Petitioner Respondent: Carmelita Lucerio, People of The Philippines

FIRST DIVISION
[G.R. No. 207415. June 4, 2018.]
CARMELITA LUCERIO , petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution
dated June 4, 2018 which reads as follows:
"G.R. No. 207415 — Carmelita Lucerio, petitioner, v. People of
the Philippines, respondent.
On December 13, 2017, this Court rendered a Resolution 1 denying the
Petition for Review on Certiorari and accordingly affirming the August 29,
2012 Decision of the Court of Appeals in CA-G.R. CR No. 32131 finding
petitioner guilty of estafa with modification on the indeterminate penalty and
imposition of interest on the amount defrauded. The dispositive portion of
the December 13, 2017 Resolution reads:
ACCORDINGLY, the Court resolved to DENY the instant Petition
for Review on Certiorari and to AFFIRM the August 29, 2012 Decision
of the Court of Appeals in CA-G.R. CR No. 32131 with MODIFICATION
in that the indeterminate penalty of two (2) months and one (1) day
o f arresto mayor, as minimum, to one (1) year and one (1) day of
prision correccional, as maximum, is imposed. Interest at the rate of
6% per annum is likewise imposed from the date of finality of this
Resolution until full payment. HTcADC
SO ORDERED. 2
In her Motion for Reconsideration 3 petitioner prays for this Court: (1) to
further reduce the penalty (from two (2) months and one (1) day of arresto
mayor, as minimum, to one (1) year and one (1) day ofprision correccional,
as maximum) to bond to keep the peace or imprisonment of one (1) day to
thirty (30) days; and/or, (2) to declare that "she is entitled to probation as
long as she does not possess any ground for disqualification." 4 Petitioner
avers that she is entitled to a further reduction of penalty since she is
already 75 years of age. She also claims that she can be declared eligible for
probation in view of the pronouncement of this Court in Hernan v.
Sandiganbayan 5 that therein accused may apply for probation in the
absence of any ground for disqualification.
Petitioner's contentions fail to sway.
Under Article 13, paragraph 2 of the Revised Penal Code, criminal
liability is mitigated when the offender is over 70 years of age. 6 However,
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"the age of the offender which should be determined is his/[her] age at the
date of the commission of the crime and not that at the date of the trial." 7 In
this case, the petitioner's birth certificate and Senior Citizens Identification
Card show that she was born on October 27, 1942. Thus, petitioner was only
56 years of age during the commission of the crime on February 5, 1999.
Petitioner therefore cannot avail of and is not entitled to the mitigating
circumstance of seniority. As such, a further reduction of her penalty by
virtue of her being 75 years of age is uncalled for.
Petitioner's reliance on our ruling in Hernan v. Sandiganbayan 8 to
secure a declaration that "she is entitled to probation as long as she does
not possess any ground for disqualification" 9 is misplaced. In Hernan, the
decision convicting the offender had become final and executory, but by
virtue of the passage of Republic Act (R.A.) No. 10951, 10 the penalty
imposed therein had been reduced. Moreover, this Court declared therein
that "accused x x x may even apply for probation, as long as she does not
possess any ground for disqualification, in view of recent legislation on
probation, or R.A. No. 10707," 11 which amended the Probation Law of 1976
12 by allowing "an accused to apply for probation in the event that she is
sentenced to serve a maximum term of imprisonment of not more than six
years when a judgment of conviction imposing a non-probationable penalty
is appealed or reviewed, and such judgment is modified through the
imposition of a probationable penalty." 13 CAIHTE
The circumstances in Hernan, however, differ from this case. Unlike in

Hernan, the ruling against petitioner had not yet become final and
executory. This Court's December 13, 2017 Resolution, has yet to attain
finality as shown by the filing of the instant Motion for Reconsideration. More
importantly, there is yet no basis for this Court to issue a declaration that
petitioner "is entitled to probation as long as she does not possess any
ground for disqualification," 14 pending receipt of her application.
ACCORDINGLY, the Motion for Reconsideration is DENIED.
SO ORDERED. " J. De Castro designated as Acting Chairperson per
Special Order No. 2559 dated May 11, 2018; J. Velasco, Jr. and J.
Bersamin designated as additional members vice J. Jardeleza and J.
Tijam, per October 4, 2017 raffle; J. Gesmundo designated as Acting
Member per Special Order No. 2560 dated May 11, 2018.
Very truly yours,
(SGD.) LIBRADA C. BUENA

Acting Division Clerk of Court
Footnotes
1. Rollo , pp. 1067-1069.
2. Id. at 1069.
3. Id. at 1070-1080.
4. Id. at 1073.
5. G.R. No. 217874, December 5, 2017.
6. ART. 13. Mitigating circumstances. — The following are mitigating

circumstances:
xxx xxx xxx
2. That the offender is under eighteen years of age or over seventy years. x x
x.
7. Reyes, Luis B., "The Revised Penal Code, Criminal Law, Book One," 15th Revised
Ed., p. 257.
8. Supra note 5.
9. Id. at 1073.
10. An Act Adjusting the Amount or the Value of Property and Damages of which a
Penalty is Based, and the Fines Imposed under the Revised Penal Code,
amending for the Purpose Act No. 3815, otherwise known as "The Revised
Penal Code" as amended.
11. Hernan v. Sandiganbayan , supra note 5.
12. PRESIDENTIAL DECREE NO. 968.
13. Hernan v. Sandiganbayan , supra note 5.
14. Id. at 1073.

Petitioner Respondent: Carmelita Lucerio, People of The Philippines

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FIRST DIVISION

[G.R. No. 207415. June 4, 2018.]

CARMELITA LUCERIO , petitioner, vs. PEOPLE OF THE

The circumstances in Hernan, however, diﬀer from this case. Unlike in

Very truly yours,

(SGD.) LIBRADA C. BUENA

6. ART. 13. Mitigating circumstances. — The following are mitigating

xxx xxx xxx

11. Hernan v. Sandiganbayan , supra note 5.

12. PRESIDENTIAL DECREE NO. 968.

13. Hernan v. Sandiganbayan , supra note 5.

14. Id. at 1073.

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