G.R. No.

84850 June 29, 1989

RICARDO A. LLAMADO, petitioner,
vs.
HONORABLE COURT OF APPEALS and LEON GAW, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner.
FELICIANO, J.:
Petitioner Ricardo A. Llamado was Treasurer of Pan Asia Finance Corporation. Together with
Jacinto N. Pascual, Sr., President of the same corporation, petitioner Llamado was
prosecuted for violation of Batas Pambansa Blg. 22 in Criminal Case No. 85-38653, Regional
Trial Court of Manila, Branch 49. The two (2) had co-signed a postdated check payable to
private respondent Leon Gaw in the amount of P186,500.00, which check was dishonored
for lack of sufficient funds.
In a decision dated 10 March 1987, the trial court convicted the petitioner alone, since
jurisdiction over the person of Pascual, who had thoughtfully fled the country, had not been
obtained. Petitioner was sentenced to imprisonment for a period of one (1) year of prision
correccional and to pay a fine of P 200,000.00 with subsidiary imprisonment in case of
insolvency. Petitioner was also required to reimburse respondent Gaw the amount of
P186,500.00 plus the cost of suit.
On 20 March 1987, after the decision of the trial court was read to him, petitioner through
counsel orally manifested that he was taking an appeal. Having been so notified, the trial
court on the same day ordered the forwarding of the records of the case to the Court of
Appeals. On 9 July 1987, petitioner through his counsel received from the Court of Appeals a
notice to file his Appellant's Brief within thirty (30) days. Petitioner managed to secure
several extensions of time within which to file his brief, the last extension expiring on 18
November 1987. 1
Petitioner Llamado, even while his Appellant's Brief was being finalized by his then counsel
of record, sought advice from another counselor. On 30 November 1987, petitioner, with
the assistance of his new counsel, filed in the Regional Trial Court a Petition for Probation
invoking Presidential Decree No. 968, as amended. The Petition was not, however, accepted
by the lower court, since the records of the case had already been forwarded to the Court of
Appeals.
Petitioner then filed with the Court of Appeals Manifestation and Petition for Probation"
dated 16 November 1987, enclosing a copy of the Petition for Probation that he had
submitted to the trial court. Petitioner asked the Court of Appeals to grant his Petition for
Probation or, in the alternative, to remand the Petition back to the trial court, together with
the records of the criminal case, for consideration and approval under P.D. No. 968, as
amended. At the same time, petitioner prayed that the running of the period for the filing of
his Appellant's Brief be held in abeyance until after the Court of Appeals shall have acted on
his Petition for Probation.
In a "Manifestation and Motion" dated 3 March 1988 and filed with the Court of Appeals,
petitioner formally withdrew his appeal conditioned, however, on the approval of his
Petition for Probation. 2
Complying with a Resolution of the Court of Appeals, the Office of the Solicitor General filed
a Comment stating that it had no objection to petitioner Llamado's application for
probation. Private respondent-complainant, upon the other hand, sought and obtained
leave to file a Comment on petitioner Llamado's application for probation, to which
Comment, petitioner filed a Reply. Private respondent then filed his "Comment" on the
Office of the Solicitor General's Comment of 18 March 1988.
In a Resolution dated 17 June 1988, the Court of Appeals, through Mr. Justice Magsino,
denied the Petition for Probation. A dissenting opinion was filed by Mr. Justice Bellosillo
while Mr. Justice Santiago submitted a concurring opinion. Petitioner moved for
reconsideration which Motion was denied by the Court of Appeals on 23 August 1988, with
another, briefer, dissenting opinion from Mr. Justice Bellosillo.
Petitioner now asks this Court to review and reverse the opinion of the majority in the Court
of Appeals and, in effect, to accept and adopt the dissenting opinion as its own.
The issue to be resolved here is whether or not 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 and the Court of Appeals had issued the
notice to file Appellant's Brief, after several extensions of time to file Appellant's Brief had
been sought from and granted by the Court of Appeals but before actual filing of such brief,
is barred under P.D. No. 968, as amended.
P.D. No. 968, known as the Probation Law of 1976, was promulgated on 24 July 1976.
Section 4 of this statute provided as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it
shall have convicted and sentenced a defendant and upon application at any time of said
defendant, suspend the execution of said sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence of conviction. The filing of the
application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of
a pending appeal.
An order granting or denying probation shall not be appealable. (Emphasis supplied)
It will be noted that under Section 4 of P.D. No. 968, the trial court could grant an
application for probation "at any time" "after it shall have convicted and sentenced a
defendant" and certainly after "an appeal has been taken from the sentence of conviction."
Thus, the filing of the application for probation was "deemed [to constitute] automatic
withdrawal of a pending appeal."
On 1 December 1977, Section 4 of P.D. No. 968 was amended by P.D. No. 1257 so as to read
as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may,
senteafter it shall have convicted and sentenced a defendant but before he begins to serve
his sentence and upon his application, suspend the execution of said sentence and place the
defendant on probation for such period and upon such terms and conditions as it may deem
best.
The prosecuting officer concerned shall be notified by the court of the filing of the
application for probation and he may submit his comment on such application within ten
days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
with subsidiary imprisonment in case of insolvency. An application for probation shall be
filed with the trial court, with notice to the appellate court if an appeal has been taken from
the sentence of conviction. The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending appeal. In the latter case,
however, if the application is filed on or after the date of the judgment of the appellate
court, said application shall be acted upon by the trial court on the basis of the judgment of
the appellate court. (Emphasis supplied)
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had
established a prolonged but definite period during which an application for probation may
be granted by the trial court. That period was: 'After [the trial court] shall have convicted
and sentenced a defendant but before he begins to serve his sentence." Clearly, the cut-off
time-commencement of service of sentence-takes place not only after an appeal has been
taken from the sentence of conviction, but even after judgement has been rendered by the
appellate court and after judgment has become final. Indeed, in this last situation, Section 4,
as amended by P.D. No. 1257 provides that "the application [for probation] shall be acted
upon by the trial court on the basis of the judgment of the appellate court"; for the
appellate court might have increased or reduced the original penalty imposed by the trial
court. It would seem beyond dispute then that had the present case arisen while Section 4
of the statute as amended by P.D. No. 1257 was still in effect, petitioner Llamado's
application for probation would have had to be granted. Mr. Llamado's application for
probation was filed well before the cut-off time established by Section 4 as then amended
by P.D. No. 1257.
On 5 October 1985, however, Section 4 of the Probation Law of 1976 was once again
amended. This time by P.D. No. 1990. As so amended and in its present form, Section 4
reads as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after
it shall have convicted and sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution of the sentence and place
the defendant on probation for such period and upon such terms and conditions as it may
deem best; Provided, That no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. (Emphasis supplied)
In sharp contrast with Section 4 as amended by PD No. 1257, in its present form, Section 4
establishes a much narrower period during which an application for probation may be filed
with the trial court: "after [the trial court] shall have convicted and sentenced a defendant
and — within the period for perfecting an appeal — ." As if to provide emphasis, a new
proviso was appended to the first paragraph of Section 4 that expressly prohibits the grant
of an application for probation "if the defendant has perfected an appeal from the judgment
of conviction." It is worthy of note too that Section 4 in its present form has dropped the
phrase which said that the filing of an application for probation means "the automatic
withdrawal of a pending appeal". The deletion is quite logical since an application for
probation can no longer be filed once an appeal is perfected; there can, therefore, be no
pending appeal that would have to be withdrawn.
In applying Section 4 in the form it exists today (and at the time petitioner Llamado was
convicted by the trial court), to the instant case, we must then inquire whether petitioner
Llamado had submitted his application for probation "within the period for perfecting an
appeal." Put a little differently, the question is whether by the time petitioner Llamado's
application was filed, he had already "perfected an appeal" from the judgment of conviction
of the Regional Trial Court of Manila.
The period for perfecting an appeal from a judgment rendered by the Regional Trial Court,
under Section 39 of Batas Pambansa Blg. 129, Section 19 of the Interim Rules and Guidelines
for the Implementation of B.P. Blg. 129 and under the 1985 Rules on Criminal Procedure, as
amended, or more specifically Section 5 of Rule 122 of the Revised Rules of Court, is fifteen
(15) days from the promulgation or notice of the judgment appealed from. It is also clear
from Section 3 (a) of Rule 122 that such appeal is taken or perfected by simply filing a notice
of appeal with the Regional Trial Court which rendered the judgment appealed from and by
serving a copy thereof upon the People of the Philippines. As noted earlier, petitioner
Llamado had manifested orally and in open court his intention to appeal at the time of
promulgation of the judgment of conviction, a manifestation at least equivalent to a written
notice of appeal and treated as such by the Regional Trial Court.
Petitioner urges, however, that the phrase "period for perfecting an appeal" and the clause
"if the defendant has perfected an appeal from the judgment of conviction" 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 preambulatory clauses of P.D. No. 1990 did not specify a
period of fifteen (15) days for perfecting an appeal. 3 It is also urged that "the true
legislative intent of the amendment (P.D. No. 1990) should not apply to petitioner who filed
his Petition for probation at the earliest opportunity then prevailing and withdrew his
appeal." 4
Petitioner invokes the dissenting opinion rendered by Mr. Justice Bellosillo in the Court of
Appeals. Petitioner then asks us to have recourse to "the cardinal rule in statutory
construction" that "penal laws [should] be liberally construed in favor of the accused," and
to avoid "a too literal and strict application of the proviso in P.D. No. 1990" which would
"defeat the manifest purpose or policy for which the [probation law] was enacted-."
We find ourselves unable to accept the eloquently stated arguments of petitioner's counsel
and the dissenting opinion. We are unable to persuade ourselves that Section 4 as it now
stands, in authorizing the trial court to grant probation "upon application by [the] defendant
within the period for perfecting an appeal" and in reiterating in the proviso that
no application for probation shall be entertained or granted if the defendant has perfected
an appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period established, as indicated above, by B.P.
Blg. 129, the Interim Rules and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on
Criminal Procedure, but rather to some vague and undefined time, i.e., "the earliest
opportunity" to withdraw the defendant's appeal. The whereas clauses invoked by
petitioner did not, of course, refer to the fifteen-day period. There was absolutely no reason
why they should have so referred to that period for the operative words of Section 4 already
do refer, in our view, to such fifteen-day period. Whereas clauses do not form part of a
statute, strictly speaking; they are not part of the operative language of the statute. 5
Nonetheless, whereas clauses may be helpful to the extent they articulate the general
purpose or reason underlying a new enactment, in the present case, an enactment which
drastically but clearly changed the substantive content of Section 4 existing before the
promulgation of P.D. No. 1990. Whereas clauses, however, cannot control the specific terms
of the statute; in the instant case, the whereas clauses of P.D. No. 1990 do not purport to
control or modify the terms of Section 4 as amended. Upon the other hand, the term
"period for perfecting an appeal" used in Section 4 may be seen to furnish specification for
the loose language "first opportunity" employed in the fourth whereas clause. "Perfection of
an appeal" is, of course, a term of art but it is a term of art widely understood by lawyers
and judges and Section 4 of the Probation Law addresses itself essentially to judges and
lawyers. "Perfecting an appeal" has no sensible meaning apart from the meaning given to
those words in our procedural law and so the law-making agency could only have intended
to refer to the meaning of those words in the context of procedural law.
Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the
outset that the Probation Law is not a penal statute. We, however, understand petitioner's
argument to be really 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 the words of the statute
themselves, and as illuminated by the history of that statute, leave no room for doubt or
interpretation. We do not believe that "the spirit of law" may legitimately be invoked to set
at naught words which have a clear and definite meaning imparted to them by our
procedural law. The "true legislative intent" must obviously be given effect by judges and all
others who are charged with the application and implementation of a statute. It is
absolutely essential to bear in mind, however, that the spirit of the law and the intent that is
to be given effect are to be derived from the words actually used by the law-maker, and not
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 interpretation rather than a
"liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled
search for the meaning which the law-making authority projected when it promulgated the
language which we must apply. That meaning is clearly 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
invites us to engage in, a process made necessary only because petitioner rejects the
conclusion or meaning which shines through the words of the statute. The first duty of a
judge is to take and apply a statute as he finds it, not as he would like it to be. Otherwise, as
this Court in Yangco v. Court of First Instance of Manila warned, confusion and uncertainty
in application will surely follow, making, we might add, stability and continuity in the law
much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge words so as to give them the
color of a particular judicial theory are not only unnecessary but decidedly harmful. That
which has caused so much confusion in the law, which has made it so difficult for the public
to understand and know what the law is with respect to a given matter, is in considerable
measure the unwarranted interference by judicial tribunals with the English language as
found in statutes and contracts, cutting the words here and inserting them there, making
them fit personal ideas of what the legislature ought to have done or what parties should
have agreed upon, giving them meanings which they do not ordinarily have cutting,
trimming, fitting, changing and coloring until lawyers themselves are unable to advise their
clients as to the meaning of a given statute or contract until it has been submitted to some
court for its interpretation and construction. 6
The point in this warning may be expected to become sharper as our people's grasp of
English is steadily attenuated.
There is another and more fundamental reason why a judge must read a statute as the
legislative authority wrote it, not as he would prefer it to have been written. The words to
be given meaning whether they be found in the Constitution or in a statute, define and
therefore limit the authority and discretion of the judges who must apply those words. If
judges may, under cover of seeking the "true spirit" and "real intent" of the law, disregard
the words in fact used by the law-giver, the judges will effectively escape the constitutional
and statutory limitations on their authority and discretion. Once a judge goes beyond the
clear and ordinary import of the words of the legislative authority, he is essentially on
uncharted seas. In a polity like ours which enshrines the fundamental notion of limiting
power through the separation and distribution of powers, judges have to be particularly
careful lest they substitute their conceptions or preferences of policy for that actually
projected by the legislative agency. Where a judge believes passionately that he knows what
the legislative agency should have said on the particular matter dealt with by a statute, it is
easy enough for him to reach the conclusion that therefore that was what the law-making
authority was really saying or trying to say, if somewhat ineptly As Mr. Justice Frankfurter
explained:
Even within their area of choice the courts are not at large. They are confined by the nature
and scope of the judicial function in its particular exercise in the field of interpretation. They
are under the constraints imposed by the judicial function in our democratic society. As a
matter of verbal recognition certainly, no one will gainsay that the function in construing a
statute is to ascertain the meaning of words used by the legislature. To go beyond it is to
usurp a power which our democracy has lodged in its elected legislature. The great judges
have constantly admonished their brethren of the need for discipline in observing the
limitations A judge must not rewrite a statute, neither to enlarge nor to contract it.
Whatever temptations the statesmanship of policy-making might wisely suggest,
construction must eschew interpolation and evisceration He must not read in by way of
creation. He must not read out except to avoid patent nonsense of internal
contradictions. ... 7
Petitioner finally argues that since under Section 4 of Probation Law as amended has vested
in the trial court the authority to grant the application for probation, the Court of Appeals
had no jurisdiction to entertain the same and should have (as he had prayed in the
alternative) remanded instead the records to the lower court. Once more, we are not
persuaded. The trial court lost jurisdiction over the case when petitioner perfected his
appeal. The Court of Appeals was not, therefore, in a position to remand the case except for
execution of judgment. Moreover, having invoked the jurisdiction of the Court of Appeals,
petitioner is not at liberty casually to attack that jurisdiction when exercised adversely to
him. In any case, the argument is mooted by the conclusion that we have reached, that is,
that petitioner's right to apply for probation was lost when he perfected his appeal from the
judgment of conviction.
WHEREFORE, the Decision of the Court of Appeals in CAGR No. 04678 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Fernan (C.J.), Gutierrez, Jr., Bidin and Cortes, JJ., concur.
Footnotes
1 Records on Appeal, p. 21.
2 Records on Appeal. pp. 41-42.
3 These clauses read:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and
who may be entitled to probation still appeal the judgment of conviction even up to the
Supreme Court, only to pursue their application for probation when their appeal is
eventually dismissed.
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails
too much time and effort, not to mention the huge expenses of litigation, on the part of the
State;
WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are often
times rendered nugatory when, after the appellate court finally affirms the judgment of
conviction, the defendant applies for and is granted probation;
WHEREAS, the probation was not intended as an escape hatch and should not be used to
obstruct and delay the administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and rehabilitated
WHEREAS, it becomes imperative to remedy the problems above-mentioned confronting
our probation system.
4 Petition, p. 11; Rollo, p. 12.
5 Yazoo & Mississippi Valley R. Co. v. Thomas, 132 US 174 (1889); 33 L Ed 302. See also
Idaho Commission on Human Rights v. Campbell, 506 P. 2d 112; 95 Id. 215 (1973).
6 29 Phil. at 188 (1915); Italics supplied.
7 Some Reflections on the Reading of Statutes, 47 Columbia Law Review 527 (1947);
Reprinted in 4 Sutherland,' Statutory Construction (4th ed. 1972) 409 at 416-417. Italics
supplied.
G.R. No. 168546 July 23, 2008

MICHAEL PADUA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

QUISUMBING, J.:

This petition for review assails the Decision1 dated April 19, 2005 and
Resolution2 dated June 14, 2005, of the Court of Appeals in CA-G.R. SP No. 86977
which had respectively dismissed Michael Padua’s petition for certiorari and denied
his motion for reconsideration. Padua’s petition for certiorari before the Court of
Appeals assailed the Orders dated May 11, 20043 and July 28, 20044 of the Regional
Trial Court (RTC), Branch 168, Pasig City, which had denied his petition for
probation.

The facts, culled from the records, are as follows:

On June 16, 2003, petitioner Michael Padua and Edgar Allan Ubalde were charged
before the RTC, Branch 168, Pasig City of violating Section 5,5 Article II of Republic
Act No. 9165,6 otherwise known as the "Comprehensive Dangerous Drugs Act of
2002," for selling dangerous drugs.7 The Information reads:

The Prosecution, through the undersigned Public Prosecutor, charges Edgar Allan
Ubalde y Velchez a.k.a. "Allan" and Michael Padua y Tordel a.k.a. "Mike", with
the crime of violation of Sec. 5, Art. II, Republic Act No. 9165 in relation to R.A. [No.]
8369, Sec. 5 par. (a) and (i), committed as follows:

On or about June 6, 2003, in Pasig City, and within the jurisdiction of this Honorable
Court, the accused, Edgar Allan Ubalde y Velchez and Michael Padua y Tordel, a
minor, seventeen (17) years old, conspiring and confederating together and both of
them mutually helping and aiding one another, not being lawfully authorized to sell
any dangerous drug, did then and there willfully, unlawfully and feloniously sell,
deliver and give away to PO1 Roland A. Panis, a police poseur-buyer, one (1) folded
newsprint containing 4.86 grams of dried marijuana fruiting tops, which was found
positive to the tests for marijuana, a dangerous drug, in violation of the said law.

Contrary to law.8

When arraigned on October 13, 2003, Padua, assisted by his counsel de oficio,
entered a plea of not guilty.9

During the pre-trial conference on February 2, 2004, however, Padua’s counsel

manifested that his client was willing to withdraw his plea of not guilty and enter a
plea of guilty to avail of the benefits granted to first-time offenders under Section
7010 of Rep. Act No. 9165. The prosecutor interposed no objection.11 Thus, the RTC
on the same date issued an Order12 stating that the former plea of Padua of not
guilty was considered withdrawn. Padua was re-arraigned and pleaded guilty.
Hence, in a Decision13 dated February 6, 2004, the RTC found Padua guilty of the
crime charged:

In view of the foregoing, the Court finds accused Michael Padua y Tordel guilty of
[v]iolation of Sec. 5 Art. II of R.A. No. 9165 in relation to R.A. No. 8369 Sec. 5 par.
(a) and (i) thereof, and therefore, sentences him to suffer an indeterminate sentence
of six (6) years and one (1) day of Prision Mayor as minimum to seventeen (17)
years and four (4) months of reclusion temporal as maximum and a fine of Five
Hundred Thousand Pesos (₱500,000.00).

No subsidiary imprisonment, however, shall be imposed should [the] accused fail to

pay the fine pursuant to Art. 39 par. 3 of the Revised Penal Code.

SO ORDERED.14

Padua subsequently filed a Petition for Probation15 dated February 10, 2004 alleging
that he is a minor and a first-time offender who desires to avail of the benefits of
probation under Presidential Decree No. 96816 (P.D. No. 968), otherwise known as
"The Probation Law of 1976" and Section 70 of Rep. Act No. 9165. He further
alleged that he possesses all the qualifications and none of the disqualifications
under the said laws.

The RTC in an Order17 dated February 10, 2004 directed the Probation Officer of
Pasig City to conduct a Post-Sentence Investigation and submit a report and
recommendation within 60 days from receipt of the order. The City Prosecutor was
also directed to submit his comment on the said petition within five days from receipt
of the order.

On April 6, 2004, Chief Probation and Parole Officer Josefina J. Pasana submitted a
Post-Sentence Investigation Report to the RTC recommending that Padua be placed
on probation.18

However, on May 11, 2004, public respondent Pairing Judge Agnes Reyes-Carpio
issued an Order denying the Petition for Probation on the ground that under Section
2419 of Rep. Act No. 9165, any person convicted of drug trafficking cannot avail of
the privilege granted by the Probation Law. The court ruled thus:

Before this Court now is the Post-Sentence Investigation Report (PSIR) on minor
Michael Padua y Tordel prepared by Senior Parole and Probation Officer Teodoro
Villaverde and submitted by the Chief of the Pasig City Parole and Probation Office,
Josefina J. Pasana.

In the aforesaid PSIR, Senior PPO Teodoro Villaverde recommended that minor
Michael Padua y Tordel be placed on probation, anchoring his recommendation on
Articles 189 and 192 of P.D. 603, otherwise known as the Child and Welfare Code,
as amended, which deal with the suspension of sentence and commitment of
youthful offender. Such articles, therefore, do not find application in this case, the
matter before the Court being an application for probation by minor Michael Padua y
Tordel and not the suspension of his sentence.
On the other hand, Section 70 is under Article VIII of R.A. 9165 which deals with the
Program for Treatment and Rehabilitation of Drug Dependents. Sections 54 to 76, all
under Article VIII of R.A. 9165 specifically refer to violations of either Section 15 or
Section 11. Nowhere in Article VIII was [v]iolation of Section 5 ever mentioned.

More importantly, while the provisions of R.A. 9165, particularly Section 70 thereof
deals with Probation or Community Service for First- Time Minor Offender in Lieu of
Imprisonment, the Court is of the view and so holds that minor Michael Padua y
Tordel who was charged and convicted of violating Section 5, Article II, R.A. 9165,
cannot avail of probation under said section in view of the provision of Section 24
which is hereunder quoted:

"Sec. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers.
– Any person convicted for drug trafficking or pushing under this Act, regardless of
the penalty imposed by the Court, cannot avail of the privilege granted by the
Probation Law or Presidential Decree No. 968, as amended." (underlining supplied)

WHEREFORE, premises considered, the Petition for Probation filed by Michael

Padua y Tord[e]l should be, as it is hereby DENIED.

SO ORDERED.20

Padua filed a motion for reconsideration of the order but the same was denied on
July 28, 2004. He filed a petition for certiorari under Rule 65 with the Court of
Appeals assailing the order, but the Court of Appeals, in a Decision dated April 19,
2005, dismissed his petition. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of
merit and ordered DISMISSED.

SO ORDERED.21

Padua filed a motion for reconsideration of the Court of Appeals decision but it was
denied. Hence, this petition where he raises the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING

THE DENIAL OF THE PETITION FOR PROBATION WHICH DEPRIVED
PETITIONER’S RIGHT AS A MINOR UNDER ADMINISTRATIVE ORDER
NO. [02-1-18-SC] OTHERWISE KNOWN AS [THE] RULE ON JUVENILES IN
CONFLICT WITH THE LAW.

II.

WHETHER OR NOT [THE] ACCUSED[’S] RIGHT [TO BE RELEASED

UNDER RECOGNIZANCE] HAS BEEN VIOLATED OR DEPRIVED IN THE
LIGHT OF R.A. 9344 OTHERWISE KNOWN AS AN ACT ESTABLISHING A
COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM,
CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER
 DEPARTMENT OF JUSTICE APPROPRIATING FUNDS THEREFOR AND
OTHER PURPOSES.22

The Office of the Solicitor General (OSG), representing public respondent, opted to
adopt its Comment23 as its Memorandum. In its Comment, the OSG countered that

I.

The trial court and the Court of Appeals have legal basis in applying Section
24, Article II of R.A. 9165 instead of Section 70, Article VIII of the same law.

II.

Section 32 of A.M. No. 02-1-18-SC otherwise known as the "Rule on

Juveniles in Conflict with the Law" has no application to the instant case.24

Simply, the issues are: (1) Did the Court of Appeals err in dismissing Padua’s
petition for certiorari assailing the trial court’s order denying his petition for
probation? (2) Was Padua’s right under Rep. Act No. 9344,25 the "Juvenile Justice
and Welfare Act of 2006," violated? and (3) Does Section 3226 of A.M. No. 02-1-18-
SC otherwise known as the "Rule on Juveniles in Conflict with the Law" have
application in this case?

As to the first issue, we rule that the Court of Appeals did not err in dismissing
Padua’s petition for certiorari.

For certiorari to prosper, the following requisites must concur: (1) the writ is directed
against a tribunal, a board or any officer exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3)
there is no appeal or any plain, speedy and adequate remedy in the ordinary course
of law.27

"Without jurisdiction" means that the court acted with absolute lack of authority.
There is "excess of jurisdiction" when the court transcends its power or acts without
any statutory authority. "Grave abuse of discretion" implies such capricious and
whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction.
In other words, power is exercised in an arbitrary or despotic manner by reason of
passion, prejudice, or personal hostility, and such exercise is so patent or so gross
as to amount to an evasion of a positive duty or to a virtual refusal either to perform
the duty enjoined or to act at all in contemplation of law.28

A review of the orders of the RTC denying Padua’s petition for probation shows that
the RTC neither acted without jurisdiction nor with grave abuse of discretion because
it merely applied the law and adhered to principles of statutory construction in
denying Padua’s petition for probation.

Padua was charged and convicted for violation of Section 5, Article II of Rep. Act No.
9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165
that any person convicted of drug trafficking cannot avail of the privilege of probation,
to wit:

SEC. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers.
– Any person convicted for drug trafficking or pushing under this Act,
regardless of the penalty imposed by the Court, cannot avail of the privilege
granted by the Probation Law or Presidential Decree No. 968, as
amended. (Emphasis supplied.)

The law is clear and leaves no room for interpretation. Any person convicted for drug
trafficking or pushing, regardless of the penalty imposed, cannot avail of the privilege
granted by the Probation Law or P.D. No. 968. The elementary rule in statutory
construction is that when the words and phrases of the statute are clear and
unequivocal, their meaning must be determined from the language employed and
the statute must be taken to mean exactly what it says.29 If a statute is clear, plain
and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. This is what is known as the plain-meaning rule or verba
legis. It is expressed in the maxim, index animi sermo, or speech is the index of
intention.30 Furthermore, there is the maxim verba legis non est recedendum, or from
the words of a statute there should be no departure.31

Moreover, the Court of Appeals correctly pointed out that the intention of the
legislators in Section 24 of Rep. Act No. 9165 is to provide stiffer and harsher
punishment for those persons convicted of drug trafficking or pushing while
extending a sympathetic and magnanimous hand in Section 70 to drug dependents
who are found guilty of violation of Sections 1132 and 1533 of the Act. The law
considers the users and possessors of illegal drugs as victims while the drug
traffickers and pushers as predators. Hence, while drug traffickers and pushers, like
Padua, are categorically disqualified from availing the law on probation, youthful drug
dependents, users and possessors alike, are given the chance to mend their
ways.34 The Court of Appeals also correctly stated that had it been the intention of
the legislators to exempt from the application of Section 24 the drug traffickers and
pushers who are minors and first time offenders, the law could have easily declared
so.35

The law indeed appears strict and harsh against drug traffickers and drug pushers
while protective of drug users. To illustrate, a person arrested for using illegal or
dangerous drugs is meted only a penalty of six months rehabilitation in a government
center, as minimum, for the first offense under Section 15 of Rep. Act No. 9165,
while a person charged and convicted of selling dangerous drugs shall suffer life
imprisonment to death and a fine ranging from Five Hundred Thousand Pesos
(₱500,000.00) to Ten Million Pesos (₱10,000,000.00) under Section 5, Rep. Act No.
9165.

As for the second and third issues, Padua cannot argue that his right under Rep. Act
No. 9344, the "Juvenile Justice and Welfare Act of 2006" was violated. Nor can he
argue that Section 32 of A.M. No. 02-1-18-SC otherwise known as the "Rule on
Juveniles in Conflict with the Law" has application in this case. Section 6836 of Rep.
Act No. 9344 and Section 32 of A.M. No. 02-1-18-SC both pertain to suspension of
sentence and not probation.
Furthermore, suspension of sentence under Section 3837 of Rep. Act No. 9344 could
no longer be retroactively applied for petitioner’s benefit. Section 38 of Rep. Act No.
9344 provides that once a child under 18 years of age is found guilty of the offense
charged, instead of pronouncing the judgment of conviction, the court shall place the
child in conflict with the law under suspended sentence. Section 4038 of Rep. Act No.
9344, however, provides that once the child reaches 18 years of age, the court shall
determine whether to discharge the child, order execution of sentence, or extend the
suspended sentence for a certain specified period or until the child reaches the
maximum age of 21 years. Petitioner has already reached 21 years of age or over
and thus, could no longer be considered a child39 for purposes of applying Rep. Act
9344. Thus, the application of Sections 38 and 40 appears moot and academic as
far as his case is concerned.

WHEREFORE, the petition is DENIED. The assailed Decision dated April 19, 2005
and the Resolution dated June 14, 2005 of the Court of Appeals are AFFIRMED.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice
Footnotes
1
Rollo, pp. 18-24. Penned by Associate Justice Remedios A. Salazar-
Fernando, with Associate Justices Rosmari D. Carandang and Monina
Arevalo-Zenarosa concurring.
2
Id. at 26.
3
Id. at 37-38.
4
CA rollo, p. 34.
5
SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution
and Transportation of Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals.—The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (₱500,000.00) to Ten million
pesos (₱10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the quantity and
purity involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one
(1) day to twenty (20) years and a fine ranging from One hundred
thousand pesos (₱100,000.00) to Five hundred thousand pesos
(₱500,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit or transport any
controlled precursor and essential chemical, or shall act as a broker in
such transactions.

If the sale, trading, administration, dispensation, delivery, distribution or

transportation of any dangerous drug and/or controlled precursor and
essential chemical transpires within one hundred (100) meters from the
school, the maximum penalty shall be imposed in every case.

For drug pushers who use minors or mentally incapacitated individuals

as runners, couriers and messengers, or in any other capacity directly
connected to the dangerous drugs and/or controlled precursors and
essential chemicals trade, the maximum penalty shall be imposed in
every case.

If the victim of the offense is a minor or a mentally incapacitated

individual, or should a dangerous drug and/or a controlled precursor
and essential chemical involved in any offense herein provided be the
proximate cause of death of a victim thereof, the maximum penalty
provided for under this Section shall be imposed.
 The maximum penalty provided for under this Section shall be imposed
upon any person who organizes, manages or acts as a "financier" of
any of the illegal activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20) years
of imprisonment and a fine ranging from One hundred thousand pesos
(₱100,000.00) to Five hundred thousand pesos (₱500,000.00) shall be
imposed upon any person, who acts as a "protector/coddler" of any
violator of the provisions under this Section.
6
An Act Instituting the Comprehensive Dangerous Drugs Act of 2002,
Repealing Republic Act No. 6425, Otherwise Known as the Dangerous Drugs
Act of 1972, as Amended, Providing Funds Therefor, and for Other Purposes,
approved on June 7, 2002.
7
Rollo, p. 19.
8
Id. at 27.
9
Id. at 29.
10
SEC. 70. Probation or Community Service for a First-Time Minor Offender
in Lieu of Imprisonment. – Upon promulgation of the sentence, the court may,
in its discretion, place the accused under probation, even if the sentence
provided under this Act is higher than that provided under existing law on
probation, or impose community service in lieu of imprisonment. In case of
probation, the supervision and rehabilitative surveillance shall be undertaken
by the Board through the DOH in coordination with the Board of Pardons and
Parole and the Probation Administration. Upon compliance with the conditions
of the probation, the Board shall submit a written report to the court
recommending termination of probation and a final discharge of the
probationer, whereupon the court shall issue such an order.

The community service shall be complied with under conditions, time

and place as may be determined by the court in its discretion and upon
the recommendation of the Board and shall apply only to violators of
Section 15 of this Act. The completion of the community service shall
be under the supervision and rehabilitative surveillance of the Board
during the period required by the court. Thereafter, the Board shall
render a report on the manner of compliance of said community
service. The court in its discretion may require extension of the
community service or order a final discharge.

In both cases, the judicial records shall be covered by the provisions of

Sections 60 and 64 of this Act.

If the sentence promulgated by the court requires imprisonment, the

period spent in the Center by the accused during the suspended
sentence period shall be deducted from the sentence to be served.
11
Rollo, pp. 19-20.
12
Id. at 30.
13
Id. at 31-32. Penned by Judge Leticia Querubin Ulibarri.
14
Id. at 32.
15
Id. at 33.
16
Establishing A Probation System, Appropriating Funds Therefor And For
Other Purposes, done on July 24, 1976.
17
Rollo, p. 34.
18
CA rollo, pp. 22-26.
19
SEC. 24. Non-Applicability of the Probation Law for Drug Traffickers and
Pushers. — Any person convicted for drug trafficking or pushing under this
Act, regardless of the penalty imposed by the Court, cannot avail of the
privilege granted by the Probation Law or Presidential Decree No. 968, as
amended.
20
Rollo, pp. 37-38.
21
Id. at 23-24.
22
Id. at 97.
23
Id. at 48-71.
24
Id. at 55, 64.
25
An Act Establishing A Comprehensive Juvenile Justice And Welfare
System, Creating The Juvenile Justice And Welfare Council Under The
Department Of Justice, Appropriating Funds Therefor And For Other
Purposes, approved on April 28, 2006.
26
Sec. 32. Automatic Suspension of Sentence and Disposition Orders. – The
sentence shall be suspended without need of application by the juvenile in
conflict with the law. The court shall set the case for disposition conference
within fifteen (15) days from the promulgation of sentence which shall be
attended by the social worker of the Family Court, the juvenile, and his
parents or guardian ad litem. It shall proceed to issue any or a combination of
the following disposition measures best suited to the rehabilitation and welfare
of the juvenile:

1. Care, guidance, and supervision orders;

2. Community service orders;

 3. Drug and alcohol treatment;

4. Participation in group counseling and similar activities;

5. Commitment to the Youth Rehabilitation Center of the DSWD or

other centers for juveniles in conflict with the law authorized by the
Secretary of the DSWD.

The Social Services and Counseling Division (SSCD) of the DSWD

shall monitor the compliance by the juvenile in conflict with the law with
the disposition measure and shall submit regularly to the Family Court
a status and progress report on the matter. The Family Court may set a
conference for the evaluation of such report in the presence, if
practicable, of the juvenile, his parents or guardian, and other persons
whose presence may be deemed necessary.

The benefits of suspended sentence shall not apply to a juvenile in

conflict with the law who has once enjoyed suspension of sentence, or
to one who is convicted of an offense punishable by death, reclusion
perpetua or life imprisonment, or when at the time of promulgation of
judgment the juvenile is already eighteen (18) years of age or over.
27
Madrigal Transport, Inc. v. Lapanday Holdings Corporation, G.R. No.
156067, August 11, 2004, 436 SCRA 123, 133.
28
Id.
29
Baranda v. Gustilo, No. L-81163, September 26, 1988, 165 SCRA 757, 770.
30
R. Agpalo, Statutory Construction 124 (5th ed., 2003).
31
Id.
32
SEC. 11 Possession of Dangerous Drugs.— The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos
(₱500,000.00) to Ten million pesos (₱10,000,000.00) shall be imposed upon
any person, who, unless authorized by law, shall possess any dangerous drug
in the following quantities, regardless of the decree or purity thereof:

(1) 10 grams or more of opium;

(2) 10 grams or more of morphine;

(3) 10 grams or more of heroin;

(4) 10 grams or more of cocaine or cocaine hydrochloride;

(5) 50 grams or more of methamphetamine hydrochloride or "shabu";

(6) 10 grams or more of marijuana resin or marijuana resin oil;

(7) 500 grams or more of marijuana; and

(8) 10 grams or more of other dangerous drugs such as, but not limited
to, methylenedioxymethamphetamine (MDMA) or "ecstasy,"
paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA),
lysergic acid diethylamide (LSD), gamma hydroxybutyrate (GHB), and
those similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the quantity
possessed is far beyond therapeutic requirements, as determined and
promulgated by the Board in accordance to Section 93, Article XI of
this Act.

Otherwise, if the quantity involved is less than the foregoing quantities,

the penalties shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred

thousand pesos (₱400,000.00) to Five hundred thousand pesos
(₱500,000.00), if the quantity of methamphetamine
hydrochloride or "shabu" is ten (10) grams or more but less than
fifty (50) grams;

(2) Imprisonment of twenty (20) years and one (1) day to life
imprisonment and a fine ranging from Four hundred thousand
pesos (₱400,000.00) to Five hundred thousand pesos
(₱500,000.00), if the quantities of dangerous drugs are five (5)
grams or more but less than ten (10) grams of opium, morphine,
heroin, cocaine or cocaine hydrochloride, marijuana resin or
marijuana resin oil, methamphetamine hydrochloride or "shabu,"
or other dangerous drugs such as, but not limited to, MDMA or
"ecstasy," PMA, TMA, LSD, GHB, and those similarly designed
or newly introduced drugs and their derivatives, without having
any therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or three hundred (300) grams or more
but less than five hundred (500) grams of marijuana; and

(3) Imprisonment of twelve (12) years and one (1) day to twenty
(20) years and a fine ranging from Three hundred thousand
pesos (₱300,000.00) to Four hundred thousand pesos
(₱400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu," or other dangerous
drugs such as, but not limited to, MDMA or "ecstasy," PMA,
TMA, LSD, GHB, and those similarly designed or newly
introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300)
grams of marijuana.
33
SEC. 15. Use of Dangerous Drugs. – A person apprehended or arrested,
who is found to be positive for

use of any dangerous drug, after a confirmatory test, shall be imposed

a penalty of a minimum of six (6) months rehabilitation in a government
center for the first offense, subject to the provisions of Article VIII of this
Act. If apprehended using any dangerous drug for the second time,
he/she shall suffer the penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and a fine from Fifty
thousand pesos (₱50,000.00) to Two hundred thousand pesos
(₱200,000.00): Provided, That this Section shall not be applicable
where the person tested is also found to have in his/her possession
such quantity of any dangerous drug provided for under Section 11 of
this Act, in which case the provisions stated therein shall apply.
34
Rollo, pp. 22-23.
35
Id. at 23.
36
SEC. 68. Children Who Have Been Convicted and are Serving Sentence. -
Persons who have been convicted and are serving sentence at the time of the
effectivity of this Act, and who were below the age of eighteen (18) years at
the time the commission of the offense for which they were convicted and are
serving sentence, shall likewise benefit from the retroactive application of this
Act. They shall be entitled to appropriate dispositions provided under this Act
and their sentences shall be adjusted accordingly. They shall be immediately
released if they are so qualified under this Act or other applicable law.
37
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is
found guilty of the offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall
place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence shall
still be applied even if the juvenile is already eighteen years (18) of age or
more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various

circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the Law.
38
SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court
finds that the objective of the disposition measures imposed upon the child in
conflict with the law have not been fulfilled, or if the child in conflict with the
law has willfully failed to comply with the conditions of his/her disposition or
rehabilitation program, the child in conflict with the law shall be brought before
the court for execution of judgment.
 If said child in conflict with the law has reached eighteen (18) years of
age while under suspended sentence, the court shall determine
whether to discharge the child in accordance with this Act, to order
execution of sentence, or to extend the suspended sentence for a
certain specified period or until the child reaches the maximum age of
twenty-one (21) years.
39
SEC. 4. Definition of Terms. - The following terms as used in this Act shall
be defined as follows:

xxxx

(e) "Child" refers to a person under the age of eighteen (18) years.
 [ G.R. No. 250578, September 07, 2020 ]

BERT PASCUA Y VALDEZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated September
13, 2019 and the Resolution3 dated November 21, 2019 of the Court of Appeals
(CA) in CA-G.R. SP No. 160653 which upheld the Orders dated January 29,
20194 and February 26, 20195 of the Regional Trial Court of Balanga City, Bataan,
Branch 1 (RTC) in Criminal Case No. 18805, allowing petitioner Bert
Pascua y Valdez (Pascua) to enter a plea of guilty for violation of Section 12, Article
II of Republic Act No. (RA) 9165,6 otherwise known as the "Comprehensive
Dangerous Drugs Act of 2002," but declared him "ineligible to apply for probation."7

The Facts

The instant case stemmed from two (2) Informations8 filed before the RTC, docketed
as Criminal Case Nos. 18805 and 18806, respectively charging Pascua with
violations of Sections 5 and 11, Article II of RA 9165 for selling 0.024 gram and
possessing 0.054 gram of methamphetamine hydrochloride, or shabu.9 Upon
arraignment, Pascua pleaded "not guilty" to the crimes charged. However, he later
filed a Motion to Allow Accused to Enter into Plea Bargaining Agreement wherein he
offered to enter a plea of "guilty" to the lesser offense of violation of Section
12,10 Article II of RA 9165 for both criminal cases.11 The prosecution filed its
Comment and Opposition thereto, stressing that, per Department of Justice
Department Circular No. 027-18,12 the State's consent is necessary before the
accused can plead to a lesser offense.13

The RTC Ruling

On January 29, 2019, the RTC issued separate Orders14 allowing Pascua to enter a
plea of guilty to the lesser offense of violation of Section 12, Article II of RA 9165 in
both Criminal Case Nos. 18805 and 18806. However, it was expressly stated in the
dispositive portion of the Order pertaining to Criminal Case No. 18805 that Pascua
was "ineligible to apply for probation."15

Accordingly, Pascua applied for probation as regards Criminal Case No. 18806,
which the RTC acted upon issuing an Order16 dated February 26, 2019 which,
among others, directed the Bataan Parole and Probation Officer to conduct an
investigation on Pascua in accordance with Sections 5 and 7 of Presidential Decree
No. 968,17 as amended,18 otherwise known as the "Probation Law of 1976"
(Probation Law).

On the other hand, Pascua moved for reconsideration19 as to the Order made in
Criminal Case No. 18805, particularly for declaring him ineligible for probation. He
argued that A.M. No. 18-03-16-SC20 only prohibits probation if the accused is
actually found guilty of sale of illegal drugs (Section 5), and not when he is found
guilty to the lesser offense of "possession of equipment, instrument, apparatus, and
other paraphernalia for dangerous drugs" (Section 12).21

In an Order22 dated February 26, 2019, the RTC issued an Order denying the
motion for reconsideration for lack of merit. The RTC held that probation is not a
matter of right but a special privilege which is discretionary upon the court.23 It held
that the framers of A.M. No. 18-03-16-SC clearly intended that persons charged with
sale of illegal drugs would not be qualified for probation if they choose to plead guilty
to a lesser offense.24

Aggrieved, Pascua filed a petition for certiorari25 with the CA.

The CA Ruling

In a Decision26 dated September 13, 2019, the CA affirmed the RTC ruling. The CA
held that a reasonable interpretation of A.M. No. 18-03-16-SC would lead to the
conclusion that the Supreme Court intended for drug trafficking and pushing (Section
5) to still be covered by the "no probation rule" under Section 24, Article II of RA
9165.27 It rejected Pascua's contention that A.M. No. 18-03-16-SC should apply to
the lesser offense allowed instead of the offense actually charged.28 The CA opined
in this wise: "[t]his interpretation will result to absurdity, since Section 5 is not among
the enumerated lesser offenses to which an accused can admit guilt to in lieu of
being convicted of a higher offense. If this was really the intention of the Supreme
Court, it would not have included this provision since there is no acceptable plea to
which this exception to the general rule would be applicable. It is therefore rational
and logical to conclude that persons charged [with] violating Section 5 who
subsequently avail of plea bargaining may not apply for probation[,] x x x it would
mean that every person accused of sale of illegal drugs would simply have to plead
guilty to the lesser offense of violation of Section 12, apply for probation, then be
released scot-free."29 It likewise held that even assuming Pascua was eligible for
probation, the same is still within the discretion of the lower court.30

Pascua moved for reconsideration31 but was denied in a Resolution32 dated

November 21, 2019; hence, this petition.

The Issue Before the Court

The sole issue for the Court's resolution is whether or not the CA correctly ruled that
the RTC did not gravely abuse its discretion in holding that Pascua is ineligible for
probation in Criminal Case No. 18805 after pleading guilty to the lesser offense of
violation of Section 12, Article II of RA 9165.

The Court's Ruling

The petition has partial merit.

"[G]rave abuse of discretion connotes a capricious and whimsical exercise of

judgment, done in a despotic manner by reason of passion or personal hostility, the
character of which being so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined by or to act at all in
contemplation of law."33 In this regard, case law instructs that there is grave abuse
of discretion when an act: (a) is done contrary to the Constitution, the law or
jurisprudence, or executed whimsically, capriciously or arbitrarily, out of malice, ill
will, or personal bias; or (b) manifestly disregards basic rules or procedures.34

Guided by the foregoing considerations and as will be explained hereunder, the

Court finds that the CA erred in finding no grave abuse of discretion on the part of
the RTC in declaring Pascua ineligible for probation after pleading guilty to the lesser
offense of violation of Section 12, Article II of RA 9165.

To recall, plea bargaining in cases involving drugs cases was recently allowed
through the Court's promulgation of Estipona, Jr. v. Lobrigo,35 which declared the
provision in RA 9165 expressly disallowing plea bargaining in drugs cases, i.e.,
Section 23,36 Article II, unconstitutional for contravening the rule-making authority of
the Supreme Court. Following this pronouncement, the Court issued A.M. No. 18-03-
16-SC providing for a plea bargaining framework in drugs cases, which was required
to be adopted by all trial courts handling drugs cases.37

In A.M. No. 18-03-16-SC, the Court enumerated, in table format, several violations of
RA 9165 which could be subject to plea-bargaining.38 Included therein is violation of
Section 5, Article II thereof, particularly for the sale, trading, etc. of shabu weighing
less than 1.00 gram. The rationale for this particular exception was explained by the
Court in its Resolution dated April 2, 2019 in Re: Letter of Associate Justice
Diosdado M. Peralta on the Suggested Plea Bargaining Framework Submitted by the
Philippine Judges Association,39 to wit:

It bears emphasis that the main reason of the Court in stating in A.M. No. 18-03-16-
SC dated April 10, 2018 that "plea bargaining is also not allowed under Section 5
(Sale, Trading, etc. of Dangerous Drugs) involving all other kinds of dangerous
drugs, except shabu and marijuana" lies in the diminutive quantity of the dangerous
drugs involved. Taking judicial notice of the volume and prevalence of cases
involving the said two (2) dangerous drugs, as well as the recommendations of the
Officers of the PJA, the Court is of the view that illegal sale of 0.01 gram to 0.99
gram of methamphetamine hydrochloride (shabu) is very light enough to be
considered as necessarily included in the offense of violation of Section 12
(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs), while 1.00 gram and above is substantial enough to disallow plea
bargaining. The Court holds the same view with respect to illegal sale of 0.01 gram
to 9.99 grams of marijuana, which likewise suffices to be deemed necessarily
included in the same offense of violation of the same Section 12 of R.A. No. 9165,
while 10.00 grams and above is ample enough to disallow plea bargaining.
(Emphases and underscoring supplied)Ꮮαwρhi ৷

A.M. No. 18-03-16-SC also provides, among others, in the "Remarks" column of the
aforesaid offense that "if accused applies for probation in offenses punishable under
R.A. No. 9165, other than for illegal drug trafficking or pushing under Section 5 in
relation to [Section] 24 thereof, then the law on probation apply."40 Notably, Section
24, Article II of RA 9165 provides that any person convicted for drug trafficking or
pushing under Section 5 of the law cannot avail of the benefits of the Probation
Law, viz.:

Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers.
— Any person convicted for drug trafficking or pushing under this Act, regardless of
the penalty imposed by the Court, cannot avail of the privilege granted by the
Probation Law or Presidential Decree No. 968, as amended.

In this case, the CA construed the aforementioned remark in A.M. No. 18-03-16-SC
as disqualifying persons originally charged with violation of Section 5, Article II of RA
9165 but were convicted of the lesser offense of violation of Section 12, Article II of
the same law – such as Pascua – from applying for probation.

However, the CA is mistaken as the said remark should be simply regarded as a

recognition and reminder of the general rule provided in Section 24 that "[a]ny
person convicted for drug trafficking or pushing under this Act"41 shall be ineligible
for probation. Moreover, the CA's view is not supported neither by the very wording
of Section 24, Article II of RA 9165 nor the provisions of the Probation Law. It
likewise disregards the legal consequences of plea bargaining.

It bears stressing that it is only after the trial court arrives at a judgment of conviction
can the provisions of the Probation Law apply.Ꮮαwρhi ৷ "Probation" is defined under
Section 3 (a) thereof as "a disposition under which a defendant, after conviction and
sentence, is released subject to conditions imposed by the court and to the
supervision of a probation officer."42 Section 9 thereof, which lists the disqualified
offenders, also highlights that the disqualifications pertain to the nature of the
convictions meted out to the prospective applicant:

Section 9. Disqualified Offenders. — The benefits of this Decree shall not be

extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six (6)
years;

(b) convicted of any crime against the national security;

(c) who have previously been convicted by final judgment of an offense

punished by imprisonment of more than six (6) months and one (1) day and/or
a fine of not more than one thousand pesos (P1,000.00);

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

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

It is clear from both Section 24, Article II of RA 9165 and the provisions of the
Probation Law that in applying for probation, what is essential is not the offense
charged but the offense to which the accused is ultimately found guilty of.
In this regard, it is worth emphasizing that upon acceptance of a plea bargain, the
accused is actually found guilty of the lesser offense subject of the plea. According to
jurisprudence, "[p]lea bargaining in criminal cases is a process whereby the accused
and the prosecution work out a mutually satisfactory disposition of the case subject
to court approval. It usually involves the defendant's pleading guilty to a lesser
offense or to only one or some of the counts of a multi-count indictment in return for
a lighter sentence than that for the graver charge."43

Thus, regardless of what the original charge was in the Information, the judgment
would be for the lesser offense to which the accused pled guilty. This means that the
penalty to be meted out, as well as all the attendant accessory penalties, and other
consequences under the law, including eligibility for probation and parole, would be
based on such lesser offense. Necessarily, even if Pascua was originally charged
with violation of Section 5, Article II of RA 9165 in Criminal Case No. 18805, he was
ultimately convicted of the lower offense of violation of Section 12, Article II of the
same law. Since the foregoing effectively removed Pascua's case from the coverage
of Section 24, Article II of RA 9165, he should, at the very least, be allowed to apply
for probation.

The foregoing notwithstanding, it is well to clarify that this ruling does not, per
se make Pascua eligible for probation. This ruling is limited to the deletion of the
RTC's pronouncement that Pascua is "ineligible to apply for probation", thereby
allowing him to file such application. If he files for the same, the grant or denial
thereof will then lie in the sound discretion of the RTC after due consideration of the
criteria laid down in the Probation Law, e.g., Section 844 thereof.

WHEREFORE, the petition is partly GRANTED. The Decision dated September 13,
2019 and the Resolution dated November 21, 2019 of the Court of Appeals in CA-
G.R. SP No. 160653 are REVERSED and SET ASIDE. The Order dated January 29,
2019 of the Regional Trial Court of Balanga City, Bataan, Branch 1 in Criminal Case
No. 18805 is hereby MODIFIED, in that the sentence: "Make it of record that the
accused is ineligible to apply for probation" is DELETED. Petitioner Bert
Pascua y Valdez is hereby given a period of fifteen (15) days from notice of this
Decision within which to file his application for probation before the court a quo.

SO ORDERED.

Hernando, and Delos Santos, JJ., concur.

Inting, J., on official leave.

Footnotes

Baltazar-Padilla, J., on leave.

1 Rollo, pp. 11-33.

2 Id. at 40-51. Penned by Acting Presiding Justice Remedios A. Salazar-
Fernando with Associate Justices Samuel H. Gaerlan (now a member of this
Court) and Germano Francisco D. Legaspi, concurring.

3 Id. at 53-55.

4 Id. at 83-85. Penned by Judge Angelito I. Balderama.

5 Id. at 87-89.

6 Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS

DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425,
OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS
AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER
PURPOSES," approved on June 7, 2002.

7 Rollo, p. 85.

8 Id. at 91 and 93-94.

9 Id. at 42.

10 "Possession of Equipment, Instrument, Apparatus and Other

Paraphernalia for Dangerous Drugs."

11 Rollo, p. 42.

12 "RE: AMENDED GUIDELINES ON PLEA BARGAINING FOR REPUBLIC

ACT NO. 9165 OTHERWISE KNOWN AS THE 'COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002,'" issued on June 26, 2018.

13 See rollo, pp. 42-43.

14 Id. at 83-85 and 102-103.

15 Id. at 85.

16 Id. at 106.

17 Entitled "ESTABLISHING A PROBATION SYSTEM, APPROPRIATING

FUNDS THEREFOR AND FOR OTHER PURPOSES" (July 24, 1976).

18 Republic Act No. 10707, entitled "AN ACT AMENDING PRESIDENTIAL

DECREE NO. 968, OTHERWISE KNOWN AS THE 'PROBATION LAW OF
1976,' AS AMENDED," approved on November 26, 2015.

19 Dated Febraury 4, 2019. Rollo, pp. 107-111.

20 Entitled "ADOPTION OF THE PLEA BARGAINING FRAMEWORK IN

DRUGS CASES" dated April 10, 2018.
21 See rollo, pp. 43 and 108.

22 Id. at 87-89.

23 Id. at 88.

24 Id.

25 See id. at 60-81.

26 Id. at 40-51.

27 Id. at 48.

28 Id. at 48-49.

29 Id.

30 Id. at 50.

31 Dated October 9, 2019. Id. at 131-138.

32 Id. at 53-55.

33 University of Santo Tomas (UST) v. Samahang Manggagawa ng UST, 809

Phil. 212, 220 (2017), citing Quebral v. Angbus Construction, Inc.,, 798 Phil.
179, 188-189 (2016).

34 See Sayre v. Xenos, G.R. Nos. 244413, 244415-16, February 18, 2020,
citations omitted.

35 816 Phil. 789 (2017).

36 Section 23, Article II of RA 9165 reads:

Section 23. Plea-Bargaining Provision. — Any person charged under any

provision of this Act regardless of the imposable penalty shall not be allowed
to avail of the provision on plea-bargaining.

37 See OCA Circular Nos. 90-2018, subject: "PLEA BARGAINING

FRAMEWORK IN DRUGS CASES" issued on May 4, 2018 and 104-2019
subject: "COURT EN BANC RESOLUTION DATED 4 JUNE 2019 IN A.M.
NO. 18-03-16-SC (RE: ADOPTION OF PLEA BARGAINING FRAMEWORK
IN DRUG CASES)" issued on July 5, 2019.

38 See Resolutions issued on April 10, 2018 and June 4, 2019.

39 See also OCA Circular No. 80-2019, subject: "MINUTE RESOLUTION

DATED 02 APRIL 2019 IN A.M. NO. 18-03-16-SC (RE: LETTER OF
ASSOCIATE JUSTICE DIOSDADO M. PERALTA ON THE SUGGESTED
PLEA BARGAINING FRAMEWORK SUBMITTED BY THE PHILIPPINE
JUDGES ASSOCIATION)" issued on May 30, 2019.

40 See Resolution dated June 4, 2019.

41 Emphasis and underscoring supplied.

42 Emphasis supplied.

43 Daan v. Sandiganbayan, 573 Phil. 368, 375 (2008).

44 Section 8 of the Probation Law reads:

Section 8. Criteria for Placing an Offender on Probation. — In

determining whether an offender may be placed on probation, the court
shall consider all information relative, to the character, antecedents,
environment, mental and physical condition of the offender, and
available institutional and community resources. Probation shall be
denied if the court finds that:

(a) the offender is in need of correctional treatment that can be

provided most effectively by his commitment to an institution; or

(b) there is undue risk that during the period of probation the
offender will commit another crime; or

(c) probation will depreciate the seriousness of the offense

committed.