SECOND DIVISION

[ G.R. No. 250578, September 07, 2020 ]

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

DECISION

PERLAS-BERNABE, J.:

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

The Facts

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

The RTC Ruling

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

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

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

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

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

The CA Ruling

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

Pascua moved for reconsideration31 but was denied in a Resolution32 dated November 21, 2019;
hence, this petition.

The Issue Before the Court

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

The Court's Ruling

The petition has partial merit.

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

Guided by the foregoing considerations and as will be explained hereunder, the Court finds that the
CA erred in finding no grave abuse of discretion on the part of the RTC in declaring Pascua ineligible
for probation after pleading guilty to the lesser offense of violation of Section 12, Article II of RA
9165.
To recall, plea bargaining in cases involving drugs cases was recently allowed through the Court's
promulgation of Estipona, Jr. v. Lobrigo,35 which declared the provision in RA 9165 expressly
disallowing plea bargaining in drugs cases, i.e., Section 23,36 Article II, unconstitutional for
contravening the rule-making authority of the Supreme Court. Following this pronouncement, the
Court issued A.M. No. 18-03-16-SC providing for a plea bargaining framework in drugs cases, which
was required to be adopted by all trial courts handling drugs cases.37

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

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

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

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

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

However, the CA is mistaken as the said remark should be simply regarded as a recognition and
reminder of the general rule provided in Section 24 that "[a]ny person convicted for drug trafficking or
pushing under this Act"41 shall be ineligible for probation. Moreover, the CA's view is not supported
neither by the very wording of Section 24, Article II of RA 9165 nor the provisions of the Probation
Law. It likewise disregards the legal consequences of plea bargaining.
It bears stressing that it is only after the trial court arrives at a judgment of conviction can the
provisions of the Probation Law apply.  "Probation" is defined under Section 3 (a) thereof as "a
Ꮮαwρhi ৷

disposition under which a defendant, after conviction and sentence, is released subject to conditions
imposed by the court and to the supervision of a probation officer."42 Section 9 thereof, which lists
the disqualified offenders, also highlights that the disqualifications pertain to the nature of the
convictions meted out to the prospective applicant:

Section 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

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

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

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

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

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

It is clear from both Section 24, Article II of RA 9165 and the provisions of the Probation Law that in
applying for probation, what is essential is not the offense charged but the offense to which the
accused is ultimately found guilty of.

In this regard, it is worth emphasizing that upon acceptance of a plea bargain, the accused is
actually found guilty of the lesser offense subject of the plea. According to jurisprudence, "[p]lea
bargaining in criminal cases is a process whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval. It usually involves the
defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for the graver charge."43

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

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

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

SO ORDERED.

Hernando, and Delos Santos, JJ., concur.

Inting, J., on official leave.