Dimakuta vs. People

G.R. No. 206513. October 20, 2015.
* 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
MUSTAPHA DIMAKUTA y MARUHOM, petitioner, vs. PEOPLE OF THE Probation Law that “no application for probation shall be entertained or granted
PHILIPPINES, respondent. if the defendant has perfected an appeal from the judgment of conviction,”
prevailing jurisprudence treats appeal and probation as mutually exclusive
Criminal Law; Probation Law; The policy has been to allow convicted and remedies because the law is unmistakable about it. Indeed, the law is very clear
sentenced defendant to apply for probation within the fifteen (15)-day period for and a contrary interpretation would counter its envisioned mandate. Courts have
perfecting an appeal.—On October 5, 1985, Section 4 was subsequently no authority to invoke “liberal interpretation” or “the spirit of the law” where the
amended by P.D. No. 1990. Henceforth, the policy has been to allow convicted words of the statute themselves, and as illuminated by the history of that statute,
and sentenced defendant to apply for probation within the 15-day period for leave no room for doubt or interpretation. To be sure, the remedy of convicted
perfecting an appeal. As modified, Section 4 of the Probation Law now felons who want to avail of the benefits of probation even after the remedy of an
reads: SEC. 4. Grant of Probation.—Subject to the provisions of this Decree, the

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* EN BANC.
230 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People

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VOL. 773, OCTOBER 20, 2015 229 appeal is to go to the Congress and ask for the amendment of the law. To
Dimakuta vs. People surmise a converse construal of the provision would be dangerously encroaching
trial court may, after it shall have convicted and sentenced a defendant on the power of the legislature to enact laws and is tantamount to judicial
and upon application by said defendant within the period for perfecting an legislation.
appeal, suspend the execution of the sentence and place the defendant on Same; Same; Probation is not a right granted to a convicted offender; it is
probation for such period and upon such terms and conditions as it may deem a special privilege granted by the State to a penitent qualified offender, who
best; Provided, that no application for probation shall be entertained or granted if does not possess the disqualifications under Section 9 of Presidential Decree
the defendant has perfected the appeal from the judgment of conviction. (PD) No. 968, as amended.—It was obvious then, as it is now, that the accused
Probation may be granted whether the sentence imposes a term of imprisonment in Colinares v. People, 662 SCRA 266 (2011), should not have been allowed the
or a fine only. An application for probation shall be filed with the trial court. The benefit of probation. As I have previously stated and insisted upon, probation is
filing of the application shall be deemed a waiver of the right to appeal. An order not a right granted to a convicted offender; it is a special privilege granted by the
granting or denying probation shall not be appealable. State to a penitent qualified offender, who does not possess the disqualifications
Same; Same; In view of the latest amendment to Section 4 of the Probation under Section 9 of P.D. No. 968, as amended. Likewise, the Probation Law is not
Law that “no application for probation shall be entertained or granted if the a penal law for it to be liberally construed to favor the accused.
defendant has perfected an appeal from the judgment of conviction,” prevailing Same; Same; What Section 4 of the Probation Law prohibits is an appeal
jurisprudence treats appeal and probation as mutually exclusive remedies from the judgment of conviction, which involves a review of the merits of the
because the law is unmistakable about it.—Verily, Section 4 of the Probation case and the determination of whether the accused is entitled to acquittal.—To
Law provides that the application for probation must be filed with the trial court note, what Section 4 of the Probation Law prohibits is an appeal from
within the 15-day period for perfecting an appeal. The need to file it within such the judgment of conviction, which involves a review of the merits of the case and
period is intended to encourage offenders, who are willing to be reformed and the determination of whether the accused is entitled to acquittal. However, under
rehabilitated, to avail themselves of probation at the first opportunity. If the the recommended grounds for appeal which were enumerated earlier, the
application for probation is filed beyond the 15-day period, then the judgment purpose of the appeal is not to assail the judgment of conviction but to question
becomes final and executory and the lower court can no longer act on the only the propriety of the sentence, particularly the penalty imposed or the crime
application for probation. On the other hand, if a notice of appeal is perfected, for which the accused was convicted, as the accused intends to apply for
the trial court that rendered the judgment of conviction is divested of any 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 or custody of the woman; or 2. if committed by means of deceit against a woman
the appellate court is within the probationable period, or the crime for which the who is single or a widow of good reputation, over twelve but under eighteen
accused is eventually convicted imposes a probationable penalty, application for years of age.
probation after the case is remanded to the trial court for execution should be Same; Rape; Rape Through Sexual Assault; Article 226-A, paragraph 2 of
allowed. the Revised Penal Code (RPC), punishes inserting of the penis into another
Same; Same; Section 4 of the Probation Law prohibits granting an person’s mouth or anal orifice, or any instru-
application for probation if an appeal from the sentence of conviction has been
perfected by the accused.—Probation should not be granted to the accused in the
following instances: 1. When the ac-
232

Dimakuta vs. People
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VOL. 773, OCTOBER 20, 2015 231
Dimakuta vs. People ment or object, into the genital or anal orifice of another person if the
cused is convicted by the trial court of a crime where the penalty imposed victim did not consent either it was done through force, threat or intimidation;
is within the probationable period or a fine, and the accused files a notice of or when the victim is deprived of reason or is otherwise unconscious; or by
appeal; and 2. When the accused files a notice of appeal which puts the merits of means of fraudulent machination or grave abuse of authority as sexual assault
his conviction in issue, even if there is an alternative prayer for the correction of as a form of rape.—Article 226-A, paragraph 2 of the RPC, punishes inserting of
the penalty imposed by the trial court or for a conviction to a lesser crime, which the penis into another person’s mouth or anal orifice, or any instrument or object,
is necessarily included in the crime in which he was convicted where the penalty into the genital or anal orifice of another person if the victim did not consent
is within the probationable period. Both instances violate the spirit and letter of either it was done through force, threat or intimidation; or when the victim is
the law, as Section 4 of the Probation Law prohibits granting an application for deprived of reason or is otherwise unconscious; or by means of fraudulent
probation if an appeal from the sentence of conviction has been perfected by the machination or grave abuse of authority as sexual assault as a form of rape.
accused. However, in instances where the lascivious conduct is covered by the definition
Same; Child Abuse Law; Sexual Abuse; Under Section 5, Article III of under R.A. No. 7610, where the penalty is reclusion temporal medium, and the
Republic Act (RA) No. 7610, a child is deemed subjected to other sexual abuse act is likewise covered by sexual assault under Article 266-A, paragraph 2 of the
when he or she indulges in lascivious conduct under the coercion or influence of RPC, which is punishable by prisión mayor, the offender should be liable for
any adult.—Under Section 5, Article III of R.A. No. 7610, a child is deemed violation of Section 5(b), Article III of R.A. No. 7610, where the law provides
subjected to other sexual abuse when he or she indulges in lascivious conduct for the higher penalty of reclusion temporal medium, if the offended party is a
under the coercion or influence of any adult. This statutory provision must be child victim. But if the victim is at least eighteen (18) years of age, the offender
distinguished from Acts of Lasciviousness under Articles 336 and 339 of the should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610,
RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the unless the victim is at least eighteen (18) years and she is unable to fully take
following elements: (1) That the offender commits any act of lasciviousness or care of herself or protect herself from abuse, neglect, cruelty, exploitation or
lewdness; (2) That it is done under any of the following circumstances: a. By discrimination because of a physical or mental disability or condition, in which
using force or intimidation; or b. When the offended party is deprived of reason case, the offender may still be held liable for sexual abuse under R.A. No. 7610.
or otherwise unconscious; or c. When the offended party is under 12 years of Same; Same; Child Abuse Law; A child is presumed by law to be incapable
age; and (3) That the offended party is another person of either sex. Article 339 of giving rational consent to any lascivious act, taking into account the
of the RPC likewise punishes acts of lasciviousness committed with constitutionally enshrined State policy to promote the physical, moral, spiritual,
the consent of the offended party if done by the same persons and under the intellectual and social well-being of the youth, as well as, in harmony with the
same circumstances mentioned in Articles 337 and 338 of the RPC, to wit: 1. if foremost consideration of the child’s best interests in all actions concerning him
committed against a virgin over twelve years and under eighteen years of or her.—There could be no other conclusion, a child is presumed by law to be
age by any person in public authority, priest, home-servant, domestic, guardian, incapable of giving rational consent to any lascivious act, taking into account the
teacher, or any person who, in any capacity, shall be entrusted with the education 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 People, 662 SCRA 266 (2011), the appellate court’s downward modification of
foremost consideration of the child’s best interests in all actions concerning him the penalty meted, from a non-probationable to a probationable one, amounted to
or her. This is equally consistent with the declared policy of the State to provide an original con-
special protection to children from all forms of abuse, neglect,

234
233 234 SUPREME COURT REPORTS ANNOTATED
VOL. 773, OCTOBER 20, 2015 233 Dimakuta vs. People
Dimakuta vs. People viction for a probationable penalty. Under such circumstance, the Court
held that the offender should still be allowed to apply for the privilege of
probation in spite of his prior perfection of an appeal because the appeal was
cruelty, exploitation and discrimination, and other conditions prejudicial to made at a time when he was not yet a qualified offender. In other words,
their development; provide sanctions for their commission and carry out a therein offender has not yet lodged an appeal from the original judgment of
program for prevention and deterrence of and crisis intervention in situations of conviction of a probationable penalty, qualifying him to apply for probation
child abuse, exploitation, and discrimination. Besides, if it was the intention of under Sec. 4.
the framers of the law to make child offenders liable only of Article 266-A of the Same; Same; View that Sec. 4 of the Probation Law of 1976 clearly
RPC, which provides for a lower penalty than R.A. No. 7610, the law could have commands that “no application for probation shall be entertained or granted if
expressly made such statements. the defendant perfected the appeal from the judgment of conviction.”—Sec. 4
Same; Same; Same; Sexual Abuse; The law does not require physical clearly commands that “no application for probation shall be entertained or
violence on the person of the victim; moral coercion or ascendancy is sufficient. granted if the defendant perfected the appeal from the judgment of conviction.”
—Notably, a child is considered as sexually abused under Section 5(b) of R.A. At first blush, there is nothing vague in the provision that calls for judicial
No. 7610 when he or she is subjected to lascivious conduct under the coercion interpretation. The provision, as couched, mandates that the perfection of an
or influence of any adult. Intimidation need not necessarily be irresistible. It is appeal disqualifies an otherwise qualified offender from applying for probation.
sufficient that some compulsion equivalent to intimidation annuls or subdues the Nevertheless, I fully concur with the Court’s ruling in Colinares that the bar
free exercise of the will of the offended party. The law does not require physical must be applied only to offenders who were already qualified to apply for
violence on the person of the victim; moral coercion or ascendancy is sufficient. probation but opted to file an appeal instead. An otherwise rigid application of
Same; Child Abuse Law; Children; Words and Phrases; Under Section the rule would defeat the very purpose of the Probation Law, which is giving
3(a) of Republic Act (RA) No. 7610, “children” refers to “persons below a qualified penitent offender the opportunity to be placed on probation instead of
eighteen (18) years of age or those over but unable to fully take care of being incarcerated.
themselves or protect themselves from abuse, neglect, cruelty, exploitation or Same; Same; View that the ponencia’s restrictive proposition would lead
discrimination because of a physical or mental disability or condition.”—The to a baffling result — the very appeal that would have qualified the convicted
victim is 16 years of age at the time of the commission of the offense. Under felon to apply for probation (i.e., the appeal that resulted in the downgrading of
Section 3(a) of R.A. No. 7610, “children” refers to “persons below eighteen (18) the offense or the reduction of the penalty to a probationable one) would also be
years of age or those over but unable to fully take care of themselves or protect the very same appeal that would disqualify him from availing thereof.—Unlike
themselves from abuse, neglect, cruelty, exploitation or discrimination because this modification in the interpretation of Sec. 4 of PD No. 968 that was
of a physical or mental disability or condition.” introduced in Colinares, the ponencia’s imposition of additional restrictions for
availing of the benefits under the Probation Law is not in keeping with the spirit
VELASCO, JR., J., Dissenting Opinion: of the law. To recall, the ponencia intimates that the added restrictions are based
on the argument that what is prohibited under the Probation Law is challenging
Criminal Law; Probation Law; View that as held in Colinares v. the judgment of conviction, which, in the majority’s posture, is the finding of
People, 662 SCRA 266 (2011), the appellate court’s downward modification of guilt, without distinction on whether the penalty imposed is probationable or not.
the penalty meted, from a non-probationable to a probationable one, amounted According to the majority, the accused may still lodge an appeal and qualify for
to an original conviction for a probationable penalty.—As held in Colinares v. probation if the appeal is limited to praying
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235 Dimakuta vs. People
VOL. 773, OCTOBER 20, 2015 235 Same; Same; View that to hold, in the case at bar, that a formerly
Dimakuta vs. People disqualified offender who only became qualified for probation after judgment by
an appellate court is still disqualified from applying for the privilege is
tantamount to amending the law via judicial interpretation.—Well-entrenched is
for the reduction of the penalty imposed or downgrading the crime he is the rule that the primordial duty of the Court is merely to apply the law in such a
convicted of, and should in no way insist on his innocence. With these way that it does not usurp legislative powers by judicial legislation. Thus, in the
requirements in place, the majority effectively would want the accused to change course of such application or construction, it should not make or supervise
his theory of the case and belatedly plead guilty on appeal to a lesser offense, legislation, or under the guise of interpretation, modify, revise, amend, distort,
akin to a last minute plea-bargain. The problem here is that the ponencia’s remodel, or rewrite the law, or give the law a construction which is repugnant to
interpretation is tantamount to forcing the accused to already forego appealing its terms. The Court should shy away from encroaching upon the primary
for his acquittal at a time that probation is not yet available. This goes against the function of a coequal branch of the Government; otherwise, this would lead to an
rationale of the law, which seeks to discourage from appealing only those who inexcusable breach of the doctrine of separation of powers by means of judicial
are, in the first place, already qualified to apply for probation, but waste the legislation. To hold, in the case at bar, that a formerly disqualified offender who
opportunity by insisting on their innocence. What is more, the ponencia’s only became qualified for probation after judgment by an appellate court is still
restrictive proposition would lead to a baffling result — the very appeal that disqualified from applying for the privilege is tantamount to amending the
would have qualified the convicted felon to apply for probation (i.e., the law via judicial interpretation. With the Court’s disposition of the instant
appeal that resulted in the downgrading of the offense or the reduction of petition, the majority is effectively placing additional qualifications and grounds
the penalty to a probationable one) would also be the very same appeal that for disqualification that not only cannot be found anywhere in the four corners of
would disqualify him from availing thereof. the statute, but, worse, defeat the very purpose for which the Probation Law was
Same; Same; View that in ascertaining an offender’s penitence, the enacted.
Supreme Court (SC) has repeatedly held that the qualified offender’s perfection Same; Same; View that the ponencia is virtually sending a message to
of an appeal questioning his conviction, instead of beseeching the State’s convicted felons that they should already be penitent even before they are
generosity through an application for probation at the first opportunity, is qualified to apply for probation to be allowed to avail of the privilege in the off-
antithetical to remorse and penitence.—In ascertaining an offender’s penitence, chance that the penalty meted on them is reduced or the crime they are convicted
the Court has repeatedly held that the qualified offender’s perfection of an of is downgraded on appeal.—The ponencia, in its postulation, basically
appeal questioning his conviction, instead of beseeching the State’s generosity legislates the timeframe for an offender’s penitence. The ponencia is virtually
through an application for probation at the first opportunity, is antithetical to sending a message to convicted felons that they should already be penitent even
remorse and penitence. Bear in mind, though, that the amendment was prompted before they are qualified to apply for probation to be allowed to avail of the
by the State’s past experience where qualified offenders “wager” their chances privilege in the off-chance that the penalty meted on them is reduced or the crime
and still seek an acquittal, only to invoke the privilege of probation when it is they are convicted of is downgraded on appeal. We have to consider though that
almost certain that they would not be found innocent. It would, therefore, be it is only natural for a person charged with a crime, subjected to a highly
erroneous to apply the same principle to offenders who are not adversarial process, and going up against the “People of the Philippines” in
qualified, those who had no opportunity, to seek the privilege in the first litigation, to be on the defensive and insist on his innocence rather than readily
place. We cannot expect them to immediately show remorse via applying for sacrifice his liberty in gambling for a mere probability of becoming eligible for,
probation, putting their right to appeal on the line in so doing, when they are not not necessarily entitled to, probation. This does not mean,
even qualified for the privilege under the law. In their case, there is no wager and

no “first opportunity” to apply for probation to speak off, but a clear lack of

option on the part of the offenders. They had no other choice but to appeal.
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VOL. 773, OCTOBER 20, 2015 237

Dimakuta vs. People the offender for probation as the conviction from which the defendant should
however, that he who is guilty but denies the commission of the crime even not appeal from if he wishes to apply for the privilege of probation. This should
after having been convicted by the trial court will never ever regret having be the case for the simple reason that he has not yet questioned this second
committed the offense. For his perceived lack of option, a litigant may be original conviction which qualifies him for probation. To reiterate, what the law
compelled to appeal his conviction, without necessarily making him any less proscribes is the application for probation by a defendant who has appealed his
repentant later on. It would not come as a surprise if it will only be after his conviction for a probationable crime or with a probationable penalty. This
appeal is heard, after the penalty imposed upon him is lessened or after his crime proscription should, therefore, come in only when the offender has already been
was downgraded, after a window of opportunity to receive a second lease in life convicted of a probationable crime or imposed a probationable penalty, not when
opens, would his penitence be manifest in his pleadings, would he apply for he was still disqualified for probation.
probation, and would he no longer pursue the case or push his luck. Attorneys; View that the lawyer owes “entire devotion to the interest of the
Same; Same; View that the appellate court’s judgment convicting therein client, warm zeal in the maintenance and defense of his rights and the exertion
defendant, for the first time, of a probationable crime or imposing upon him a of his utmost learning and ability,” to the end that nothing be taken or be
probationable penalty should be treated as an original conviction, entitling him withheld from the latter, save by the rules of law, legally applied.—Simply put, a
to apply for probation in spite of perfecting an appeal.—To be clear, nowhere in defense lawyer is expected to advocate his client’s innocence in line with the
the Probation Law does it provide that the “appeal” from the judgment of principle deeply embedded in our legal system that an accused is presumed
conviction should be that made from the trial court to the appellate court. Hence, innocent until proven guilty beyond reasonable doubt. The lawyer owes
the “appeal” could very well refer to any of the three (3) opportunities to seek a “entire devotion to the interest of the client, warm zeal in the maintenance and
review of a judgment of conviction in criminal procedure: (a) questioning the defense of his rights and the exertion of his utmost learning and ability,” to the
judgments of the Municipal Trial Court, Metropolitan Trial Court, Municipal end that nothing be taken or be withheld from the latter, save by the rules of law,
Circuit Trial Court, and of the Municipal Trial Court in Cities before the legally applied. Thus, unless and until his client has been convicted with finality,
Regional Trial Court; (b) elevating the case from the Regional Trial Court to the we cannot expect his counsel to detract, or even require him to detract from this
Court of Appeals; and (c) by assailing the unfavorable Decision of the Court of duty, and convince his client to simply admit guilt and either seek a reduction of
Appeals to this Court — the court of last resort. Corollarily, it is submitted that the penalty imposed or the downgrading of the crime he has been convicted of
the “judgment of conviction” should not be taken to mean the initial finding of just so the client may have a window of opportunity to apply for the privilege of
guilt, since, as maintained by the majority in Colinares, an original judgment of probation if and only if the appeal is granted. Instead, the client, in the judicial
conviction may also be handed down by the appellate courts, especially when it forum, should be afforded the benefit of any and every remedy and defense that
involves the annulment or modification of the trial court’s decision. As is authorized by the law of the land, and he may expect his lawyer to assert every
discussed, the appellate court’s judgment convicting therein defendant, for the such remedy or defense.
first time, of a probationable crime or imposing upon him a probationable
penalty should be treated as an original conviction, entitling him to apply for
probation in spite of perfecting an appeal. The appeal lodged by the offender, 239
which reduced his conviction to a probationable one, in no way adversely
affected his later-acquired eligibility. VOL. 773, OCTOBER 20, 2015 239
Dimakuta vs. People
Criminal Law; Probation Law; View that if, notwithstanding this
downward modification of the penalty imposed or the crime the accused is
238 convicted of, the now qualified defendant still appeals his new conviction on
238 SUPREME COURT REPORTS ANNOTATED whatever ground, then, this would be the time when his appeal would bar him
Dimakuta vs. People from applying for the privilege under Sec. 4.—The more precise interpretation,
Same; Same; View that the Supreme Court (SC) should view the appellate therefore, would be to grant this opportunity to apply for probation when the
court’s judgment which effectively qualified the offender for probation as the accused is originally convicted for a probationable offense or sentenced to
conviction from which the defendant should not appeal from if he wishes to suffer a probationable penalty, without distinction on whether the said
apply for the privilege of probation.—In line with the teachings in Colinares, the “original conviction” was issued by the trial court or appellate court. What
Court should view the appellate court’s judgment which effectively qualified is material is that the application for the privilege of probation be made at
the first opportunity, which is the period to appeal from when the offender probation only because his sentence was reduced on appeal. To repeat, the
first became qualified for the privilege. For how can we say that the convicted purpose of the amendment is simply to prevent speculation or opportunism on
offender wagered for an acquittal on appeal instead of applying for probation the part of the accused who, although already eligible for probation, does not at
when he is not qualified to avail of the benefits of the Probation Law in the first once apply for probation, but did so only after failing in his appeal.
place? He simply had no other option at that point. As in Colinares, petitioner in Same; Same; View that regardless of whether an accused appealed the
this case became qualified for probation only after the appellate court modified merits of the case or simply the correctness of the penalty imposed, the Court
the trial court’s ruling. If, notwithstanding this downward modification of the should not distinguish insofar as the application of the Probation Law is
penalty imposed or the crime the accused is convicted of, the now qualified concerned.—Regardless of whether an accused appealed the merits of the case or
defendant still appeals his new conviction on whatever ground, then, this simply the correctness of the penalty imposed, the Court should not distinguish
would be the time when his appeal would bar him from applying for the insofar as the application of the Probation Law is concerned. The Court cannot
privilege under Sec. 4. expect Mustapha to forgo the remedy of appeal and admit guilt over a crime he
did not commit due to an erroneous appreciation of the merits of the case. He
MENDOZA, J., Dissenting Opinion: should not accept the erroneous judgment of the RTC for, in truth, he only
committed Acts of Lasciviousness with a maximum penalty of four (4) years and
Criminal Law; Probation Law; View that probation is not a right of an two (2) months. Mustapha should not be made to suffer through the forfeiture of
accused but a mere privilege, an act of grace and clemency or immunity the right to apply for probation simply because the RTC had blundered. In
conferred by the State, which is granted to a deserving defendant who thereby the Colinares v. People, 662 SCRA 266 (2011) case, it was written: The
escapes the extreme rigors of the penalty imposed by law for the offense of which Probation Law never intended to deny an accused his right to probation through
he was convicted.—Probation is not a right of an accused but a mere privilege, no fault of his. The underlying philosophy of probation is one of liberality
an act of grace and clemency or immunity conferred by the State, which is towards the accused. Such philosophy is not served by a harsh and stringent
granted to a deserving defendant who thereby escapes the extreme rigors of the interpretation of the statutory provisions. As Justice Vicente V. Mendoza said in
penalty imposed by law for the offense of which he was convicted. In recent his dissent in Francisco, the Probation Law must not be regarded as a mere
jurisprudence, it has been clarified that while the convicted offender has no right privilege to be given to the accused only where it clearly appears he comes
to such privilege, nevertheless, he has the right to apply for that privilege, within its letter; to do so would be to disregard the teaching in many cases that
provided that he is not disqualified from availing the benefits of probation. the

240 241
240 SUPREME COURT REPORTS ANNOTATED VOL. 773, OCTOBER 20, 2015 241
Dimakuta vs. People Dimakuta vs. People
Probation Law should be applied in favor of the accused not because it is a
criminal law but to achieve its beneficent purpose.
Same; Same; View that the purpose of the amendment is simply to prevent Stare Decisis; View that once a point of law has been established by the
speculation or opportunism on the part of the accused who, although already Supreme Court (SC), that point of law will, generally, be followed by the same
eligible for probation, does not at once apply for probation, but did so only after court and by all courts of lower rank in subsequent cases where the same legal
failing in his appeal.—It bears stressing that the evil of speculation and issue is raised.—Adherence to the Colinares case is dictated by this Court’s
opportunism on the part of the accused sought to be curbed by the amendment in policy of securing and maintaining certainty and stability of judicial decisions in
P.D. No. 1990 was not present in the case at bench inasmuch as the penalty accordance with the legal maxim stare decisis et non quieta movere (or
imposed by the RTC against Mustapha was not probationable at the outset. simply, stare decisis which means “follow past precedents and do not disturb
Besides, nowhere in the amendatory decree does it state or even hint that in what has been settled”). The principle, entrenched under Article 8 of the Civil
limiting the accused to the choice of either appealing from the decision of the Code, evokes the general rule that, for the sake of certainty, a conclusion reached
trial court or applying for probation, the purpose is to deny him of the right to in one case should be doctrinally applied to those that follow if the facts are
apply for probation in cases like the one at bench where he became eligible for substantially the same, even though the parties may be different. Otherwise
stated, once a point of law has been established by the Court, that point of law she serve his or her sentence. In this sense, probation is a mere privilege: an
will, generally, be followed by the same court and by all courts of lower rank in exception granted to a general rule that is both reasonable and just. I submit
subsequent cases where the same legal issue is raised. that Colinares v. People, 662 SCRA 266 (2011), should not be made to apply to
Same; View that stare decisis proceeds from the first principle of justice this case for two reasons. First, Colinares has not yet become established
that, absent powerful countervailing considerations, like cases ought to be doctrine, and the dissents of the case offer a sound and logical approach to the
decided alike.—Stare decisis proceeds from the first principle of justice that, issue. Colinares read an outcome, which is not supported by the text of
absent powerful countervailing considerations, like cases ought to be decided law. Second, even assuming that the ratio in Colinares is good law, it finds no
alike. Hence, where, as in this case, the same question relating to the same event application to this case since the Court of Appeals erred in modifying the
have been put forward by parties similarly situated as in a previous case litigated judgment of the trial court.
and decided by a competent court, the rule of stare decisis is a bar to any attempt Same; Same; View that an accused who has been sentenced to a penalty of
to relitigate the same issue. Significantly, the respondent has not shown any less than six (6) years of imprisonment may only apply for probation if he or she
strong and compelling reason to persuade the Court that the manner of has not yet perfected his or her appeal from the judgment of conviction. There
disposition in Colinares v. People, pertaining to the matter of probation should are no exceptions to the rule in the text of the law.—The present law makes an
not be observed and adopted in the case at bench. appeal and an application for probation mutually exclusive remedies. An accused
who has been sentenced to a penalty of less than six (6) years of imprisonment
LEONEN, J., Concurring Opinion: may only apply for probation if he or she has not yet perfected his or her appeal
from the judgment of conviction. There are no exceptions to the rule in the text
Criminal Law; Probation Law; View that probation and appeal are of the law. The intent to make the choices exclusive from each other is seen in
mutually exclusive remedies. Probation is a mere privilege granted only to the context of the history of the amend-
offenders who are willing to be reformed and rehabilitated. It cannot be availed
of when an offender has already perfected his or her appeal from the judgment
of conviction.—The accused
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VOL. 773, OCTOBER 20, 2015 243

Dimakuta vs. People
242
ments to this law. The amendment to Section 4 of the Probation Law has
242 SUPREME COURT REPORTS ANNOTATED also been the subject of several cases before this court. Two cases, in particular,
Dimakuta vs. People established the following principles: 1. The Probation Law is not a penal statute
touched the breast and vagina of a 16-year-old minor. The Court of that may be interpreted liberally in favor of the accused; and 2. Section 4 of the
Appeals failed to appreciate that this would not have been possible without Probation Law clearly mandates that no application for probation shall be
intimidation or coercion. It lowered the penalty from a minimum imprisonment entertained or granted if the defendant has perfected the appeal from the
of ten (10) years to a minimum imprisonment of six (6) months. If the Decision judgment of conviction.
of the Court of Appeals is upheld, he will not serve a single day in prison for his Same; Same; Statutory Construction; View that it is a settled principle of
acts. This is not what the law requires. This is definitely not what it intends. statutory construction that only penal statutes are construed liberally in favor of
Probation and appeal are mutually exclusive remedies. Probation is a mere the accused. It is also equally settled that the Probation Law is not a penal
privilege granted only to offenders who are willing to be reformed and statute. The provisions of the law, including Section 4, should be interpreted as
rehabilitated. It cannot be availed of when an offender has already perfected his stated, which is that once an appeal has been perfected by the accused, he or she
or her appeal from the judgment of conviction. is not anymore entitled to the benefits of probation.—It is a settled principle of
Same; Same; View that generally, after a finding of fact by a trial court of statutory construction that only penal statutes are construed liberally in favor of
the guilt of an accused beyond reasonable doubt, society is entitled to the the accused. It is also equally settled that the Probation Law is not a penal
expectation that he or she serve his or her sentence. In this sense, probation is a statute. The provisions of the law, including Section 4, should be interpreted as
mere privilege: an exception granted to a general rule that is both reasonable stated, which is that once an appeal has been perfected by the accused, he or she
and just.—Generally, after a finding of fact by a trial court of the guilt of an is not anymore entitled to the benefits of probation.
accused beyond reasonable doubt, society is entitled to the expectation that he or
Same; Same; View that the Probation Law intends to benefit only penitent The Court is now faced with one of the predicaments I discussed in my
offenders, or those who admit to their offense and are willing to undergo Dissenting and Concurring Opinion in Colinares v. People.1 The question
rehabilitation.—The Probation Law intends to benefit only penitent offenders, or regarding the application of the Probation Law is again inescapably intertwined
those who admit to their offense and are willing to undergo rehabilitation. with the present petition. Consequently, I must reiterate my assertions and
According to Section 2 of the Probation Law: Section 2. Purpose.—This Decree arguments in Colinares to the case at bar.
shall be interpreted so as to: (a) promote the correction and rehabilitation of an In the present controversy, petitioner Mustapha
offender by providing him with individualized treatment; (b) provide an Dimakuta y Maruhom alias Boyet was indicted for Violation of Section 5,
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. Moreover, the law was amended precisely to prohibit those offenders 1 678 Phil. 482; 662 SCRA 266 (2011).
from taking advantage of the benefits of the Probation Law when their appeals
for innocence are rendered futile.
Same; Same; View that petitioner’s appeal before the Court of Appeals
(CA) was made for the purpose of securing an acquittal; it was not for the 245
purpose of lowering his penalty to one within the VOL. 773, OCTOBER 20, 2015 245
Dimakuta vs. People

paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special

Protection of Children Against Abuse, Exploitation and Discriminatory Act. The
244
Information reads:
244 SUPREME COURT REPORTS ANNOTATED That on or about the 24th day of September 2005, in the City of Las
Dimakuta vs. People Piñas, Philippines, and within the jurisdiction of this Honorable Court, the
probationable period. To allow him to apply for probation would be to above named accused, with lewd designs, did then and there willfully,
disregard the intent of the law: that appeal and probation are mutually exclusive unlawfully and feloniously commit a lascivious conduct upon the person
remedies.—Petitioner’s appeal before the Court of Appeals was made for the of one AAA, who was then a sixteen (16)-year-old minor, by then and
purpose of securing an acquittal; it was not for the purpose of lowering his there embracing her, touching her breast and private part against her will
penalty to one within the probationable period. To allow him to apply for and without her consent and the act complained of is prejudicial to the
probation would be to disregard the intent of the law: that appeal and probation physical and psychological development of the complainant.2
are mutually exclusive remedies. After trial, the RTC promulgated its Decision 3 which convicted petitioner of
Same; Same; View that petitioner was correctly found by the trial court the crime charged and sentenced him to suffer an indeterminate penalty of
guilty of violation of Article III, Section 5(b) of Republic Act (RA) No. 7610. imprisonment ranging from ten (10) years of prisión mayor, as minimum, to
Since this offense is punishable by reclusion temporal or an imprisonment of seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
more than six (6) years, petitioner is not eligible for probation.—Petitioner was maximum, with the accessory penalty of perpetual absolute disqualification. In
correctly found by the trial court guilty of violation of Article III, Section 5(b) of addition, he was directed to pay a fine of P20,000.00, civil indemnity of
Republic Act No. 7610. Since this offense is punishable by reclusion temporal or P25,000.00, and moral damages of P25,000.00.4
an imprisonment of more than six (6) years, petitioner is not eligible for Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA)
probation. 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
PETITION for review on certiorari of a decision of the Court of Appeals. consent or through force, duress, intimidation or violence upon her. Surprisingly,
The facts are stated in the opinion of the Court. when asked to comment on the appeal, the Office of the Solicitor General (OSG),
Rommel N. Cariño for petitioner. relying heavily on People v. Abello,5 opined that petitioner should have been
The Solicitor General for respondent. _______________
PERALTA, J.:
2 Rollo, p. 33.
3 Penned by Presiding Judge Joselito dj. Vibandor (id., at pp. 33-43).
4 Id., at pp. 42-43. 247
5 601 Phil. 373; 582 SCRA 378 (2009). VOL. 773, OCTOBER 20, 2015 247
Dimakuta vs. People
tion for probation was denied because petitioners therein put in issue on appeal
246 the merits of their conviction and did not simply assail the propriety of the
246 SUPREME COURT REPORTS ANNOTATED penalties imposed.
Petitioner filed a motion for reconsideration, 12 but it was denied in a
Dimakuta vs. People Resolution13 dated March 13, 2013; hence, this petition.
convicted only of Acts of Lasciviousness under Article 336 of the Revised Penal The petition should be denied.
Code (RPC) in view of the prosecution’s failure to establish that the lascivious At the outset, tracing the evolution of the present Probation Law is warranted
acts were attended by force or coercion because the victim was asleep at the time in order to better understand and apply the wisdom of its framers to cases
the alleged acts were committed. invoking its application.
On June 28, 2012, the CA rendered a Decision 6 adopting the In this jurisdiction, the concept of probation was introduced during the
recommendation of the OSG. In modifying the RTC Decision, petitioner was American colonial period.14 For juvenile delinquents, Act No. 3203 15 was
found guilty of Acts of Lasciviousness under Article 336 of the RPC and was enacted on December 3, 1924. It was later amended by Act Nos.
sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, 3309,16 3559,17 and 3725.18 As to offenders who are eighteen years old and
as minimum, to four (4) years and two (2) months of prisión correccional, as above, Act No. 422119 was passed by the legislature and took effect on August 7,
maximum. Likewise, he was ordered to pay P20,000.00 as civil indemnity and 1935. Said Act allowed defendants who are convicted and sentenced by a Court
P30,000.00 as moral damages. of First Instance or by the Supreme Court on appeal, except those who are
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead of further convicted of offenses enumerated in Section 8 thereof, 20 to be placed on
appealing the case, he filed on July 23, 2012 before the CA a manifestation with probation
motion to allow him to apply for probation upon remand of the case to the _______________
RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed
petitioner therein to apply for probation after his sentence was later reduced on 12 Rollo, pp. 146-155.
appeal by the Supreme Court. 13 Id., at p. 31.
The CA issued a Resolution on September 3, 2012 denying petitioner’s 14 1898-1945.
manifestation with motion.10 It was ruled that Colinares is inapplicable since 15 An Act Relating to the Care and Custody of Neglected and Delinquent
petitioner therein raised as sole issue the correctness of the penalty imposed and Children; Providing Probation Officers therefor; Imposing Penalties for
claimed that the evidence presented warranted only a conviction for the lesser Violations of its Provisions and for Other Purposes.
offense. Instead, the appellate court viewed as appropriate the case of Lagrosa v. 16 Effective on December 2, 1926.
People,11 wherein the applica- 17 Effective on November 26, 1929.
_______________ 18 Effective on November 21, 1930.
19 An Act Establishing Probation for Persons, Eighteen Years of Age or
6 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate Above, Convicted of Certain Crimes by the Courts of the Philippine Islands;
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring (Rollo, pp. 117- Providing Probation Officers Therefor; and for Other Purposes, dated August 7,
130). 1935.
7 Id., at p. 132. 20 SEC. 8. This Act shall not apply to persons convicted of offenses
8 Id., at pp. 132-144. punishable by death or life imprisonment; to those convicted
9 Colinares v. People, supra note 1.
10 Rollo, pp. 26-29.
11 453 Phil. 270; 405 SCRA 357 (2003).
248

Dimakuta vs. People Later, the filing of an application for probation pending appeal was still
upon application after the sentence has become final and before its service has allowed when Section 4 of P.D. No. 968 was amended by P.D. No. 1257 25 on
begun.21 However, We declared in People v. Vera22 that Act No. 4221 is December 1, 1977 by providing that such application may be made after the
unconstitutional and void as it constitutes an improper and unlawful delegation defendant had been convicted and sentenced but before he begins to serve his
of legislative authority to the provincial boards. sentence. Thus:
During the martial law period, then President Ferdinand E. Marcos issued
Presidential Decree (P.D.) No. 968 23 on July 24, 1976. Originally, P.D. No. 968
allowed the filing of an application for probation at any time after the defendant SEC. 4. Grant of Probation.—Subject to the provisions of this Decree, the
had been convicted and sentenced. Section 4 of which provides: 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
SEC. 4. Grant of Probation.—Subject to the provisions of this execution of said sentence and place the defendant on probation for such period
Decree, the court may, after it shall have convicted and sentenced a and upon such terms and conditions as it may deem best.
defendant and upon application at any time of said defendant, The prosecuting officer concerned shall be notified by the court of the filing
suspend the execution of said sentence and place the defendant on of the application for probation and he may submit his comment on such
probation for such period and upon such terms and conditions as it may application within ten days from receipt of the notification.
deem best. Probation may be granted whether the sentence imposes a term of
Probation may be granted whether the sentence imposes a term of imprisonment or a fine with subsidiary imprisonment in case of insolvency. An
imprisonment or a fine only. An application for probation shall be filed application for probation shall be filed with the trial court, with notice to the
with the trial court, with notice to the appellate court if an appeal has been appellate court if an appeal has been taken from the sentence of conviction. The
taken from the sentence of conviction. The filing of the application shall filing of the application shall be deemed a waiver of the right to appeal, or the
be deemed a waiver of the right to appeal, or the automatic withdrawal of automatic withdrawal of a pending appeal. In the latter case, however, if the
a pending appeal. 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.
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 24 Emphasis supplied.
violence on persons when it is found that they displayed a deadly weapon; to 25 Amending Certain Sections of Presidential Decree Numbered Nine
those convicted of corruption of minors; to those who are habitual delinquents; Hundred and Sixty-Eight, Otherwise Known as the Probation Law of 1976,
to those who have been once on probation; and to those already-sentenced by effective on December 1, 1977.
final judgment at the time of the approval of this Act.

21 Sec. 1.

22 65 Phil. 56 (1937).
250
23 Establishing a Probation System, Appropriating Funds therefor and Other
Purposes. 250 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
An order granting or denying probation shall not be appealable.26
On October 5, 1985, Section 4 was subsequently amended by P.D. No.
249 1990.27 Henceforth, the policy has been to allow convicted and sentenced
VOL. 773, OCTOBER 20, 2015 249 defendant to apply for probation within the 15-day period for perfecting an
Dimakuta vs. People appeal. As modified, Section 4 of the Probation Law now reads:

An order granting or denying probation shall not be appealable.24

SEC. 4. Grant of Probation.—Subject to the provisions of this should be availed of at the first opportunity by offenders who are willing
Decree, the trial court may, after it shall have convicted and sentenced to be reformed and rehabilitated;
a defendant and upon application by said defendant within the period WHEREAS, it becomes imperative to remedy the problems above
for perfecting an appeal, suspend the execution of the sentence and mentioned confronting our probation system[.]
place the defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, that no application for Observing the developments in our Probation Law, the Court settled
probation shall be entertained or granted if the defendant has perfected the in Llamado v. Court of Appeals:29
appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of Examination of Section 4, after its amendment by P.D. No. 1257,
imprisonment or a fine only. An application for probation shall be filed reveals that it had established a prolonged but definite period during
with the trial court. The filing of the application shall be deemed a waiver which an application for probation may be granted by the trial court. That
of the right to appeal. period was: “After [the trial court] shall have convicted and sentenced a
An order granting or denying probation shall not be appealable.28 defendant but before he begins to serve his sentence.” Clearly, the cutoff
time — commencement of service of sentence — takes place not only
The reason for the disallowance may be inferred from the preamble of P.D. after an appeal has been taken from the sentence of conviction, but
No. 1990, thus: even after judgment has been rendered by the appellate court and after
judgment has become final. Indeed, in this last situation, Section 4, as
WHEREAS, it has been the sad experience that persons who are amended by P.D. No. 1257 pro-
convicted of offenses and who may be entitled to probation still appeal _______________
the judgment of convic-
_______________ 29 256 Phil. 328; 174 SCRA 566 (1989).
26 Emphasis supplied.
27 Amending Presidential Decree no. 968, Otherwise Known as the
Probation Law of 1976, issued on October 5, 1985. 252
28 Emphasis supplied. 252 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People

vides 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
251
appellate court might have increased or reduced the original penalty
VOL. 773, OCTOBER 20, 2015 251 imposed by the trial court. x x x
Dimakuta vs. People x x x x
tion even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed; In sharp contrast with Section 4 as amended by PD No. 1257, in its
WHEREAS, the process of criminal investigation, prosecution, present form, Section 4 establishes a much narrower period during which
conviction and appeal entails too much time and effort, not to mention the an application for probation may be filed with the trial court: “after [the
huge expenses of litigation, on the part of the State; trial court] shall have convicted and sentenced a defendant and — within
WHEREAS, the time, effort and expenses of the Government in the period for perfecting an appeal — .” As if to provide emphasis, a
investigating and prosecuting accused persons from the lower courts up to new proviso was appended to the first paragraph of Section 4 that
the Supreme Court, are oftentimes rendered nugatory when, after the expressly prohibits the grant of an application for probation “if the
appellate Court finally affirms the judgment of conviction, the defendant defendant has perfected an appeal from the judgment of conviction.” It is
applies for and is granted probation; worthy of note too that Section 4 in its present form has dropped the
WHEREAS, probation was not intended as an escape hatch and phrase which said that the filing of an application for probation means
should not be used to obstruct and delay the administration of justice, but “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 In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation
have to be withdrawn. Law was amended precisely to put a stop to the practice of appealing from
x x x x judgments of conviction even if the sentence is probationable, for the purpose of
We find ourselves unable to accept the eloquently stated arguments of securing an acquittal and applying for the probation only if the accused
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 30 Id., at pp. 335-339; pp. 573-577.
perfecting an appeal” and in reiterating in the proviso that: 31 602 Phil. 989; 584 SCRA 619 (2009).
“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 254
Implementing B.P. Blg. 129 and the 1985 Rules on Criminal Procedure, 254 SUPREME COURT REPORTS ANNOTATED
but rather to Dimakuta vs. People
fails in his bid.32 The Probation Law “expressly requires that an accused must not
have appealed his conviction before he can avail himself of probation. This
253 outlaws the element of speculation on the part of the accused — to wager on the
VOL. 773, OCTOBER 20, 2015 253 result of his appeal — that when his conviction is finally affirmed on appeal, the
Dimakuta vs. People moment of truth well nigh at hand and the service of his sentence inevitable, he
some vague and undefined time, i.e., “the earliest opportunity” to now applies for probation as an ‘escape hatch,’ thus rendering nugatory the
withdraw the defendant’s appeal. The whereas clauses invoked by appellate court’s affirmance of his conviction.”33
petitioner did not, of course, refer to the fifteen-day period. There was Verily, Section 4 of the Probation Law provides that the application for
absolutely no reason why they should have so referred to that period for probation must be filed with the trial court within the 15-day period for
the operative words of Section 4 already do refer, in our view, to such perfecting an appeal. The need to file it within such period is intended to
fifteen-day period. Whereas clauses do not form part of a statute, strictly encourage offenders, who are willing to be reformed and rehabilitated, to avail
speaking; they are not part of the operative language of the statute. themselves of probation at the first opportunity. 34 If the application for probation
Nonetheless, whereas clauses may be helpful to the extent they articulate is filed beyond the 15-day period, then the judgment becomes final and
the general purpose or reason underlying a new enactment, in the present executory and the lower court can no longer act on the application for probation.
case, an enactment which drastically but clearly changed the substantive On the other hand, if a notice of appeal is perfected, the trial court that rendered
content of Section 4 existing before the promulgation of P.D. No. the judgment of conviction is divested of any jurisdiction to act on the case,
1990. Whereas clauses, however, cannot control the specific terms of the except the execution of the judgment when it has become final and executory.
statute; in the instant case, the whereas clauses of P.D. No. 1990 In view of the latest amendment to Section 4 of the Probation Law that “no
do not purport to control or modify the terms of Section 4 as amended. application for probation shall be entertained or granted if the defendant has
Upon the other hand, the term “period for perfecting an appeal” used in perfected an appeal from the judgment of conviction,” prevailing
Section 4 may be seen to furnish specification for the loose language jurisprudence35 treats appeal and probation as mutually exclusive remedies
“first opportunity” employed in the fourth whereas clause. “Perfection of because the law is unmistakable about it. 36 Indeed, the law is very clear and a
an appeal” is, of course, a term of art but it is a term of art widely contrary interpretation would counter its envisioned mandate. Courts have no
understood by lawyers and judges and Section 4 of the Probation Law authority to invoke “lib-
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 lawmaking agency could only have 32 Id., at p. 997; p. 627.
intended to refer to the meaning of those words in the context of 33 Id.
procedural law.30 34 Id., at p. 996; pp. 626-627.
35 Id.; Francisco v. Court of Appeals, 313 Phil. 241; 243 SCRA 384 (1995); 256 SUPREME COURT REPORTS ANNOTATED
and Llamado v. Court of Appeals, supra note 29.
Dimakuta vs. People
36 Id.
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
255 impossible penalty in order to allow him to apply for probation.
VOL. 773, OCTOBER 20, 2015 255 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
Dimakuta vs. People insisted upon, probation is not a right granted to a convicted offender; it is a
eral interpretation” or “the spirit of the law” where the words of the statute special privilege granted by the State to a penitent qualified offender, 39 who does
themselves, and as illuminated by the history of that statute, leave no room for not possess the disqualifications under Section 9 of P.D. No. 968, as
doubt or interpretation.37 To be sure, the remedy of convicted felons who want to amended.40 Likewise, the Probation Law is not a penal law for it to be liberally
avail of the benefits of probation even after the remedy of an appeal is to go to construed to favor the accused.41
the Congress and ask for the amendment of the law. To surmise a converse In the American law paradigm, probation is considered as an act of clemency
construal of the provision would be dangerously encroaching on the power of the and grace, not a matter of right.42 It is a privilege granted by the State, not a right
legislature to enact laws and is tantamount to judicial legislation. to which a criminal
With due respect, however, to the ponente and the majority opinion _______________
in Colinares,38 the application of 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 39 Sable v. People, supra note 31 at p. 995; p. 625.
particular case and in similar cases which will be filed before the courts and 40 SEC. 9. Disqualified Offenders.—The benefits of this Decree shall not
inevitably elevated to Us like this petition. be extended to those:
To refresh, Colinares concluded that since the trial court imposed a penalty a. sentenced to serve a maximum term of imprisonment of more than six
beyond what is allowed by the Probation Law, albeit erroneously, the accused years;
was deprived of his choice to apply for probation and instead was compelled to b. convicted of subversion or any crime against the national security or the
appeal the case. The reprehensible practice intended to be avoided by the law public order;
was, therefore, not present when he appealed the trial court’s decision. Taking c. who have previously been convicted by final judgment of an offense
into account that the 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;
37 Llamado v. Court of Appeals, supra note 29 at pp. 339-340; p. 577. and
38 The Court En Banc voted 9-6 in favor of Justice Roberto A. e. who are already serving sentence at the time the substantive provisions
Abad, ponente. of this Decree became applicable pursuant to Section 33 hereof.
Corona (then CJ.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, 41 Pablo v. Castillo, 391 Phil. 873, 878; 337 SCRA 176, 181
Perez, Mendoza and Reyes, JJ., concur. (2000); Llamado v. Court of Appeals, supra note 29 at p. 338; p. 577.
Brion, J., joining J. Peralta’s Concurring and Dissenting Opinion. 42 People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
Peralta, J., Concurring and Dissenting Opinion.
Bersamin, J., joining J. Peralta’s Concurring and Dissenting Opinion.
Villarama, Jr., J., Concurring and Dissenting Opinion.
Sereno, J. (now CJ.), joining Justices Peralta and Villarama, Jr. 257
Perlas-Bernabe, J., joining J. Villarama, Jr. VOL. 773, OCTOBER 20, 2015 257
Dimakuta vs. People
defendant is entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:
256
The granting of a deferred sentence and probation, following a plea or verdict proper to modify the crime and/or the penalty imposed, and the penalty finally
of guilty, is a rehabilitative measure and, as such, is not a matter of right but is a imposed is within the probationable period, the accused should still be allowed to
matter of grace, privilege, or clemency granted to the deserving. 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
As such, even in the American criminal justice model, probation should be trial court anchored on the above stated grounds and manifest his intent to apply
granted only to the deserving or, in our system, only to qualified “penitent for probation if the motion is granted. The motion for reconsideration will give
offenders” who are willing to be reformed and rehabilitated. Corollarily, in this the trial court an opportunity to review and rectify any errors in its judgment,
jurisdiction, the wisdom behind the Probation Law is outlined in its stated while the manifestation of the accused will immediately show that he is
purposes, to wit: agreeable to the judgment of conviction and does not intend to appeal from it,
(a) promote the correction and rehabilitation of an offender by providing but he only seeks a review of the crime and/or penalty imposed, so that in the
him with individualized treatment; event that the penalty will be modified within the probationable limit, he will
(b) provide an opportunity for the reformation of a penitent immediately apply for probation. Without such motion for reconsideration, the
offender which might be less probable if he were to serve a prison sentence; and notice of appeal should be denied outright.
(c) prevent the commission of offenses.45 The notice of appeal should contain the following averments:
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 259
stated that such appeal must be limited to the following grounds: VOL. 773, OCTOBER 20, 2015 259
1. When the appeal is merely intended for the correction of the Dimakuta vs. People
penalty imposed by the lower court, which when corrected would entitle (1) that an earlier motion for reconsideration was filed but was denied by
the accused to apply for probation; and 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
43 Dean v. State, 57 So.3d 169 (2010) the crime charged in the information; and
44 170 Wash. 2d 103, 239 P.3d 1102 (2010). (Emphasis supplied) (3) that the accused-appellant is not seeking acquittal of the conviction.
45 P.D. No. 968, Sec. 2. (Emphasis supplied)
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
258
the recommended grounds for appeal which were enumerated earlier, the
258 SUPREME COURT REPORTS ANNOTATED purpose of the appeal is not to assail the judgment of conviction but to question
Dimakuta vs. People only the propriety of the sentence, particularly the penalty imposed or the crime
2. When the appeal is merely intended to review the crime for which for which the accused was convicted, as the accused intends to apply for
the accused was convicted and that the accused should only be liable to probation upon correction of the penalty or conviction for the lesser offense. If
the lesser offense which is necessarily included in the crime for which he the CA finds it proper to modify the sentence, and the penalty finally imposed by
was originally convicted and the proper penalty imposable is within the the appellate court is within the probationable period, or the crime for which the
probationable period. accused is eventually convicted imposes a probationable penalty, application for
probation after the case is remanded to the trial court for execution should be
In both instances, the penalty imposed by the trial court for the crime allowed.
committed by the accused is more than six years; hence, the sentence disqualifies It is believed that the recommended grounds for appeal do not contravene
the accused from applying for probation. The accused should then be allowed to Section 4 of the Probation Law, which expressly prohibits only an appeal from
file an appeal under the aforestated grounds to seek a review of the crime and/or the judgment of conviction. In such instances, the ultimate reason of the accused
penalty imposed by the trial court. If, on appeal, the appellate court finds it for filing the appeal based on the aforestated grounds is to determine whether he
may avail of probation based on the review by the appellate court of the crime therefore, did not err in applying the similar case of Lagrosa v.
and/or penalty imposed by the trial court. Allowing the aforestated grounds for People46 wherein the protestations of petitioners therein did not simply assail the
appeal would give an accused the opportunity to apply for probation if his propriety of the penalties imposed but meant a profession of guiltlessness, if not
ground for appeal is found to be meritorious by the appellate court, thus, serving complete innocence.
the purpose of the Proba- 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
260 guilty of a lesser offense necessarily included in the crime for which he was
260 SUPREME COURT REPORTS ANNOTATED 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
Dimakuta vs. People
CA of a probationable penalty.
tion Law to promote the reformation of a penitent offender outside of prison.
As regards the CA Decision convicting petitioner of the crime of Acts of
On the other hand, probation should not be granted to the accused in the
Lasciviousness under Article 336 of the RPC, such conclusion clearly
following instances:
contravenes the law and existing jurisprudence.
1. When the accused is convicted by the trial court of a crime where
Petitioner was charged and convicted by the trial court with violation of
the penalty imposed is within the probationable period or a fine, and the
Section 5(b), Article III of R.A. No. 7610 based on the complaint of a sixteen
accused files a notice of appeal; and
(16)-year-old girl for allegedly molesting her by touching her breast and vagina
2. When the accused files a notice of appeal which puts the merits
while she was sleeping. The provision reads:
of his conviction in issue, even if there is an alternative prayer for the
SEC. 5. Child Prostitution and Other Sexual Abuse.—Children,
correction of the penalty imposed by the trial court or for a conviction to a
whether male or female, who for money, profit, or any other
lesser crime, which is necessarily included in the crime in which he was
consideration or due to the coercion or influence of any adult,
convicted where the penalty is within the probationable period.
syndicate or group, indulge in sexual intercourse or lascivious conduct,

are deemed to be children exploited in prostitution and other sexual
Both instances violate the spirit and letter of the law, as Section 4 of the
abuse.
Probation Law prohibits granting an application for probation if an appeal from
The penalty of reclusion temporal in its medium period to reclusion
the sentence of conviction has been perfected by the accused.
perpetua shall be imposed upon the following:
In this case, petitioner appealed the trial court’s judgment of conviction
x x x x
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 46 Lagrosa v. People, supra note 11.
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 262
was in deep slumber. It is apparent that petitioner anchored his appeal on a claim 262 SUPREME COURT REPORTS ANNOTATED
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 Dimakuta vs. People
Law that only qualified penitent offender are allowed to apply for probation. The (b) Those who commit the act of sexual intercourse or lascivious
CA, conduct with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age,
the perpetrators shall be prosecuted under Article 335, paragraph 3, for
261 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
VOL. 773, OCTOBER 20, 2015 261 the penalty for lascivious conduct when the victim is under twelve (12)
Dimakuta vs. People
years of age shall be reclusion temporal in its medium period. x x x Article 339 of the RPC likewise punishes acts of lasciviousness committed
(Emphasis supplied) with the consent of the offended party if done by the same persons and under the
same circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
The elements of sexual abuse are as follows: 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,
1. The accused commits the act of sexual intercourse or lascivious guardian, teacher, or any person who, in any capacity, shall be entrusted with the
conduct. education or custody of the woman; or
2. The said act is performed with a child exploited in prostitution or 2. if committed by means of deceit against a woman who is single or a
subjected to sexual abuse. widow of good reputation, over twelve but under eighteen years of age.
3. The child, whether male or female, is below 18 years of age.47 Therefore, if the victim of the lascivious acts or conduct is over 12 years of
age and under eighteen (18) years of age, the accused shall be liable for:
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.48 This statutory provision must be 49 People v. Bonaagua, G.R. No. 188897, June 6, 2011, 650 SCRA 620,
distinguished from Acts of Lasciviousness under Articles 336 and 339 of the 638; Flordeliz v. People, 628 Phil. 124, 140-141; 614 SCRA 225, 240-241
_______________ (2010); Navarrete v. People, supra note 47 at p. 506; p. 517; and Amployo v.
People, supra note 47 at p. 755; pp. 291-292.
47 People v. Larin, 357 Phil. 987, 997; 297 SCRA 309, 318 (1998). See
also Imbo v. People, G.R. No. 197712, April 20, 2015, 756 SCRA 196; 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. 264
People, 542 Phil. 496, 510; 513 SCRA 509, 521 (2007); and Amployo v. People, 264 SUPREME COURT REPORTS ANNOTATED
496 Phil. 747, 758; 457 SCRA 282, 295 (2005). Dimakuta vs. People
48 Olivarez v. Court of Appeals, 503 Phil. 421, 432; 465 SCRA 465, 475 1. Other acts of lasciviousness under Art. 339 of the RPC, where the
(2005), citing People v. Larin, id., and Amployo v. People, id. 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;

2. Acts of lasciviousness under Art. 336 if the act of lasciviousness
263
is not covered by lascivious conduct as defined in R.A. No. 7610. In case
VOL. 773, OCTOBER 20, 2015 263 the acts of lasciviousness is covered by lascivious conduct under R.A. No.
Dimakuta vs. People 7610 and it is done through coercion or influence, which establishes
RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the absence or lack of consent, then Art. 336 of the RPC is no longer
following elements: applicable; or
3. Section 5(b), Article III of R.A. No. 7610, where there was no
(1) That the offender commits any act of lasciviousness or lewdness; consent on the part of the victim to the lascivious conduct, which was
(2) That it is done under any of the following circumstances: done through the employment of coercion or influence. The offender may
a. By using force or intimidation; or likewise be liable for sexual abuse under R.A. No. 7610 if the victim is at
b. When the offended party is deprived of reason or otherwise least eighteen (18) years and she is unable to fully take care of herself or
unconscious; or protect herself from abuse, neglect, cruelty, exploitation or discrimination
c. When the offended party is under 12 years of age; and because of a physical or mental disability or condition.50
(3) That the offended party is another person of either sex.49
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 266
instances where the lascivious conduct is covered by the definition under R.A. 266 SUPREME COURT REPORTS ANNOTATED
No. 7610, where the penalty is reclusion temporal medium, and the act is
Dimakuta vs. People
likewise covered by sexual assault under Article
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.
50 R.A. No. 7610, Sec. 3(a). 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:

265 [T]he intentional touching, either directly or through clothing, of the
VOL. 773, OCTOBER 20, 2015 265 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
Dimakuta vs. People the same or opposite sex, with an intent to abuse, humiliate, harass,
266-A, paragraph 2 of the RPC, which is punishable by prisión mayor, the degrade, or arouse or gratify the sexual desire of any person, bestiality,
offender should be liable for violation of Section 5(b), Article III of R.A. No. masturbation, lascivious exhibition of the genitals or pubic area of a
7610, where the law provides for the higher penalty of reclusion person.53
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, Second, petitioner clearly has moral ascendancy over the minor victim not
par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least eighteen just because of his relative seniority but more importantly due to the presumed
(18) years and she is unable to fully take care of herself or protect herself from presence of mutual trust and confidence between them by virtue of an existing
abuse, neglect, cruelty, exploitation or discrimination because of a physical or employment relationship, AAA being a domestic helper in petitioner’s
mental disability or condition, in which case, the offender may still be held liable household. Notably, a child is considered as sexually abused under Section 5(b)
for sexual abuse under R.A. No. 7610. of R.A. No. 7610 when he or she is subjected to lascivious conduct under
There could be no other conclusion, a child is presumed by law to be the coercion or influence of any adult. Intimidation need not necessarily be
incapable of giving rational consent to any lascivious act, taking into account the irresistible. It is sufficient that some compulsion equivalent to intimidation
constitutionally enshrined State policy to promote the physical, moral, spiritual, annuls or subdues the free exercise of the will of the offended party. 54 The law
intellectual and social well-being of the youth, as well as, in harmony with the does not require physical vio-
foremost consideration of the child’s best interests in all actions concerning him _______________
or her.51 This is equally consistent with the declared policy of the State
to provide special protection to children from all forms of abuse, neglect, 53 People v. Larin, supra note 47 at pp. 1005-1006; p. 326. See also Imbo v.
cruelty, exploitation and discrimination, and other conditions prejudicial to their People, supra note 47; People v. Gaduyon, supra note 47 at p. 148; Navarrete v.
development; provide sanctions for their commission and carry out a program for People, supra note 47 at p. 511; pp. 521-522; and Amployo v. People, supra note
prevention and deterrence of and crisis intervention in situations of child abuse, 47 at p. 759; p. 295.
exploitation, and discrimination.52 Besides, if it was the intention of the framers 54 People v. Gerandoy, G.R. No. 202838, September 17, 2014, 735 SCRA
of the law to make child offenders liable only of Article 266-A of the RPC, 520, 540; Caballo v. People, supra note 47 at pp. 242-243; Garingarao v.
which provides for a lower penalty than R.A. No. 7610, the law could have People, 669 Phil. 512, 524; 654 SCRA 243, 254-255 (2011); People
expressly made such statements.
_______________

51 See Malto v. People, 560 Phil. 119, 139-142; 533 SCRA 643, 664 (2007). 267
52 R.A. No. 7610, Art. 1, Sec. 2. VOL. 773, OCTOBER 20, 2015 267
Dimakuta vs. People instead of erroneously adopting the recommendation of the OSG, which
lence on the person of the victim; moral coercion or ascendancy is inaccurately relied on People v. Abello.58 In said case, the decisive factor for the
sufficient.55 On this point, Caballo v. People56 explicated: acquittal of the accused was not the absence of coercion or intimidation on the
As it is presently worded, Section 5, Article III of RA 7610 provides offended party, who was then sleeping at the time the lascivious act was
that when a child indulges in sexual intercourse or any lascivious conduct committed, but the fact that the victim could not be considered as a “child” under
due to the coercion or influence of any adult, the child is deemed to be a R.A. No. 7610. This Court held that while the twenty-one-year-old woman
“child exploited in prostitution and other sexual abuse.” In this manner, the has polio as a physical disability that rendered her incapable of normal function,
law is able to act as an effective deterrent to quell all forms of abuse, neglect, the prosecution did not present any testimonial or documentary evidence — any
cruelty, exploitation and discrimination against children, prejudicial as they are medical evaluation or finding from a qualified physician, psychologist or
to their development. psychiatrist — attesting that the physical condition rendered her incapable of
In this relation, case law further clarifies that sexual intercourse or lascivious fully taking care of herself or of protecting herself against sexual abuse.
conduct under the coercion or influence of any adult exists when there is some Thus, it is clear that petitioner could not have been entitled to apply for
form of compulsion equivalent to intimidation which subdues the free exercise probation in the first place. Regrettably, since neither the accused nor the OSG
of the offended party’s free will. Corollary thereto, Section 2(g) of the Rules on questioned the CA Decision, it has attained finality and to correct the error at this
Child Abuse Cases conveys that sexual abuse involves the element of influence stage is already barred by the right of the accused against double jeopardy.
which manifests in a variety of forms. It is defined as: Based on the above disquisitions, the petitioner should be denied the benefit
The employment, use, persuasion, inducement, enticement or coercion of the Probation Law and that the Court should adopt the recommendations
of a child to engage in, or assist another person to engage in, sexual above stated in situations where an accused files an appeal for the sole purpose
intercourse or lascivious conduct or the molestation, prostitution, or incest of cor-
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.” 58 People v. Abello, supra note 5.58 People v. Abello, supra note 5.
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
_______________ 269
v. Rellota, 640 Phil. 471; 626 SCRA 422 (2010); People v. Abello, supra note 5 VOL. 773, OCTOBER 20, 2015 269
at p. 393; p. 395; and Amployo v. People, supra note 47 at p. 759; pp. 295-296. Dimakuta vs. People
55 People v. Larin, supra note 47 at p. 1008; p. 329. recting the penalty imposed to qualify him for probation or where he files an
56 Caballo v. People, supra note 47. appeal specifically claiming that he should be found guilty of a lesser offense
57 Id., at pp. 242-243. necessarily included with the crime originally filed with a prescribed penalty
which is probationable.
SO ORDERED.
Sereno (CJ.), Brion, Bersamin, Villarama, Jr., Reyes and Perlas-Bernabe,
268 JJ., concur.
268 SUPREME COURT REPORTS ANNOTATED Carpio, Del Castillo and Perez, JJ., On Official Leave.
Dimakuta vs. People Velasco, Jr., J., I join dissent of Justice Mendoza and register also my
Finally, the victim is 16 years of age at the time of the commission of the Dissenting Opinion.
offense. Under Section 3(a) of R.A. No. 7610, “children” refers to “persons Leonardo-De Castro, J., I join the Dissenting Opinion of Justice Mendoza.
below eighteen (18) years of age or those over but unable to fully take care of Mendoza, J., See Dissenting Opinion.
themselves or protect themselves from abuse, neglect, cruelty, exploitation or Leonen, J., See Concurring Opinion.
discrimination because of a physical or mental disability or condition.” Jardeleza, J., No part.
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
DISSENTING OPINION 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 af-
VELASCO, JR., J.: _______________
When the law does not qualify, We should not qualify.1
2 Amending Presidential Decree no. 968, otherwise known as the Probation
For resolution is the recurring question of whether an appellate court’s Law of 1976.
downgrading of a convict’s offense or penalty — from a non-probationable to a 3 See Almero v. People, G.R. No. 188191, March 12, 2014, 718 SCRA
probationable one — subsequently entitles the accused to apply for the privilege 698; Colinares v. People, G.R. No. 182748, December 13, 2011, 662 SCRA
of probation in spite of his prior perfection of an appeal. Ultimately, this issue 266; Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619; Soriano
boils down to the interpretation of Section 4 v. Court of Appeals, G.R. No. 123936, March 4, 1999, 304 SCRA 231.
_______________

1 Corpuz v. People, G.R. No. 180016, April 29, 2014, 724 SCRA 1, 33,
citing Asejo v. People, 555 Phil. 106; 528 SCRA 114 (2007). 271
VOL. 773, OCTOBER 20, 2015 271
Dimakuta vs. People
270 firmed on appeal, the moment of truth well-nigh at hand, and the service of
270 SUPREME COURT REPORTS ANNOTATED his sentence inevitable, he now applies for probation as an “escape hatch” thus
rendering nugatory the appellate court’s affirmance of his conviction.
Dimakuta vs. People Consequently, probation should be availed of at the first opportunity by
of Presidential Decree (PD) No. 968, otherwise known as the Probation Law convicts who are willing to be reformed and rehabilitated, who manifest
of 1976, as amended by PD No. 1990.2 The provision pertinently reads: spontaneity, contrition and remorse.4 (emphasis ours)
So it was held that perfecting an appeal automatically disqualifies a
Sec. 4. Grant of Probation.—Subject to the provisions of this convicted offender from availing of the benefits of the Probation Law, regardless
Decree, the trial court may, after it shall have convicted and sentenced a of the grounds invoked in the appeal lodged, and of whether or not the appeal
defendant and upon application by said defendant within the period for resulted in the downward modification of the offense or the penalty imposed
perfecting an appeal, suspend the execution of the sentence and place the from a non-probationable to a probationable one.
defendant on probation for such period and upon such terms and This reading of the aforequoted proviso, however, has repeatedly been
conditions as it may deem best; Provided, that no application for debated upon in various cases of differing factual settings. 5 And in these cases,
probation shall be entertained or granted if the defendant perfected the Court constantly entertained the prospect of abandoning, if not substantially
the appeal from the judgment of conviction. (emphasis ours) modifying, this rigid interpretation to allow a penitent offender to apply for
probation if he only became qualified to apply for the benefits under the law after
Initially, the Court strictly interpreted the provision as barring the convicted an appellate court downgraded his offense or the penalty meted.
felon from applying for probation if he opted to resort to filing an appeal. 3 The It will not be until December of 2011, in Colinares v. People,6 when the
rationale behind the disqualification was enunciated by the Court in Francisco v. Court would take a different posture in interpreting Sec. 4 of PD No. 968, as
Court of Appeals, thus: amended.
In Colinares, the Court was emphatic in its position that the error of a lower
court should not deprive the offender of the opportunity to seek the privilege of
Probation is a special privilege granted by the state to a penitent qualified probation. In the words of the ponencia therein, “[a]ng kabayo ang nagkasala,
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 4 Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995, 243
must not have appealed his conviction before he can avail of probation. This SCRA 384, 386-387.
5 See Colinares v. People, supra note 3; Lagrosa v. People, G.R. No. 1. When the appeal is merely intended for the correction of the penalty
152044, July 3, 2003, 405 SCRA 357; Francisco v. Court of Appeals, id. imposed by the lower court, which, when corrected, would entitle the accused to
6 Id. 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 for the lesser
offense which is necessarily included in the crime for which he was originally
272 convicted and the proper penalty imposable is within the probationable period.
Dimakuta vs. People The majority is, in effect, affirming Colinares in making the grant of
ang hagupit ay sa kalabaw (The horse errs, the carabao gets the probation allowable even after appeal, to which I agree. The similarity between
whip).”7 Thus, in the face of strong dissent, the majority rejected the traditional the interpretations of Sec. 4 in Colinares and in the disposition of this case,
interpretation of Sec. 4 and refused to read the provision as prohibiting the however, ends here. Meanwhile, divergence arises from the varying analysis of
offender from applying for the benefit of probation if the appeal was made when the phrase “appeal from the judgment of conviction,” which is a basis for
the privilege of probation is not yet available.8 disqualification under Sec. 4. Here, the majority puts premium on the grounds
As held in Colinares, the appellate court’s downward modification of the invoked in the “appeal” adverted to, in that the appeal should not question the
penalty meted, from a non-probationable to a probationable one, amounted to finding of guilt and should not insist on the defendant’s acquittal, regardless of
an original conviction for a probationable penalty. Under such circumstance, the the penalty imposed and the crime the offender is convicted of. In
Court held that the offender should still be allowed to apply for the privilege of contrast, Colinares deems more significant the “judgment of conviction,”
probation in spite of his prior perfection of an appeal because the appeal was rendering the grounds the appeal was anchored on immaterial. Instead, what is of
made at a time when he was not yet a qualified offender. In other words, primordial consideration in Colinares was whether or not the defendant was
therein offender has not yet lodged an appeal from the original judgment of convicted of a probationable offense or was meted a probationable penalty. If
conviction of a probationable penalty, qualifying him to apply for probation not, the defendant will still be allowed to appeal his conviction on any ground,
under Sec. 4. without losing the right to apply for probation in the event that the appellate
Regrettably, several members of the Court remain reluctant in adopting this court reclassifies his offense or downgrades his sentence to a probationable one.
novel interpretation in Colinares, continually reasoning that the wording of Of the two interpretations, I respectfully submit that the Court’s holding
the proviso is clear and leaves no room for interpretation, and arguing that the in Colinares should be sustained. Therefore, I register my vote to GRANT the
Probation Law is not a penal statute that must be construed liberally in favor of instant petition.
the accused.9 As in the case at bar, instead of applying squarely the teaching
in Colinares, the majority deviated therefrom and needlessly imposed additional
restrictions before one could avail of the benefits under the Probation Law. 274
The ponencia ruled herein that for the accused to be allowed to apply for 274 SUPREME COURT REPORTS ANNOTATED
probation even if he has filed an appeal, the appeal should be anchored only on Dimakuta vs. People
the following grounds: With all due respect to my colleagues, allow me to express my reservations
_______________ on the Court’s imposition of prerequisites before an offender may avail of the
benefits of the Probation Law.
7 Id., at p. 279. Firstly, the conditions imposed by the majority run counter to the spirit of the
8 Id., at p. 280. Probation Law.
9 Francisco v. Court of Appeals, supra note 4 at p. 390. Recall the wording of the provision:

Sec. 4. Grant of Probation.—Subject to the provisions of this
273 Decree, the trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the period for
VOL. 773, OCTOBER 20, 2015 273
perfecting an appeal, suspend the execution of the sentence and place the
Dimakuta vs. People defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, that no application for Unlike this modification in the interpretation of Sec. 4 of PD No. 968 that
probation shall be entertained or granted if the defendant perfected the was introduced in Colinares, the ponencia’s imposition of additional restrictions
appeal from the judgment of conviction. for availing of the benefits under the Probation Law is not in keeping with the
spirit of the law. To recall, the ponencia intimates that the added restrictions are
Sec. 4 clearly commands that “no application for probation shall be based on the argument that what is prohibited under the Probation Law is
entertained or granted if the defendant perfected the appeal from the judgment of challenging the judgment of conviction, which, in the majority’s posture, is the
conviction.” At first blush, there is nothing vague in the provision that calls for finding of guilt, without distinction on whether the penalty imposed is
judicial interpretation. The provision, as couched, mandates that the perfection of probationable or not. According to the majority, the accused may still lodge an
an appeal disqualifies an otherwise qualified offender from applying for appeal and qualify for probation if the appeal is limited to praying for the
probation. reduction of the penalty imposed or downgrading the crime he is convicted of,
Nevertheless, I fully concur with the Court’s ruling in Colinares that the bar and
must be applied only to offenders who were already qualified to apply for
probation but opted to file an appeal instead. An otherwise rigid application of
the rule would defeat the very purpose of the Probation Law, which is giving 276
a qualified penitent offender the opportunity to be placed on probation instead of 276 SUPREME COURT REPORTS ANNOTATED
being incarcerated. The preambulatory clause of PD No. 1990 says as much:
Dimakuta vs. People
WHEREAS, it has been the sad experience that persons who are
should in no way insist on his innocence. With these requirements in place,
convicted of offenses and who
the majority effectively would want the accused to change his theory of the case

and belatedly plead guilty on appeal to a lesser offense, akin to a last minute

plea-bargain.
275
The problem here is that the ponencia’s interpretation is tantamount to
VOL. 773, OCTOBER 20, 2015 275 forcing the accused to already forego appealing for his acquittal at a time that
Dimakuta vs. People probation is not yet available. This goes against the rationale of the law, which
may be entitled to probation still appeal the judgment of conviction seeks to discourage from appealing only those who are, in the first place,
even up to the Supreme Court, only to pursue their application for already qualified to apply for probation, but waste the opportunity by
probation when their appeal is eventually dismissed; x x x. (emphasis insisting on their innocence. What is more, the ponencia’s restrictive
ours) proposition would lead to a baffling result — the very appeal that would have
qualified the convicted felon to apply for probation (i.e., the appeal that
Verily, the clause uses the conjunctive word “and” in qualifying the type of resulted in the downgrading of the offense or the reduction of the penalty to
offenders to whom the amendment applies. Unmistakably, it refers not simply to a probationable one) would also be the very same appeal that would
convicted offenders in general, but more specifically to qualified convicted disqualify him from availing thereof.
offenders. What PD No. 1990 then contemplates and seeks to address is the More on this first point, recall that the Probation Law was enacted for the
situation where qualified convicted offenders showed lack of repentance by following reasons:
appealing their conviction instead of admitting their guilt and asking for the
State’s graciousness and liberality by applying for the privilege of probation. WHEREAS, one of the major goals of the government is to establish a
This supports the majority opinion in Colinares that the disqualification more enlightened and humane correctional system that will promote the
under Sec. 4 does not cover a formerly disqualified convicted offender who later reformation of offenders and thereby reduce the incidence of recidivism;
on becomes qualified to apply for probation by reason of a partially meritorious WHEREAS, the confinement of all offenders in prisons and other
appeal, sustaining the conviction but for a lesser offense or penalty. To reiterate, institutions with rehabilitation programs constitutes an onerous drain on
the reduction of the penalty imposed in Colinares, from a non-probationable to a the financial resources of the country; and
probationable one, amounted to an original conviction from which no appeal has WHEREAS, there is a need to provide a less costly alternative to the
yet been taken, and thereby qualifies the convicted felon to apply for probation imprisonment of offenders who are likely to respond to individualized,
under the law. community-based treatment programs;

On the basis thereof, PD No. 968 commands that it shall be interpreted as to: WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system.11 (emphasis ours)

277 As can be gleaned, the declared purposes of the Probation Law and its
VOL. 773, OCTOBER 20, 2015 277 amendatory law all echo the State’s inclination towards a rehabilitative, as
opposed to a punitive, system. In fact, the proviso that the perfection of an appeal
Dimakuta vs. People
disqualifies the offender from applying for probation is to ensure that the
(a) Promote the correction and rehabilitation of an offender by providing him
privilege of probation is extended only to penitent qualified offenders, those the
with individualized treatment;
state deems to have the potential to be rehabilitated.
(b) Provide an opportunity for the reformation of a penitent offender which
In ascertaining an offender’s penitence, the Court has repeatedly held that the
might be less probable if he were to serve a prison sentence; and
qualified offender’s perfection of an appeal questioning his conviction, instead
(c) Prevent the commission of offenses.10
of beseeching the State’s generosity through an application for probation at the

first opportunity, is antithetical to remorse and penitence. Bear in mind, though,
Now, relate the legislature’s above stated rationale of the Probation Law to
that the amendment was prompted by the State’s past experience where qualified
the preambulatory clauses of PD No. 1990, which introduced the amendment
offenders “wager” their chances and still seek an acquittal, only to invoke the
removing the allowance of probation after the already qualified offender
privilege of probation when it is almost certain that they would not be found
appealed his conviction, to wit:
innocent. It would, therefore, be erroneous to apply the same principle to
WHEREAS, it has been the sad experience that persons who are
offenders who are not qualified, those who had no opportunity, to seek the
convicted of offenses and who may be entitled to probation still
privilege in the first place. We cannot expect them to immediately show
appeal the judgment of conviction even up to the Supreme Court,
remorse via applying for probation, putting their right to appeal on the line in so
only to pursue their application for probation when their appeal is
doing, when they are not even qualified for the privilege under the law. In their
eventually dismissed;
case, there is no wager and no “first opportunity” to apply for probation to speak
WHEREAS, the process of criminal investigation, prosecution,
off, but a clear lack of option on the part of the offenders. They had no other
conviction and appeal entails too much time and effort, not to mention the
choice but to appeal.
huge expenses of litigation, on the part of the State;
Secondly, the majority’s imposition of said conditions is in violation of the
WHEREAS, the time, effort and expenses of the Government in
constitutionally-mandated separation of powers underlying the very existence of
investigating and prosecuting accused persons from the lower courts up to
the government.
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; 11 Presidential Decree No. 1990.
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; 279
_______________ VOL. 773, OCTOBER 20, 2015 279
10 Presidential Decree No. 968, Sec. 2. Dimakuta vs. People
Well-entrenched is the rule that the primordial duty of the Court is merely to
apply the law in such a way that it does not usurp legislative powers by judicial
legislation.12 Thus, in the course of such application or construction, it should not
278 make or supervise legislation, or under the guise of interpretation, modify,
278 SUPREME COURT REPORTS ANNOTATED revise, amend, distort, remodel, or rewrite the law, or give the law a construction
which is repugnant to its terms.13 The Court should shy away from encroaching
Dimakuta vs. People
upon the primary function of a coequal branch of the Government; otherwise,
this would lead to an inexcusable breach of the doctrine of separation of powers the manner on how one loses the eligibility to apply for probation which he
by means of judicial legislation.14 already possesses. To interpret here then that an offender who is not yet
To hold, in the case at bar, that a formerly disqualified offender who only qualified to apply for probation may be prejudiced by the grounds he would raise
became qualified for probation after judgment by an appellate court is still in his appeal would mean amending Sec. 9 so as to include those who have
disqualified from applying for the privilege is tantamount to amending the raised their guilt as an issue on appeal.
law via judicial interpretation. With the Court’s disposition of the instant This unwarranted judicial amendment to the law violates the fundamental
petition, the majority is effectively placing additional qualifications and grounds maxim “expressio unius est exclusio alterius.” The express mention of one
for disqualification that not only cannot be found anywhere in the four corners of person, thing, act, or consequence excludes all others. Thus, where a statute, by
the statute, but, worse, defeat the very purpose for which the Probation Law was its terms, is expressly limited to certain matters, it may not, by interpretation or
enacted. construction, be extended to others. This rule is based on the premise that the
Had the Probation Law intended the exclusion of formerly disqualified legislature would not have made specified enumerations in a statute had the
offenders from those who may avail of the privilege, then it would have included intention been not to restrict its meaning and to confine its terms to those
such exclusion in the list of disqualified offenders under Sec. 9 of PD No. 968, expressly mentioned.15
as amended, which, in its entirety, reads:
Sec. 9. Disqualified Offenders.—The benefits of this Decree shall not be Moreover, the ponencia, in its postulation, basically legislates the timeframe
extended to those: for an offender’s penitence. The ponencia
_______________
(a) sentenced to serve a maximum term of imprisonment of more
than six years; 15 Romualdez v. Marcelo, G.R. Nos. 165510-33, July 28, 2006, 497 SCRA
(b) convicted of subversion or any crime against the national 89, 108.
security or the public order;
_______________

12 Corpuz v. People, supra note 1 at p. 57. 281
13 Id. VOL. 773, OCTOBER 20, 2015 281
14 Id. Dimakuta vs. People
is virtually sending a message to convicted felons that they should already be

penitent even before they are qualified to apply for probation to be allowed to

avail of the privilege in the off-chance that the penalty meted on them is reduced
280
or the crime they are convicted of is downgraded on appeal.
280 SUPREME COURT REPORTS ANNOTATED We have to consider though that it is only natural for a person charged with a
Dimakuta vs. People crime, subjected to a highly adversarial process, and going up against the
(c) who have previously been convicted by final judgment of an “People of the Philippines” in litigation, to be on the defensive and insist on his
offense punished by imprisonment of not less than one month and one innocence rather than readily sacrifice his liberty in gambling for a mere
day and/or a fine of not less than Two Hundred Pesos; probability of becoming eligible for, not necessarily entitled to, probation. This
(d) who have been once on probation under the provisions of this does not mean, however, that he who is guilty but denies the commission of the
Decree; and crime even after having been convicted by the trial court will never ever regret
(e) who are already serving sentence at the time the substantive having committed the offense. For his perceived lack of option, a litigant may be
provisions of this Decree became applicable pursuant to Section 33 compelled to appeal his conviction, without necessarily making him any less
hereof. repentant later on. It would not come as a surprise if it will only be after his
appeal is heard, after the penalty imposed upon him is lessened or after his crime
These disqualifications listed under Sec. 9 should be differentiated from the was downgraded, after a window of opportunity to receive a second lease in life
disqualification under Sec. 4. Sec. 9 enumerates the legal bars from acquiring opens, would his penitence be manifest in his pleadings, would he apply for
the eligibility to apply for probation. Meanwhile, the Sec. 4 proviso states probation, and would he no longer pursue the case or push his luck.
As explained, insisting on proving one’s innocence is an understandable defendant on probation for such period and upon such terms and conditions as it
natural human behavior. It is not, at all times and in all cases, proof of depravity. may deem best; x x x.” (emphasis ours)
In the same way, the observance of the proposed restrictions, which are
supposedly intended to ensure that only penitent offenders are allowed to apply
for the privilege of probation, cannot guarantee that the person invoking the
limited grounds on appeal is, in fact, remorseful. Furthermore, one cannot expect 283
an offender to be, in all cases, impelled by remorse in applying for the probation VOL. 773, OCTOBER 20, 2015 283
instead of appealing, for it may be that he sacrificed his right to fight for his Dimakuta vs. People
innocence out of fear of losing the privilege if he makes any further attempt since, as the court of origin,18 the suspension of the execution of the sentence
thereat. and the placing of the defendant on probation are just a few of its functions. The
first part of Sec. 4, thus, merely echoes the rule that the execution of
judgments19 and the resolution of an application for probation 20 are the duties of
282 the trial courts, nothing more. It should not be construed in such a way that the
282 SUPREME COURT REPORTS ANNOTATED appeal being referred to in said Sec. 4 is that taken only from the trial court to an
Dimakuta vs. People appellate court as this is an entirely different matter.
Fortunately, the grant of the privilege is entirely different from the right to To be clear, nowhere in the Probation Law does it provide that the “appeal”
apply for its grant.16 Consider, too, that the grant is discretionary upon the trial from the judgment of conviction should be that made from the trial court to the
court, hence the use of the word “may.” 17 Thus, there are other means by which appellate court. Hence, the “appeal” could very well refer to any of the three (3)
the courts may determine whether the qualified offender is indeed penitent or opportunities to seek a review of a judgment of conviction in criminal procedure:
not, other than looking to the grounds on which his appeal was hinged. The (a) questioning the judgments of the Municipal Trial Court, Metropolitan Trial
grounds raised in the appeal should then be immaterial. And instead of Court, Municipal Circuit Trial Court, and of the Municipal Trial Court in Cities
restraining an erstwhile disqualified offender’s right to appeal, the Court should _______________
adopt an effective system for weeding out those who abuse the State’s
generosity. This way, we can assist in the administration of the restorative justice 18 Section 1. Execution upon judgments or final orders.—Execution shall
that the Probation Law seeks to enforce without sacrificing civil liberties or issue as a matter of right, on motion, upon a judgment or order that disposes of
encroaching upon the power of the Legislative Branch. To impose such the action or proceeding upon the expiration of the period to appeal therefrom if
restrictions on the filing of an appeal by the disqualified convicted offender no appeal has been duly perfected.
would, more often than not, result in injustice, rather than promote the laudable If the appeal has been duly perfected and finally resolved, the execution may
purpose of the Probation Law. forthwith be applied for in the court of origin, on motion of the judgment oblige,
Thirdly, following Colinares, the “judgment of conviction” referred to in submitting therewith certified true copies of the judgment or judgments or final
Sec. 4 from which no appeal should be taken should, as earlier stressed, be order or orders sought to be enforced and of the entry thereof, with notice to the
understood to be the original conviction for a probationable penalty or adverse party.
offense, and not simply to the trial court’s first finding of guilt. The appellate court may, on motion in the same case when, the interest of
It may be tempting to interpret the phrase “judgment of conviction” to refer justice so requires, direct the court of origin to issue the writ of execution. (Rules
to the trial court’s finding of guilt since “trial court” was specifically mentioned of Court, Rule 39)
in Sec. 4, without any reference to appellate courts. This, however, does not 19 See Rules of Court, Rule 39, Sec. 1.
come as a shock. The trial court’s mention, after all, comes naturally 20 See Section 3, PD 968. Meaning of Terms.—x x x
_______________ (a) “Probation” is a disposition under which a defendant, after conviction
and sentence, is released subject to conditions imposed by the court and to the
16 Colinares v. People, supra note 3 at p. 278. supervision of a probation officer. (emphasis ours)
17 Section 4, PD No. 968, as amended, provides: “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 284
perfecting an appeal, suspend the execution of the sentence and place the
284 SUPREME COURT REPORTS ANNOTATED x x x A lawyer engaged to represent a client bears the responsibility of
protecting the latter’s interest with utmost diligence. It is his duty to serve
Dimakuta vs. People
his client with competence and diligence, and he should exert his best
before the Regional Trial Court; (b) elevating the case from the Regional
efforts to protect, within the bounds of the law, the interests of his client.
Trial Court to the Court of Appeals; and (c) by assailing the unfavorable
A lawyer’s diligence and vigilance is more imperative in criminal cases,
Decision of the Court of Appeals to this Court — the court of last resort.21
where the life and liberty of an accused is at stake. 23
Corollarily, it is submitted that the “judgment of conviction” should not be

taken to mean the initial finding of guilt, since, as maintained by the majority
Simply put, a defense lawyer is expected to advocate his client’s
in Colinares, an original judgment of conviction may also be handed down by
innocence in line with the principle deeply embedded in our legal system
the appellate courts, especially when it involves the annulment or modification of
that an accused is presumed innocent until proven guilty beyond reasonable
the trial court’s decision. As discussed, the appellate court’s judgment convicting
doubt. The lawyer owes “entire devotion to the interest of the client, warm zeal
therein defendant, for the first time, of a probationable crime or imposing upon
in the maintenance and defense of his rights and the exertion of his utmost
him a probationable penalty should be treated as an original conviction,
learning and ability,” to the end that nothing be taken or be withheld from the
entitling him to apply for probation in spite of perfecting an appeal. 22 The appeal
latter, save by the rules of law, legally applied. 24 Thus, unless and until his client
lodged by the offender, which reduced his conviction to a probationable one, in
has been convicted with finality, we cannot expect his counsel to detract, or even
no way adversely affected his later-acquired eligibility.
require him to detract from this duty, and convince his client to simply admit
In line with the teachings in Colinares, the Court should view the appellate
guilt and either seek a reduction of the penalty imposed or the downgrading of
court’s judgment which effectively qualified the offender for probation
the crime he has been convicted of just so the client may have a window of
as the conviction from which the defendant should not appeal from if he
opportunity to apply for the privilege of probation if and only if the appeal is
wishes to apply for the privilege of probation. This should be the case for the
granted. Instead, the client, in the judicial forum, should be afforded the benefit
simple reason that he has not yet questioned this second original conviction
of any and every
which qualifies him for probation. To reiterate, what the law proscribes is the
_______________
application for probation by a defendant who has appealed his conviction for a
probationable crime or with a probationable penalty. This proscription should,
23 Mattus v. Villaseca, A.C. No. 7922, October 1, 2013, 706 SCRA 477,
therefore, come in only when the offender has already been convicted of a
484.
probationable crime or imposed a probationable penalty, not when he was still
24 Regala v. Sandiganbayan, First Division, G.R. Nos. 105938 & 108113,
disqualified for probation.
September 20, 1996, 262 SCRA 122, 140.
Fourthly, the adoption of the conditions set by the majority in the instant
case will result in a situation where We
_______________
286
21 Revised Rules of Criminal Procedure, Rule 122, Section 2. 286 SUPREME COURT REPORTS ANNOTATED
22 Colinares v. People, supra note 3 at p. 280.
Dimakuta vs. People
remedy and defense that is authorized by the law of the land, and he may
expect his lawyer to assert every such remedy or defense.25
285 Lastly, in rejecting the petitioner’s plea that the Probation Law be liberally
VOL. 773, OCTOBER 20, 2015 285 construed in his favor, the Court ruled that PD 968 is not a penal law that would
warrant the application of the pro reo doctrine. The ruling was premised on the
Dimakuta vs. People
instruction of the Court in Llamado v. Court of Appeals, viz.:
would be requiring from the defense lawyer a degree of diligence that is less
Turning to petitioner’s invocation of “liberal interpretation” of penal
than that expected of him under our Rules, at his client’s expense.
statutes, we note at the outset that the Probation Law is not a penal
To elucidate, We are all very much aware of a defense lawyer’s duty to his
statute. We, however, understand petitioner’s argument to be really that
client in that:
any statutory language that appears to favor the accused in a criminal case

should be given a “liberal interpretation.” Courts, however, have no
authority to invoke “liberal interpretation” or “the spirit of the law” where Appellant’s Brief had been sought from and granted by the Court of Appeals, but
the words of the statute themselves, and as illuminated by the history of before actual filing of such brief, is barred under PD No. 968, as amended. 27 In
that statute, leave no room for doubt or interpretation. We do not believe essence, it dealt with the alleged establishment by the amendment of a narrower
that “the spirit of law” may legitimately be invoked to set at naught words period during which an application for probation may be filed with the trial
which have a clear and definite meaning imparted to them by our court. As the Court clarified:
procedural law. The “true legislative intent” must obviously be given
effect by judges and all others who are charged with the application and In applying Section 4 in the form it exists today (and at the time
implementation of a statute. It is absolutely essential to bear in mind, petitioner Llamado was convicted by the trial court), to the instant case,
however, that the spirit of the law and the intent that is to be given effect we must then inquire whether petitioner Llamado had submitted his
are to be derived from the words actually used by the lawmaker, and not application for probation “within the period for perfecting an ap-
from some external, mystical or metajuridical source independent of and _______________
transcending the words of the legislature.
The Court is not here to be understood as giving a “strict 26 Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCRA
interpretation” rather than a “liberal” one to Section 4 of the Probation 566, 577-578.
Law of 1976 as amended by P.D. No. 1990. “Strict” and “liberal” are 27 Id., at p. 576.
adjectives which too frequently impede a disciplined and principled
search for the meaning which the lawmaking authority projected
_______________
288
25 Id. 288 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People

peal.” Put a little differently, the question is whether by the time

petitioner Llamado’s application was filed, he had already “perfected
287
an appeal” from the judgment of conviction of the Regional Trial
VOL. 773, OCTOBER 20, 2015 287 Court of Manila.28 (emphasis ours)
Dimakuta vs. People
when it promulgated the language which we must apply. That A reading of Llamado reveals that the Court’s refusal to liberally interpret
meaning is clearly visible in the text of Section 4, as plain and Sec. 4 actually referred to the phrase “period for perfecting an appeal” and not
unmistakable as the nose on a man’s face. The Court is simply reading the proviso being discussed in the present case. It was therein petitioner’s
Section 4 as it is in fact written. There is no need for the involved process argument that:
of construction that petitioner invites us to engage in, a process made
necessary only because petitioner rejects the conclusion or meaning x x x the phrase “period for perfecting an appeal” and the clause “if
which shines through the words of the statute. The first duty of a judge is the defendant has perfected an appeal from the judgment of conviction”
to take and apply a statute as he finds it, not as he would like it to be.26 found in Section 4 in its current form, should not be interpreted to refer to
Rule 122 of the Revised Rules of Court; and that the “whereas” or
This oft-cited ratio in supporting the continued refusal to reject the proposed preambulatory clauses of P.D. No. 1990 did not specify a period of fifteen
application of Sec. 4, however, must also be reconsidered since this cited (15) days for perfecting an appeal. It is also urged that “the true
pronouncement of the Court actually deals with a different issue, albeit legislative intent of the amendment (P.D. No. 1990) should not apply to
pertaining to the same provision. petitioner who filed his Petition for probation at the earliest
It bears noting that Llamado dealt with the issue of whether or not opportunity then prevailing and withdrew his appeal.”29
petitioner’s application for probation, which was filed after a notice of appeal
had been filed with the trial court, after the records of the case had been
forwarded to the Court of Appeals, after the Court of Appeals had issued the which the Court flatly rejected for the ensuing reason:
notice to file Appellant’s Brief, after several extensions of time to file
We find ourselves unable to accept the eloquently stated arguments of understandable why the Court, in Llamado, rejected therein petitioner’s request
petitioner’s counsel and the dissenting opinion. We are unable to for a liberal interpretation of the phrase.
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 30 Id., at pp. 576-577.
reiterating in the proviso that:
no application for probation shall be entertained or granted if the
defendant has
_______________ 290
28 Id., at p. 574. Dimakuta vs. People
29 Id., at p. 575. In conclusion, it is simply incorrect for the Court to interpret Sec. 4 as
prohibiting the defendant from arguing for his acquittal at a time that the

privilege of probation is not yet available to him. To follow

the ponencia’s interpretation would lead to a scenario wherein the Court would
289
be subjecting disqualified offenders to the requirements of applying for
VOL. 773, OCTOBER 20, 2015 289 probation in spite of their patent ineligibility (by reason of the penalty imposed
Dimakuta vs. People or the categorization of the offense).
perfected an appeal from the judgment of conviction. The more precise interpretation, therefore, would be to grant this
opportunity to apply for probation when the accused is originally convicted
did not really mean to refer to the fifteen-day period established, for a probationable offense or sentenced to suffer a probationable penalty,
as indicated above, by B.P. Blg. 129, the Interim Rules and without distinction on whether the said “original conviction” was issued by
Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on the trial court or appellate court. What is material is that the application for
Criminal Procedure, but rather to some vague and undefined the privilege of probation be made at the first opportunity, which is the period
time, i.e., “the earliest opportunity” to withdraw the defendant’s to appeal from when the offender first became qualified for the privilege.
appeal. The whereas clauses invoked by petitioner did not, of course, For how can we say that the convicted offender wagered for an acquittal on
refer to the fifteen-day period. There was absolutely no reason why they appeal instead of applying for probation when he is not qualified to avail of the
should have so referred to that period for the operative words of Section 4 benefits of the Probation Law in the first place? He simply had no other option at
already do refer, in our view, to such fifteen-day period. x x x x Upon the that point.
other hand, the term “period for perfecting an appeal” used in Section 4 As in Colinares, petitioner in this case became qualified for probation only
may be seen to furnish specification for the loose language “first after the appellate court modified the trial court’s ruling. If, notwithstanding
opportunity” employed in the fourth whereas clause. “Perfection of an this downward modification of the penalty imposed or the crime the accused
appeal” is, of course, a term of art but it is a term of art widely understood is convicted of, the now qualified defendant still appeals his new conviction
by lawyers and judges and Section 4 of the Probation Law addresses itself on whatever ground, then, this would be the time when his appeal would bar
essentially to judges and lawyers. “Perfecting an appeal” has no him from applying for the privilege under Sec. 4.
sensible meaning apart from the meaning given to those words in our While it is true that there is a risk that the abuse of the State’s generosity by
procedural law and so the lawmaking agency could only have convicted offenders may still persist because of Colinares, we should not,
intended to refer to the meaning of those words in the context of however, deprive all accused persons, whether guilty or not, the opportunity to
procedural law.30 (emphasis ours) defend themselves and their liberty and to prove their case, lest we run the risk of
forcing innocent persons to forego their
With the above, it is evident that when this Court pronounced in Llamado its
refusal to liberally apply Sec. 4 of the Probation Law, as amended, it was doing
so within the context of interpreting the phrase “period for perfecting an appeal,” 291
which, as we all know, has a definite meaning in procedural law. It is therefore, VOL. 773, OCTOBER 20, 2015 291
Dimakuta vs. People hand, presented Mustapha and Allan Dimakuta to substantiate its claim of his
liberty simply because applying for probation is easier than proving their innocence. Mustapha denied the accusation and claimed that AAA merely
innocence. To me, this might, more often than not, result in a failure of justice concocted the charge against him just so that she could have a reason to leave
rather than its administration. their house where she worked as a domestic helper and be reunited with her
In view of the foregoing disquisitions, I reiterate my vote to GRANT the family in the province.
instant petition. On September 3, 2008, the RTC rendered its Decision, 4 finding Mustapha
guilty as charged, and meted out the penalty of ten (10) years of prisión mayor,
DISSENTING OPINION as minimum, to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal, as maximum, with the accessory penalty of perpetual
MENDOZA, J.: absolute disqualification. Further, Mustapha was ordered to pay a fine of
P25,000.00; civil indemnity of P25,000.00; and moral damages of P25,000.00.
In this petition for review on Certiorari, petitioner Mustapha Not satisfied, Mustapha appealed the RTC judgment of conviction before the
Dimakuta y Maruhom @ Boyet (Mustapha) seeks to reverse and set aside the CA claiming that the trial court egregiously erred in declaring him guilty of
September 3, 20121 and March 13, 20132 Resolutions of the Court of Appeals violating Section 5(b), Article III of R.A. No. 7610. He faulted the trial court for
(CA), in C.A.-G.R. CR No. 31963, which denied his motion that he be entitled to giving undue faith and credence to the testimony of AAA, contending that it was
probation. laced with inconsistencies and improbabilities, tainting the veracity of her
In the decision of the majority, the petition reversed its ruling in Colinares v. charge. He argued that even assuming that he indeed touched the breasts and
People3 and denied the subject petition. vagina of AAA, still there was no concrete prosecution evidence showing that
With due respect to the learned ponente of the case, I dissent. the said lascivious act was committed through force, duress, intimidation or
violence and, hence, his conviction under R.A. No. 7610 was erroneous. He
The Antecedents: added that he could not be convicted of Acts of Lasciviousness under Article 336
of
Petitioner Mustapha was charged with the offense of Violation of Section _______________
5(b), Article III of Republic Act (R.A.) No. 7610, otherwise known as the
Special Protection of Children against Child Abuse, Exploitation and 4 Penned by Judge Joselito Vibandor; Rollo, pp. 33-43.
Discrimination Act, filed before the Regional Trial Court, Branch 199, Las Piñas
City, (RTC)
_______________ 293
1 Penned by Associate Justice Myrna V. Garcia-Fernandez, with Associate VOL. 773, OCTOBER 20, 2015 293
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring; Rollo, pp. 26-29. Dimakuta vs. People
2 Id., at p. 31. the Revised Penal Code (RPC) either as the prosecution failed to establish
3 678 Phil. 482; 662 SCRA 266 (2011). the essential elements of the said crime.
In its Appellee’s Brief,5 the Office of the Solicitor General (OSG) averred
that the RTC was correct in lending weight and credence to the testimony of
AAA and that the alleged inconsistencies in her testimony pertained merely on
292 minor details and did not negate the commission of the sexual molestation.
292 SUPREME COURT REPORTS ANNOTATED The OSG, however, was of the view that Mustapha should have been
Dimakuta vs. People convicted of Acts of Lasciviousness only under Article 336 of the RPC and not
docketed therein as Criminal Case No. 05-1098, for committing a lascivious for Violation of Section 5(b), Article III of R.A. No. 7610 because the
conduct upon a 16-year-old complainant. prosecution failed to prove that the lascivious conduct was committed through
To prove its accusation, the prosecution presented private complainant AAA, coercion or intimidation.6
Department of Social Welfare and Development Social Worker (DSWD) Arleen In its June 28, 2012 Decision,7 the CA agreed with the
Bibit, and PO1 Toledo I. Mauricio, Jr., as its witnesses. The defense, on the other OSG and modified the judgment of the RTC and convicted Mustapha for Acts of
Lasciviousness only under Article 336 of the RPC explaining that coercion or ordered to pay the private complainant TWENTY THOUSAND PESOS
intimidation, the second element of the crime of violation of Section 5(b), Article (P20,000.00) as civil indemnity and THIRTY THOUSAND PESOS
III of R.A. No. 7610, was wanting in Criminal Case No. 05-1098. According to (P30,000.00) as moral damages.
the CA, the evidence on record revealed that AAA was asleep at the time the SO ORDERED.9
sexual abuse happened and only awoke when she felt her breasts being mashed
and her vagina being touched. The CA noted that after being roused from sleep,
AAA immediately put on some clothes and rushed out of her room, leaving Instead of moving for reconsideration, Mustapha filed on July 23, 2012, a
Mustapha behind, and locked herself in the stockroom. manifestation with motion10 before the CA praying that he be allowed to apply
The CA added that there was no showing that Mustapha compelled AAA, or for probation under Presidential Decree (P.D.) No. 968 upon its remand to the
cowed her into silence to bear his sexual assault. Neither was there evidence that trial court for execution. He placed reliance on the Court’s
she had the time to manifest conscious lack of consent or resistance to _______________
Mustapha’s
_______________ 8 601 Phil. 373; 582 SCRA 378 (2009).
9 Rollo, pp. 129-130.
5 Id., at pp. 77-1114. 10 Id., at pp. 132-142.
6 Id., at pp. 102-107.
7 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring; id., at pp. 117-
130. 295
VOL. 773, OCTOBER 20, 2015 295

Dimakuta vs. People
294 ruling in Colinares where the accused was allowed to apply for probation
under the reduced penalty imposed on appeal. Mustapha contended that he
294 SUPREME COURT REPORTS ANNOTATED should not be prejudiced by the erroneous judgment of the RTC which convicted
Dimakuta vs. People him with the wrong crime and sentenced him with a penalty beyond the coverage
assault. It stressed that the lascivious acts imputed to him had taken place of the Probation Law. He submitted that the Probation Law must be liberally
while private complainant was in deep slumber or unconscious, under almost the construed in favor of the accused.
same factual circumstances as in the case of People v. Abello,8 where the accused In its first assailed Resolution, dated September 3, 2012, the CA denied due
was found guilty beyond reasonable doubt of the crime of Acts of course to Mustapha’s manifestation with motion, holding that the Colinares case
Lasciviousness, defined and penalized under Article 336 of the RPC instead of was not on all fours with the present case. The CA explained that
the charge of violation of Section 5(b), Article III of R.A. No. 7610. The CA in Colinares case, the petitioner raised as sole issue the correctness of the
justified its ruling that Mustapha’s conviction under Article 336 of the RPC was penalty imposed and claimed that the evidence at best warranted a conviction for
proper for the reasons that: 1) the recital of ultimate facts and circumstances in a lesser offense of attempted homicide; while Mustapha never assailed the
the Information constituted acts of lasciviousness; and 2) the evidence adduced propriety of the penalty meted out against him and, in fact, questioned the
by the prosecution established beyond reasonable doubt his guilt of the said findings of facts and conclusions drawn by the RTC based on the evidence
crime. The dispositive portion of the CA decision reads: adduced by the prosecution. It held that the ruling in Lagrosa v. People11 is more
at point. In said case, it was held that the petitioners therein were precluded from
WHEREFORE, the Decision appealed from is MODIFIED. Accused- seeking probation after taking a guiltlessness stance and put in issue the merits of
appellant Mustapha Dimakuta y Maruhom alias “Boyet” is found their conviction on appeal. The CA, thus, adjudged as follows:
GUILTY of acts of lasciviousness, defined and penalized under
ARTICLE 336 of the REVISED PENAL CODE, as amended and he is WHEREFORE, the Manifestation with Motion to Allow Accused-
sentenced to the indeterminate penalty of SIX (6) MONTHS of arresto Appellant to Apply for Probation under Presidential Decree No. 968 is
mayor, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS DENIED.
of prisión correccional, as maximum. Accused-appellant is likewise SO ORDERED.12

Mustapha moved for reconsideration, but his motion was denied in the
second assailed Resolution, dated March 13, 2013. 297
Hence, this petition. VOL. 773, OCTOBER 20, 2015 297
_______________
Dimakuta vs. People
11 453 Phil. 270; 405 SCRA 357 (2003). Probation is not a right of an accused but a mere privilege, an act of grace
12 Rollo, p. 29. and clemency or immunity conferred by the State, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense of which he was convicted. 15 In recent
jurisprudence, it has been clarified that while the convicted offender has no right
296 to such privilege, nevertheless, he has the right to apply for that
296 SUPREME COURT REPORTS ANNOTATED privilege,16 provided that he is not disqualified from availing the benefits of
probation.
Dimakuta vs. People To properly understand the current application of the Probation Law, a brief
Ground review of its history is but appropriate. As originally promulgated on July 24,
1976, P.D. No. 968 allowed the filing of an application for probation even if an
THE COURT OF APPEALS’ DENIAL OF THE PETITIONER’S appeal had been perfected by the convicted offender. When the law was later
RIGHT TO APPLY FOR PROBATION [AS IT DID] NOT QUESTION amended by P.D. No. 1257 on December 1, 1977, the filing of an application for
THE PROPRIETY OF THE PENALTY UPON APPEAL, IS CONTRARY probation pending appeal was still allowed and, in fact, fixed the period to the
TO THE DECIDED CASE OF ARNEL COLINARES V. PEOPLE.13 point just “before he begins to serve his sentence.” With the subsequent amend-
ment of Section 4 of P.D. No. 968 by P.D. No. 1990, however, the application
The threshold issue that begs an answer from this Court is whether or not for probation is no longer allowed if the accused has perfected an appeal from
Mustapha has the right to apply for probation under the new penalty imposed by the judgment of conviction. Section 4 of the Probation Law now reads:
the CA which is within the probationable limit.
Mustapha posits that he can still avail of the benefits of probation under P.D. Sec. 4. Grant of Probation.—Subject to the provisions of this
No. 968, as amended by P.D. No. 1990, despite having appealed the September Decree, the trial court may, after it shall have convicted and sentenced a
3, 2008 RTC decision because the opportunity to apply for probation came into defendant and upon application by said defendant within the period for
being only upon his conviction by the CA of the crime of Acts of Lasciviousness perfecting an appeal, suspend the execution of the sentence and place the
and the imposition of a lesser penalty which fell within the probationable level. defendant on probation for such period and upon such terms and
By way of Comment14 to the petition, the OSG counters that Mustapha’s conditions as it may deem best; Provided, that no application for
right to apply for probation was lost when he perfected his appeal from the RTC probation shall be entertained or granted if the defendant has
judgment of conviction. It argues that the perfection of an appeal is a perfected an appeal from the judgment of conviction.
relinquishment of the alternative remedy of availing the Probation Law because _______________
appeal and probation are mutually exclusive remedies which rest on
diametrically opposed legal positions. The OSG submits that the Colinares case 15 Moreno v. Commission on Elections, 530 Phil. 279, 290; 498 SCRA 547,
is not squarely applicable in the case at bench because Mustapha never admitted 560 (2006).
guilt and did not limit the issue on the correctness of the penalty meted out by the 16 Colinares v. People, supra note 3 at p. 497.
trial court.
I am of the view that the petition is impressed with merit.
_______________
298
13 Id., at p. 14. 298 SUPREME COURT REPORTS ANNOTATED
14 Id., at pp. 169-182.
Dimakuta vs. People
Probation may be granted whether the sentence imposes a term of probation as an “escape hatch,” thus, rendering nugatory the appellate court’s
imprisonment or a fine only. An application for probation shall be filed affirmance of his conviction.
with the trial court. The filing of the application shall be deemed a waiver Resultantly, under Section 4 of P.D. No. 968 as amended, the accused is
of the right to appeal. given the choice of appealing his sentence or applying for probation. If he
An order granting or denying probation shall not be appealable. appeals, he cannot later apply for probation. If he opts for probation, he cannot
appeal.
The reason underlying the amendment was amply articulated in the Going back to the case at bench, I am of the considered view that Mustapha
preambulatory clauses of P.D. No. 1990, thus: can apply for probation. Mustapha, just like the petitioner in
the Colinares case, did not have a choice between appeal and probation when
WHEREAS, it has been the sad experience that persons who are the trial court convicted him of a wrong offense. The trial court’s erroneous
convicted of offenses and who may be entitled to probation still appeal conviction of Mustapha for Violation of Section 5(b), Article III of R.A. No.
the judgment of conviction even up to the Supreme Court, only to pursue 7610 and the imposition of a prison term of ten (10) years of prisión mayor, as
their application for probation when their appeal is eventually dismissed; minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
WHEREAS, the process of criminal investigation, prosecution, temporal, as maximum, deprived him of the choice to pursue an application for
conviction and appeal entails too much time and effort, not to mention the probation considering that the maximum probationable imprisonment under the
huge expenses of litigation, on the part of the State; Probation Law was only up to six (6) years.
WHEREAS, the time, effort and expenses of the Government in In the Colinares case, the petitioner was convicted by the trial court of
investigating and prosecuting accused persons from the lower courts up to Frustrated Homicide and sentenced him to suffer imprisonment from two (2)
the Supreme Court, are oftentimes rendered nugatory when, after the years and four (4) months of prisión correccional, as minimum, to six (6) years
appellate Court finally affirms the judgment of conviction, the defendant and one (1) day of prisión mayor, as maximum, but later, on appeal, this Court
applies for and is granted probation. found him guilty only of Attempted Homicide, and sentenced him to suffer an
x x x x indeterminate penalty from four (4) months of arresto mayor, as minimum, to
two (2) years and four (4) months of prisión correccional, as maximum. Verily,
In Almero v. People,17 the Court stated that the Probation Law was amended because of the stiff penalties imposed against both Mustapha and Arnel
“precisely to put a stop to the practice of appealing from judgments of conviction Colinares by the trial courts, they had no way of
— 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.”
In Sable v. People,18 the Court elucidated that the requirement that an accused 300
must not have appealed his 300 SUPREME COURT REPORTS ANNOTATED
_______________
Dimakuta vs. People
17 G.R. No. 188191, March 12, 2014, 718 SCRA 698. obtaining relief except by appealing their respective judgments.
18 602 Phil. 989, 997; 584 SCRA 619, 627 (2009). In the Colinares case, the Court resolved that it is but fair to allow the
petitioner the right to apply for probation under the reduced penalty upon remand
of the case to the RTC. I see no reason why the case of Mustapha should be
treated differently considering that his sentence was reduced by the CA to an
299 indeterminate penalty of six (6) months of arresto mayor, as minimum to four
VOL. 773, OCTOBER 20, 2015 299 (4) years and two (2) months of prisión correccional, as maximum. By appealing
the merits of the case, together with the conformity of the OSG, the CA found
Dimakuta vs. People Mustapha guilty only of the crime of Acts of Lasciviousness with a penalty well
conviction before he can avail of probation, outlaws the element of within the probationable period.
speculation on the part of the accused — to wager on the result of his appeal — It bears stressing that the evil of speculation and opportunism on the part of
that when his conviction is finally affirmed on appeal, the moment of truth well- the accused sought to be curbed by the amendment in P.D. No. 1990 was not
nigh at hand, and the service of his sentence inevitable, he now applies for present in the case at bench inasmuch as the penalty imposed by the RTC against
Mustapha was not probationable at the outset. Besides, nowhere in the
amendatory decree does it state or even hint that in limiting the accused to the did not commit due to an erroneous appreciation of the merits of the case. He
choice of either appealing from the decision of the trial court or applying for should not accept the erroneous judgment of the RTC for, in truth, he only
probation, the purpose is to deny him of the right to apply for probation in cases committed Acts of Lasciviousness with a maximum penalty of four (4) years and
like the one at bench where he became eligible for probation only because his two (2) months. Mustapha should not be made to suffer through the forfeiture of
sentence was reduced on appeal. To repeat, the purpose of the amendment is the right to apply for probation simply because the RTC had blundered. In
simply to prevent speculation or opportunism on the part of the accused the Colinares case, it was written:
who, although already eligible for probation, does not at once apply for
probation, but did so only after failing in his appeal.19
The CA explained that in the Colinares case, the petitioner therein raised as 302
sole issue the correctness of the penalty imposed while the OSG contends that 302 SUPREME COURT REPORTS ANNOTATED
the Colinares case is not squarely applicable to present case because Mustapha
Dimakuta vs. People
_______________
The Probation Law never intended to deny an accused his right to
19 Francisco v. Court of Appeals, 313 Phil. 241, 264; 243 SCRA 384, 396- probation through no fault of his. The underlying philosophy of probation
397 (1995). is one of liberality towards the accused. Such philosophy is not served by
a harsh and stringent interpretation of the statutory provisions. As Justice
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only
301 where it clearly appears he comes within its letter; to do so would be to
VOL. 773, OCTOBER 20, 2015 301 disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but to
Dimakuta vs. People achieve its beneficent purpose.
never admitted guilt and did not limit the issue on appeal to the correctness of
the penalty meted out by the trial court. There are views that Mustapha should not be allowed to apply for probation
These arguments are specious. anchored on the following grounds:
Firstly, in the Colinares case, the accused therein did not only question the
correctness of the penalty, but also the merits of the case by arguing that he 1] the Colinares case should not be made to apply to this case because it is
should be exonerated due to the presence of the justifying circumstance of self- not yet an established doctrine and the pronouncements therein were not
defense. The Court did not agree with his defense but nevertheless found him supported by the text of the Probation Law; and
guilty of a lesser offense of attempted homicide with a probationable penalty. 2] even if the ratiocination in the Colinares case is sound, still, it finds no
Just like in this case, Mustapha appealed the merits of the case by questioning application in the case at bench inasmuch as the CA erred in modifying the
the appreciation of evidence of the trial court. judgment of the RTC.
Secondly, it cannot be said with absolute certainty that the sole and exclusive
motivation of Mustapha for lodging the appeal was his desire to be acquitted. I disagree.
Proof of this is that after Mustapha was found guilty by the CA of acts of Adherence to the Colinares case is dictated by this Court’s policy of securing
lasciviousness and sentenced to a lesser penalty which thereby qualified him for and maintaining certainty and stability of judicial decisions in accordance with
probation, he did not appeal further although he could have done so. What he the legal maxim stare decisis et non quieta movere (or simply, stare
did, instead, was to accept the new sentence and seek a declaration from the CA decisis which means “follow past precedents and do not disturb what has been
that he is entitled to apply for probation upon remand of the case to the RTC for settled”). The principle, entrenched under Article 8 20 of the Civil Code, evokes
execution. This shows that he is willing to accept the conviction of crime, albeit the general rule that, for the sake of
for a lower penalty. _______________
Thirdly, regardless of whether an accused appealed the merits of the case or
simply the correctness of the penalty imposed, the Court should not distinguish 20 Article 8. Judicial decisions applying or interpreting the laws or the
insofar as the application of the Probation Law is concerned. The Court cannot Constitution shall form a part of the legal system of the Philippines.
expect Mustapha to forgo the remedy of appeal and admit guilt over a crime he
2012 Decision of the CA at this point is no longer permissible in the light of
the constitutional interdict against double jeopardy.
303 Not surprisingly, the OSG did not question the decision anymore as it
VOL. 773, OCTOBER 20, 2015 303 conformed to its own recommendation that the petitioner should be found guilty
of Acts of Lasciviousness only.24
Dimakuta vs. People
Let it be underscored that the primodial consideration of this Court in
certainty, a conclusion reached in one case should be doctrinally applied to
allowing the petitioner in the Colinares case to apply for probation was one of
those that follow if the facts are substantially the same, even though the parties
fairness. Here, considering that the sentence of the RTC against Mustapha was
may be different.21 Otherwise stated, once a point of law has been established by
modified by the CA to a probationable range upon recommendation of the OSG,
the Court, that point of law will, generally, be followed by the same court and by
and that he is not one of those disqualified offenders under Section 9 of P.D. No.
all courts of lower rank in subsequent cases where the same legal issue is raised.
968 as amended, he should not be denied his right to apply for probation in the
Stare decisis proceeds from the first principle of justice that, absent powerful
spirit of fairness. To rule otherwise would send Mustapha straight to jail and,
countervailing considerations, like cases ought to be decided alike. 22 Hence,
thus, robbing him of the chance to undergo reformation and rehabilitation as a
where, as in this case, the same question relating to the same event have been put
penitent offender, defeating the avowed purpose and objective of the Probation
forward by parties similarly situated as in a previous case litigated and decided
Law.
by a competent court, the rule of stare decisis is a bar to any attempt to relitigate
IN VIEW OF ALL THE FOREGOING, I recommend that the petition
the same issue.23 Significantly, the respondent has not shown any strong and
be GRANTED; that the assailed September 3, 2012 and March 13, 2013
compelling reason to persuade the Court that the manner of disposition
Resolutions of the Court of Appeals (CA) in C.A.-G.R. CR No. 31963
in Colinares v. People pertaining to the matter of probation should not be
be REVERSED and SET ASIDE; and that petitioner Mustapha
observed and adopted in the case at bench.
Dimakuta y Maruhom @ Boyet be declared as entitled to apply for probation
Anent the second ground, suffice it to state that the June 28, 2012 Decision of
within fifteen (15) days from notice that the record of the case has been
the CA convicting Mustapha for Acts of Lasciviousness became final and
remanded for execution to the Regional Trial Court of Las Piñas City, Branch
executory only upon the failure of either party to question the decision. On the
199, in Criminal Case No. 05-1098.
other hand, after Mustapha received a copy of the aforesaid decision on July 6,
_______________
2012, he did not further appeal the same to this Court. Instead, he filed before the
CA on July 23, 2012, a manifestation with motion to allow him to apply for 24 Rollo, p. 102.
probation upon remand of the case to the trial court for execution. To review the
correctness of the final and executory June 28,
_______________
305
21 Belgica v. Ochoa, Jr., G.R. No. 208566, November 19, 2013, 710 SCRA VOL. 773, OCTOBER 20, 2015 305
1, 101-102.
22 Ayala Corporation v. Rosa-Diana Realty and Development Corporation, Dimakuta vs. People
400 Phil. 511, 521; 346 SCRA 663, 671 (2000). CONCURRING OPINION
23 Chinese Young Men’s Christian Association of the Philippine Islands v.
Remington Steel Corporation, 573 Phil. 320, 337; 550 SCRA 180, 197-198 LEONEN, J.:
(2008).
Fiat justitia ruat caelum.1
The accused touched the breast and vagina of a 16-year-old minor.
The Court of Appeals failed to appreciate that this would not have been
304 possible without intimidation or coercion. It lowered the penalty from a
304 SUPREME COURT REPORTS ANNOTATED minimum imprisonment of ten (10) years 2 to a minimum imprisonment of six (6)
months.3 If the Decision of the Court of Appeals is upheld, he will not serve a
Dimakuta vs. People
single day in prison for his acts. This is not what the law requires. This is
definitely not what it intends.
Probation and appeal are mutually exclusive remedies. Probation is a mere 6 Act No. 4221 (1935), Sec. 8 provides:
privilege granted only to offenders who are willing to be reformed and SECTION 8. This Act shall not apply to persons convicted of offenses
rehabilitated. It cannot be availed of when an offender has already perfected his punishable by death or life imprisonment; to those convicted of homicide,
or her appeal from the judgment of conviction. treason, conspiracy or proposal to commit treason; to those convicted of
Generally, after a finding of fact by a trial court of the guilt of an accused misprision of treason, sedition or espionage; to those convicted of piracy,
beyond reasonable doubt, society is entitled to the expectation that he or she brigandage, arson, or robbery in band; to those convicted of robbery with
serve his or her sentence. In this sense, probation is a mere privilege: an violence on persons when it is found that they displayed a deadly weapon; to
exception granted to a general rule that is both reasonable and just. those convicted of corruption of minors; to those who are habitual delinquents;
I submit that Colinares v. People4 should not be made to apply to this case to those who have been once on probation; and to those already sentenced by
for two reasons. First, Colinares has not yet final judgment at the time of the approval of this Act.
_______________ 7 Act No. 4221 (1935), Sec. 1 provides:
SECTION 1. Whenever any person eighteen years of age or more at the
1 “Let justice be done though the heavens fall.” time of committing a criminal offense or misdemeanor is convicted and
2 Ponencia, p. 245. The Regional Trial Court sentenced petitioner to sentenced by a Court of First Instance or by the Supreme Court on appeal, for
imprisonment of ten (10) years prisión mayor as minimum to seventeen (17) such offense or misdemeanor, the proper Court of First Instance may after the
years, four (4) months and one (1) day reclusion temporal as maximum. sentence has become final and before the defendant has begun the service
3 Ponencia, p. 246. The Court of Appeals lowered the penalty to thereof, suspend the execution of said sentence and place the defendant on
imprisonment of six (6) months arresto mayor as minimum to four (4) years and probation for
two (2) months prisión correccional as maximum.
4 678 Phil. 482; 662 SCRA 266 (2011) [Per J. Abad, En Banc].

307
VOL. 773, OCTOBER 20, 2015 307
306
Dimakuta vs. People
306 SUPREME COURT REPORTS ANNOTATED The current law on probation is Presidential Decree No. 968, 8 which was
Dimakuta vs. People signed into law on July 24, 1976. An accused was originally allowed to apply for
become established doctrine, and the dissents of the case offer a sound and probation before the trial court even pending appeal, as long as notice was given
logical approach to the issue. Colinares read an outcome, which is not supported to the Court of Appeals where the appeal was pending. 9 According to Section 4
by the text of law. Second, even assuming that the ratio in Colinares is good law, of the Decree:
it finds no application to this case since the Court of Appeals erred in modifying
the judgment of the trial court.
SECTION 4. Grant of Probation.—Subject to the provisions of this
I Decree, the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant, suspend the
Probation was first established in this jurisdiction through Act No. execution of said sentence and place the defendant on probation for such
42215 dated August 7, 1935. According to the provisions of the Act, those who period and upon such terms and conditions as it may deem best.
have not been convicted of any offense punishable by death or life Probation may be granted whether the sentence imposes a term of
imprisonment6 may be placed under probation after the sentence becomes final imprisonment or a fine only. An application for probation shall be filed
and before the offender begins the service of sentence.7 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
5 An Act Establishing Probation for Persons, Eighteen Years of Age or withdrawal of a pending appeal.
Above, Convicted of Certain Crimes by the Courts of the Philippine Islands; An order granting or denying probation shall not be appealable.
Providing Probation Officers Therefor; and for Other Purposes. (Emphasis supplied)
“Sec. 4. Grant of Probation.—Subject to the provisions of
The Decree, however, declared that probation cannot be availed of by the this Decree, the court may, after it shall have convicted and
following offenders: sentenced a defendant but before he begins to serve his sentence
_______________ and upon his application, suspend the execu-
_______________
such period as it may determine not less nor exceeding the minimum and
maximum periods prescribed in this Act. No person, however, shall be placed on 10 This section was amended by Batas Pambansa Blg. 76 dated June 13,
probation until an investigation and report by the probation officer shall have 1980 to include offenders sentenced to imprisonment of six years and one day.
been made to the court of the circumstances of his offense, his criminal record, if This amendment, however, was repealed by Presidential Decree No. 1990 in
any, and his social history and until the provincial fiscal shall have been given an 1985, which restored the original text of Section 9 in Presidential Decree No.
opportunity to be heard. The court shall enter in the minutes the reasons for its 968.
action.
8 Establishing a Probation System, Appropriating Funds Therefor and for
Other Purposes.
9 Pres. Decree No. 968 (1976), Sec. 4. 309
VOL. 773, OCTOBER 20, 2015 309

Dimakuta vs. People

tion of said sentence and place the defendant on probation for
308
such period and upon such terms and conditions as it may deem
308 SUPREME COURT REPORTS ANNOTATED best.
Dimakuta vs. People The prosecuting officer concerned shall be notified by the
SECTION 9. Disqualified Offenders.—The benefits of this Decree court of the filling [sic] of the application for probation and he
shall not be extended to those: may submit his comment on such application within ten days from
(a) sentenced to serve a maximum term of imprisonment of more receipt of the notification.
than six years; Probation may be granted whether the sentence impose a term
(b) convicted of subversion or any crime against the national of imprisonment or a fine with subsidiary imprisonment in case of
security or the public order; insolvency. An application for probation shall be filed with trial
(c) who have previously been convicted by final judgment of an court, with notice to appellate court if an appeal has been taken
offense punished by imprisonment of not less than one month and one from the sentence of conviction. The filling [sic] of the application
day and/or a fine of not less than Two Hundred Pesos; shall be deemed a waiver of the right to appeal, or the automatic
(d) who have been once on probation under the provisions of this withdrawal of a pending appeal. In the latter case[,] however, if
Decree; and the application is filed on or after the date of the judgment of the
(e) who are already serving sentence at the time the substantive appellate court, said application shall be acted upon by the trial
provisions of this Decree became applicable pursuant to Section 33 court on the basis of the judgment of the appellate court.
hereof.10 An order granting or denying probation shall not be
appealable.” (Emphasis supplied)
Section 4 of the Decree was amended twice: first, by Presidential Decree No.
1257 on December 1, 1977, and again, by Presidential Decree No. 1990 on In 1985, however, a substantial amendment was made to the Probation Law,
October 5, 1985. which categorically prohibited applications for probation if the appeal has been
The amendments of Presidential Decree No. 1257 increased the period when perfected:
an application for probation may be granted, thus: WHEREAS, it has been the sad experience that persons who are
Section 1. Section 4 of Presidential Decree No. 968, otherwise convicted of offenses and who may be entitled to probation still appeal
known as the Probation Law of 1976, is hereby amended to read as the judgment of conviction even up to the Supreme Court, only to pursue
follows: their application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, “An order granting or denying probation shall not be
conviction and appeal entails too much time and effort, not to mention the appealable.”11 (Emphasis supplied)
huge expenses of litigation, on the part of the State;
Thus, the present law makes an appeal and an application for probation
mutually exclusive remedies. An accused who has been sentenced to a penalty of
310 less than six (6) years of imprisonment may only apply for probation if he or she
310 SUPREME COURT REPORTS ANNOTATED has not yet perfected his or her appeal from the judgment of conviction. There
are no exceptions to the rule in the text of the law. The intent to make the choices
Dimakuta vs. People
exclusive from each other is seen in the context of the history of the amendments
WHEREAS, the time, effort and expenses of the Government in
to this law.
investigating and prosecuting accused persons from the lower courts up to
The amendment to Section 4 of the Probation Law has also been the subject
the Supreme Court, are oftentimes rendered nugatory when, after the
of several cases before this court. Two cases, in particular, established the
appellate Court finally affirms the judgment of conviction, the defendant
following principles:
applies for and is granted probation;
1. The Probation Law is not a penal statute that may be interpreted liberally
WHEREAS, probation was not intended as an escape hatch and
in favor of the accused; and
should not be used to obstruct and delay the administration of justice, but
2. Section 4 of the Probation Law clearly mandates that no application for
should be availed of at the first opportunity by offenders who are willing
probation shall be entertained or granted if the defendant has perfected the appeal
to be reformed and rehabilitated;
from the judgment of conviction.
WHEREAS, it becomes imperative to remedy the problems above
The first of these cases applied Section 4 as it is stated in the law, effectively
mentioned confronting our probation system;
ruling that the law does not admit exceptions. In Llamado v. Court of
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Appeals,12 Ricardo A. Llamado (Llamado) was convicted by the trial court of
Philippines, by virtue of the powers vested in me by the Constitution, do
violation of Batas Pambansa Bilang 22 and sentenced to imprisonment of one
hereby decree:
(1) year of prisión correccional.13
SECTION 1. Section 4 of Presidential Decree No. 968 is hereby
After the decision had been read to him, Llamado orally manifested before
amended to read as follows:
the trial court that he was taking an appeal. The trial court forwarded the records
“SEC. 4. Grant of Probation.—Subject to the provisions of
of the case to the
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 11 Pres. Decree No. 1990 (1985).
of the sentence and place the defendant on probation for such 12 256 Phil. 328; 174 SCRA 566 (1989) [Per J. Feliciano, Third Division].
period and upon such terms and conditions as it may deem 13 Id., at p. 332; pp. 569-570.
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 312
imprisonment or a fine only. An application for probation shall be filed 312 SUPREME COURT REPORTS ANNOTATED
with the trial court. The filing of the application shall be deemed a waiver
of the right to appeal. Dimakuta vs. People
Court of Appeals on the same day. Llamado received notices from the Court
of Appeals to file his Appellant’s Brief, to which he secured several extensions.14
311 While his Appellant’s Brief was being finalized by his counsel on record,
Llamado sought advice from another lawyer. 15 Heeding the advice of his new
VOL. 773, OCTOBER 20, 2015 311 counsel, he filed before the trial court a Petition for Probation under the
Dimakuta vs. People Probation Law.16 The Petition was not accepted by the trial court as “the records
of [his] case had already been forwarded to the Court of Appeals.” 17 Llamado
then filed a Manifestation and Petition for Probation before the Court of Appeals, by our procedural law. The “true legislative intent” must obviously be
asking it to grant his Petition or, in the alternative, to remand the Petition to the given effect by judges and all others who are charged with the application
trial court along with the records of the case.18 While the Petition was pending and implementation of a statute. It is absolutely essential to bear in mind,
before the Court of Appeals, he filed a Manifestation and Motion formally however, that the spirit of the law and the intent that is to be given effect
withdrawing his appeal “conditioned . . . on the approval of his Petition for are to be derived from the words actually used by the lawmaker, and not
Probation.”19 from some external, mystical or metajuridical source independent of and
The Court of Appeals denied the Petition, which prompted Llamado to file a transcending the words of the legislature.
Petition for Review before this court, on the sole issue of whether his application The Court is not here to be understood as giving a “strict”
for probation was filed after he had already perfected his appeal.20 interpretation” rather than a “liberal” one to Section 4 of the Probation
This court, however, affirmed the Court of Appeals and ruled that Llamado Law of 1976 as amended by P.D. No. 1990. “Strict” and “liberal” are
already perfected his appeal when he orally manifested in open court his adjectives which too frequently impede a disciplined and principled
intention to appeal.21 As such, he cannot be allowed to apply for probation by search for the meaning which the lawmaking authority projected when it
virtue of Section 4 of Presidential Decree No. 968, as amended by Presidential promulgated the language which we must apply. That meaning is clearly
Decree No. 1990.22 This court was also hesitant to visible in the text of Section 4, as plain and unmistakable as the nose on a
_______________ man’s face. The Court is simply reading Section 4 as it is in fact written.
There is no need for the involved process of construction that petitioner
14 Id. invites us to engage in, a process made necessary only because petitioner
15 Id. rejects the conclusion or
16 Id., at pp. 332-333; p. 570. _______________
17 Id., at p. 333; p. 571.
18 Id. 23 Id., at p. 339; p. 577.
19 Id.
20 Id., at pp. 333-334; p. 571.
21 Id., at p. 337; p. 575.
22 Id., at pp. 337-339; p. 571. 314

Dimakuta vs. People

meaning which shines through the words of the statute. The first duty
313
of a judge is to take and apply a statute as he finds it, not as he would like
VOL. 773, OCTOBER 20, 2015 313 it to be. Otherwise, as this Court in Yangco v. Court of First Instance of
Dimakuta vs. People Manila warned, confusion and uncertainty in application will surely
liberally interpret Section 4 of Presidential Decree No. 968 since the Decree follow, making, we might add, stability and continuity in the law much
was not a penal statute.23 The court stated: more difficult to achieve[.]24 (Emphasis supplied)

Turning to petitioner’s invocation of “liberal interpretation” of penal The issue of whether an application for probation is allowed after the
statutes, we note at the outset that the Probation Law is not a penal perfection of an appeal was again taken up by this court in Francisco v. Court of
statute. We, however, understand petitioner’s argument to be really that Appeals.25
any statutory language that appears to favor the accused in a criminal case In Francisco, Pablo C. Francisco (Francisco) was convicted by the
should be given a “liberal interpretation.” Courts, however, have no Metropolitan Trial Court of four (4) counts of grave oral defamation and
authority to invoke “liberal interpretation” or “the spirit of the law” sentenced to imprisonment of “one (1) year and one (1) day to one (1) year and
where the words of the statute themselves, and as illuminated by the eight (8) months of prisión correccional ‘in each crime committed on each date
history of that statute, leave no room for doubt or interpretation. We do of each case[.]’”26 On appeal before the Regional Trial Court, the trial court
not believe that “the spirit of law” may legitimately be invoked to set at affirmed his conviction but appreciated a mitigating circumstance in his favor.
naught words which have a clear and definite meaning imparted to them His penalty was reduced to a straight penalty of eight (8) months of
imprisonment. This Decision became final and executory upon his failure to file granted if the defendant has perfected the appeal from the judgment of
an appeal. Before the Decision could be executed, however, he applied for conviction,” nor Llamado v. Court of Appeals which interprets the quoted
probation before the Metropolitan Trial Court. His application was denied, as provision, offers any ambiguity or qualification. As such, the application
was his subsequent Petition for Certiorari before the Court of Appeals.27 of the law should not be subjected to any to suit the case of
Francisco then brought a Petition before this court, arguing that “he [had] not petitioner. While the proposition that an appeal should not bar the
yet lost his right to avail [himself] of probation[.]” 28 He argued that the judgment accused from applying for probation if the appeal is solely to reduce the
of the Metropolitan Trial Court was such that he could not be qualified for penalty to within the probationable limit may be equitable, we are not yet
proba- prepared to accept this interpre-
_______________ _______________
24 Id., at pp. 339-340; pp. 577-578. 29 Id.

25 313 Phil. 241; 243 SCRA 384 (1995) [Per J. Bellosillo, En Banc]. 30 Id.
26 Id., at p. 251; p. 387.
27 Id., at p. 252; p. 388.
28 Id., at p. 254; p. 389.
316

Dimakuta vs. People
315
tation under existing law and jurisprudence.31 (Emphasis supplied)
VOL. 773, OCTOBER 20, 2015 315
Dimakuta vs. People Moreover, this court ruled that the penalties imposed by the Metropolitan
tion, which was precisely the reason for his appeal, so that he could avail Trial Court were already probationable since “the sum of the multiple prison
himself of the benefits of probation.29 terms imposed against an applicant should not be determinative of his [or her]
This court, speaking through Justice Bellosillo, denied his Petition and ruled eligibility for, nay his [or her] disqualification from, probation.” 32 It also pointed
that Francisco was no longer eligible for probation.30 This court stated that: out that Francisco appealed his conviction before the Regional Trial Court not to
reduce his penalty to make him eligible for probation but “to assert his
innocence.”33
Probation is a mere privilege, not a right. Its benefits cannot extend Justice V. V. Mendoza, however, took exception to the majority view and
to those not expressly included. Probation is not a right of an accused, voted to reverse the judgment of the Court of Appeals. 34 In his Dissenting
but rather an act of grace and clemency or immunity conferred by the Opinion, he stated that:
state which may be granted by the court to a seemingly deserving
defendant who thereby escapes the extreme rigors of the penalty imposed
by law for the offense of which he stands convicted. It is a special [I]f under the sentence given to him an accused is not qualified for
prerogative granted by law to a person or group of persons not enjoyed probation, as when the penalty imposed on him by the court singly or in
by others or by all. Accordingly, the grant of probation rests solely upon their totality exceeds six (6) years but on appeal the sentence is modified
the discretion of the court which is to be exercised primarily for the so that he becomes qualified, I believe that the accused should not be
benefit of organized society, and only incidentally for the benefit of the denied the benefit of probation.
accused. The Probation Law should not therefore be permitted to divest Before its amendment by P.D. No. 1990, the law allowed — even
the state or its government of any of the latter’s prerogatives, rights or encouraged — speculation on the outcome of appeals by permitting the
remedies, unless the intention of the legislature to this end is clearly accused to apply for probation after he had appealed and failed to obtain
expressed, and no person should benefit from the terms of the law who is an acquittal. It was to change this that Sec. 4 was amended by
not clearly within them. _______________
Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that “no application for probation shall be entertained or
31 Id., at pp. 254-255; pp. 389-390, citing Baclayon v. Mutia, 214 Phil. 126, 35 Id., at pp. 268-272; p. 404.
131; 129 SCRA 148, 153-154 (1984) [Per J. Teehankee, First 36 Id., at pp. 275-276; p. 407.
Division]; Amandy v. People, 244 Phil. 457, 465; 161 SCRA 436, 443 (1988) 37 Id., at p. 276; p. 407.
[Per J. Gutierrez, Jr., Third Division], 34 Words and Phrases 111, Bala v. 38 J. Vitug, Separate Opinion in Francisco v. Court of Appeals, supra note
Martinez, 260 Phil. 488, 498-499; 181 SCRA 459, 465 (1990) [Per J. Sarmiento, 25 at pp. 277-278; p. 392.
Second Division], and Llamado v. Court of Appeals, supra note 12 at pp. 334-
337; p. 573.
32 Id., at p. 258; p. 392.
33 Id., at p. 262; p. 396. 318
34 J. Mendoza, Dissenting Opinion in Francisco v. Court of 318 SUPREME COURT REPORTS ANNOTATED
Appeals, supra note 25 at p. 267; p. 401. Dimakuta vs. People
jority that “the number of offenses is immaterial as long as all the penalties

imposed, taken separately, are within the probationable period.”39

The exception suggested by Justice V. V. Mendoza, i.e., that the accused
317
should be allowed to apply for probation if an originally unprobationable offense
VOL. 773, OCTOBER 20, 2015 317 is reduced to a probationable one on appeal, would ultimately become this
Dimakuta vs. People court’s ratio in Colinares.
P.D. No. 1990 by expressly providing that “no application for With all due respect, Colinares does not apply to this case.
probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction.” For an accused, despite the fact II
that he is eligible for probation, may be tempted to appeal in the hope of
obtaining an acquittal if he knows he can any way apply for probation in In Colinares, the accused, Arnel Colinares (Colinares), was found guilty by
the event his conviction is affirmed. the Regional Trial Court of frustrated homicide. He was sentenced to an
There is, however, nothing in the amendatory Decree to suggest that indeterminate penalty of two (2) years and four (4) months of prisión
in limiting the accused to the choice of either appealing from the decision correccional as minimum to six (6) years and one (1) day of prisión mayor as
of the trial court or applying for probation, the purpose is to deny him the maximum.40
right to probation in cases like the one at bar where he becomes eligible Colinares appealed before the Court of Appeals invoking self-defense. He
for probation only because on appeal his sentence is reduced. The also alternatively sought conviction for the lesser crime of attempted homicide.
purpose of the amendment, it bears repeating, is simply to prevent The Court of Appeals denied his appeal which prompted him to file a Petition for
speculation or opportunism on the part of an accused who, although Review before this court.41
eligible for probation, does not at once apply for probation, doing so only During the pendency of the case, this court required Colinares and the Office
after failing in his appeal.35 (Emphasis supplied, citations omitted) of the Solicitor General to submit their respective positions on whether,
assuming that Colinares was only guilty of the lesser crime of attempted
Justice V. V. Mendoza also submitted that the original sentence imposed homicide, “he could still apply for probation upon remand of [this] case to the
on Francisco should be taken in its totality to determine whether he was trial court.”42 Colinares argued that he was eligible while the Office of the
qualified for probation.36 In his opinion, the policy of the law treats “multiple Solicitor General argued for his ineligibility.43
sentences imposed in cases which are jointly tried and decided 37 as only one _______________
sentence.
Justice Vitug also offered a Separate Opinion, in that he agreed with Justice 39 Id., at p. 278; p. 392.
V. V. Mendoza that an accused originally not qualified for probation must not be 40 Colinares v. People, supra note 4 at p. 491; p. 273.
denied the benefit of probation if on appeal, the sentence was reduced within the 41 Id.
probationable period.38 He, however, concurred with the ma- 42 Id., at p. 492; p. 273.
_______________ 43 Id.
guilty of the correct offense and imposed on him the right penalty of
two years and four months maximum. This would have afforded Arnel
319 the right to apply for probation.
VOL. 773, OCTOBER 20, 2015 319 The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of probation
Dimakuta vs. People
is one of liberality towards the accused. Such philosophy is not served by
This court eventually ruled that Colinares was only guilty of attempted
a harsh and stringent interpretation of the statutory provisions. As Justice
homicide which was punishable by imprisonment of four (4) months of arresto
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
mayor as minimum and two (2) years and four (4) months of prisión
must not be regarded as a mere privilege to be given to the accused only
correccional as maximum.44 This court also found Colinares eligible for
where it clearly appears he comes within its letter; to do so would be to
probation despite having appealed his conviction. 45 The Decision, penned by
disregard the teaching in many cases that the Probation Law should be
Justice Abad, stated that the accused should not be denied the right of probation
applied in favor of the accused not because it is a criminal law but to
if it was through the fault of the trial court that he did not have a chance to apply
achieve its beneficent purpose.46 (Emphasis supplied)
for probation:

This Decision by the court was contentious in the least, with this court’s En
. . . Arnel did not appeal from a judgment that would have allowed
Banc voting 9-647 in favor of the ponencia and with Justice Peralta and Justice
him to apply for probation. He did not have a choice between appeal and
Villarama offering their Separate Opinions.
probation. He was not in a position to say, “By taking this appeal, I
_______________
choose not to apply for probation.” The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that would allow 46 Id., at pp. 499-500; pp. 280-281, citing Yusi v. Morales, 206 Phil. 734,
Arnel to now seek probation under this Court’s greatly diminished 740; 121 SCRA 853, 858 (1983) [Per J. Gutierrez, Jr., First Division]
penalty will not dilute the sound ruling in Francisco. It remains that those and J. Mendoza, Dissenting Opinion in Francisco v. Court of
who will appeal from judgments of conviction, when they have the option Appeals, supra note 25 at p. 273; p. 405.
to try for probation, forfeit their right to apply for that privilege. 47 Former Chief Justice Renato C. Corona and Associate Justices Antonio
Besides, in appealing his case, Arnel raised the issue of correctness of T. Carpio, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Mariano C.
the penalty imposed on him. He claimed that the evidence at best Del Castillo, Jose P. Perez, Jose C. Mendoza, and Bienvenido L. Reyes,
warranted his conviction only for attempted, not frustrated, homicide, concurred in the ponencia. Associate Justices Diosdado M. Peralta and Martin S.
which crime called for a probationable penalty. In a way, therefore, Villarama, Jr., dissented. Associate Justices Arturo D. Brion, Lucas P. Bersamin,
Arnel sought from the beginning to bring down the penalty to the level Ma. Lourdes P. A. Sereno (now Chief Justice), and Estela M. Perlas-Bernabe
where the law would allow him to apply for probation. joined in the dissents.
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable penalty.
Had the RTC done him right from the start, it would have found him 321
_______________ VOL. 773, OCTOBER 20, 2015 321
44 Id., at p. 501; p. 273. Dimakuta vs. People
45 Id. With all due respect, Justice Villarama, Jr. correctly stated in Colinares that
an application of liberality in the interpretation of Section 4 is “misplaced.” 48
It is a settled principle of statutory construction that only penal statutes are
construed liberally in favor of the accused. 49 It is also equally settled that the
320 Probation Law is not a penal statute.50 The provisions of the law, including
320 SUPREME COURT REPORTS ANNOTATED Section 4, should be interpreted as stated, which is that once an appeal has been
perfected by the accused, he or she is not anymore entitled to the benefits of
Dimakuta vs. People
probation.
The Probation Law intends to benefit only penitent offenders, or those who sentence inevitable, he now applies for probation as an “escape hatch,”
admit to their offense and are willing to undergo rehabilitation. According to thus rendering nugatory the appellate court’s affirmance of his
Section 2 of the Probation Law: conviction. Consequently, probation should be availed of at the first
Section 2. Purpose.—This Decree shall be interpreted so as to: opportunity by convicts who are willing to be reformed and rehabilitated;
(a) promote the correction and rehabilitation of an offender by who manifest spontaneity, contrition and remorse.
providing him with individualized treatment; This was the reason why the Probation Law was amended, precisely
(b) provide an opportunity for the reformation of a penitent offender to put a stop to the practice of appealing from judgments of conviction
which might be less probable if he were to serve a prison sentence; and even if the sentence is probationable, for the purpose of securing an
(c) prevent the commission of offenses. acquittal
Moreover, the law was amended precisely to prohibit those offenders from _______________
taking advantage of the benefits of the Probation Law when their appeals for
innocence are rendered fu- 51 Sable v. People, 602 Phil. 989, 997; 584 SCRA 619, 627 (2009)
_______________ [Per J. Chico-Nazario, Third Division].
52 Id.
48 J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v.
People, supra note 4 at p. 512; p. 284.
49 See People v. Ladjaalam, 395 Phil. 1, 35; 340 SCRA 617, 649 (2000)
[Per J. Panganiban, Third Division], citing People v. Atop, 349 Phil. 825, 839; 323
286 SCRA 157, 170 (1998) [Per J. Panganiban, En Banc] and People v. VOL. 773, OCTOBER 20, 2015 323
Deleverio, 352 Phil. 382, 404; 289 SCRA 547, 566 (1998) [Per J. Vitug, En Dimakuta vs. People
Banc]. and applying for the probation only if the accused fails in his
50 See Llamado v. Court of Appeals, supra note 12 at p. 339; p. 577. bid.53 (Emphasis supplied)

Similarly, Justice Villarama stated in his Separate Opinion in Colinares that:

322
It must be stressed that in foreclosing the right to appeal his
322 SUPREME COURT REPORTS ANNOTATED conviction once the accused files an application for probation, the State
Dimakuta vs. People proceeds from the reasonable assumption that the accused’s submission
tile. The first Whereas clause of Presidential Decree No. 1990 states: to rehabilitation and reform is indicative of remorse. And in prohibiting
WHEREAS, it has been the sad experience that persons who are the trial court from entertaining an application for probation if the
convicted of offenses and who may be entitled to probation still appeal accused has perfected his appeal, the State ensures that the accused takes
the judgment of conviction even up to the Supreme Court, only to pursue seriously the privilege or clemency extended to him, that at the very least
their application for probation when their appeal is eventually dismissed. he disavows criminal tendencies. Consequently, this Court’s grant of
It is thus abhorrent to the intention of the law if those who have appealed relief to herein accused whose sentence was reduced by this Court to
their convictions, i.e., those who asked the court to review their convictions in within the probationable limit, with a declaration that accused may now
the hope of securing an acquittal, are still allowed to apply for probation. apply for probation, would diminish the seriousness of that privilege
In these situations, the privilege of probation becomes an “escape hatch” 51 for because in questioning his conviction accused never admitted his guilt. It
those whose appeals were found unmeritorious. In Sable v. People, et al.:52 is of no moment that the trial court’s conviction of petitioner for
frustrated homicide is now corrected by this Court to only attempted
The law expressly requires that an accused must not have appealed homicide. Petitioner’s physical assault on the victim with intent to kill is
his conviction before he can avail himself of probation. This outlaws the unlawful or criminal regardless of whether the stage of commission was
element of speculation on the part of the accused — to wager on the frustrated or attempted only. Allowing the petitioner the right to apply for
result of his appeal — that when his conviction is finally affirmed on probation under the reduced penalty glosses over the fact that accused’s
appeal, the moment of truth well nigh at hand and the service of his availment of appeal with such expectation amounts to the same thing:
speculation and opportunism on the part of the accused in violation of the _______________
rule that appeal and probation are mutually exclusive
remedies.54 (Emphasis supplied) 55 J. Peralta, Dissenting and Concurring Opinion in Colinares v. People, id.,
_______________ at p. 506; p. 281.
56 Id., at p. 507; p. 288.
53 Id., at p. 997; p. 627, citing Francisco v. Court of Appeals, supra note 25 57 Id., at p. 508; p. 289.
at p. 250; p. 386 and People v. Evangelista, 324 Phil. 80, 85-86; 253 SCRA 714,
719 (1996) [Per J. Mendoza, Second Division].
54 J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v.
People, supra note 4 at pp. 511-512; pp. 292-293. 325
VOL. 773, OCTOBER 20, 2015 325

Dimakuta vs. People

tionable period or a fine, and the accused files a notice of appeal; and
324
2. When the accused files a notice of appeal which puts the merits
324 SUPREME COURT REPORTS ANNOTATED of his conviction in issue, even if there is an alternative prayer for the
Dimakuta vs. People correction of the penalty imposed by the trial court or for a conviction to a
The underlying theory, therefore, of the amendment to Section 4 is that the lesser crime, which is necessarily included in the crime in which he was
grant of probation to an accused whose sentence was reduced must proceed from convicted where the penalty is within the probationable
an accused’s remorse and willingness to undergo rehabilitation, which is period.58 (Emphasis and underscoring in the original)
antithetical to the filing of an appeal to seek the reversal of his or her conviction.
A more lenient approach was offered by Justice Peralta in Colinares. He was This case is one of the instances mentioned by Justice Peralta wherein an
more open to finding exceptions to the rule and was of the opinion that what application of Colinares would violate the spirit and intent of the law.
Section 4 of the Probation Law prohibited are only appeals from the judgment of The facts state that petitioner appealed his conviction before the Court of
conviction.55 He opined that probation, even after one’s filing of the notice of Appeals on the basis that the trial court erred in giving credence to the victim’s
appeal, should be allowed in the following instances: testimony as it was laced with inconsistencies and improbabilities. He argued
that even if he did commit lascivious conduct against the victim, he still should
1. When the appeal is merely intended for the correction of the not be charged with violation of Article 336 of the Revised Penal Code since the
penalty imposed by the lower court, which when corrected would entitle prosecution failed to establish the essential elements of the crime. This is
the accused to apply for probation; and tantamount to an assertion of his innocence.59
2. When the appeal is merely intended to review the crime for which For him to still be eligible for probation, his appeal should have argued that
the accused was convicted and that the accused should only be liable to the trial court erred in finding him guilty of violation of Republic Act No. 7610
the lesser offense which is necessarily included in the crime for which he since his offense was merely acts of lasciviousness.
was originally convicted and the proper penalty imposable is within the The first appeal determines whether he comes under the exception.
probationable period.56 (Emphasis in the original) Petitioner’s appeal before the Court of Appeals was made for the purpose of
securing an acquittal; it was not for the purpose of lowering his penalty to one
within the probationable period. To allow him to apply for probation would be to
Justice Peralta stated that in these instances, the appeal is intended to _______________
question only the propriety of the penalty imposed, rather than review the merits
of the case.57 He believed, however, that probation should not be granted in the 58 Id., at p. 509; p. 290.
following instances: 59 Ponencia, p. 260.

1. When the accused is convicted by the trial court of a crime where
326
the penalty imposed is within the proba-
[T]he intentional touching, either directly or through clothing, of the
Dimakuta vs. People
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction
disregard the intent of the law: that appeal and probation are mutually
of any object into the genitalia, anus or mouth, of any person, whether of
exclusive remedies.
the same or opposite sex, with the intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any person, bestiality,
III
masturbation, lascivious exhibition of the genitals or pubic area of a

person.62
Even assuming that the ratio in Colinares is sound, it finds no application in
this case simply because the Court of Appeals erroneously modified the offense.
Petitioner had been convicted by the trial court of violation of Article III,
Section 5(b) of Republic Act No. 7610 for allegedly molesting a 16-year-old girl. Here, petitioner is accused of touching the breast and vagina of a 16-year-old
The provision states: girl.63 On appeal, however, the Court of Appeals modified the offense, finding
Section 5. Child Prostitution and Other Sexual Abuse.—Children, that the prosecution failed to prove that the lascivious conduct was done with
whether male or female, who for money, profit, or any other coercion or intimidation.64 It found petitioner to be guilty only
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. 60 669 Phil. 512; 654 SCRA 243 (2011) [Per J. Carpio, Second Division].
The penalty of reclusion temporal in its medium period to reclusion 61 Id., at p. 523; pp. 253-254, citing Olivarez v. Court of Appeals, 503 Phil.
perpetua shall be imposed upon the following: 421, 431; 465 SCRA 465, 473 (2005) [Per J. Ynares-Santiago, First Division].
.... 62 Id., citing Olivarez v. Court of Appeals, id., at pp. 431-432; p. 473
(b) Those who commit the act of sexual intercourse or lascivious [Per J. Ynares-Santiago, First Division], citing in turn Implementing Rules and
conduct with a child exploited in prostitution or subject to other sexual Regulations of Rep. Act No. 7610 (1992), Art. XIII, Sec. 32.
abuse; Provided, That when the victim is under twelve (12) years of age, 63 Ponencia, p. 245.
the perpetrators shall be prosecuted under Article 335, paragraph 3, for 64 Id.
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 lascivious conduct when the victim is under twelve (12) 328
years of age shall be reclusion temporal in its medium period[.]

Dimakuta vs. People
327 of acts of lasciviousness under Article 336 of the Revised Penal Code. 65 The
VOL. 773, OCTOBER 20, 2015 327 provision states:
ARTICLE 336. Acts of Lasciviousness.—Any person who shall commit
Dimakuta vs. People any act of lasciviousness upon other persons of either sex, under any of the
In Garingarao v. People,60 the elements of this offense are as follows: circumstances mentioned in the preceding article, shall be punished by prisión
correccional.
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 The Court of Appeals, however, erred in modifying the offense. According
subjected to other sexual abuse; and to Navarrete v. People,66 the elements of Article 336 of the Revised Penal Code
3. The child, whether male or female, is below 18 years of age.61 are:
Lascivious conduct is defined as: (1) The offender commits any act of lasciviousness or lewdness;
(2) It is done under any of the following circumstances: Dimakuta vs. People
a. By using force or intimidation; or moral ascendancy of the adult offender was enough to intimidate the minor
b. When the offended party is deprived of reason or otherwise victim. In Garingarao:
unconscious; or The Court has ruled that a child is deemed subject to other sexual abuse
c. When the offended party is under 12 years of age; and when the child is the victim of lascivious conduct under the coercion or influence
(3) The offended party is another person of either sex.67 (Emphasis supplied) of any adult. In lascivious conduct under the coercion or influence of any adult,
there must be some form of compulsion equivalent to intimidation which subdues
the free exercise of the offended party’s free will.68 (Emphasis supplied)
In the first place, it is illogical for the Court of Appeals to have found the Thus, petitioner was correctly found by the trial court guilty of violation of
offense committed with force or intimidation and, at the same time, without Article III, Section 5(b) of Republic Act No. 7610. Since this offense is
coercion or intimidation. Second, the fact that the victim in this case was a minor punishable by reclusion temporal or an imprisonment of more than six (6) years,
who was molested by an adult is enough to prove that the victim’s free will was petitioner is not eligible for probation.
subdued in view of her minority and immaturity. The Accordingly, I concur with the ponencia.
_______________ Petitioner denied the benefit of Probation Law.
65 Id., at p. 246. Notes.—Section 11 of the Probation Law provides that the commission of
66 542 Phil. 496; 513 SCRA 509 (2007) [Per J. Corona, First Division]. another offense shall render the probation order ineffective. (Suyan vs. People,
67 Id., at p. 506; p. 517, citing People v. Bon, 444 Phil. 571, 583-584; 396 729 SCRA 1 [2014])
SCRA 506, 511 (2003) [Per J. Ynares-Santiago, En Banc]. As probation is a mere discretionary grant, petitioner was bound to observe
full obedience to the terms and conditions pertaining to the probation order or
run the risk of revocation of this privilege. (Id.)

329
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Dimakuta vs. People

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G.R. No. 206513. October 20, 2015.

24 Id., at pp. 339-340; pp. 577-578. 29 Id.

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