Habeas Corpus Nº 170.719/mg

Habeas corpus. Furto qualificado. Dosimetria. Pena-base. Fixação acima do mínimo legal. Culpabilidade. Elemento Integrante da própria estrutura do crime. Impossibilidade. Maus antecedentes e personalidade voltada para o crime. Inquéritos policiais e processos penais em andamento. Violação do princípio da presunção de não culpabilidade. Conduta social. Argumento inidôneo. Motivos do delito. Elementos inerentes ao próprio tipo penal violado. Circunstâncias e consequências do delito. Justificativa Concreta. Regime aberto e substituição da pena reclusiva Por restritiva de direitos. Impossibilidade. Circunstâncias Judiciais negativas. Constrangimento ilegal em parte Evidenciado. Sanção redimensionada. 1. Argumentos inerentes à culpabilidade em sentido estrito – elemento integrante da estrutura do crime, em sua concepção tripartida – não autorizam a exasperação da pena-base, a pretexto de culpabilidade desfavorável. 2. Consoante entendimento deste Superior Tribunal, inquéritos policiais e ações penais em andamento ou sem certificação do trânsito em julgado não podem ser utilizados como maus antecedentes, má conduta social ou personalidade desajustada para a elevação da pena-base, sob pena de violação do princípio da presunção de não culpabilidade (Súmula 444/STJ). 3. O fato de o paciente não ter comprovado o exercício de nenhuma atividade lícita ou de não frequentar escola, por si só, não se presta a demonstrar a negatividade da circunstância judicial da conduta social, visto que, diante da realidade social brasileira, é um infortúnio da maior parte da população, e não algo tencionado. 4. Os motivos do crime, quando inerentes ao próprio tipo penal violado, não autorizam a exasperação da reprimenda na primeira etapa da dosimetria, porquanto já considerados pelo legislador quando da fixação da pena abstratamente cominada ao delito. 5. Apontados elementos concretos que evidenciam a desfavorabilidade das circunstâncias e das consequências do delito, não há como reduzir a pena-base ao mínimo legalmente previsto, como pretendido. 6. Mostra-se devida a fixação do regime inicial semiaberto ao condenado à pena inferior a 4 anos de reclusão quando presentes circunstâncias judiciais desfavoráveis. Inteligência do art. 33, § 3º, do Código Penal. 7. Inviável proceder-se à substituição da pena privativa de liberdade por restritiva de direitos, porquanto, não obstante o paciente tenha sido definitivamente condenado à reprimenda inferior a 4 anos de reclusão, tem-se a desfavorabilidade de duas circunstâncias judiciais, elemento que evidencia que a substituição pretendida não se mostrará suficiente para a prevenção e repressão do delito perpetrado, a teor do disposto no art. 44, III, do Código Penal. 8. Ordem parcialmente concedida apenas para reduzir a pena-base imposta ao paciente, tornando sua reprimenda definitiva em 2 anos e 4 meses de reclusão.

Rel. Min. Sebastião Reis Júnior

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