Criminal Law (9)

Duration of penalties


Reclusion perpetua

What is the duration of reclusion perpetua?

Do not answer Article 27 to this question. The proper answer would be that reclusion perpetua has no duration because this is an indivisible penalty and indivisible penalties have no durations.

Under Article 27, those sentenced to reclusion perpetua shall be pardoned after undergoing the penalty for 30 years, unless such person, by reason of his conduct or some other serious cause, shall be considered by the Chief Executive as unworthy of pardon.

Under Article 70, which is the Three-Fold Rule, the maximum period shall in no case exceed 40 years. If a convict who is to serve several sentences could only be made to serve 40 years, with more reason, one who is sentenced to a singly penalty of reclusion perpetua should not be held for more than 40 years.

The duration of 40 years is not a matter of provision of law; this is only by analogy. There is no provision of the Revised Penal Code that one sentenced to reclusion perpetua cannot be held in jail for 40 years and neither is there a decision to this effect.


Destierro


What is the duration of destierro?

The duration of destierro is from six months and one day, to six year, which is the same as that of prision correcional and suspension. Destierro is a principal penalty. It is a punishment whereby a convict is vanished to a certan place and is prohibited form entering or coming near that place designated in the sentence, not less than 25 Kms.. However, the court cannot extend beyond 250 Kms. If the convict should enter the prohibited places, he commits the crime of evasion of service of sentence under Article 157. But if the convict himself would go further from which he is vanished by the court, there is no evasion of sentence because the 240-Km. limit is upon the authority of the court in vanishing the convict.

Under the Revised Penal Code, destierro is the penalty imposed in the following situations:

(1) When a legally married person who had surprised his or her spouse in the act of sexual intercourse with another and while in that act or immediately thereafter should kill or inflict serious physical injuries upon the other spouse, and/or the paramour or mistress. This is found in Article 247.

(1) In the crime of grave threat or light threat, when the offender is required to put up a bond for good behavior but failed or refused to do so under Article 284, such convict shall be sentenced to destierro so that he would not be able to carry out his threat.

(3) In the crime of concubinage, the penalty prescribed for the concubine is destierro under Article 334.

(4) Where the penalty prescribed by law is arresto mayor, but the offender is entitled privileged mitigating circumstance and lowering the prescribed penalty by one degree, the penalty one degree lower is destierro. Thus, it shall be the one imposed.


Civil Interdiction

Civil interdiction is an accessory penalty. Civil interdiction shall deprive the offender during the time of his sentence:

(1) The rights of parental authority, or guardianship either as to the person or property of any ward;

(2) Marital authority;

(3) The right to manage his property; and

(4) The right to dispose of such property by any act or any conveyance inter vivos.

Can a convict execute a last will and testament? Yes.


Primary classification of penalties


Principal penalties and accessory penalties

The penalties which are both principal and accessory penalties are the following:

(1) Perpetual or temporary absolute disqualification;

(2) Perpetual or temporary special disqualification.


Questions & Answers

1. If the penalty of suspension is imposed as an accessory, what is the duration?

Its duration shall be that of the principal penalty.

2. If the penalty of temporary disqualification is imposed as principal penalty, what is the duration?

The duration is six years and one day to 12 years.

3. What do we refer to if it is perpetual or temporary disqualification?

We refer to the duration of the disqualification.

4. What do we refer to if it is special or absolute disqualification?

We refer to the nature of the disqualification.


The classification of principal and accessory is found in Article 25.

In classifying the penalties as principal and accessory, what is meant by this is that those penalties classified as accessory penalties need not be stated in the sentence. The accessory penalties follow the principal penalty imposed for the crime as a matter of course. So in the imposition of the sentence, the court will specify only the principal penalty but that is not the only penalty which the offender will suffer. Penalties which the law considers as accessory to the prescribed penalty are automatically imposed even though they are not stated in the judgment. As to the particular penalties that follow a particular principal penalty, Articles 40 to 45 of the Revised Penal Code shall govern.

If asked what are the accessory penalties, do not just state the accessory penalties. State the principal penalty and the corresponding accessory penalties.

Penalties in which other accessory penalties are inherent:

(1) Article 40. Death - perpetual absolute disqualification, and civil interdiction during 30 years following date of sentence;

(2) Article 41. Reclusion perpetua and reclusion temporal - civil interdiction for life or during the period of the sentence as the case may be, and perpetual absolute disqualification;

(3) Article 42. Prision mayor - temporary absolute disqualification perpetual special disqualification from the right of suffrage;

(4) Article 43. Prision correccional - suspension from public office, from the right to follow a profession or calling, and perpetual special disqualification from the rights of suffrage if the duration of said imprisonment shall exceed 18 months.

(5) Article 44. Arresto - suspension of the right to hold office and the right of suffrage during the term of the sentence.

There are accessory penalties which are true to other principal penalties. An example is the penalty of civil interdiction. This is an accessory penalty and, as provided in Article 34, a convict sentenced to civil interdiction suffers certain disqualification during the term of the sentence. One of the disqualifications is that of making a conveyance of his property inter vivos.

Illustration:

A has been convicted and is serving the penalty of prision mayor. While serving sentence, he executed a deed of sale over his only parcel of land. A creditor moved to annul the sale on the ground that the convict is not qualified to execute a deed of conveyance inter vivos. If you were the judge, how would you resolve the move of the creditor to annul the sale?

Civil interdiction is not an accessory penalty in prision mayor. The convict can convey his property.


Questions & Answers

What accessory penalty is common to all principal penalties?

Confiscation or forfeiture on the instruments or proceeds of the crime.


Bond to keep the peace

One of the principal penalties common to the others is bond to keep the peace. There is no crime under the Revised Penal Code which carries this penalty.


Bond for good behavior

Bond for good behavior is prescribed by the Revised Penal Code for the crimes of grave threats and light threats under Article 234. You cannot find this penalty in Article 25 because Article 25 only provides for bond to keep the peace. Remember that no felony shall be punished by any penalty not prescribed by law prior to its commission pursuant to Article 21.


Questions & Answers

1. If bond to keep the peace is not the same as bond for good behavior, are they one and the same bond that differ only in name?

No. The legal effect of each is entirely different. The legal effect of a failure to post a bond to keep the peace is imprisonment either for six months or 30 days, depending on whether the felony committed is grave or less grave on one hand, or it is light only on the other hand. The legal effect of failure to post a bond for good behavior is not imprisonment but destierro under Article 284. Thus, it is clear that the two bonds are not the same considering that the legal effect or the failure to put up the bond is not the same.
Divisible and indivisible penalties

When we talk of period, it is implying that the penalty is divisible.

If, after being given a problem, you were asked to state the period in which the penalty of reclusion perpetua is to be imposed, remember that when the penalty is indivisible, there is no period. Do not talk of period, because when you talk of period, you are implying that the penalty is divisible because the period referred to is the minimum, the medium, and the maximum. If it is indivisible, there is no such thing as minimum, medium and maximum.


The capital punishment

You were asked to state whether you are in favor or against capital punishment. Understand that you are not taking the examination in Theology. Explain the issue on the basis of social utility of the penalty. Is it beneficial in deterring crimes or not? This should be the premise of your reasoning.


Designation of penalty

Since the principal penalties carry with them certain accessory penalties, the courts are not at liberty to use any designation of the principal penalty. So it was held that when the penalty should be reclusion perpetua, it is error for the court to use the term “life imprisonment”. In other words, the courts are not correct when they deviate from the technical designation of the principal penalty, because the moment they deviate from this designation, there will be no corresponding accessory penalties that will go with them.

Illustration:

When the judge sentenced the accused to the penalty of reclusion perpetua, but instead of saying reclusion perpetua, it sentenced the accused to life imprisonment, the designation is wrong.


Reclusion perpetua as modified

Before the enactment of Republic Act No. 7659, which made amendments to the Revised Penal Code, the penalty of reclusion perpetua had no fixed duration. The Revised Penal Code provides in Article 27 that the convict shall be pardoned after undergoing the penalty for thirty years, unless by reason of his conduct or some other serious cause, he is not deserving of pardon. As amended by Section 21 of Republic Act No. 7659, the same article now provides that the penalty of reclusion perpetua shall be from 20 years to 40 years. Because of this, speculations arose as to whether it made reclusion perpetua a divisible penalty.

As we know, when a penalty has a fixed duration, it is said to be divisible and, in accordance with the provisions of Articles 65 and 76, should be divided into three equal portions to form one period of each of the three portions. Otherwise, if the penalty has no fixed duration, it is an indivisible penalty. The nature of the penalty as divisible or indivisible is decisive of the proper penalty to be imposed under the Revised Penal Code inasmuch as it determines whether the rules in Article 63 or the rules in Article 64 should be observed in fixing the penalty.

Thus, consistent with the rule mentioned, the Supreme Court, by its First Division, applied Article 65 of the Code in imposing the penalty for rape in People v. Conrado Lucas, GR No. 108172-73, May 25, 1994. It divided the time included in the penalty of reclusion perpetua into three equal portions, with each portion composing a period as follows:

Minimum - 20 years and one day, to 26 years and eight months;

Medium - 26 years, eight months and one day, to 33 years and four months;

Maximum - 34 years, four months and one day, to 40 years.

Considering the aggravating circumstance of relationship, the Court sentenced the accused to imprisonment of 34 years, four months and one day of reclusion perpetua, instead of the straight penalty of reclusion perpetua imposed by the trial court. The appellee seasonably filed a motion for clarification to correct the duration of the sentence, because instead of beginning with 33 years, four months and one day, it was stated as 34 years, four months and one day. The issue of whether the amendment of Article 27 made reclusion perpetua a divisible penalty was raised, and because the issue is one of first impression and momentous importance, the First Division referred the motion to the Court en banc.

In a resolution promulgated on January 9, 1995, the Supreme Court en banc held that reclusion perpetua shall remain as an indivisible penalty. To this end, the resolution states:

After deliberating on the motion and re-examining the legislation history of RA 7659, the Court concludes that although Section 17 of RA 7659 has fixed the duration of Reclusion Perpetua from twenty years (20) and one (1) to forty 40 years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty.

Verily, if reclusion perpetua was classified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended RA No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated herein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no statutory rules for determining when either reclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances.

Now then, if Congress had intended to reclassify reclusion perpetua as divisible penalty, then it should have amended Article 63 and Article 76 of the Revised Penal Code. The latter is the law on what are considered divisible penalties under the Code and what should be the duration of the periods thereof. There are, as well, other provisions of the Revised Penal Code involving reclusion perpetua, such as Article 41 on the accessory penalties thereof and paragraphs 2 and 3 of Article 61, which have not been touched by a corresponding amendment.

Ultimately, the question arises: “What then may be the reason for the amendment fixing the duration of reclusion perpetua?” This question was answered in the same case of People v. Lucas by quoting pertinent portion of the decision in People v. Reyes, 212 SCRA 402, thus:

The imputed duration of thirty (30) years for reclusion perpetua, thereof, is only to serve as the basis for determining the convict’s eligibility for pardon or for the application of the three-fold rule in the service of penalties. Since, however, in all the graduated scales of penalties in the Code, as set out in Article 25, 70 and 21, reclusion perpetua is the penalty immediately next higher to reclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is twenty (20) years and one (1) day with a maximum duration thereafter to last for the rest of the convict’s natural life, although, pursuant to Article 70, it appears that the maximum period for the service of penalties shall not exceed forty (40) years. It would be legally absurd and violative of the scales of penalties in the Code to reckon the minimum of Reclusion Perpetua at thirty (30) years since there would thereby be a resultant lacuna whenever the penalty exceeds the maximum twenty (20) years of Reclusion Temporal but is less than thirty (30) years.


Innovations on the imposition of the death penalty

Aside form restoring the death penalty for certain heinous crimes, Republic Act No. 7659 made innovations on the provisions of the Revised Penal Code regarding the imposition of the death penalty:

(1) Article 47 has been reworded to expressly include among the instances where the death penalty shall not be imposed, the case of an offender who is below 18 years old at the time of the commission of the offense. But even without this amendment, the death penalty may not be meted out on an offender who was below 18 years of age at the time of the commission of the crime because Article 68 the lowers the imposable penalty upon such offenders by at least one degree than that prescribed for the crime.

(2) In the matter of executing the death penalty, Article 81 has been amended and, thus, directs that the manner of putting the convict to death by electrocution shall be changed to gas poisoning as soon as the facilities are provided, and the sentence shall be carried out not later that one year after the finality of judgment.

(3) The original provision of Article 83, anent the suspension of the execution of the death penalty for three years if the convict was a woman, has been deleted and instead, limits such suspension to last while the woman was pregnant and within one year after delivery.

Subsidiary penalty

Is subsidiary penalty an accessory penalty? No.

If the convict does not want to pay fine and has so many friends and wants to prolong his stay in jail, can he stay there and not pay fine? No.

After undergoing subsidiary penalty and the convict is already released from jail and his financial circumstances improve, can he be made to pay? Yes, for the full amount with deduction.

Article 39 deals with subsidiary penalty. There are two situations there:

(1) When there is a principal penalty of imprisonment or any other principal penalty and it carries with it a fine; and

(2) When penalty is only a fine.

Therefore, there shall be no subsidiary penalty for the non-payment of damages to the offended party.

This subsidiary penalty is one of important matter under the title of penalty. A subsidiary penalty is not an accessory penalty. Since it is not an accessory penalty, it must be expressly stated in the sentence, but the sentence does not specify the period of subsidiary penalty because it will only be known if the convict cannot pay the fine. The sentence will merely provide that in case of non-payment of the fine, the convict shall be required to save subsidiary penalty. It will then be the prison authority who will compute this.

So even if subsidiary penalty is proper in a case, if the judge failed to state in the sentence that the convict shall be required to suffer subsidiary penalty in case of insolvency to pay the fine, that convict cannot be required to suffer the accessory penalty. This particular legal point is a bar problem. Therefore, the judgment of the court must state this. If the judgment is silent, he cannot suffer any subsidiary penalty.

The subsidiary penalty is not an accessory penalty that follows the principal penalty as a matter of course. It is not within the control of the convict to pay the fine or not and once the sentence becomes final and executory and a writ of execution is issued to collect the fine, if convict has property to levy upon, the same shall answer for the fine, whether he likes it or not. It must be that the convict is insolvent to pay the fine. That means that the writ of execution issued against the property of the convict, if any, is returned unsatisfied.

In People v. Subido, it was held that the convict cannot choose not to serve, or not to pay the fine and instead serve the subsidiary penalty. A subsidiary penalty will only be served if the sheriff should return the execution for the fine on the property of the convict and he does not have the properties to satisfy the writ.


Questions & Answers

The penalty imposed by the judge is fine only. The sheriff then tried to levy the property of the defendant after it has become final and executory, but it was returned unsatisfied. The court then issued an order for said convict to suffer subsidiary penalty. The convict was detained, for which reason he filed a petition for habeas corpus contending that his detention is illegal. Will the petition prosper?

Yes. The judgment became final without statement as to subsidiary penalty, so that even if the convict has no money or property to satisfy the fine, he cannot suffer subsidiary penalty because the latter is not an accessory and so it must be expressly stated. If the court overlooked to provide for subsidiary penalty in the sentence and its attention was later called to that effect, thereafter, it tried to modify the sentence to include subsidiary penalty after period to appeal had already elapsed, the addition of subsidiary penalty will be null and void. This is tantamount to double jeopardy.

If the fine is prescribed with the penalty of imprisonment or any deprivation of liberty, such imprisonment should not be higher than six years or prision correccional. Otherwise, there is no subsidiary penalty.


When is subsidiary penalty applied

(1) If the subsidiary penalty prescribed for the non-payment of fine which goes with the principal penalty, the maximum duration of the subsidiary penalty is one year, so there is no subsidiary penalty that goes beyond one year. But this will only be true if the one year period is higher than 1/3 of the principal penalty, the convict cannot be made to undergo subsidiary penalty more than 1/3 of the duration of the principal penalty and in no case will it be more than 1 year - get 1/3 of the principal penalty - whichever is lower.

(2) If the subsidiary penalty is to be imposed for non payment of fine and the principal penalty imposed be fine only, which is a single penalty, that means it does not go with another principal penalty, the most that the convict will be required to undergo subsidiary imprisonment is six months, if the felony committed is grave or less grave, otherwise, if the felony committed is slight, the maximum duration of the subsidiary penalty is only 15 days.

There are some who use the term subsidiary imprisonment. The term is wrong because the penalty is not only served by imprisonment. The subsidiary penalty follows the nature of the principal penalty. If the principal penalty is destierro, this being a divisible penalty, and a penalty with a fixed duration, the non-payment of the fine will bring about subsidiary penalty. This being a restriction of liberty with a fixed duration under Article 39 for the nonpayment of fine that goes with the destierro, the convict will be required to undergo subsidiary penalty and it will also be in the form of destierro.

Illustration:

A convict was sentenced to suspension and fine. This is a penalty where a public officer anticipates public duties, he entered into the performance of public office even before he has complied with the required formalities. Suppose the convict cannot pay the fine, may he be required to undergo subsidiary penalty?

Yes, because the penalty of suspension has a fixed duration. Under Article 27, suspension and destierro have the same duration as prision correccional. So the duration does not exceed six years. Since it is a penalty with a fixed duration under Article 39, when there is a subsidiary penalty, such shall be 1/3 of the period of suspension which in no case beyond one year. But the subsidiary penalty will be served not by imprisonment but by continued suspension.

If the penalty is public censure and fine even if the public censure is a light penalty, the convict cannot be required to pay the fine for subsidiary penalty for the non-payment of the fine because public censure is a penalty that has no fixed duration.

Do not consider the totality of the imprisonment the convict is sentenced to but consider the totality or the duration of the imprisonment that the convict will be required to serve under the Three-Fold Rule. If the totality of the imprisonment under this rule does not exceed six years, then, even if the totality of all the sentences without applying the Three-Fold Rule will go beyond six years, the convict shall be required to undergo subsidiary penalty if he could not pay the fine.

Illustration:

A collector of NAWASA collected from 50 houses within a certain locality. When he was collecting NAWASA bills, the charges of all these consumers was a minimum of 10. The collector appropriated the amount collected and so was charged with estafa. He was convicted. Penalty imposed was arresto mayor and a fine of P200.00 in each count. If you were the judge, what penalty would you impose? May the convict be required to undergo subsidiary penalty in case he is insolvent to pay the fine?

The Three-Fold Rule should not applied by the court. In this case of 50 counts of estafa, the penalty imposed was arresto mayor and a fine of P200.00. Arresto mayor + P200.00 x 50. Arresto Mayor is six months x 50 = 25 years. P200.00 x 50 = P10,000.00. Thus, I would impose a penalty of arresto mayor and a fine of P200.00 multiplied by 50 counts and state further that “as a judge, I am not in the position to apply the Three-Fold Rule because the Three-Fold Rule is to be given effect when the convict is already serving sentence in the penitentiiary. It is the prison authority who will apply the Three-Fold Rule. As far as the court is concerned, that will be the penalty to be imposed.”

For the purposes of subsidiary penalty, apply the Three-Fold Rule if the penalty is arresto mayor and a fine of P200.00 multiplied by 3. This means one year and six months only. So, applying the Three- Fold Rule, the penalty does not go beyond six years. Hence, for the non- payment of the fine of P10,000.00, the convict shall be required to undergo subsidiary penalty. This is because the imprisonment that will be served will not go beyond six years. It will only be one year and six months, since in the service of the sentence, the Three-Fold Rule will apply.

It is clearly provided under Article 39 that if the means of the convict should improve, even if he has already served subsidiary penalty, he shall still be required to pay the fine and there is no deduction for that amount which the convict has already served by way of subsidiary penalty.


Articles 63 and 64

If crime committed is parricide, penalty is reclusion perpetua. The accused, after committing parricide, voluntarily surrendered and pleaded guilty of the crime charged upon arraignment. It was also established that he was intoxicated, and no aggravating circumstances were present. What penalty would you impose?

Reclusion perpetua, because it is an indivisible penalty.

When there are two or more mitigating circumstances and there is no aggravating circumstance, penalty to be imposed shall be one degree lower to be imposed in the proper period. Do not apply this when there is one aggravating circumstance.

Illustration:

There are about four mitigating circumstances and one aggravating circumstance. Court offsets the aggravating circumstance against the mitigating circumstance and there still remains three mitigating circumstances. Because of that, the judge lowered the penalty by one degree. Is the judge correct?

No. In such a case when there are aggravating circumstances, no matter how many mitigating circumstances there are, after offsetting, do not go down any degree lower. The penalty prescribed by law will be the penalty to be imposed, but in the minimum period. Cannot go below the minimum period when there is an aggravating circumstance.

Go into the lowering of the penalty by one degree if the penalty is divisible. So do not apply the rule in paragraph 5 of Article 64 to a case where the penalty is divisible.


Article 66

When there are mitigating circumstance and aggravating circumstance and the penalty is only fine, when it is only ordinary mitigating circumstance and aggravating circumstance, apply Article 66. Because you determine the imposable fine on the basis of the financial resources or means of the offender. But if the penalty would be lowered by degree, there is a privileged mitigating circumstance or the felony committed is attempted or frustrated, provided it is not a light felony against persons or property, because if it is a light felony and punishable by fine, it is not a crime at all unless it is consummated. So, if it is attempted or frustrated, do not go one degree lower because it is not punishable unless it is a light felony against person or property where the imposable penalty will be lowered by one degree or two degrees.

Penalty prescribed to a crime is lowered by degrees in the following cases:

(1) When the crime is only attempted or frustrated

If it is frustrated, penalty is one degree lower than that prescribed by law.

If it is attempted, penalty is two degrees lower than that prescribed by law.

This is so because the penalty prescribed by law for a crime refers to the consummated stage.

(2) When the offender is an accomplice or accessory only

Penalty is one degree lower in the case of an accomplice.

Penalty is two degrees lower in the case of an accessory.

This is so because the penalty prescribed by law for a given crime refers to the consummated stage.

(3) When there is a privilege mitigating circumstance in favor of the offender, it will lower the penalty by one or two degrees than that prescribed by law depending on what the particular provision of the Revised Penal Code states.

(4) When the penalty prescribed for the crime committed is a divisible penalty and there are two or more ordinary mitigating circumstances and no aggravating circumstances whatsoever, the penalty next lower in degree shall be the one imposed.

(5) Whenever the provision of the Revised Penal Code specifically lowers the penalty by one or two degrees than what is ordinarily prescribed for the crime committed.

Penalty commonly imposed by the Revised Penal Code may be by way of imprisonment or by way of fine or, to a limited extent, by way of destierro or disqualification, whether absolute or special.

In the matter of lowering the penalty by degree, the reference is Article 71. It is necessary to know the chronology under Article 71 by simply knowing the scale. Take note that destierro comes after arresto mayor so the penalty one degree lower than arresto mayor is not arresto menor, but destierro. Memorize the scale in Article 71.

In Article 27, with respect to the range of each penalty, the range of arresto menor follows arresto mayor, since arresto menor is one to 30 days or one month, while arresto mayor is one month and one day to six months. On the other hand, the duration of destierro is the same as prision correccional which is six months and one day to six years. But be this as it is, under Article 71, in the scale of penalties graduated according to degrees, arresto mayor is higher than destierro.

In homicide under Article 249, the penalty is reclusion temporal. One degree lower, if homicide is frustrated, or there is an accomplice participating in homicide, is prision mayor, and two degrees lower is prision correccional.

This is true if the penalty prescribed by the Revised Penal Code is a whole divisible penalty -- one degree or 2 degrees lower will also be punished as a whole. But generally, the penalties prescribed by the Revised Penal Code are only in periods, like prision correcional minimum, or prision correcional minimum to medium.

Although the penalty is prescribed by the Revised Penal Code as a period, such penalty should be understood as a degree in itself and the following rules shall govern:

(1) When the penalty prescribed by the Revised Code is made up of a period, like prision correccional medium, the penalty one degree lower is prision correccional minimum, and the penalty two degrees lower is arresto mayor maximum. In other words, each degree will be made up of only one period because the penalty prescribed is also made up only of one period.
(2) When the penalty prescribed by the Code is made up of two periods of a given penalty, every time such penalty is lowered by one degree you have to go down also by two periods.

Illustration:

If the penalty prescribed for the crime is prision correccional medium to maximum, the penalty one degree lower will be arresto mayor maximum to prision correccional minimum, and the penalty another degree lower will be arresto mayor minimum to medium. Every degree will be composed of two periods.

(3) When the penalty prescribed by the Revised Penal Code is made up of three periods of different penalties, every time you go down one degree lower, you have to go down by three periods.

Illustration:

The penalty prescribed by the Revised Penal Code is prision mayor maximum to reclusion temporal medium, the penalty one degree lower is prision correccional maximum to prision mayor medium. Another degree lower will be arresto mayor maximum to prision correccional medium.

These rules have nothing to do with mitigating or aggravating circumstances. These rules refer to the lowering of penalty by one or two degrees. As to how mitigating or aggravating circumstances may affect the penalty, the rules are found in Articles 63 and 64. Article 63 governs when the penalty prescribed by the Revised Penal Code is indivisible. Article 64 governs when the penalty prescribed by the Revised Penal Code is divisible. When the penalty is indivisible, no matter how many ordinary mitigating circumstances there are, the prescribed penalty is never lowered by degree. It takes a privileged mitigating circumstance to lower such penalty by degree. On the other hand, when the penalty prescribed by the Revised Penal Code is divisible, such penalty shall be lowered by one degree only but imposed in the proper period, when there are two or more ordinary mitigating circumstance and there is no aggravating circumstance whatsoever.


Article 75 – Fines

With respect to the penalty of fine, if the fine has to be lowered by degree either because the felony committed is only attempted or frustrated or because there is an accomplice or an accessory participation, the fine is lowered by deducting 1/4 of the maximum amount of the fine from such maximum without changing the minimum amount prescribed by law.

Illustration:

If the penalty prescribed is a fine ranging from P200.00 to P500.00, but the felony is frustrated so that the penalty should be imposed one degree lower, 1/4 of P500.00 shall be deducted therefrom. This is done by deducting P125.00 from P500.00, leaving a difference of P375.00. The penalty one degree lower is P375.00. To go another degree lower, P125.00 shall again be deducted from P375.00 and that would leave a difference of P250.00. Hence, the penalty another degree lower is a fine ranging from P200.00 to P250.00. If at all, the fine has to be lowered further, it cannot go lower than P200.00. So, the fine will be imposed at P200.00. This rule applies when the fine has to be lowered by degree.


Article 66

In so far as ordinary mitigating or aggravating circumstance would affect the penalty which is in the form of a fine, Article 66 of the Revised Penal Code shall govern. Under this article, it is discretionary upon the court to apply the fine taking into consideration the financial means of the offender to pay the same. In other words, it is not only the mitigating and/or aggravating circumstances that the court shall take into consideration, but primarily, the financial capability of the offender to pay the fine. For the same crime, the penalty upon an accused who is poor may be less than the penalty upon an accused committing the same crime but who is wealthy
.
For instance, when there are two offenders who are co-conspirators to a crime, and their penalty consists of a fine only, and one of them is wealthy while the other is a pauper, the court may impose a higher penalty upon the wealthy person and a lower fine for the pauper.

Penalty for murder under the Revised Penal Code is reclusion temporal maximum to death. So, the penalty would be reclusion temporal maximum – reclusion perpetua – death. This penalty made up of three periods.