "penal statutes" all statutes which command or prohibit certain acts, and establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon their commission.

Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.

The "penal laws" mentioned in Article 22 of the RPC refer to substantive laws, not procedural rules. Moreover, the mere fact that a law contains penal provisions does not make it penal in nature.

In the case at bar, petitioners assert that Article 22 of the RPC applies because R.A. No. 10592 is a penal law. They claim that said law has become an integral part of the RPC as Articles 29, 94, 97, 98 and 99 thereof. Edago, et al., further argue that if an amendment to the RPC that makes the penalties more onerous or prejudicial to the accused cannot be applied retroactively for being an ex post facto law, a law that makes the penalties lighter should be considered penal laws in accordance with Article 22 of the RPC.

We concur.

While R.A. No. 10592 does not define a crime/offense or provide/prescribe/establish a penalty as it addresses the rehabilitation component of our correctional system, its provisions have the purpose and effect of diminishing the punishment attached to the crime. The further reduction on the length of the penalty of imprisonment

is, in the ultimate analysis,

beneficial to the detention and convicted prisoners alike;

hence, calls for the application of Article 22 of the RPC.

The prospective application of the beneficial provisions of R.A. No. 10592 actually works to the disadvantage of petitioners and those who are similarly situated. It precludes the decrease in the penalty attached to their respective crimes and lengthens their prison stay; thus, making more onerous the punishment for the crimes they committed. Depriving them of time off to which they are justly entitled as a practical matter results in extending their sentence and increasing their punishment. Evidently, this transgresses the clear mandate of Article 22 of the RPC. (Emphases supplied)

xxx

In addition to Article 22 of The Revised Penal Code, our case law has

consistently held

that "a penal statute, whether substantive or procedural, shall be given a

retroactive

effect

if favorable to the accused."

The

only test

under Philippine law for the retroactive application of a law is if it is

ultimately favorable to an accused.

While I appreciate the simplicity and straight forwardness of the

favorable to the accused test,

I would like to propose a more exhaustive discussion on a

nuanced approach

to this

principle of retroactivity.

My interest for this nuanced approach is not an idle soliloquy to beat an already dead horse or exhume a matter already vastly autopsied.

For one, I do

not

think that retroactivity has been canvassed in our jurisprudence with zest and vigor. Rather, our case law has been content applying this principle using only the test of "favorable to an accused" to the

exclusion

of other concerns or issues. While this test, as I have said, lends itself to a

simple

and

straightforward

result, it unfortunately

neglects

some factors that society also values. As an American jurist once observed, "[t]hese questions [of retroactivity] are among the most difficult of those which have engaged the attention of [the] courts...."

Why

retroactivity

is a

complex legal concept

among American jurists, but apparently not in the Philippines, may be traced to

three factors

that guide American jurisprudence in deciding whether to apply a penal law retroactively or not to do so:

(i)

retroactivity looks to the

prior history of the new penal law,

its

purpose

(i.e., whether to

enhance substantially the truth-finding function

of criminal trials), the

effect

of its

retroactive application

on the

administration of justice,

whether retrospective operation will

further

retard

the

new rule's operation,

and

reliance

by the parties, especially the prosecution, on the old rule;

(ii) retroactivity

has the important

practical

implication of

potentially impacting a number of criminal convictions

obtained under the then prevailing rule;

and

(iii)

retroactivity could

potentially affect

the prosecution's right to

procedural due process

of not having been heard on the

new but retroactive rule

but in

good faith relied upon the then prevailing old rule.

nuanced approach

to the

retroactivity principle

leads me to believe that this principle has

substantive

and

procedural

dimensions important to both the prosecution and an accused. The

substantive

dimension addresses the

first two factors

mentioned above, while the

procedural

dimension pertains to the

third factor.

Substantively

, an accused may be given a

new defense

to raise, the prosecution may be required to prove an

added element

, or the change involve an

enhancement

of the

court's truth-finding function.

There should be

no objection

to this change in the penal law to benefit an accused

retroactively

. This

change

reflects the

legislature's intention to modify

what it views as criminal and non-criminal and how to arrive at such determination.

Courts are bound to respect this intention

in concrete cases

by applying it retroactively

. It should

not matter

that hundreds or even thousands of criminal convictions may be overturned as a result of the retroactive application. It is presumed that the

policy change

was

conscious

of the practical application to so many

other cases similarly situated.

Procedurally,

however, I believe that the

prosecution

must be given the

opportunity to meet the case

brought about by the retroactive application of the law. This means that though the prosecution may have the

new burden of proving a new element

or an

accused

has the

right to claim a new defense

, the prosecution ought to be given the opportunity to meet this new element or defense. In this regard, when the

prosecution justifiably relied upon the old rule

in prosecuting the case against an accused, the prosecution should have the

procedural rights

not only to

amend the Information

to allege the added elements of the new penal law but also to

present evidence

to prove the new element beyond reasonable doubt.

The Philippine law on retroactivity conclusively assumes that a favorable penal law to an accused should apply retroactively

by purpose

and

effect.

I believe nonetheless that

fairness

demands that the prosecution be given the opportunity to meet the case if it

justifiably relied upon

the then prevailing rules

, and the trial court

judged the case relying upon

the then prevailing rule.

To illustrate, here,

had the

prosecution

of the criminal case and the

decision

of the trial court in the criminal case

came before 2006

prior to the enactment of Republic Act No. 9344,

I would have retorted that though we must require the prosecution to prove the

discernment

of the 17-year-old petitioner, the prosecution

should have been given the opportunity

to meet this new requirement and the trial court

should be obliged to consider

the evidence on this new element. It would

not have been enough to note the failure

of the prosecution and the trial court to deal with discernment and

fault them

for this omission.

Unfortunately

, the prosecution of petitioner

and

the decision of the trial court

took place

long

after Republic Act No. 9344 had been in effect.

Thus, in the present case, there is no reason for the prosecution to claim

deprivation of procedural due process

as a

result of retroactivity.

There was an obvious oversight in taking no account of

discernment

as mandated in Republic Act No. 9344

while petitioner's trial was ongoing.

The

ponencia

therefore could not have been unfair in pointing to this

lacuna

in both the prosecution evidence and the trial court's decision when it

automatically imposed the retroactivity principle

and on this ground

acquitted petitioner.

Civil liabilities

On top of the imposition of civil liabilities on petitioner the

ponencia

should also

already impose the civil liabilities on his parents

since their respective liabilities for the damages are equally

direct

and

primary

. The defense

did not present

evidence on this potential defense of the parent's

reasonable supervision over the child at the time the child committed the offense

during the trial, and they

cannot be allowed

to raise it belatedly when the judgment of damages is executed against them. The defense already had more than an

ample opportunity

to prove this exempting circumstance,

had it

exercised

reasonable diligence

in handling its case to meet.

The trial court received evidence on the damages from the prosecution;

reasonable diligence

should have dictated to petitioner and his lawyer that the damages would be borne by his parents as their

direct

and

primary

liability. This has been the law for a long time even before

2003

, the year the homicide was committed, and most especially when Republic Act No. 9344 took effect. It was the defense's fault that it did not raise the defense of

reasonable supervision over the child at the time the child committed the offense, or its gender insensitive counterpart, that they acted with the diligence of a good father of a family to prevent damages.

Lastly, as held in

Libi v. Intermediate Appellate Court,

the

direct

and

primary

liabilities of petitioner and his parents are

solidary.

ALL TOLD

, I vote to

grant

the petition,

reverse

and

set aside in part

the

Decision

dated November 29, 2017 and

Resolution

dated March 19, 2018 of the Court of Appeals in CA-G.R. CR No. 39196, and

acquit

petitioner of the crime charged.

On the civil aspect of the criminal case, I vote to

affirm

this

Decision

and

Resolution

of the Court of Appeals with modification that petitioner and his parents are

directly, primarily

, and

solidarily liable

to pay the heirs of AAA PHP 504,145.01 as actual damages, PHP 50,000.00 as civil indemnity, and PHP 50,000.00 as moral damages, with interest on all the damages awarded at the rate of 6%

per annum

from the date of finality of this judgment until fully paid.

Respectfully submitted.

Footnotes

In line with the Amended Administrative Circular No. 83-2015, as mandated by Republic Act No. 9344, the names of the private offended parties, along with other personal circumstances that may tend to establish their identities, are made confidential to protect their privacy and dignity.

796 Phil. 233 (2016) [Per J. Mendoza, Second Division].

859 Phil. 912; 116 OG No. 46, 7379 (November 16, 2020) [Per J. Caguioa, Second Division].

G.R. No. 212719, June 25, 2019 [Per J. Peralta, En Banc].

See

Santos v. People

, 443 Phil. 618 (2003) [Per J. Puna, Third Division].

Chief Justice Charles Evans Hughes, Chicot County Drainage Dist. v. Baxter State Bank,

308 U.S. 371, 374 (1940).

Linkletter v. Walker,

381 U.S. 618 (1965).

Corr, John Bernard. "Retroactivity: A Study in Supreme Court Doctrine as Applied" (1983). Faculty Publications. 840. https://scholarship.law.wm.edu/facpubs/840 (last accessed August 16, 2021).

G.R. No. 70890, September 18, 1992 [Per J. Regalado, En Banc].