(modified)

EN BANC

G.R No. 238798 - CICL XXX, 1 petitioner, versus PEOPLE OF THE

PHILIPPINES, respondent.

Promulgated:

March
x-------------------------------------------
DISSENTING OPINION

CAGUIOA, J.:

The ponencia denies the present Petition for Review on Certiorari, filed
by petitioner CICL XXX to assail the Decision of the Court of Appeals (CA),
which affirmed his conviction for the crime of Homicide.

In light ofCICL XXX's minority at the time of the commission of the

crime in 2003, the core question is whether he committed the crime of
Homicide with discernment. The ponencia lays down the guidelines to be
established by jurisprudence in determining the existence of discemment. 2
Following these guidelines, the ponencia holds that the prosecution was able
to discharge the burden of proving beyond reasonable doubt that CICL XXX
acted with discernment when he mauled the victim, AAA 3 , which eventually
resulted in the latter's death. 4 According to the ponencia, the facts and
circumstances of the case, particularly the gruesome nature of the attack, the
chosen time and place, and the attempt to silence the victim who previously
acted as a witness against him all indicate that CICL XXX acted with
discernment.

I disagree in part. Because CICL XXX was a 17-year-old at the time

of the commission of the crime in 2003, he should be acquitted since the
prosecution failed to establish, as a separate element of the offense, that he
acted with discernment.

Particularly, the law categorically states that "[a] child above fifteen
( 15) years but below eighteen ( 18) years of age shall likewise be exempt from
criminal liability xx x unless he/she has acted with discernment." 5 Thus, as a
rule, minors within this age range are presumed to have acted without
discernment in the absence of proof to the contrary. The burden of putting

Real identity oflhe Child in Conflict with the Law (ClCL) is withheld in accordance with Republic Act
No. 9344, or the Juvenile Justice and Welfare Act of 2006, as amended, and A.M. No. 02-1-18-SC or
the Revised Rule on Children in Conflict with the Law.
Ponencia, p. 23.
The name of the minor victim is withheld pursuant to Supreme Court Administrative Circular No. 83-
2015, re: PROTOCOLS AND PROCEDURES IN THE PROMULGATION, PUBLICATION, AND POSTING ON THE
WEBSITES OF DECISIONS, FINAL RESOLUTIONS. AND FINAL ORDERS USING FICTITIOUS
NAMES/PERSONAL CIRCUMSTANCES, dated September 5, 2017.
4
Ponencia, pp. 16-18.
Republic Act No. 9344, Sec. 6.
Dissenting Opinion 2 G.R. No. 238798

forth such proof, therefore, lies with the prosecution, in line with its duty in
criminal litigations to establish the guilt of the accused beyond reasonable
doubt.

Even as I agree with the ponencia's guidelines in determining the

presence of discernment, I write this Opinion because, in my view,
discernment as an element of the offense was not established in this case.

Prior to the enactment ofRepublic Act (R.A.) No. 9344, 6 or the Juvenile
Justice and Welfare Act of 2006, Article 12 of the Revised Penal Code (RPC)
already considered minority as an exemption from criminal liability. While
the minimum age of criminal responsibility at that time was nine years, those
above nine but below 15 years of age, who acted without discernment, were
likewise considered exempt. Article 12 of the RPC reads:

ARTICLE 12. Circumstances Which Exempt from Criminal

Liability. - The following are exempt from criminal liability:

I. An imbecile or an insane person, unless the latter has

acted during a lucid interval.

When the imbecile or an insane person has committed an

act which the law defines as a felony (delito), the court
shall order his [or her] confinement in one of the
hospitals or asylums established for persons thus
afflicted, which he [or she] shall not be permitted to
leave without first obtaining the permission of the same
court.

2. A person under nine vears of age.

3. A person over nine years of age and under fifteen,

unless he [or she) has acted with discernment, in
which case, such minor shall be proceeded against in
accordance with the provisions of article 80 of this
Code.

When such minor is adjudged to be criminally

irresponsible, the court, in conformity with the
provisions of this and the preceding paragraph, shall
commit him [or her] to the care and custody of his [or
her] family who shall be charged with his [or her]
surveillance and education; otherwise, he [or she] shall
be committed to the care of some institution or person
mentioned in said article 80.

4. Any person who, while performing a lawful act with due

care, causes an injury by mere accident without fault or
intention of causing it.

5. Any person who acts under the compulsion of an

irresistible force.

Dated April 28, 2006.

Dissenting Opinion 3 G.R. No. 238798

6. Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.

7. Any person who fails to perform an act required by law,

when prevented by some lawful or insuperable cause.
(Emphasis and underscoring supplied)

Discernibly, what R.A. No. 9344 did was only to adjust the minimum
age of criminal responsibility, in line with the international standards on
juvenile justice. 7 In this regard, the Court has well-settled principles in the
determination of whether a minor acted with discernment in the commission
of the crime, the foremost of which is that intent and discernment are distinct
concepts, and it may therefore not be argued that one is equivalent to the other.

To fully appreciate the distinction between these concepts, a reference

to the essential elements of a crime is necessary.

Intent, freedom of action, and intelligence are the essential elements of

a crime, especially when committed by dolo. The absence of any of these
elements constitutes any of the exempting circumstances as embodied in the
above-quoted Article 12 of the RPC. It is in this light that a minor offender
who acted without discernment is exempted from criminal liability - as the
element of intelligence and freedom of action are lacking, to wit:

Article 12, paragraph 3 of the Revised Penal Code provides that a

person over nine years of age and under fifteen is exempt from criminal
liability, unless he [or she] acted with discernment. The basic reason
behind the exempting circumstance is complete absence of intelligence,
freedom of action of the offender which is an essential element of a
felony eitlter by dolus or by culpa. Intelligence is the power necessary to
determine the morality of human acts to distinguish a licit from an illicit act.
On the other hand, discernment is the mental capacity to understand the
difference between right and wrong. The prosecution is burdened to prove
that the accused acted with discernment by evidence of physical appearance,
attitude or deportment not only before and during the commission of the act,
but also after and during the trial. The surrounding circumstances must
demonstrate that the minor knew what he [or she] was doing and that it was
wrong. Such circumstance includes the gruesome nature of the crime and
the minor's cunning and shrewdness. 8 (Emphasis, italics, and underscoring
supplied)

This is best shown by examples wherein the law conclusively presumes

that the offender acted without intelligence and freedom of action - cases
involving minors below 15 years old. A 12-year-old boy may thus
intentionally hurt his classmate using the scalpel in their school's laboratory,
but the law nevertheless conclusively presumes that he lacks the mental
faculties to have the mens rea required by law for the act to be punishable.
For another, a 10-year-old girl may thus intentionally seize the cellphone of
her seatmate - which, if committed by an adult already constitutes "taking"

7
Id. at Sec. 2( d).
Llave v. People, 522 Phil. 340, 366-367 (2006).
Dissenting Opinion 4 G.R. No. 238798

- but the law nonetheless conclusively presumes that she does not have the
guilty mind necessary to be charged with theft.

These examples are related, if not similar, to cases of insane persons.

Insane persons may have the intent to do certain acts, but the law exempts
them from criminal responsibility given a defect in the mens rea which would
have justified the criminal punishment.

Thus, while intent and discernment both refer to the mental state of the
accused, they are not the same and the presence of one certainly does not
necessarily connote the other. Thus, in the 2019 case of CICL XX¥ v. People
of the Philippines, 9 it was ruled that the lower courts erred in convicting the
child in conflict with the law when "they both equated 'intent to kill' -which
was admittedly established through the evidence presented by the prosecution
- with acting with discernment." 10

Intent, in particular, refers to "a determination to do a certain thing," 11

while discernment pertains to "the capacity to know what is wrong as
distinguished from what is right or to determine the morality of human acts;
wrong in the sense in which the term is used in moral wrong." 12 Verily, while
a minor offender may deliberately - or with intent - point and shoot a gun
at another person, which eventually results in the victim's death, it does not
necessarily follow that such minor offender possesses the discernment to fully
understand that killing the victim is morally wrong. 13

Following the foregoing discussions, the law thus creates a disputable

presumption in favor of those 15 years old to below 18 years, i.e., that they
did not act with a guilty mind. In other words, although their acts may satisfy
the actus reus component of felonies, the law assumes that the mens rea
component was not satisfied unless and until the prosecution is able to show
proof beyond reasonable doubt to overturn said presumption.

For the ponencia, this disputable presumption was overturned by: (1)
the gruesome nature of the act complained of, (2) the manner by which it was
executed, (3) the fact that the attack can be considered a form of retaliation
for the victim having testified against CICL XXX in a different case, (4) CICL
XXX's level of education, and (5) the fact that CICL XXX quit school when
the instant case was filed against him.

I disagree.

In particular, I disagree that the first two circumstances considered by

the ponencia are indicative of CICL XXX's discernment. These

9
859 Phil. 912 (2019).
10
Id. at 926.
" Guevarra v. Almodovar, 251 Phil. 427,432 (1989).
12
Jose v. People, 489 Phil. 106, 113 (2005).
13
See Dorado v. People, 796 Phil. 233 (2016).
Dissenting Opinion 5 G.R. No. 238798

circumstances demonstrate CICL XXX's intent- his "determination to do a

certain thing" 14 - but not that he knew the moral value of this acts. In other
words, CICL XXX may have purposely gone to AAA's house and waited for
him to arrive, but these only prove the intent of CICL XXX to carry out the
assault on AAA. CICL XXX may have inflicted severe injuries on the victim,
but this fact is merely tangentially relevant to the question of whether he knew
the act to be morally wrong.

To be sure, CICL XXX did not carry any weapon at the time of the
commission of the crime. There is no evidence, as well, as to how he struck
AAA, or if he was even aware that he had dealt a fatal blow. It may be self-
evident to adults, like the members of the Court, that what he did was wrong.
But these do not apply to children in conflict with the law whom the law
presumes to have acted without discernment.

Moreover, even if it were true that CICL XXX's attack on the victim
was done in retaliation, it does not necessarily mean that such shows
discernment. That the act was done in retaliation shows CICL XXX's reason
for doing the act, but it does not address the question of whether he fully
understood the moral value of his acts. The reason for the attack shows,
therefore, CICL XX:X's motive but not the presence of discernment.

I also take exception to the ponencia's ruling that CICL XX:X's act of
quitting school shows that he knew what he did was wrong. According to the
ponencia itself, CICL XXX dropped out of school because he was scared after
he received a warning that he should watch his back. 15 Despite this recognition
that CICL XXX quit because he feared for his own life, the ponencia still
makes the conclusion that "to suddenly quit school and flee to his home shows
that CICL XXX had full knowledge of the gravity and consequences of his
act."16

I would agree with the ponencia had CICL XXX stated that he ran away
because, for example, he knew that what he did something wrong, or that he
was afraid of the law, or of justice taking its course, or that he was bothered
by his conscience. Flight, in the context of these reasons, indeed evinces an
understanding of the moral consequences of his actions._ However, it was clear
from CICL XXX's testimony, as recognized by the ponencia, that the reason
for CICL XX:X's flight was fear of retaliation - a sense of danger - which
had nothing to do with his conscience or his ability to distinguish moral right
from wrong.

Therefore, while I agree with the ponencia to the extent that the
circumstances of a case could be used to determine discernment, I disagree
that the circumstances, as they are appreciable in the instant case, show
beyond reasonable doubt that indeed CICL XXX acted with discernment.

14
Id. at 252.
15
See ponencia, pp. 17-18.
16
Id. at 18.
Dissenting Opinion 6 G.R. No. 238798

At this juncture, it is well to recognize that at the time the felonious act
was committed in this case in 2003, the disputable presumption was granted
only by the RPC and the Child and Youth Welfare Code 17 (PD 603) to those
over nine years of age but below 15. In the middle of the trial, however, or in
2006, R.A. No. 9344 was enacted which merely adjusted the ages set by the
RPC and PD 603. The minimum age of criminal responsibility was raised
from nine to 15, while the age of minors who can incur criminal liability upon
a showing of discernment was adjusted from "9 to below 15" to "15 to below
18."

Stated simply, the requirement to prove discernment was already

present as provided by both the RPC and PD 603 even before R.A. No. 9344
was enacted. Again, all that R.A. No. 9344 did was to merely adjust its
application to children-in-conflict-with-the-law aged "15 to below I 8" which,
in turn, caused CICL XXX to be covered. Moreover, the trial of this case
lasted for years under the regime ofR.A. No. 9344 until Branch 9, Regional
Trial Court of La Trinidad, Benguet (RTC) rendered its Judgment in 2014.

It cannot be said, therefore, that the prosecution may be excused from

proving discen1ment, or that it was understandable for the RTC to not have
discussed its presence or absence, as adverted to by some of the members of
the Court during the deliberations of this case. To reiterate, R.A. No. 9344 (1)
did not introduce a novel concept - proving discernment as a separate fact
- to our criminal laws, and (2) had been in effect for a total of eight years
already prior to the promulgation of the RTC Judgment. The Court has thus
no valid reason to overlook either the prosecution or the RTC's shortcomings.

It is equally important to be clear that the issue here is not the

sufficiency of the Information filed against CICL XXX. It is true that when
the prosecution filed an amended Information in 2008 due to the victim's
death, that was an opportune time to also specifically allege that CICL XXX
acted with discernment as, by that time, it was already a separate element of
the offense given R.A. No. 9344's enactment in 2006. That said, it must
nevertheless be clarified that I am not for CICL XXX's acquittal because of
any insufficiency in the Information - as this is arguably waivable if not
timely assailed. Rather, CICL XXX's acquittal must be anchored on the
prosecution's failure to prove the presence of discernment. In other words,
CICL XXX should be acquitted not because of any defect in the Information,
but because of reasonable doubt following the prosecution's failure to prove
an element to establish his criminal liability.

17
ARTICLE 189. Youthful Offender. Defined.~ A youthful offender is one who is over nine years but
under twenty-one years of age at the time of the commission of the offense.
A child nine years of age or under at the time of the offense shall be exempt from criminal liability
and shall be committed to the care of his or her father or mother, or nearest relative or family friend in
the discretion of the court and subject to its supervision. The same shall be done for a child over nine
years and under fifteen years ofage at the time of the commission of the offense, unless he [or she] acted
with discernment, in which case he [or she] shall be proceeded against in accordance with Article 192.
Dissenting Opinion 7 G.R. No. 238798

In this connection, it must be emphasized that the minimum age of

criminal responsibility is imposed in order to protect the best interests of the
child. In affixing the age, Congress assessed the emotional, mental, and
intellectual maturity of minors, following the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice 18 (Beijing Rules).
And, while the statutory limits on the age of the offender dictate when an
accused is deemed absolutely exempt from criminal liability, and when the
courts should determine discernment, the age of the offender is not a
parameter for assessing his or her maturity . 19

In other words, the presumption that minor offenders do not have

discernment is borne out of the recognition that their faculties have not
developed enough to fathom the moral significance of committing a crime. 20
This is consistent with the current system of laws that does not even entrust
minors to have the discernment to vote or enter into a lifelong commitment
like marriage. Even contracts, when entered into by a minor, have a voidable
status. If the law does not expect maturity of minors in matters involving civil
and political matters, it is then understandable that it would similarly create a
presumption of lack of discernment for acts that may incarcerate them for the
rest of their lives. Despite this, the law still institutes a balancing act between
the interests of child offenders, on the one hand, and the interests of the State,
on the other, to punish errant behavior and keep society safe. Thus, to reiterate,
this presumption in favor of minors between 15 to below 18 is rebuttable and
may be overcome by proof beyond reasonable doubt of discernment. It is just
that such rebuttal was unsuccessful in this case.

In my view, without any further evidence from the prosecution, or even

probing questions concerning discernment directed at CICL XXX, the Court

18
See Sedfrey M. Candelaria, ACA Nimfa Cuesta-Vilches, and Rita Marie L. Mesina, The Juvenile Justice
and Welfare Act of 2006: Changing Patterns and Responses jor Juvenile Offending, ATENEO LAW
JOURNAL (Vol. 52) (2007). p. 293.
19 A/RES/40/33 (November 29 . 1985). In the article of Klarise Anne C. Estorninos, Batang Bata Ka Pa:
An Analysis of the Philippine Minimum Age of Criminal Responsibility in Light <~f International
Standards, ATENEO LAW JOURNAL (Vol. 62) (2017), p. 268, she observes that:
B. It should be based on the emotional, mental, and intellectual maturity of the child
The requirement that the [minimum age of criminal responsibility (MACR)] should
be based on the emotional, mental, and intellectual maturity was set by the Beijing Rules
even before the [Convention on the Rights of the Child] came to be. These criteria show
the importance of considering the psychological and socio-anthropological component of
the juvenile justice system aside from the legal component. Many studies have shown
that the part of the brain that is responsible for planning and impulse control, among
others, is not fully developed until one is in their 20s. Hence, there is a need for a more
lenient approach toward children who commit crimes.
The Philippine MACR was set at 15 because of certain studies. One study by the
Pamantasan ng Lungsod ng Maynila (which studied the age of discernment of Filipino
children in school) set the age at 15. Another study done by the Philippine Action for
Youth Offenders, which studied the age of Filipino children out of school (a common
status of youth in the Philippines), set the MACR at 18. As a compromise, Philippine
legislators settled for 15 after studying the ages that different countries set. (Emphasis
supplied)
20
N.B. The Supreme Court of the United States held in Roper v. Simmons, 543 U.S. 551 (2005) that minors
under 18 years of age and adults cannot be classified together for the following reasons: (I) "'lack of
maturity and an undeveloped sense of responsibility are found in youth more often than in adults" (p.
569); (2) "juveniles are more vulnerable or susceptible to negative influences and outside pressures,
including peer pressure" (p. 569); and (3) "the character of a juvenile is not a,; well formed as that of
adult. The personality traits of juveniles are more transitory, less fixed"' (p. 570).
Dissenting Opinion 8 G.R. No. 238798

cannot speculate as to his capacity to perceive that the consequences of his

actions are morally wrong. Again, it bears reiterating that the intelligence
ascribed to adults cannot fairly be applied to minors. While the immorality of
CICL XXX's acts may be self-evident from the point of view of adults, such
immorality cannot automatically be assumed to appear the same for the child-
in-conflict-with-the-law.

In this connection, it has been pointed out that while the prosecution
and the RTC did not ask probing questions to establish discernment, the CA
nevertheless determined in its Decision that CICL XXX acted with
discernment. In fact, the ponencia uses this determination by the CA to bridge
the gap in the evidence to convict CICL XXX.

I believe this to be egregious error.

First of all, it is worth reiterating that the burden to prove discernment

- much like all the elements of a crime alleged to have been committed -
lies with the prosecution, not the courts. As the impartial arbiters between the
State and the individual, between the interests of the People and the
presumption of innocence, the courts cannot, and should not, supply the gaps
in the prosecution's evidence to reach proof beyond reasonable doubt. Courts
are part of the third branch of the government, not its second prosecutorial
arm.

Second, I respectfully submit that the CA cannot determine the

presence of discernment when the prosecution did not ask probing questions
and the RTC did not even discuss the same. The CA merely relied on the
records of the case on appeal; it based its determinations on mere transcripts
of stenographic notes, on testimonies which were already devoid of non-
verbal cues. \Vhile intent may be deduced based on the records of case, I
cannot fathom how the presence of discernment can be determined in the
absence of: (1) the probing questions, as discussed, and (2) "evidence of
physical appearance, attitude or deportment not only before and during the
commission of the act, but also after and during the trial." 21

To reiterate, none of these were discussed by the RTC, and the CA was
also not in a position to personally determine the same as CICL XXX
never testified! in person before it. How could the CA, therefore, have
determined the presence of discernment?

To be sure, the burden of the prosecution to establish the presence of

discernment is a tall task, but one that is far from impossible, given the variety
of methods that it may resort to capture an immediate and accurate assessment
of whether the minor acted with discernment in the commission of the offense.
For one, the rules and procedures in place provide for the mandatory initial
assessment of a social worker with respect to discernment, which, in
accordance with R.A. No. 9344, as amended, and later fleshed out by the 2019

21
llave v. People, supra note 8, at 367.

J
Dissenting Opinion 9 G.R. No. 238798

Supreme Court Revised Rule on Children in Conflict with the Law, must be
undertaken immediately after apprehension, and must be contained in the
requisite case report. 22 This preliminary assessment enables the minor to be
evaluated by a trained social worker who, at the earliest opportunity following
the offense, may pointedly gauge and examine for either the presence or
absence of discernment, as the case may be.

Another layer to this assessment is the law enforcement's own

evaluation of the social worker's report, which is used to decide whether the
child should go through intervention, diversion, or preliminary investigation.
These clear requirements inform the prosecution with the circumstances
attending the offense which may be pertinent to the determination of
discernment. Thus, by the time the criminal case is initiated, the social worker
and law enforcement had already laid the groundwork for proving that the
child acted with discernment.

Despite this, the ponencia excuses both the prosecution and the RTC
for not availing itself of any of these methods on the reasoning that R.A. No.
9344 became effective three years after the Information in this case had been
filed. It is worth reiterating, however, that the prosecution and the RTC had
eight more years from the time of the law's effectivity until the promulgation
of the RTC's Judgment. The State had ample time to establish that CICL XXX
acted with discernment. It had more than ample time to establish an element
of his criminal liability, and to simply excuse the same would be to disregard
a clear substantive right of an accused.

It must be noted here that failure of the prosecution to prove the

presence of discernment cannot translate to the virtual impossibility of
discharging said burden. Not only does R.A. No. 9344, as amended, and its
related rules and regulations provide for the standards for determining
discernment, but jurisprudence is replete with cases on how courts should
ultimately arrive at this conclusion. Again, establishing discernment is not a
novel concept introduced by R.A. No. 9344 - there are decided cases already
regarding it under the regime of the RPC.

To end, I wish to be clear that I am for CICL XXX's acquittal not

because I have determined that he did not act with discernment. Such
detennination I need not do, as the law already presumes the same. The point
to emphasize is that the Court is not in the position to make such a finding,
as the prosecution and the RTC' s failures created a void in the evidence which
this Court cannot and must not fill. Verily, as the Court cannot say with
certainty that CICL XXX acted with discernment, there is thus reasonable
doubt as to his criminal liability, and his acquittal is in order.

22
See also DSWD Administrative Order No. 10, s. 2007 titled "GUIDELINES FOR SOCIAL WORKERS
IN THE HANDLING AND TREATMENT OF CHILDREN IN CONFLICT WITH THE LAW," which
enumerates the steps to be undertaken by a social worker immediately after being notified by !av/

eofo=me"' o<ili<0e,re~os;oa oc.GCL {~''."__''""-'--

Dissenting Opinion 10 G.R. No. 238798

In view of the foregoing, I vote to GRANT the Petition. The petitioner

CICL XXX should be ACQUITTED from th/harge of Homicide.

IN S. CAGUIOA
'.,t,;_ sociaW Justice