Graduation of Death Penalty

MB CAMPANILLA·THURSDAY, FEBRUARY 16, 2017

There are two views on graduation of the penalty of death.

Under the first view, death shall be excluded from the scale of graduated
penalties under Article 71 of the Revised Penal Code pursuant to RA No. 9346
(People vs. Bon, G.R. No. 166401, 30 October 2006; People vs. Abellera, G.R. No.
166617, July 03, 2007; People vs. Brioso, G.R. No. 182517, March 13, 2009). For
example, the accused, a minor is convicted of qualified rape. The penalty for
qualified rape is death. However, RA No. 9346 has excluded death penalty from
the scale of graduated penalties in Article 71. Hence, reclusion perpetua, which is
now the highest penalty, shall be considered for purposes of graduation. Since the
privilege mitigating circumstance of minor is present, reclusion perpetua shall be
reduced to one degree lower, and that is reclusion temporal.

Under the second view, for purposes of graduating penalty, the penalty of death is
still the penalty to be reckoned with. In sum, death penalty is not excluded from
the scale of graduated penalties (People vs. Sarcia, G.R. No. 169641, September
10 2009; People vs. Arpon, G.R. No. 183563, December 14, 2011; People vs.
Gulpe, G.R. No. 126280, March 30, 2004; People vs. Quitorio, G.R. No. 116765,
January 28, 1998; People vs Madali, G.R. No. 67803-04, July 30, 1990). For
example, the accused, a minor, is convicted of qualified rape. The penalty for
qualified rape is death. RA No. 9346 has not excluded death penalty from the
scale of graduated penalties in Article 71. In sum, RA No. 9346 did not amend the
RPC, but it merely prohibits the imposition of penalty. Death penalty is still listed
as number one in the scale of graduated penalties. Hence, death shall be
considered for purposes of graduation. Since the privilege mitigating
circumstance of minor is present, death penalty shall be reduced to one degree
lower, and that is reclusion perpetua.
I submitted my manuscript entitled “the Revised Penal Code to 2007 Edition” to
Rex Publishing in 2006. In the said manuscript, I cited a 1990 case of Madali
(second view) in explaining how to graduate death penalty. A few months after I
submitted my manuscript, People vs. Bon (first view) abandoned Madali case.
After two years, Sarcia (second view) case abandoned the Bon rule. In People vs.
Jacinto, G.R. No. 182239, March 16, 2011, the Supreme Court expressly rejected
the application of the Bon principle, and reaffirmed the Sarcia case. However, in
People vs. Gambao, G.R. No. 172707, October 1, 2013, the Supreme Court, En
Banc, reverted back to the Bon doctrine. In my 2016 Criminal Law Reviewer, I
explained that the controlling rule is Bon case since it was reaffirmed by the
Supreme Court En Banc in Gambao case. However, in People vs. Deliola, G.R.
No. 200157, August 31, 2016, the Supreme Court, Third Division said that the
controlling jurisprudence is the Sarcia case.