G.R. No. 238798 - Dissenting Opinion

G.R. No. 238798, March 14, 2023,
♦ Decision, Zalameda, [J]
♦ Concurring Opinion, Gesmundo, [CJ]
♦ Concurring Opinion, Inting, [J]
♦ Concurring Opinion, J. Lopez, [J]
♦ Concurring and Dissenting Opinion, Leonen, [J]
♦ Concurring and Dissenting Opinion, Hernando, [J]
♦ Concurring and Dissenting Opinion, Kho, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Dissenting Opinion, M. Lopez, [J]
♦ Dissenting Opinion, Gaerlan, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]

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

Second. In Dorado v. People,2 the Court held that when a child in conflict with the law (CICL), above 15 but below 18 years old is charged with a crime, it is rebuttably presumed that the CICL acted without discernment and it is up to the prosecution to prove this separate circumstance beyond a reasonable doubt in order to obtain a conviction.

Third. As held in Dorado, discernment is independent of the actus reus and mens rea of homicide and must thus be proved beyond a reasonable doubt separately from these traditional elements of homicide.

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

Dorado (and the ponencia by extension) explains that this mental capacity is different from the mens rea element of intent in crimes by dolo. This is because discernment may co-exist with recklessness or negligence in quasi-offenses, e.g., while the CICL did not intend to kill the deceased but was merely reckless, hence, there was no crime by dolo, the CICL is liable for the quasi-offense of recklessness since the CICL recognized that death may result from the reckless act.

I would also opine that discernment is different from the mental concept of voluntariness implicit in the actus reus of a crime by dolo. This is because a CICL may do an act voluntarily (without duress, coercion, or undue influence) but may still lack the recognition that the voluntary act was morally wrong.

Fourth. I infer from the ponencia that lack of proof beyond reasonable doubt of discernment is not a defense that a CICL is duty-bound to establish. Rather, it is up to the prosecution to show positively and beyond a reasonable doubt the presence of this separate circumstance. This is because the statute rebuttably presumes a CICL's lack of discernment. CICL XXX v. People3 supports this covert ruling in the ponencia.

Fifth. The foregoing statute and case law must be applied retroactively to petitioner since they are favorable to him as an alleged criminal offender.

Sixth. Since records show here that the prosecution failed to overcome its burden to prove beyond a reasonable doubt that petitioner acted with discernment at the time of the commission of the crime, i.e., that petitioner, at the time of the commission of the crime, understood the difference between right and wrong and the consequences of his acts, the Court cannot but acquit him for the crime charged.

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

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

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

But the criminal case against petitioner was overtaken in 2006 by the enactment of Republic Act No. 9344, Juvenile Justice and Welfare Act of 2006, which raised the minimum age of criminal responsibility, and accordingly, imposed the requirement of discernment for the increased ages of above 15 years to below 18 years, thus covering petitioner's age:

Unfortunately, neither the prosecution and the defense nor the trial court happened to canvass the retroactive application of this new element for any crime committed by a CICL. Hence, the case record is bereft of any meaningful reference to petitioner's discernment. In the proceedings before the trial court, the prosecution and the defense were oblivious of the enactment of Republic Act No. 9344 and were all working erroneously under the compelling shadow of the former rules.

The ponencia correctly applied the principle of retroactivity of penal laws that are favorable to an accused. This principle was exhaustively discussed in Inmates of the New Bilibid Prison v. De Lima4 but this case law limited the retroactive application to penal laws as defined therein and referred to by Article 22 of The Revised Penal Code:

In addition to Article 22 of The Revised Penal Code, our case law has consistently held that "a penal statute, whether substantive or procedural, shall be given a retroactive effect if favorable to the accused."5 The only test under Philippine law for the retroactive application of a law is if it is ultimately favorable to an accused.

While I appreciate the simplicity and straight forwardness of the favorable to the accused test, I would like to propose a more exhaustive discussion on a nuanced approach to this principle of retroactivity.

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

For one, I do not think that retroactivity has been canvassed in our jurisprudence with zest and vigor. Rather, our case law has been content applying this principle using only the test of "favorable to an accused" to the exclusion of other concerns or issues. While this test, as I have said, lends itself to a simple and straightforward result, it unfortunately neglects some factors that society also values. As an American jurist once observed, "[t]hese questions [of retroactivity] are among the most difficult of those which have engaged the attention of [the] courts...."6 Why retroactivity is a complex legal concept among American jurists, but apparently not in the Philippines, may be traced to three factors that guide American jurisprudence in deciding whether to apply a penal law retroactively or not to do so:

A nuanced approach to the retroactivity principle leads me to believe that this principle has substantive and procedural dimensions important to both the prosecution and an accused. The substantive dimension addresses the first two factors mentioned above, while the procedural dimension pertains to the third factor.

Substantively, an accused may be given a new defense to raise, the prosecution may be required to prove an added element, or the change involve an enhancement of the court's truth-finding function. There should be no objection to this change in the penal law to benefit an accused retroactively. This change reflects the legislature's intention to modify what it views as criminal and non-criminal and how to arrive at such determination. Courts are bound to respect this intention in concrete cases by applying it retroactively. It should not matter that hundreds or even thousands of criminal convictions may be overturned as a result of the retroactive application. It is presumed that the policy change was conscious of the practical application to so many other cases similarly situated.

Procedurally, however, I believe that the prosecution must be given the opportunity to meet the case brought about by the retroactive application of the law. This means that though the prosecution may have the new burden of proving a new element or an accused has the right to claim a new defense, the prosecution ought to be given the opportunity to meet this new element or defense. In this regard, when the prosecution justifiably relied upon the old rule in prosecuting the case against an accused, the prosecution should have the procedural rights not only to amend the Information to allege the added elements of the new penal law but also to present evidence to prove the new element beyond reasonable doubt.

The Philippine law on retroactivity conclusively assumes that a favorable penal law to an accused should apply retroactively by purpose and effect. I believe nonetheless that fairness demands that the prosecution be given the opportunity to meet the case if it justifiably relied upon the then prevailing rules, and the trial court judged the case relying upon the then prevailing rule.

To illustrate, here, had the prosecution of the criminal case and the decision of the trial court in the criminal case came before 2006 or prior to the enactment of Republic Act No. 9344, I would have retorted that though we must require the prosecution to prove the discernment of the 17-year-old petitioner, the prosecution should have been given the opportunity to meet this new requirement and the trial court should be obliged to consider the evidence on this new element. It would not have been enough to note the failure of the prosecution and the trial court to deal with discernment and fault them for this omission.

Unfortunately, the prosecution of petitioner and the decision of the trial court took place long after Republic Act No. 9344 had been in effect. Thus, in the present case, there is no reason for the prosecution to claim deprivation of procedural due process as a result of retroactivity. There was an obvious oversight in taking no account of discernment as mandated in Republic Act No. 9344 while petitioner's trial was ongoing. The ponencia therefore could not have been unfair in pointing to this lacuna in both the prosecution evidence and the trial court's decision when it automatically imposed the retroactivity principle and on this ground acquitted petitioner.

On top of the imposition of civil liabilities on petitioner the ponencia should also already impose the civil liabilities on his parents since their respective liabilities for the damages are equally direct and primary. The defense did not present evidence on this potential defense of the parent's reasonable supervision over the child at the time the child committed the offense during the trial, and they cannot be allowed to raise it belatedly when the judgment of damages is executed against them. The defense already had more than an ample opportunity to prove this exempting circumstance, had it exercised reasonable diligence in handling its case to meet.

The trial court received evidence on the damages from the prosecution; reasonable diligence should have dictated to petitioner and his lawyer that the damages would be borne by his parents as their direct and primary liability. This has been the law for a long time even before 2003, the year the homicide was committed, and most especially when Republic Act No. 9344 took effect. It was the defense's fault that it did not raise the defense of reasonable supervision over the child at the time the child committed the offense, or its gender insensitive counterpart, that they acted with the diligence of a good father of a family to prevent damages.

Lastly, as held in Libi v. Intermediate Appellate Court,9 the direct and primary liabilities of petitioner and his parents are solidary.

ALL TOLD, I vote to grant the petition, reverse and set aside in part the Decision dated November 29, 2017 and Resolution dated March 19, 2018 of the Court of Appeals in CA-G.R. CR No. 39196, and acquit petitioner of the crime charged.

On the civil aspect of the criminal case, I vote to affirm this Decision and Resolution of the Court of Appeals with modification that petitioner and his parents are directly, primarily, and solidarily liable to pay the heirs of AAA PHP 504,145.01 as actual damages, PHP 50,000.00 as civil indemnity, and PHP 50,000.00 as moral damages, with interest on all the damages awarded at the rate of 6% per annum from the date of finality of this judgment until fully paid.