G.R. No. 173473

EN BANC

PEOPLE OF THE PHILIPPINES, G.R. No. 173473

Appellee,

Present:

Puno, C.J.,

Quisumbing,

Ynares-Santiago,

Carpio,

Austria-Martinez,

- versus - Corona,

Carpio Morales,

Azcuna,

Tinga,

Chico-Nazario,

Velasco, Jr.,

Nachura,

Reyes,

Leonardo-De Castro, and

Brion, JJ.

BETH TEMPORADA,

Appellant. Promulgated:

December 17, 2008

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

Before us for review is the February 24, 2006 Decision[1] of the Court of Appeals (CA), affirming with modification the May 14, 2004 Decision[2] of the Regional Trial Court (RTC) of Manila, Branch 33, convicting accused-appellant Beth Temporada of the crime of large scale illegal recruitment, or violation of Article 38 of the Labor Code, as amended, and five (5) counts of estafa under Article 315, par. (2)(a) of the Revised Penal Code (RPC).

The antecedents, as found by the appellate court, are as follows:

From September 2001 to January 2002, accused Rosemarie “Baby” Robles, Bernadette Miranda, Nenita Catacotan and Jojo Resco and appellant Beth Temporada, all employees of the Alternative Travel and Tours Corporation (ATTC), recruited and promised overseas employment, for a fee, to complainants Rogelio Legaspi, Jr. as technician in Singapore, and Soledad Atle, Luz Minkay, Evelyn Estacio and Dennis Dimaano as factory workers in Hongkong. The accused and appellant were then holding office at Dela Rosa Street, Makati City but eventually transferred business to Discovery Plaza, Ermita, Manila. After complainants had submitted all the requirements consisting of their respective application forms, passports, NBI clearances and medical certificates, the accused and appellant, on different dates, collected and received from them placement fees in various amounts, viz: a) from Rogelio Legaspi, Jr. – 57,600.00; b) from Dennis Dimaano – P66,520.00; c) from Evelyn Estacio – P88,520.00; d) from Soledad Atle – P69,520.00 and e) from Luz Minkay – P69,520.00. As none of them was able to leave nor recover the amounts they had paid, complainant lodged separate criminal complaints against accused and appellant before the City Prosecutor of Manila. On November 29, 2002, Assistant City Prosecutor Restituto Mangalindan, Jr. filed six (6) Informations against the accused and appellant, one for Illegal Recruitment in Large Scale under Article 38 (a) of the Labor Code as amended, and the rest for five (5) counts of estafa under Article 315 paragraph 2 (a) of the Revised Penal Code.

The Information for large scale illegal recruitment reads:

Criminal Case No. 02-208371:

“The undersigned accuses ROSEMARIE “BABY” ROBLES, BERNADETTE M. MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.

That in or about and during the period comprised between the months of September 2001 and January 2002, inclusive, in the City of Manila, Philippines, the said accused, representing themselves to have the power and capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully, unlawfully for a fee, recruit and promise employment to REGELIO A. LEGASPI, JR., DENNIS T. DIMAANO, EVELEYN V. ESTACIO, SOLEDAD B. ATTE and LUZ MINKAY without first having secured the required license from the Department of Labor and Employment as required by law, and charge or accept directly or indirectly from said complainant[s] the amount of PH57,600.00, PH66,520.00, PH88,520.00, PH69,520.00, PH69,520.00, respectively, as placement fees in consideration for their overseas employment, which amounts are in excess of or greater than that specified in the scheduled of allowable fees prescribed of the POEA and without reasons and without fault of the said complainants, failed to actually deploy them and failed to reimburse them the expenses they incurred in connection with the documentation and processing of their papers for purposes of their deployment.

Contrary to law.”

Except for the name of private complainant and the amount involved, the five (5) Informations for estafa contain substantially identical averments as follows:

Criminal Case No. 02-208372:

“The undersigned accuses ROSEMARIE “BABY” ROBLES, BERNADETTE M. MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.

That in or about and during the period comprised between November 23, 2001 and January 12, 2002, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud ROGELIO A. LEGASPI, JR., in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representations which they made to said ROGELIO A. LEGASPI, JR., prior to and even simultaneous with the commission of the fraud, to the effect that they have the power and capacity to recruit and employ ROGELIO A. LEGASPI, JR., as technician in Singapore and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, induced and succeeded in inducing said ROGELIO A. LEGASPI, JR., to give and deliver, as in fact he gave and delivered to said accused the amount of P57,600.00 on the strength of said manifestations and representations said accused well knowing that the same were false and fraudulent and were made solely for the purpose of obtaining, as in fact they did obtain the amount of P57,600.00, which amount, once in their possession, with intend to defraud, they willfully, unlawfully and feloniously misappropriated, misapplied and converted the same to their own personal use and benefit, to the damage and prejudice of said ROGELIO A. LEGASPI, JR. in the aforesaid amount of P57,000.00 Philippine Currency.

Contrary to law.”

The other four (4) Informations for estafa involve the following complainants and amounts:

1. DENNIS T. DIMAANO P66,520.00

2. EVELYN V. ESTACIO P88,520.00

3. SOLEDAD B. ATLE P69,520.00

4. LUZ T. MINKAY P69,520.00[3]

Only appellant was apprehended and brought to trial, the other accused remained at large. Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. After joint trial, on May 14, 2004, the RTC rendered judgment convicting appellant of all the charges:

WHEREFORE, the prosecution having established the GUILT of accused Beth Temporada BEYOND REASONABLE DOUBT, judgment is hereby rendered CONVICTING the said accused, as principal of the offenses charged and she is sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of Five Hundred Thousand Pesos (P500,000.00) for illegal recruitment; and the indeterminate penalty of four (4) years and two (2) months of prision correctional as minimum, to nine (9) years and one (1) day of prision mayor, as maximum for the estafa committed against complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of four (4) years and two (2) months of prision correctional as minimum to ten (10) years and one day of prision mayor as maximum each for the estafas committed against complainants, Dennis Dimaano, Soledad B. Atte and Luz T. Minkay; and the indeterminate penalty of four (4) years and two (2) months of prision correctional as minimum, to eleven (11) years and one (1) day of prision mayor as maximum for the estafa committed against Evelyn Estacio.

The accused is also ordered to pay jointly and severally the complainants actual damages as follows:

1. Rogelio A. Legaspi Jr. P57,600.00

2. Dennis T. Dimaano 66,520.00

3. Evelyn V. Estacio 88,520.00

4. Soledad B. Atte 66,520.00

5. Luz T. Minkay 69,520.00

SO ORDERED.[4]

In accordance with the Court’s ruling in People v. Mateo,[5] this case was referred to the CA for intermediate review. On February 24, 2006, the CA affirmed with modification the Decision of the RTC:

WHEREFORE, with MODIFICATION to the effect that in Criminal Cases Nos. 02-208373, 02-208375, & 02-208376, appellant is sentenced to suffer the indeterminate penalty of six (6) years of prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum; and in Criminal Case No. 02-208374, she is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum, to twelve (12) years and one (1) day of reclusion temporal minimum, as maximum, the appealed decision is AFFIRMED in all other respects.[6]

Before this Court, appellant ascribes the lone error that the trial court gravely erred in finding her guilty of illegal recruitment and five (5) counts of estafa despite the insufficiency of the evidence for the prosecution.

We affirm the Decision of the CA, except as to the indeterminate penalties imposed for the five (5) counts of estafa.

Article 13(b) of the Labor Code defines recruitment and placement thusly:

ART. 13. Definitions. – x x x

(b) “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.

To constitute illegal recruitment in large scale, three (3) elements must concur: (a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; (b) the offender undertakes any of the activities within the meaning of “recruitment and placement” under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the said Code (now Section 6 of R.A. No. 8042); and, (c) the offender committed the same against three (3) or more persons, individually or as a group.[7]

In the case at bar, the foregoing elements are present. Appellant, in conspiracy with her co-accused, misrepresented to have the power, influence, authority and business to obtain overseas employment upon payment of a placement fee which was duly collected from complainants Rogelio Legaspi, Dennis Dimaano, Evelyn Estacio, Soledad Atle and Luz Minkay. Further, the certification[8] issued by the Philippine Overseas Employment Administration (POEA) and the testimony of Ann Abastra Abas, a representative of said government agency, established that appellant and her co-accused did not possess any authority or license to recruit workers for overseas employment. And, since there were five (5) victims, the trial court correctly found appellant liable for illegal recruitment in large scale.

Appellant insists that she was merely an employee of ATTC and was just “echoing the requirement of her employer.” She further argues that the prosecution failed to prove that she was aware of the latter’s illegal activities and that she actively participated therein. In essence, she controverts the factual findings of the lower courts.

The contention is untenable.

An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment.[9] Appellant actively took part in the illegal recruitment of private complainants. Rogelio Legaspi testified that after introducing herself as the General Manager of ATTC, appellant persuaded him to apply as a technician in Singapore and assured him that there was a job market therefor. In addition to the placement fee of P35,000.00 which he paid to accused Bernadette Miranda, he also handed the amount of P10,000.00 to appellant who, in turn, issued him a receipt for the total amount of P45,000.00. Upon the other hand, Soledad Atle and Luz Minkay, who applied as factory workers in Hongkong through co-accused, Emily Salagonos, declared that it was appellant who briefed them on the requirements for the processing of their application, and assured them and Dennis Dimaano of immediate deployment for jobs abroad. For her part, Evelyn Estacio testified that aside from the placement fee of P40,000.00 that she paid to co-accused “Baby” Robles in connection with her purported overseas employment, she also gave appellant P10,000.00 for which she was issued a receipt for the amount of P5,000.00.

The totality of the evidence, thus, established that appellant acted as an indispensable participant and effective collaborator of her co-accused in the illegal recruitment of complainants. As aptly found by the CA:

Without doubt, all the acts of appellant, consisting of introducing herself to complainants as general manager of ATTC, interviewing and entertaining them, briefing them on the requirements for deployment and assuring them that they could leave immediately if they paid the required amounts, unerringly show unity of purpose with those of her co-accused in their scheme to defraud private complainants through false promises of jobs abroad. There being conspiracy, appellant shall be equally liable for the acts of her co-accused even if she herself did not personally reap the fruits of their execution. We quote with approval the trial court’s findings on the matter:

“xxx It is clear that said accused conspired with her co-accused Rosemarie “Baby” Robles, Bernadette M. Miranda, Nenita Catacotan, and Jojo Resco in convincing complainants xxx to apply for overseas jobs and giving complainants Soledad Atle, Luz Minkay and Dennis Dimaano guarantee that they would be hired as factory workers in Hongkong, complainant Rogelio Legaspi, as Technician in Singapore and Evelyn Estacio as quality controller in a factory in Hongkong, despite the fact that the accused was not licensed to do so.

It should be noted that all the accused were connected with the Alternative Travel and Tours Corporation (ATTC). Accused Beth Temporada introduced herself as ATTC’s General Manager. Saod accused was also the one who received the P10,000.00 given by complainant Rogelio Legaspi, Jr. and the P10,000.00 given by complainant Evelyn Estacio as payment for their visa and plane ticket, respectively.”[10]

Consequently, the defense of appellant that she was not aware of the illegal nature of the activities of her co-accused cannot be sustained. Besides, even assuming arguendo that appellant was indeed unaware of the illegal nature of said activities, the same is hardly a defense in the prosecution for illegal recruitment. Under The Migrant Workers and Overseas Filipinos Act of 1995, a special law, the crime of illegal recruitment in large scale is malum prohibitum and not malum in se.[11] Thus, the criminal intent of the accused is not necessary and the fact alone that the accused violated the law warrants her conviction.[12]

In the instant case, we find no reason to depart from the rule that findings of fact of the trial court on the credibility of witnesses and their testimonies are generally accorded great respect by an appellate court. The assessment of credibility of witnesses is a matter best left to the trial court because it is in the position to observe that elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying, which opportunity is denied to the appellate courts.[13] Further, there is no showing of any ill-motive on the part of the prosecution witnesses in testifying against appellant. Absent such improper motive, the presumption is that they were not so actuated and their testimony is entitled to full weight and credit.

Section 7(b) of R.A. No. 8042 prescribes the penalty of life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00 for the crime of illegal recruitment in large scale or by a syndicate. The trial court, therefore, properly meted the penalty of life imprisonment and a fine of P500,000.00 on the appellant.

Anent the conviction of appellant for five (5) counts of estafa, we, likewise, affirm the same. Well-settled is the rule that a person convicted for illegal recruitment under the Labor Code may, for the same acts, be separately convicted for estafa under Article 315, par. 2(a) of the RPC.[14] The elements of estafa are: (1) the accused defrauded another by abuse of confidence or by means of deceit; and (2) the offended party or a third party suffered damage or prejudice capable of pecuniary estimation.[15] The same evidence proving appellant’s criminal liability for illegal recruitment also established her liability for estafa. As previously discussed, appellant together with her co-accused defrauded complainants into believing that they had the authority and capability to send complainants for overseas employment. Because of these assurances, complainants parted with their hard-earned money in exchange for the promise of future work abroad. However, the promised overseas employment never materialized and neither were the complainants able to recover their money.

While we affirm the conviction for the five (5) counts of estafa, we find, however, that the CA erroneously computed the indeterminate penalties therefor. The CA deviated from the doctrine laid down in People v. Gabres;[16] hence its decision should be reversed with respect to the indeterminate penalties it imposed. The reversal of the appellate court’s Decision on this point does not, however, wholly reinstate the indeterminate penalties imposed by the trial court because the maximum terms, as determined by the latter, were erroneously computed and must necessarily be rectified.

The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC, when the amount defrauded exceeds P22,000.00, is prisión correccional maximum to prisión mayor minimum. The minimum term is taken from the penalty next lower or anywhere within prisión correccional minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 months). Consequently, the RTC correctly fixed the minimum term for the five estafa cases at 4 years and 2 months of prisión correccional since this is within the range of prisión correccional minimum and medium.

On the other hand, the maximum term is taken from the prescribed penalty of prisión correccional maximum to prisión mayor minimum in its maximum period, adding 1 year of imprisonment for every P10,000.00 in excess of P22,000.00, provided that the total penalty shall not exceed 20 years. However, the maximum period of the prescribed penalty of prisión correccional maximum to prisión mayor minimum is not prisión mayor minimum as apparently assumed by the RTC. To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor minimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 65[17] of the RPC. Following this procedure, the maximum period of prisión correccional maximum to prisión mayor minimum is from 6 years, 8 months and 21 days to 8 years.[18] The incremental penalty, when proper, shall thus be added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court.[19]

In computing the incremental penalty, the amount defrauded shall be subtracted by P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a year shall be discarded as was done starting with the case of People v. Pabalan[20] in consonance with the settled rule that penal laws shall be construed liberally in favor of the accused. The doctrine enunciated in People v. Benemerito[21] insofar as the fraction of a year was utilized in computing the total incremental penalty should, thus, be modified. In accordance with the above procedure, the maximum term of the indeterminate sentences imposed by the RTC should be as follows:

In Criminal Case No. 02-208372, where the amount defrauded was P57,600.00, the RTC sentenced the accused to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 9 years and 1 day of prisión mayor as maximum. Since the amount defrauded exceeds P22,000.00 by P35,600.00, 3 years shall be added to the maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can be validly imposed is 9 years, 8 months and 21 days of prisión mayor, and not 9 years and 1 day of prisión mayor.

In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where the amounts defrauded were P66,520.00, P69,520.00, and P69,520.00, respectively, the accused was sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 10 years and 1 day of prisión mayor as maximum for each of the aforesaid three estafa cases. Since the amounts defrauded exceed P22,000.00 by P44,520.00, P47,520.00, and P47,520.00, respectively, 4 years shall be added to the maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can be validly imposed is 10 years, 8 months and 21 days of prisión mayor, and not 10 years and 1 day of prisión mayor.

Finally, in Criminal Case No. 02-208374, where the amount defrauded was P88,520.00, the accused was sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 11 years and 1 day of prisión mayor as maximum. Since the amount defrauded exceeds P22,000.00 by P66,520.00, 6 years shall be added to the maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can be validly imposed is 12 years, 8 months and 21 days of reclusión temporal, and not 11 years and 1 day of prisión mayor.

Response to the dissent.

In the computation of the indeterminate sentence for estafa under Article 315, par. 2(a) of the Revised Penal Code (RPC), the Court has consistently followed the doctrine espoused in Pabalan and more fully explained in Gabres. The dissent argues that Gabres should be reexamined and abandoned.

We sustain Gabres.

The formula proposed in the Dissenting Opinion of Mr. Justice Ruben T. Reyes, i.e., the maximum term shall first be computed by applying the incremental penalty rule, and thereafter the minimum term shall be determined by descending one degree down the scale of penalties from the maximum term, is a novel but erroneous interpretation of the ISL in relation to Article 315, par. 2(a) of the RPC. Under this interpretation, it is not clear how the maximum and minimum terms shall be computed. Moreover, the legal justification therefor is not clear because the meaning of the terms “penalty,” “prescribed penalty,” “penalty actually imposed,” “minimum term,” “maximum term,” “penalty next lower in degree,” and “one degree down the scale of penalties” are not properly set out and are, at times, used interchangeably, loosely and erroneously.

For purposes of this discussion, it is necessary to first clarify the meaning of certain terms in the sense that they will be used from here on. Later, these terms shall be aligned to what the dissent appears to be proposing in order to clearly address the points raised by the dissent.

The RPC provides for an initial penalty as a general prescription for the felonies defined therein which consists of a range of period of time. This is what is referred to as the “prescribed penalty.” For instance, under Article 249[22] of the RPC, the prescribed penalty for homicide is reclusión temporal which ranges from 12 years and 1 day to 20 years of imprisonment. Further, the Code provides for attending or modifying circumstances which when present in the commission of a felony affects the computation of the penalty to be imposed on a convict. This penalty, as thus modified, is referred to as the “imposable penalty.” In the case of homicide which is committed with one ordinary aggravating circumstance and no mitigating circumstances, the imposable penalty under the RPC shall be the prescribed penalty in its maximum period. From this imposable penalty, the court chooses a single fixed penalty (also called a straight penalty) which is the “penalty actually imposed” on a convict, i.e., the prison term he has to serve.

Concretely, in U.S. v. Saadlucap,[23] a pre-ISL case, the accused was found guilty of homicide with a prescribed penalty of reclusión temporal. Since there was one ordinary aggravating circumstance and no mitigating circumstances in this case, the imposable penalty is reclusión temporal in its maximum period, i.e., from 17 years, 4 months and 1 day to 20 years. The court then had the discretion to impose any prison term provided it is within said period, so that the penalty actually imposed on the accused was set at 17 years, 4 months and 1 day of reclusión temporal,[24] which is a single fixed penalty, with no minimum or maximum term.

With the passage of the ISL, the law created a prison term which consists of a minimum and maximum term called the indeterminate sentence.[25] Section 1 of the ISL provides —

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; x x x.

Thus, the maximum term is that which, in view of the attending circumstances, could be properly imposed under the RPC. In other words, the penalty actually imposed under the pre-ISL regime became the maximum term under the ISL regime. Upon the other hand, the minimum term shall be within the range of the penalty next lower to the prescribed penalty. To illustrate, if the case of Saadlucap was decided under the ISL regime, then the maximum term would be 17 years, 4 months and 1 day of reclusión temporal and the minimum term could be anywhere within the range of prisión mayor (6 years and 1 day to 12 years) which is the penalty next lower to reclusión temporal. Consequently, an indeterminate sentence of 10 years of prisión mayor as minimum to 17 years, 4 months and 1 day of reclusión temporal as maximum could have possibly been imposed.

If we use the formula as proposed by the dissent, i.e., to compute the minimum term based on the maximum term after the attending or modifying circumstances are considered, the basis for computing the minimum term, under this interpretation, is the imposable penalty[26] as hereinabove defined. This interpretation is at odds with Section 1 of the ISL which clearly states that the minimum of the indeterminate sentence shall be “within the range of the penalty next lower to that prescribed by the Code for the offense.” Consequently, the basis for fixing the minimum term is the prescribed penalty,[27] and not the imposable penalty.

In People v. Gonzales,[28] the Court held that the minimum term must be based on the penalty prescribed by the Code for the offense “without regard to circumstances modifying criminal liability.”[29] The Gonzales’ ruling that the minimum term must be based on the prescribed penalty “without regard to circumstances modifying criminal liability” is only a restatement of Section 1 of the ISL that the minimum term shall be taken from within the range of the penalty next lower to the prescribed penalty (and from nowhere else).[30]

Further, the dissent proceeds from the erroneous premise that its so-called “regular formula” has generally been followed in applying the ISL. To reiterate, according to the dissent, the “regular formula” is accomplished by first determining the maximum term after considering all the attending circumstances; thereafter, the minimum term is arrived at by going one degree down the scale from the maximum term. As previously discussed, this essentially means, using the terms as earlier defined, that the minimum term shall be taken from the penalty next lower to the imposable penalty (and not the prescribed penalty.) In more concrete terms and using the previous example of homicide with one ordinary aggravating circumstance, this would mean that the minimum term for homicide will no longer be based on reclusión temporal (i.e., the prescribed penalty for homicide) but reclusión temporal in its maximum period (i.e., the imposable penalty for homicide with one ordinary aggravating circumstance) so much so that the minimum term shall be taken from reclusión temporal in its medium period (and no longer from prisión mayor) because this is the penalty next lower to reclusión temporal in its maximum period. The penalty from which the minimum term is taken is, thus, significantly increased. From this example, it is not difficult to discern why this interpretation radically departs from how the ISL has generally been applied by this Court. The dissent’s “regular formula” is, therefore, anything but regular.

In fine, the “regular formula” espoused by the dissent deviates from the ISL and established jurisprudence and is, thus, tantamount to judicial legislation.

II.

There is no absurdity or injustice in fixing or “stagnating” the minimum term within the range of prisión correccional minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 months). Preliminarily, it must be emphasized that the minimum term taken from the aforementioned range of penalty need not be the same for every case of estafa when the amount defrauded exceeds P12,000.00. In People v. Ducosin,[31] the Court provided some guidelines in imposing the minimum term from the range of the penalty next lower to the prescribed penalty:

We come now to determine the “minimum imprisonment period” referred to in Act No. 4103. Section 1 of said Act provides that this “minimum which shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for the offense.”[32] We are here upon new ground. It is in determining the “minimum” penalty that Act No. 4103 confers upon the courts in the fixing of penalties the widest discretion that the courts have ever had. The determination of the “minimum” penalty presents two aspects: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits.

x x x x

We come now to the second aspect of the determination of the minimum penalty, namely, the considerations which should guide the court in fixing the term or duration of the minimum period of imprisonment. Keeping in mind the basic purpose of the Indeterminate Sentence Law “to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness” (Message of the Governor-General, Official Gazette No. 92, vol. XXXI, August 3, 1933), it is necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order.

Considering the criminal as an individual, some of the factors that should be considered are: (1) His age, especially with reference to extreme youth or old age; (2) his general health and physical condition; (3) his mentality, heredity and personal habits; (4) his previous conduct, environment and mode of life (and criminal record if any); (5) his previous education, both intellectual and moral; (6) his proclivities and aptitudes for usefulness or injury to society; (7) his demeanor during trial and his attitude with regard to the crime committed; (8) the manner and circumstances in which the crime was committed; (9) the gravity of the offense (note that section 2 of Act No. 4103 excepts certain grave crimes — this should be kept in mind in assessing the minimum penalties for analogous crimes).

In considering the criminal as a member of society, his relationship, first, toward his dependents, family and associates and their relationship with him, and second, his relationship towards society at large and the State are important factors. The State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends. In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal law to a degree not heretofore known in these Islands. With the foregoing principles in mind as guides, the courts can give full effect to the beneficent intention of the Legislature.[33]

Admittedly, it is possible that the court, upon application of the guidelines in Ducosin, will impose the same minimum term to one who commits an estafa involving P13,000.00 and another involving P130 million. In fact, to a lesser degree, this is what happened in the instant case where the trial court sentenced the accused to the same minimum term of 4 years and 2 months of prisión correccional in Criminal Case Nos. 02-208372, 02-208373, 02-208375, 02-208376, and 02-208374 where the amounts defrauded were P57,600.00, P66,520.00, P69,520.00, P69,520.00 and P88,520.00, respectively. However, there is no absurdity and injustice for two reasons.

One, while it is possible that the minimum term imposed by a court would be the same, the maximum term would be greater for the convict who committed estafa involving P130 million (which would be 20 years of reclusion temporal) than the convict who swindled P13,000.00 (which could be anywhere from prisión correccional maximum to prisión mayor minimum or from 4 years, 2 months and 1 day to 8 years).[34] Assuming that both convicts qualify for parole after serving the same minimum term, the convict sentenced to a higher maximum term would carry a greater “burden” with respect to the length of parole surveillance which he may be placed under, and the prison term to be served in case he violates his parole as provided for in Sections 6[35] and 8[36] of the ISL. Under Section 6, the convict shall be placed under a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release and discharge by the Board of Pardon and Paroles. Further, the convict with the higher maximum term would have to serve a longer period upon his re-commitment in prison in case he violates his parole because he would have to serve the remaining portion of the maximum term, unless the Board of Pardon and Paroles shall, in its discretion, grant a new parole to the said convict as provided for in Section 8.

Although the differences in treatment are in the nature of potential liabilities, to this limited extent, the ISL still preserves the greater degree of punishment in the RPC for a convict who commits estafa involving a greater amount as compared to one who commits estafa involving a lesser amount. Whether these differences in treatment are sufficient in substance and gravity involves a question of wisdom and expediency of the ISL that this Court cannot delve into.

Two, the rule which provides that the minimum term is taken from the range of the penalty next lower to the prescribed penalty is, likewise, applicable to other offenses punishable under the RPC. For instance, the minimum term for an accused guilty of homicide with one generic mitigating circumstance vis-à-vis an accused guilty of homicide with three ordinary aggravating circumstances would both be taken from prisión mayor — the penalty next lower to eclusion temporal. Evidently, the convict guilty of homicide with three ordinary aggravating circumstances committed a more perverse form of the felony. Yet it is possible that the court, after applying the guidelines in Ducosin, will impose upon the latter the same minimum term as the accused guilty of homicide with one generic mitigating circumstance. This reasoning can be applied mutatis mutandis to most of the other offenses punishable under the RPC. Should we then conclude that the ISL creates absurd results for these offenses as well?

In fine, what is perceived as absurd and unjust is actually the intent of the legislature to be beneficial to the convict in order to “uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness.”[37] By the legislature’s deliberate design, the range of penalty from which the minimum term is taken remains fixed and only the range of penalty from which the maximum term is taken changes depending on the number and nature of the attending circumstances. Again, the reason why the legislature elected this mode of beneficence to a convict revolves on questions of wisdom and expediency which this Court has no power to review. The balancing of the State’s interests in deterrence and retributive justice vis-à-vis reformation and reintegration of convicts to society through penal laws belongs to the exclusive domain of the legislature.

III.

People v. Romero,[38] De Carlos v. Court of Appeals,[39] Salazar v. People,[40] People v. Dinglasan[41] and, by analogy, People v. Dela Cruz[42] do not support the formula being proposed by the dissent.

The instant case involves a violation of Article 315, par. 2(a) of the RPC.[43] The penalty for said violation is—

ARTICLE 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusión temporal, as the case may be. x x x

In contrast, Romero, De Carlos, and Salazar involved violations of Article 315 of the RPC as amended by Presidential Decree (P.D.) No. 1689[44] because: (1) the funds defrauded were contributed by stockholders or solicited by corporations/associations from the general public, (2) the amount defrauded was greater than P100,000.00, and (3) the estafa was not committed by a syndicate. Section 1 of P.D. No. 1689 provides—

Sec. 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Article 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by corporations/associations from the general public.

When not committed by a syndicate as above defined, the penalty imposable shall be reclusión temporal to reclusión perpetua if the amount of the fraud exceeds 100,000 pesos. (Emphasis supplied)

Since the prescribed penalty is reclusión temporal to reclusión perpetua, the minimum terms were taken from prisión mayor, which is the penalty next lower to the prescribed penalty.[45] As can be seen, these cases involved a different penalty structure that does not make use of the incremental penalty rule due to the amendatory law. Thus, the comparison of these cases with Gabres is improper.

Meanwhile, in Dinglasan, the felony committed was estafa through bouncing checks which is punishable under Article 315 par. 2(d) of the RPC as amended by Republic Act (RA) No. 4885[46]—

Sec. 1. Section Two, Paragraph (d), Article Three hundred fifteen of Act Numbered Thirty-eight hundred and fifteen is hereby amended to read as follows:

“Sec. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

“(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.”

and P.D. No. 818[47]—

Sec. 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by:

1st. The penalty of reclusión temporal if the amount of the fraud is over 12,000 pesos but not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusión perpetua; x x x (Emphasis supplied)

Here, the prescribed penalty of prisión correccional maximum to prisión mayor minimum was increased to reclusión temporal by the amendatory law. Consequently, the penalty next lower to reclusión temporal is prisión mayor from which the minimum term was taken. This is the reason for the higher minimum term in this case as compared to Gabres. In fact, Dinglasan is consistent with Gabres—

Since the face value of Check No. 029021, for which appellant is criminally liable for estafa, exceeds P22,000, the penalty abovecited must be “imposed in its maximum period, adding 1 year for each additional P10,000.” Pursuant to People vs. Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate sentence shall be imposed on the accused, computed favorably to him. In this case, the indeterminate sentence should be computed based on the maximum period of reclusión temporal as maximum, which is from 17 years, 4 months, and 1 day to 20 years. The minimum period of the sentence should be within the penalty next lower in degree as provided in the Revised Penal Code, i.e., prisión mayor, which is from 6 years and 1 day to 12 years imprisonment. Considering that the excess of the fraud committed, counting from the base of P22,000, is only P4,400, which is less than the P10,000 stated in P.D. 818, there is no need to add one year to the maximum penalty abovecited.[48] (Emphasis supplied)

As in Gabres, the penalty next lower (i.e., prisión mayor) was determined without considering in the meantime the effect of the amount defrauded in excess of P22,000.00 on the prescribed penalty (i.e., reclusión temporal).

Finally, Dela Cruz involved a case for qualified theft. The prescribed penalty for qualified theft is two degrees higher than simple theft. Incidentally, the penalty structure for simple theft[49] and estafa is similar in that both felonies (1) requires that the prescribed penalty be imposed in its maximum period when the value of the thing stolen or the amount defrauded, as the case may be, exceeds P22,000.00, and (2) provides for an incremental penalty of 1 year imprisonment for every P10,000.00 in excess of P22,000.00. It should be pointed out, however, that the prescribed penalty for simple theft is prisión mayor minimum and medium while in estafa it is lower at prisión correccional maximum to prisión mayor minimum.

Being two degrees higher, the prescribed penalty for qualified theft is, thus, reclusión temporal medium and maximum, while the minimum term is taken from the range of prisión mayor maximum to reclusión temporal minimum, which is the penalty next lower to reclusión temporal medium and maximum. The penalty next lower to the prescribed penalty is determined without first considering the amount stolen in excess of P22,000.00 consistent with Gabres. In fact, Dela Cruz expressly cites Gabres—

Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be anywhere within the range of the penalty next lower in degree to that prescribed for the offense, without first considering any modifying circumstance attendant to the commission of the crime. Since the penalty prescribed by law is reclusión temporal medium and maximum, the penalty next lower would be prisión mayor in its maximum period to reclusión temporal in its minimum period. Thus, the minimum of the indeterminate sentence shall be anywhere within ten (10) years and one (1) day to fourteen (14) years and eight (8) months.

The maximum of the indeterminate penalty is that which, taking into consideration the attending circumstances, could be properly imposed under the Revised Penal Code. Since the amount involved in the present case exceeds P22,000.00, this should be taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence, not in the initial determination of the indeterminate penalty. (citing Gabres) Thus, the maximum term of the indeterminate penalty in this case is the maximum period of reclusión temporal medium and maximum, which ranges from eighteen (18) years, two (2) months, and twenty one (21) days to twenty (20) years, as computed pursuant to Article 65, in relation to Article 64 of the Revised Penal Code.[50] (Emphasis supplied)

Clearly, none of these cases supports the Dissenting Opinion’s thesis that the minimum term should be computed based on the maximum term. Quite the contrary, Dinglasan and Dela Cruz are consistent with Gabres.

IV.

The argument that the incremental penalty rule should not be considered as analogous to a modifying circumstance stems from the erroneous interpretation that the “attending circumstances” mentioned in Section 1 of the ISL are limited to those modifying circumstances falling within the scope of Articles 13 and 14 of the RPC. Section 1 of the ISL is again quoted below —

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; x x x (Emphasis supplied)

The plain terms of the ISL show that the legislature did not intend to limit “attending circumstances” as referring to Articles 13 and 14 of the RPC. If the legislature intended that the “attending circumstances” under the ISL be limited to Articles 13 and 14, then it could have simply so stated. The wording of the law clearly permits other modifying circumstances outside of Articles 13 and 14 of the RPC to be treated as “attending circumstances” for purposes of the application of the ISL, such as quasi-recidivism under Article 160[51] of the RPC. Under this provision, “any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.” This circumstance has been interpreted by the Court as a special aggravating circumstance where the penalty actually imposed is taken from the prescribed penalty in its maximum period without regard to any generic mitigating circumstances.[52] Since quasi-recidivism is considered as merely a special aggravating circumstance, the penalty next lower in degree is computed based on the prescribed penalty without first considering said special aggravating circumstance as exemplified in People v. Manalo[53] and People v. Balictar.[54]

The question whether the incremental penalty rule is covered within the letter and spirit of “attending circumstances” under the ISL was answered in the affirmative by the Court in Gabres when it ruled therein that the incremental penalty rule is analogous to a modifying circumstance.

Article 315 of the RPC pertinently provides —

ARTICLE 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

Under Gabres, prisión correccional maximum to prisión mayor minimum is the prescribed penalty[55] for estafa when the amount defrauded exceeds P22,000.00. An amount defrauded in excess of P22,000.00 is effectively considered as a special aggravating circumstance in the sense that the penalty actually imposed shall be taken from the prescribed penalty in its maximum period without regard to any generic mitigating circumstances. Consequently, the penalty next lower in degree is still based on the prescribed penalty without in the meantime considering the effect of the amount defrauded in excess of P22,000.00.

What is unique, however, with the afore-quoted provision is that when the amount defrauded is P32,000.00 or more, the prescribed penalty is not only imposed in its maximum period but there is imposed an incremental penalty of 1 year imprisonment for every P10,000.00 in excess of P22,000.00, provided that the total penalty which may be imposed shall not exceed 20 years. This incremental penalty rule is a special rule applicable to estafa and theft. In the case of estafa, the incremental penalty is added to the maximum period of the prescribed penalty (or to anywhere from 6 years, 8 months and 21 days to 8 years) at the discretion of the court, in order to arrive at the penalty actually imposed (i.e., the maximum term, within the context of the ISL).

This unique characteristic of the incremental penalty rule does not pose any obstacle to interpreting it as analogous to a modifying circumstance, and, hence, falling within the letter and spirit of “attending circumstances” for purposes of the application of the ISL. Under the wording of the ISL, “attending circumstances” may be reasonably interpreted as referring to such circumstances that are applied in conjunction with certain rules in the Code in order to determine the penalty to be actually imposed based on the prescribed penalty of the Code for the offense. The incremental penalty rule substantially meets this standard. The circumstance is the amount defrauded in excess of P22,0000.00 and the incremental penalty rule is utilized to fix the penalty actually imposed. At its core, the incremental penalty rule is merely a mathematical formula for computing the penalty to be actually imposed using the prescribed penalty as starting point. Thus, it serves the same function of determining the penalty actually imposed as the modifying circumstances under Articles 13, 14, and 160 of the RPC, although the manner by which the former accomplishes this function differs with the latter. For this reason, the incremental penalty rule may be considered as merely analogous to modifying circumstances. Besides, in case of doubt as to whether the incremental penalty rule falls within the scope of “attending circumstances” under the ISL, the doubt should be resolved in favor of inclusion because this interpretation is more favorable to the accused following the time-honored principle that penal statutes are construed strictly against the State and liberally in favor of the accused.[56] Thus, even if the Dissenting Opinion’s interpretation is gratuitously conceded as plausible, as between Gabres and the dissent’s interpretation, Gabres should be sustained since it is the interpretation more favorable to the accused.

The claim that the maximum term should only be one degree away from the minimum term does not make sense within the meaning of “degrees” under the RPC because the minimum and maximum terms consist of single fixed penalties. At any rate, the point seems to be that the penalty from which the minimum term is taken should only be one degree away from the penalty from which the maximum term is taken.

As a general rule, the application of modifying circumstances, the majority being generic mitigating and ordinary aggravating circumstances, does not result to a maximum term fixed beyond the prescribed penalty. At most, the maximum term is taken from the prescribed penalty in its maximum period. Since the maximum term is taken from the prescribed penalty and the minimum term is taken from the next lower penalty, then, in this limited sense, the difference would naturally be only one degree. Concretely, in the case of homicide with one ordinary aggravating circumstance, the maximum term is taken from reclusión temporal in its maximum period which is within the prescribed penalty of reclusión temporal, while the minimum term is taken from prisión mayor which is the penalty next lower to reclusión temporal; hence, the one-degree difference observed by the dissent.

In comparison, under the incremental penalty rule, the maximum term can exceed the prescribed penalty. Indeed, at its extreme, the maximum term can be as high as 20 years of reclusión temporal while the prescribed penalty remains at prisión correccional maximum to prisión mayor minimum, hence, the penalty next lower to the prescribed penalty from which the minimum term is taken remains at anywhere within prisión correccional minimum and medium, or from 6 months and 1 day to 4 years and 2 months. In this sense, the incremental penalty rule deviates from the afore-stated general rule.[57]

However, it is one thing to say that, generally, the penalty from which the minimum term is taken is only one degree away from the penalty from which the maximum term is taken, and completely another thing to claim that the penalty from which the minimum term is taken should only be one degree away from the penalty from which the maximum term is taken.

The one-degree difference is merely the result of a general observation from the application of generic mitigating and ordinary aggravating circumstances in the RPC in relation to the ISL. Nowhere does the ISL refer to the one-degree difference as an essential requisite of an “attending circumstance.” If the application of the incremental penalty rule deviates from the one-degree difference, this only means that the law itself has provided for an exception thereto. Verily, the one-degree difference is a mere consequence of the generic mitigating and ordinary aggravating circumstances created by the legislature. The difficulty of the dissent with the deviation from its so-called one-degree difference rule seems to lie with the inability to view these “attending circumstances” as mere artifacts or creations of the legislature. It does not make sense to argue that the legislature cannot formulate “attending circumstances” that operate differently than these generic mitigating and ordinary aggravating circumstances, and that, expectedly, leads to a different result from the one-degree difference—for it would be to say that the creator can only create one specie of creatures. Further, it should be reasonably assumed that the legislature was aware of these special circumstances, like the incremental penalty rule or privileged mitigating circumstances, at the time it enacted the ISL as well as the consequent effects of such special circumstances on the application of said law. Thus, for as long as the incremental penalty rule is consistent with the letter and spirit of “attending circumstances” under the ISL, there is no obstacle to its treatment as such.

VI.

Much has been said about the leniency, absurdity and unjustness of the result under Gabres; the need to adjust the minimum term of the indeterminate penalty to make it commensurate to the gravity of the estafa committed; the deterrence effect of a stiffer imposition of penalties; and a host of other similar reasons to justify the reversal of Gabres. However, all these relate to policy considerations beyond the wording of the ISL in relation to the RPC; considerations that if given effect essentially seek to rewrite the law in order to conform to one notion (out of an infinite number of such notions) of wisdom and efficacy, and, ultimately, of justice and mercy.

This Court is not the proper forum for this sort of debate. The Constitution forbids it, and the principle of separation of powers abhors it. The Court applies the law as it finds it and not as how it thinks the law should be. Not too long ago in the case of People v. Veneracion,[58] this Court spoke about the dangers of allowing one’s personal beliefs to interfere with the duty to uphold the Rule of Law which, over a decade later, once again assumes much relevance in this case:

Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, the law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought “to protect and enforce it without fear or favor,” resist encroachments by governments, political parties, or even the interference of their own personal beliefs.[59]

VII.

Mr. Justice Adolfo S. Azcuna proposes an interpretation of the incremental penalty rule based on the phrases “shall be termed prisión mayor or reclusión temporal, as the case may be” and “for the purpose of the other provisions of this Code” found in the last sentence of said rule, viz:

ARTICLE 315. Swindling (Estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

While this interpretation is plausible, Gabres should still be sustained because in construing penal statutes, as between two reasonable[60] but contradictory constructions, the one more favorable to the accused should be upheld, which in this case is Gabres. The reason for this rule is elucidated in an eminent treatise on statutory construction in this wise:

It is an ancient rule of statutory construction that penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed. This simply means that words are given their ordinary meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to a criminal statute. This canon of interpretation has been accorded the status of a constitutional rule under principles of due process, not subject to abrogation by statute.

The rule that penal statutes should be strictly construed has several justifications based on a concern for the rights and freedoms of accused individuals. Strict construction can assure fairness when courts understand it to mean that penal statutes must give a clear and unequivocal warning, in language people generally understand, about actions that would result in liability and the nature of potential penalties. A number of courts have said:

… the rule that penal statutes are to be strictly construed … is a fundamental principle which in our judgment will never be altered. Why? Because the lawmaking body owes the duty to citizens and subjects of making unmistakably clear those acts for the commission of which the citizen may lose his life or liberty. Therefore, all the canons of interpretation which apply to civil statutes apply to criminal statutes, and in addition there exists the canon [of strict construction] …. The burden lies on the lawmakers, and inasmuch as it is within their power, it is their duty to relieve the situation of all doubts.

x x x x

Additionally, strict construction protects the individual against arbitrary discretion by officials and judges. As one judge noted: “the courts should be particularly careful that the bulwarks of liberty are not overthrown, in order to reach an offender who is, but perhaps ought not to be, sheltered behind them.”

But also, for a court to enforce a penalty where the legislature has not clearly and unequivocally prescribed it could result in judicial usurpation of the legislative function. One court has noted that the reason for the rule is “to guard against the creation, by judicial construction, of criminal offenses not within the contemplation of the legislature.” Thus the rule requires that before a person can be punished his case must be plainly and unmistakably within the statute sought to be applied. And, so, where a statute is open to more than one interpretation, it is strictly construed against the state. Courts further rationalize this application of the rule of strict construction on the ground that it was not the defendant in the criminal action who caused ambiguity in the statute. Along these same lines, courts also assert that since the state makes the laws, they should be most strongly construed against it.[61] (Emphasis supplied; citations omitted)

Thus, in one case, where the statute was ambiguous and permitted two reasonable interpretations, the construction which would impose a less severe penalty was adopted.[62]

WHEREFORE, the Decision of the Court of Appeals is MODIFIED with respect to the indeterminate penalties imposed on appellant for the five (5) counts of estafa, to wit:

(1) In Criminal Case No. 02-208372, the accused is sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 9 years, 8 months and 21 days of prisión mayor as maximum.

(2) In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, the accused is sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 10 years, 8 months and 21 days of prisión mayor as maximum for each of the aforesaid three estafa cases.

(3) In Criminal Case No. 02-208374, the accused is sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as minimum, to 12 years, 8 months and 21 days of reclusión temporal as maximum.

In all other respects, the Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

CONSUELO YNARES-SANTIAGO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING ANTONIO T. CARPIO