SECOND DIVISION
G.R. No. 224584, September 04, 2019
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. ZZZ, ACCUSED-APPELLANT.
D E C I S I O N
LAZARO-JAVIER, J.:
Information2 dated December 17, 2007 in Criminal Case No. 2999:
That on or about 1:00 o'clock in the early morning of October 26, 2007 at xxxxxxxxxxx, xxxxxxxxxxx Province of Sultan Kudarat Philippines and within the jurisdiction of this Honorable Court, the said accused, with lewd and unchaste designs and through force and intimidation did then and there, willfully, unlawfully and feloniously succeed in having carnal knowledge of one AAA, his thirteen (13) years old daughter against her will and consent.
CONTRARY TO LAW, particularly Article 266-A, paragraph l(a) of the Revised Penal Code, in relation to Republic Act 7610.xxx
Information3dated December 17, 2007 in Criminal Case No. 3000:
That on or about 10:00 o'clock in the evening of November 3, 2007 at xxxxxxxxxxx Province of Sultan Kudarat, Philippines and within the jurisdiction of this Honorable Court, the said accused, with lewd and unchaste designs and through force and intimidation, did then and there, willfully, unlawfully and feloniously succeed in having carnal knowledge of one AAA, his thirteen (13) years old daughter, against her will and consent.
CONTRARY TO LAW, particularly Article 266-A, paragraph 2 of the Revised Penal Code, in relation to Republic Act 7610.xxx
WHEREFORE, upon all the foregoing considerations, the court finds the guilt of ZZZ to the crimes of rape by sexual intercourse qualified by the minority of the victim and her relationship with the perpetrator thereof and rape by sexual assault qualified by the just cited circumstances beyond reasonable doubt and hereby sentences him as follows:In Criminal Case No. 2999
To suffer the penalty of reclusion perpetua and to pay AAA the following:
- The amount of P75,000.00 as Civil Indemnity;
- The amount of P75,000.00 as Moral Damages; and
- The amount of P25,000.00 as Exemplary Damages.
To pay the costs.
For being a detention prisoner, his preventive imprisonment shall be credited in the service of sentence imposed upon him provided that he will abide in writing with the same disciplinary rules imposed upon convicted prisoners, otherwise, with only four-fifths (4/5) thereof.
Pursuant to applicable circulars of the Supreme Court, the accused shall immediately be transferred to the National Bilibid Prisons in Muntinlupa City.
Given in open court this 14th day of January 2009, at Tacurong City, Sultan Kudarat, Philippines.In Criminal Case No. 3000
To suffer the indeterminate penalty of imprisonment ranging from twelve (12) years of prision mayor, as minimum, to eighteen (18) years of reclusion temporal as maximum and to pay AAA the following:To pay the costs.
- The amount of P50,000.00 as Civil Indemnity;
- The amount of P50,000.00 as Moral Damages; and
- The amount of P25,000.00 as Exemplary Damages.
For being a detention prisoner, his entire preventive imprisonment shall be credited in the service of sentence imposed on him provided that he shall abide in writing with the same disciplinary rules imposed upon convicted prisoners, otherwise, only four-fifths (4/5) thereof.
IT IS SO ORDERED.15
WHEREFORE, premises considered, the instant appeal is DENIED. The January 14, 2009 Joint Judgment of the Regional Trial Court, Branch 20, Tacurong City, in Criminal Cases (sic) No. 2999 and 3000, finding accused-appellant guilty beyond reasonable doubt of violation of Article 266-A, paragraph l(a) of the Revised Penal Code, in relation to Republic Act 7610 and Article 266-A, paragraph 2 of the Revised Penal Code is hereby AFFIRMED.
SO ORDERED.19
1) Is appellant guilty of qualified rape by sexual intercourse in Criminal Case No. 2999?
2) Is appellant guilty of qualified rape by sexual assault in Criminal Case No. 3000?
PROSECUTOR:
Q: While you were sleeping that evening of October 25, 2007, what happened?
A: Nothing happened that night, sir.
Q: How about the early morning?
A: I noticed that the mosquito net was raised and I saw my father was removing his shorts sir.
Q: How did you know that it was your father whom you saw removing his short pants?
A: I saw my father removed his short pants and he went near me and removed my short pants, sir.
Q: Of course, it was still dark at that time?
A: Yes, sir.
Q: How did you recognize the person to be your father?
A: Because there was a light at the other house that illuminated the bunk house and if my father is standing I could actually see his face, sir.
Q: So what did he do after you saw him remove his short pants?
A: My father took hold of my two hands with his one hand and he placed his hand to cover my mouth and he spread my legs with his knee and removed his hand covering my mouth, sir.
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Q: Did you not shout when your father removed your shortpants and panty?
A: I did not shout because at that time I was afraid because there were two knives placed on my head and he threatened me that he will kill my mother and my siblings (if) I will not give in, sir.
Q: After your father wiped his penis with saliva, what happened next?
A: He inserted his penis inside my vagina, sir.
Q: What did you feel?
A: I did not feel anything, I do not know that I felt, I could not do anything because he was so strong and I could not believe that he could do that to me, sir.
Q: After inserting his penis into your vagina, what did he do next?
A: He stayed on top of me for 20 minutes and after that he removed his body because he felt that the light at the back of the bunk house was switched on, sir.22
Actually, the accused admitted to have committed the crimes of rape when he wrote AAA a letter, Exhibit "E" and asked her to forgive her and to withdraw the cases she filed against him. He promised her of a cell phone should she accede thereto. Evidently, no one would ask for forgiveness unless he committed and, a plea for forgiveness may be considered as analogous to an attempt to compromise.36 x x xSo must it be.
Article 266-A. Rape: When And How Committed. - Rape is committed:
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.x x x
Article 266-B Penalty -xxxx x x
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;x x x
As stated, complainant's testimony on her sexual ravishment is spontaneous and consistent, dispelling any notion that her testimony was rehearsed. Her tale of sexual ravishment was corroborated by medical findings that she sustained lacerations inside her vagina. She was not shown to have been impelled by ill-motive in pointing to her father as her ravisher. More, the trial court, as well as the Court of Appeals, had found her testimony credible, thus, such assessment is binding on this Court. Lastly, appellant had sought her forgiveness for what he had done to her, in effect admitting that he indeed sexually molested her.Q: On November 3, 2007, do you remember where you slept?
A: In the bunk house, sir.
Q: What time [did] you go to sleep?
A: 1:00 o'clock in the morning sir.
Q: Why was it already 1:00 o'clock in the morning that you went to sleep at that time?
A: Because I just came [home] from watching t.v., sir.x x x
Q: After sleeping, what happened after that?
A: When I went home, I noticed my father holding my blanket and he placed my head on his arm and he spread my legs with his leg, sir.
Q: After spreading your legs with his leg, what happened next?
A: My other foot he placed his foot there and my other foot on top leg and he inserted his finger, sir.
Q: Where did he insert his finger?
A: Inside my vagina, sir.
Q: And what did you feel?
A: Painful, sir.
Q: For how long did he insert his finger to your vagina?
A: He placed his finger for five minutes, and I was crying I said "Pa, please stop" and he stopped and my father went to sleep.39
That on or about 10:00 o'clock in the evening of November 3, 2007 at xxxxxxxxxxx,xxxxxxxxxxx Province of Sultan Kudarat, Philippines and within the jurisdiction of this Honorable Court, the said accused, with lewd and unchaste designs and through force and intimidation, did then and there, willfully, unlawfully, and feloniously succeed in having carnal knowledge of one AAA, his thirteen (13) years old daughter, against her will and consent.People v. Caoili40 ordains that an accused charged in the Information with rape by sexual intercourse cannot be found guilty of rape by sexual assault, even though the latter crime was proven during trial, thus:
CONTRARY TO LAW, particularly Article 266-A, paragraph 2 of the Revised Penal Code, in relation to Republic Act 7610.x x x
By jurisprudence, however, an accused charged in the Information with rape by sexual intercourse cannot be found guilty of rape by sexual assault, even though the latter crime was proven during trial. This is due to the substantial distinctions between these two modes of rape.Applying Caoili here, although appellant cannot be convicted of rape by sexual assault in this case, he can still be convicted of lascivious conduct under Section 5(b)41 of Republic Act No. 7610 (RA 7610). The elements of sexual abuse under Section 5(b) of RA 7610 are as follows: 1) the accused commits the act of sexual intercourse or lascivious conduct; 2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and 3) the child, whether male or female, is below 18 years of age.42
The elements of rape through sexual intercourse are: (1) that the offender is a man; (2) that the offender had carnal knowledge of a woman; and (3) that such act is accomplished by using force or intimidation. Rape by sexual intercourse is a crime committed by a man against a woman, and the central element is carnal knowledge.
On the other hand, the elements of rape by sexual assault are: (1) that the offender commits an act of sexual assault; (2) that the act of sexual assault is committed by inserting his penis into another person's mouth or anal orifice or by inserting any instrument or object into the genital or anal orifice of another person; and that the act of sexual assault is accomplished by using force or intimidation, among others.
In the first mode (rape by sexual intercourse): (1) the offender is always a man; (2) the offended party is always a woman; (3) rape is committed through penile penetration of the vagina; and (4) the penalty is reclusion perpetua.
In the second mode (rape by sexual assault): (1) the offender may be a man or a woman; (2) the offended party may be a man or a woman; (3) rape is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) the penalty is prision mayor. [55]
The Court en banc's categorical pronouncement in People v. Abulon, thus, finds application:In view of the material differences between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the accusation against him.x x x
In fine, given the material distinctions between the two modes of rape introduced in R.A. No. 8353, the variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape through sexual intercourse, since the former offense cannot be considered subsumed in the latter.
SEC. 3. Person convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as amended.Additionally, appellant is liable for P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages for each count of qualified rape in conformity with prevailing jurisprudence.46 Correspondingly, the monetary awards granted by the trial court and affirmed by the Court of Appeals should be modified.
SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.
xxx
Sec. 31. Common Penal Provisions. -
xxx
(f) A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.Caoili47 applies these provisions in this wise:
Considering that AAA was over 12 but under 18 years of age at the time of the commission of the lascivious act, the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.As for the appropriate monetary awards, Caoili48 decrees:
Since the crime was committed by the father of the offended party, the alternative circumstance of relationship should be appreciated. In crimes against chastity, such as acts of lasciviousness, relationship is always aggravating. With the presence of this aggravating circumstance and no mitigating circumstance, the penalty shall be applied in its maximum period, i.e., reclusion perpetua, without eligibility of parole. This is in consonance with Section 31(c) of R.A. No. 7610 which expressly provides that the penalty shall be imposed in its maximum period when the perpetrator is, inter alia, the parent of the victim.
Likewise, Section 31(f) of R.A. No. 7610 imposes a fine upon the perpetrator, which jurisprudence pegs in the amount of Php 15,000.00.
Parenthetically, considering the gravity and seriousness of the offense, taken together with the evidence presented against Caoili, this Court finds it proper to award damages.All told, appellant should be ordered to pay private complainant P75,000.00 as civil indemnity, P75,000.00 as exemplary damages, and P75,000.00 as moral damages.
In light of recent jurisprudential rules, when the circumstances surrounding the crime call for the imposition of reclusion perpetua, the victim is entitled to civil indemnity, moral damages and exemplary damages each in the amount of Php 75,000.00, regardless of the number of qualifying aggravating circumstances present.
The fine, civil indemnity and all damages thus imposed shall be subject to interest at the rate of six percent (6%) per annum from the date of finality of this judgment until fully paid.
Endnotes:
1 Penned by Associate Justice Oscar V. Badelies with the concurrence of Associate Justices Romulo V. Borja and Pablito A. Perez, all members of the Twenty-First Division, rollo, pp. 3-13.
2 CA rollo, pp. 30-31.
3Id. at 31.
4Id. at 32.
5Id. at 32-33.
6Id. at 34.
7Id. at 35-36.
8Id. at 36-37.
9Id. at 37-38.
10Id. at 38-39.
11Id. at 40.
12Id. at 40-41.
13Id, at 41.
14Id. at 30-51.
15Id. at 49-51.
16Id. at 22-27.
17Id. at 93-109.
18Rollo, pp. 3-13.
19Id. at 12.
20Id. at 32-33.
21Id. at 22-23.
22Id. at 9-11.
23People v. Padilla, 666 Phil. 565, 588-589 (2011).
24See People v. Ronquillo, G.R. No. 214762, September 20, 2017, 840 SCRA 405, 414.
25People v. Gonzales, Jr., 781 Phil. 149, 156 (2016).
26People v. Nuyok, 759 Phil. 437, 448 (2015).
27People v. Araojo, 616 Phil. 275, 287 (2009), citing Llave v. People, 522 Phil. 340 (2006) and People v. Guambor, 465 Phil. 671, 678 (2004).
28People v. Daco, 589 Phil. 335, 348 (2008).
29People v. Delfin, 749 Phil. 732, 744 (2014).
30People v. Briones, 439 Phil. 675, 685 (2002).
31People v. Lumaho, 744 Phil. 233, 243 (2002).
32People v. Soriano, 810 Phil. 239, 251 (2017).
33People v. Glino, 564 Phil. 396, 419-420 (2007).
34People v. Apattad, 671 Phil. 95, 108 (2011).
35People v. Abadies, 433 Phil. 814, 821 (2002).
36 CA rollo, pp. 46-47.
37Sazon v. Sandiganbayan, 598 Phil. 35, 47 (2009).
38People v. Dominguez, Jr., 650 Phil. 492, 519 (2010).
39Rollo, pp. 11-12.
40 G.R. No. 196342, August 08, 2017, 835 SCRA 107, 141-142.
41 ARTICLE III Child Prostitution and Other Sexual Abuse
Sec. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; andx x x
42Roallos v. People, 723 Phil. 655, 667-668 (2013).
43 Section 2(h), RA 7610.
44 Section 2(g), RA 7610.
45People v. Padua, 661 Phil. 366 (2011).
46People v. Jugueta, 783 Phil. 806, 848 (2016):
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II. For Simple Rape/Qualified Rape:
1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because of RA 9346: Private parts
Civil indemnity-P 100,000.00
Moral damages - P100,000.00
Exemplary damages - P100,000.00.
47 Supra note 40.
48Id.