G.R. No. 193666, February 19, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARLON CASTILLO Y VALENCIA, Accused-Appellant.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
A. Criminal Case No. Q-03-119452The accused-appellant pleaded not guilty to the charge when arraigned.6 Pre-trial was conducted and, thereafter, trial ensued.
That sometime during the period comprised between August 27, 1996 up to August 27, 1997, inclusive, in Quezon City, Philippines, the said accused, with grave abuse of authority, did then and there willfully, unlawfully and feloniously commit sexual assault upon his daughter Nene3, a minor, then only six (6) years of age, by rubbing his penis on the labia of the vagina of said complainant, licking her vagina and breast and inserting his finger inside her vagina, against her will and without her consent, which act further debase[d], degrade[d] or demean[ed] the intrinsic worth and human dignity of said offended party as a human being, to the damage and prejudice of the said Nene.4crallawlibrary
B. Criminal Case No. Q-03-119453
That on or about the month of November 2000, in Quezon City, Philippines, the said accused, with force, threat or intimidation and grave abuse of authority, did then and there willfully, unlawfully and feloniously commit sexual assault upon his daughter Nene, a minor, 12 years of age, by then and there mashing her breast, licking her vagina and breast and by vigorously rubbing his penis on the labia of her vagina, against her will and without her consent, which act further debase [d], degrade [d] or demean[ed] the intrinsic worth and human dignity of said offended party as a human being, to the damage and prejudice of the said Nene.5crallawlibrary
GENERAL PHYSICAL EXAMINATIONIn his defense, the accused-appellant denied the charges against him. He believes that Nene and her mother, ’Nena,’ accused him of raping Nene because they believed him to be a cruel husband and father. He admitted being harsh to his wife and children, attributing it to the stress of being the family’s sole breadwinner. ’Rosing,’ his sister-in-law, witnessed his cruelty to his children and encouraged his daughter and wife to file the cases against him.15crallawlibrary
Height: 139.0 cm. Weight: 32.0 kg.
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developing. Areolae, brown, measures 1.8 cm. in diameter. Nipples, brown, protruding, measures 0.4 cm. in diameter. No sign of extragenital physical injury was noted.
Pubic hair, no growth. Labia majora, and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, crescentric, short, thin, intact. Hymenal orifice, measures 1.0 cm. in diameter. Vaginal walls and rugosities, cannot be reached by the examining finger.
1. No evident sign of extragenital physical injury was noted on the body of the subject at the time of examination.
2. Hymen, intact and its orifice small (1.0 cm. in diameter) as to preclude complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.14crallawlibrary
The rape consisted of rubbing the penis of the accused to the labia of the vagina of the private complainant. Prevailing jurisprudence is to the effect that ’the slightest introduction of the male organ into the labia of the victim already constitutes rape[’] x x x.16 (Citations omitted.)Thus, in a Decision dated April 11, 2007, the trial court found the accused-appellant guilty beyond reasonable doubt of two counts of qualified rape by sexual intercourse under Article 266-A(l) in relation to the first qualifying circumstance mentioned in Article 266-B of the Revised Penal Code, as amended. The dispositive portion of the decision reads:chanRoblesVirtualawlibrary
WHEREFORE, premises considered, judgment is hereby rendered as follows:chanRoblesVirtualawlibraryThe accused-appellant appealed his case to the Court of Appeals. For him, the RTC erred in giving undue credence to the testimonies of the prosecution witnesses, particularly Nene. He claimed that Nene’s testimony contained many inconsistencies, improbabilities, ambiguities, and contradictions. She testified that she was six years old the first time the accused-appellant raped her while her mother was outside the house and at work, but stated in her Sinumpaang Salaysay dated November 23, 2000 that she was only four years old when the accused-appellant started sexually molesting her while her mother was inside the house sleeping. She also testified that the accused-appellant raped her by mashing her breast and trying to insert his sex organ into hers or rubbing his penis against her vagina, but she stated in her Sinumpaang Salaysay that he licked her breast and vagina, and inserted his penis and finger in her vagina.18crallawlibrary1) In Criminal Case No. Q-03-119452, finding the accused Marlon Castillo y Valencia, guilty beyond reasonable doubt of the crime of rape defined and penalized under Article[s] 266-A and 266-B of the Revised Penal Code, as amended, in relation to RA 7610 and hereby sentences said accused to suffer the penalty of reclusion perpetua.
2) In Criminal Case No. Q-03-119453, finding the accused Marlon Castillo y Valencia, guilty beyond reasonable doubt of the crime of rape defined and penalized under Articlefs] 266-A and 266-B of the Revised Penal Code, as amended, in relation to RA 7610 and hereby sentences him to suffer the penalty of reclusion perpetua.
In addition to the above penalties, the accused is hereby ordered to indemnify the private complainant the amount of P75,000.00 as moral damages.17crallawlibrary
[Nene’s] testimony and Sinumpaang Salaysay agreed on the following matters: a) appellant licked her vagina; and b) appellant inserted his penis and finger into her vagina. As stated, she experienced all these lurid acts from her own father. Appellant cannot negate his liability by breaking down these acts and treating them separately. In any event, whether he penetrated his daughter with his penis or his finger does not affect his criminal liability for rape. Under Article 266-A of the Revised Penal Code, rape is committed by one who under any of the circumstances mentioned in paragraph 1, shall commit an act of sexual assault by inserting his penis into another’s mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person.21crallawlibraryThus, the Court of Appeals denied the accused-appellant’s appeal and affirmed the decision of the trial court, with modification as to the award of damages:chanRoblesVirtualawlibrary
ACCORDINGLY, We AFFIRM the appealed Decision with MODIFICATION granting P75,000 as civil indemnity and P25,000 as exemplary damages in addition to the trial court’s award of P75,000 as moral damages.22crallawlibraryThe accused-appellant brings this appeal based on the very same grounds of his appeal in the Court of Appeals.23 Like the Court of Appeals, however, we deny the accused-appellant’s appeal.
ACP Taylor: Now, in Par. 10 of your complaint affida.vit[/Sinumpaang Salaysay], it did not state [how] the incident transpired and where. Please tell me clearly, in connection with Par. 10 of your complaint affidavit[/Sinumpaang Salaysay] dated 23 Nov. 2000, when did this incident transpire?The alleged contradiction about the whereabouts of Nene’s mother at the time of the first incident of rape is inconsequential to the fact that the accused-appellant raped Nene at that time. Whether her mother, who is the accused-appellant’s wife, was outside the house or sleeping inside the house at that time would not disprove the accused-appellant’s rape of Nene. Case law proves that circumstances of time, place, and even the presence of other persons are not considerations in the commission of rape. Thus, we have held in People v. Mendoza27:chanRoblesVirtualawlibrary
[Nene]: Hindi ko na po maalaala pero ang sigurado po ako ay ako ay six years old po lamang ako noon.26 (Emphasis supplied.)
[R]ape is no respecter of time and place. It can be committed even in places where people congregate, in parks, along the roadside, within school premises, inside a house or where there are other occupants, and even in the same room where there are other members of the family who are sleeping. (Citations omitted.)The alleged variance in the narration in Nene’s Sinumpaang Salaysay and during her testimony of the specific acts of the accused-appellant which constituted the rape is more apparent than real. During trial, Nene affirmed and confirmed the truthfulness of the statements contained in her Sinumpaang Salaysay.28 The Sinumpaang Salaysay was formally offered as evidence for the prosecution.29 When a sworn statement has been formally offered as evidence, it forms an integral part of the prosecution evidence which complements and completes the testimony on the witness stand.30 Indeed, Nene’s Sinumpaang Salaysay and testimony during trial complement, rather than contradict, each other. Thus, taken together, they give a more complete account of the dastardly acts done by the accused-appellant against his own daughter.
As the felony is defined under Article 266-A, rape may be committed either by sexual intercourse under paragraph 1 or by sexual assault under paragraph 2.Moreover, under Article 266-B of the Revised Penal Code, as amended, qualified rape by sexual intercourse and qualified rape by sexual assault are punished differently. In particular, qualified rape by sexual intercourse is punishable by death. In view of Republic Act No. 934638 which prohibited the imposition of the death penalty, however, qualified rape is punishable by reclusion perpetua39 On the other hand, qualified sexual assault is punishable by reclusion temporal.
Rape by sexual intercourse is a crime committed by a man against a woman. The central element is carnal knowledge and it is perpetrated under any of the circumstances enumerated in subparagraphs (a) to (d) of paragraph 1.
On the other hand, rape by sexual assault contemplates two situations. First, it may be committed by a man who inserts his penis into the mouth or anal orifice of another person, whether a man or a woman, under any of the attendant circumstances mentioned in paragraph 1. Second, it may be committed by a person, whether a man or a woman, who inserts any instrument or object into the genital or anal orifice of another person, whether a man or a woman, under any of the four circumstances stated in paragraph 1. (Citations omitted.)
She explained this further on clarificatory questioning:
10. T: Papaano ka nire-rape ng Papa mo? S: Iyung ari niya inilalagay sa pekpek ko. Dinidilaan niya ang dede ko pati ang pekpek ko. Iyung daliri niya ipinapasok sa butas ng pekpek ko.40crallawlibrary
At the witness stand, Nene testified as follows during direct-examination:chanRoblesVirtualawlibrary
ACP Taylor: [O]key[,] to be more clear (sic), please tell me basically, what exactly did your father do to you when you were six years old and when you were residing in QC? [Nene]: Yung nga po yung ari niya idinidikit sa ari ko at kinukuskus nya yung ari niya sa ari ko tapos dinidilaan niya yung ari ko pati susu ko at pinapasok pa niya yung finger niya sa ari ko[.] ACP Taylor: You said and I quote, ’kinukuskus niya yung ari niya sa ari [k]o’. Now[,] may penetration ba, ipinap[a]sok ba niya sa ari mo yung ari niya? [Nene]: Hindi naman po pero kinukuskos nya po[.]41 (Emphases supplied.)
On cross-examination, Nene testified:chanRoblesVirtualawlibrary
Q: Will you please tell us how the accused raped you? A: He was mashing my breast and he was trying to insert his penis to my vagina. x x x x Q: So when the accused raped you for the first time, what did you feel? A: I don't know, Sir. Q: Did you not feel pain at that time? A: No, Sir. Q: Was there any blood on your vital part when he raped you? A: None, Sir.42 (Emphasis supplied.)
Thus, Nene’s statements in her Sinumpaang Salaysay and testimony at the witness stand established that her father mashed her breast, kissed and licked her vagina, inserted his finger in her sex organ, and rubbed his sex organ against hers but he did not penetrate her vagina.
Q: You also testified that you did not feel pain when the accused allegedly raped you, is that correct? A: Yes, Sir. Q: And also there was no blood coming from the vagina? A: Yes, Sir. Q: And it was only because the accused rubbed his penis to your vagina, is that correct? A: Yes, Sir.43
[A] grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e, touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted, if not acts of lasciviousness.This Court is aware of cases where the conviction of the accused for consummated rape has been upheld even if the victim testified that there was no penetration and the accused simply rubbed his penis in the victim’s vagina.46 However, in those cases, there were pieces of evidence such as the pain felt by the victim, injury to the sex organ of the victim (e.g., hymenal laceration), and bleeding of the victim’s genitalia. Here, the victim not only categorically stated that there was no penetration, she also stated that she felt no pain and her vagina did not bleed. Thus, the appellant cannot be convicted for qualified rape by sexual intercourse.
Her testimony at the witness stand is as follows:
17. T: Kailan nangyari iyung hilling paggalaw sa iyo ng Papa mo? S: Noong lingo. 18. T: Ito bang nakaraang Linggo lang? S: Opo.47
Thus, Nene’s statements in her Sinumpaang Salaysay and testimony at the witness stand established that, in November 2000, her father rubbed his sex organ against hers. This cannot be qualified rape by sexual assault. As the fact of penetration was not clearly established, this is only attempted qualified rape by sexual intercourse.
Q: In the information, you mentioned that you were again sexually abused by your father when you were already 12 years old? A: Yes, Sir. Q: And this was the last time your father raped you? A: Yes, Sir. Q: Do you recall the month? A: November 2000. Q: So in November of 2000 you were raped again by your father? A: Yes, Sir, the last time. Q: While rubbing his penis, did he not insert it to your vagina? A: Yes, Sir. Q: So he was just rubbing his penis to your vagina? A: Yes, Sir.48
[U]nder Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed.51 (Emphasis supplied.)In this case, the accused-appellant commenced the act of having sexual intercourse with Nene but failed to make a penetration into her sexual organ not because of his spontaneous desistance but because of the relatively small size of her orifice as indicated in the medical findings conducted upon Nene after the November 2000 incident.
1Rollo, pp. 2-18; penned by Associate Justice Amy C. Lazaro-Javier with Associate Justices Rebecca De Guia-Salvador and Sesinando E. Villon, concurring.
2 CA rollo, pp. 17-25.
3 The real names of the victim and the members of her immediate family have been withheld and fictitious names have been used instead to protect the victim’s privacy pursuant to Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004), its implementing rules and relevant jurisprudence beginning with People v. Cabalquinto (533 Phil. 703 ).
4 Records, p. 2.
5 Id. at 4.
6 Id. at 56; Certificate of Arraignment.
7 Id. at 25; Birth Certificate of Nene, Exhibit ’B.’
9 Records, p. 22; Sinumpaang Salaysay of Nene, Exhibit ’A.’
10 TSN, December 14, 2004, pp. 4-8.
11 Id, at 9-10.
12 Records, pp. 22-23; see also testimony of the accused-appellant, TSN, January 15. 2007, pp. 5-6.
13Rollo, p. 5; TSN, December 14, 2004, pp. 15-16.
14 Records, p. 115; Medico-Legal Findings, Exhibit ’F.’
15 Id. at 7-8.
16 CA rollo, p. 22.
17 Id. at 24-25.
18 Id. at 40-45.
20Rollo, pp. 11-14.
21 Id. at 17.
22 Id. at 18.
23 Id. at 26-29. See Manifestation (In Lieu of Supplemental Brief) of the accused-appellant where he manifests that he has exhaustively discussed the assigned errors in the appellant’s brief that he filed in the Court of Appeals and that he is adopting the same as his supplemental brief.
24People v. Osing, 402 Phil. 343, 350 (2001).
25 Records, p. 25; Birth Certificate of Nene, Exhibit ’B.’cralawred
26 Id. at 46.
27 440 Phil. 755,772 (2002).
28 TSN, December 14, 2004, p. 12.
29 Records, p. 160; see Order dated September 26, 2006.
30People v. Servano, 454 Phil. 256, 277 (2003).
31People v. Pangilinan, G.R. No. 183090, November 14, 201 1, 660 SCRA 16,31.
32People v. Dominguez, Jr., G.R. No. 180914, November 24, 2010, 636 SCRA 134, 159.
33 TSN, January 15, 2007, pp. 3-6.
34 TSN, December, 14, 2004.
35 CA rollo, pp. 23-24.
37 G.R. No. 202868, October 2, 2013.
38 An Act Prohibiting the Imposition of Death Penalty in the Philippines.
39 Id., Section 2(a).
40 Records, p. 22; Sinumpaang Salaysay of Nene, Exhibit ’A.’
41 Id. at 46.
42 TSN, December 14, 2004, pp. 4 and 8.
43 Id. at 14-15.
44People v. Asuncion, 417 Phil. 190, 197 (2001). 385 Phil. 912, 922 (2000).
46 These cases include People v. Alviz, G.R. Nos. 144551-55, June 29, 2004, 433 SCRA 164; People v. Asuncion, supra note 44; People v. Castillo, 274 Phil 940 (1991); and, People v. Alimon, 327 Phil. 447(1996).
47 Records, p. 22; Sinumpaang Salaysay of Nene, Exhibit ’A.’
48 TSN, December 14, 2004, pp. 15-16.
49People v. Bon, 536 Phil. 897, 916 (2006).
51 Id. at 918.
52Peoplev. Brioso, G.R. No. 182517, March 13, 2009, 581 SCRA 485,500.
53Flordeliz v. People, G.R. No. 186441, March 3, 2010, 614 SCRA 225, 237-238.
54People v. Brioso, supra note 52.
55Sison v. People, G.R. No. 187229, February 22, 2012, 666 SCRA 645, 667.