SECOND DIVISION
G.R. No. 208009, July 11, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDILBERTO PUSING Y TAMOR, Accused-Appellant.
R E S O L U T I O N
LEONEN, J.:
When a female minor alleges rape, "she says in effect all that is necessary to mean that she has been raped."1chanrobleslaw
This resolves an appeal of a conviction for two (2) counts of qualified rape and one (1) count of child abuse of a minor.2 AAA, a minor, is accused-appellant Edilberto Tamor Pusing's (Pusing) foster daughter.3 She, her mother (Pusing's former live-in partner), and Pusing resided in his house.4 After AAA's mother's death, Pusing took AAA in his custody.5 Soon, Pusing had AAA's aunt, CCC, as his common-law spouse.6 CCC is the sister of AAA's mother.7 They all lived together.8chanrobleslaw
On or about April 5, 2004, while they were at home,9 Pusing allegedly went on top of AAA, put his penis in her mouth, mashed her breasts, kissed her on the lips, licked her vagina, and inserted his penis into her genital.10chanrobleslaw
The next day, AAA's cousin, BBB (CCC's son from a previous marriage), came to attend the wake of his brother (CCC's other son).11 There, BBB was prodded by Pusing's neighbor12 to take AAA in his custody because Pusing allegedly did something to her.13 Alarmed, BBB took AAA to his house in Manila, where she revealed the rape to BBB and his wife.14chanrobleslaw
BBB assisted AAA in filing a complaint before the police.15 He was referred to the Philippine National Police Crime Laboratory for AAA's medical examination.16 AAA was examined on April 7, 2004.17chanrobleslaw
In four (4) separate Informations, Pusing was charged with the rape and abuse of AAA, a 12-year-old18 minor with the cognitive ability of a nine-year-old.19 The charging portions in the Informations are as follows:
chanRoblesvirtualLawlibrary(a) Criminal Case No. 127823-H charges rape through carnal knowledge of an offended party under 12 years of age or is demented, under Article 266-A(l)(d),20 in relation to the special qualifying circumstance that the offender knew of the offended party's intellectual disability at the time of the commission of the crime, pursuant to Article 266-B(10)21 of the Revised Penal Code:
chanRoblesvirtualLawlibrary
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this Honorable Court, the above-named accused, taking advantage of his moral authority and influence being the common law husband of the offended party's aunt who acts as the offended party's guardian, and by means of force, threat and intimidation, did, then and there willfully, unlawfully and feloniously have sexual intercourse with one (AAA), a 12 year old minor, against the latter's will and consent, the said crime having been attended by the qualifying circumstance that the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime, the offended party being a special child with a mental capacity of a 9 year old person, aggravated by the circumstances of abuse of superior strength, dwelling and the act having been committed with insult or in disregard of the respect due the offended party on account of her minority, to the damage and prejudice of said victim (AAA).22 (Emphasis supplied)
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this Honorable Court, the above-named accused, taking advantage of his moral authority and influence being the common law husband of the offended party's aunt who acts as the offended party's guardian, and by means of force, threat and intimidation, did, then and there willfully, unlawfully and feloniously commit an act of sexual assault by means of inserting his penis into the mouth of one (AAA), a 12 year-old minor, against the latter's will and consent, the said crime having been attended by the qualifying circumstance that the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime, the offended party being a special child with a mental capacity of a 9 year old person, aggravated by the circumstances of abuse of superior strength, dwelling and the act having been committed with insult or in disregard of the respect due the offended party on account of her minority, to the damage and prejudice of said victim (AAA).25cralawred (Emphasis supplied)
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this Honorable Court, the above-named accused, actuated by lust, did, then and there willfully, unlawfully and knowing [ly] commit lascivious act [sic] upon the person of one (AAA), a 12 year old minor with the mental age of a 9 year old child, by causing (AAA) to masturbate the penis of the accused, against the will and consent of (AAA), thus constituting child abuse which is an act that is prejudicial to the normal development of said (AAA).27 (Emphasis supplied)
That, on or about the 5th day of April, 2004, in the Municipality of (PPP), Philippines and within the jurisdiction of this Honorable Court, the above-named accused, actuated by lust, did, then and there willfully, unlawfully and knowing[ly] commit lascivious act [sic] upon the person of one (AAA), a 12 year old minor with the mental age of a 9 year old child, by mashing the breast[s] and licking the vagina of the latter against her will and consent, thus constituting child abuse which is an act that is prejudicial to the normal development of said (AAA).28 (Emphasis supplied)
WHEREFORE, finding accused EDILBERTO PUSING y TAMOR @ EDWIN guilty beyond reasonable doubt, the Court hereby sentences him as follows:ChanRoblesVirtualawlibraryIN CRIM. CASE NO. 127823 for QUALIFIED RAPE -the penalty of Reclusion Perpetua without eligibility for parole; and to pay AAA the amount of Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for exemplary damages;Meanwhile, accused is ACQUITTED of the crime charged in Crim. Case No. 127825-H for insufficiency of evidence.
IN CRIM. CASE NO. 127824 for QUALIFIED RAPE (of the second kind) - the indeterminate penalty of Six (6) years and 1 day of Prision Mayor as minimum, to Seventeen (if) years and Ten (10) months of Reclusion Temporal, as maximum and to pay the amount of Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for exemplary damages;
IN CRIM. CASE NO. 127826 for CHILD ABUSE - the indeterminate penalty of Fourteen (14) years and Eight (8) Months of Reclusion Temporal as minimum to Twenty (20) years of Reclusion Temporal, as maximum and to pay the amount of Php50,000.00 as civil indemnity; Php50,000.00 for moral damages and Php25,000.00 for exemplary damages.
SO ORDERED.53 (Emphasis in the original)
WHEREFORE, premises considered, the appeal is hereby DENIED and the challenged Decision dated 16 March 2009, supra, is hereby AFFIRMED in toto. (
SO ORDERED.55 (Emphasis in the original)
(a) | qualified rape through carnal knowledge under Article 266-A(l)(d) in relation to Article 266-B(6)(10) of the Revised Penal Code; |
(b) | qualified rape through sexual assault under Article 266-A(2), in relation to Article 266-A(l)(d) and Article 266-B(6)(10) and (12) of the Revised Penal Code; and |
(c) | sexual violence against a minor through the lascivious conduct of mashing her breasts and licking her vagina under the second and third phrases of Section 5(b) of Republic Act No. 7610, in relation to Article 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610. |
Article 266-A. Rape: When And How Committed. -Rape is committed:
chanRoblesvirtualLawlibrary1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
....
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. (Emphasis supplied)
1) When the victim is under eighteen (18) years of age and the offender is a ... guardian ... or the common law spouse of the parent of the victim;
....
10) When the offender knew of the mental disability ... of the offended party at the time of the commission of the crime.
By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied)
Section 5. Child Prostitution and Other Sexual Abuse.
.....(b) Those who commit the act of ... lascivious conduct with a child ... or subject 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[.]63 (Emphasis supplied)
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person[.]64chanroblesvirtuallawlibrary
[A] young girl's revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as mere concoction.69
It must be clarified . . . that the reasoning expounded by the Court in the recent case of People v. Armando Chingh y Parcia, for imposing upon the accused the higher penalty provided in Section 5 (b), Article III of R.A. No. 7610, has no application in the case at bar.
....
In the present case, the factual milieu was different since the offender, Ireno [Bonaagua], is the father of the minor victim. Hence, the offenses were committed with the aggravating/qualifying circumstances of minority and relationship, attendant circumstances which were not present in the Chingh case, which in turn, warrants the imposition of the higher penalty of reclusion temporal prescribed by Article 266-B of the R[evised] P[enal] C[ode]. Considering that the R[evised] P[enal] C[ode] already prescribes such penalty, the rationale of unfairness to the child victim that Chingh wanted to correct is absent. Hence, there is no more need to apply the penalty prescribed by R.A. No. 7610.96 (Emphasis supplied, citations omitted)
WHEREFORE, finding accused EDILBERTO PUSING y TAMOR @ EDWIN guilty beyond reasonable doubt, the Court hereby sentences him as follows:ChanRoblesVirtualawlibrarySO ORDERED.chanRoblesvirtualLawlibraryIN CRIM. CASE NO. 127823 for QUALIFIED RAPE (through carnal knowledge) - the penalty of Reclusion Perpetua without eligibility for parole; and to pay AAA the amount of P100,000.00 as civil indemnity; P100,000.00 for moral damages, and P200,000.00 for exemplary damages;All awards for damages shall earn interest at the legal rate of 6% per annum from the date of finality of this judgment until fully paid.101chanrobleslaw
IN CRIM. CASE NO. 127824 for QUALIFIED RAPE (through sexual assault) - the indeterminate penalty of twelve (12) years of Prision Mayor as minimum, to twenty (20) years of Reclusion Temporal, as maximum, and to pay the amount of P100,000.00 as civil indemnity; P100,000.00 for moral damages and P100,000.00 for exemplary damages;
IN CRIM. CASE NO. 127826 for CHILD ABUSE - the indeterminate penalty of Fourteen (14) years, Eight (8) months and one (1) day of Reclusion Temporal as minimum, to Seventeen (17) years and Four (4) months of Reclusion Temporal as maximum, and to pay the amount of P50,000.00 as civil indemnity; P50,000.00 for moral damages, and P30,000.00 for exemplary damages.
Meanwhile, accused is ACQUITTED of the crime charged in Crim. Case No. 127825-H for insufficiency of evidence.
SO ORDERED.
Endnotes:
1People v. Fernandez, 403 Phil. 803, 816 (2001) [Per C.J. Davide, En Banc].
2Rollo, p. 7, Court of Appeals Decision.
3 Id. at 6.
4 Id.
5 Id.
7 CA rollo, p. 104, Regional Trial Court Decision.
8Rollo, p. 6.
9 CA rollo, p. 103.
10Rollo, p. 6.
11 Id.
12 CA rollo, p. 130, Brief for the Appellee. Prosecution identifies the neighbor as a certain Marie.
13Rollo, p. 6.
14 Id.
15 CA rollo, p. 37.
16 Id. at 131.
17 Id.
18 CCC alleges that the victim was 14 years old at the time he discovered the abuse (CA rollo, p. 98). The same age (14 years old) shows up as the victim's estimate age based on her dental examination (CA rollo, p. 107). However, based on the Sexual Crime Protocol by Dr. Joseph Palermo, the victim's estimated age is 12 years old, with a cognitive capacity of a child in Grade 2 (CA rollo, p. 146) or nine years old (CA rollo, pp. 95-96). Thus, the Informations state her biological age as 12, and her mental age as 9.
19 Id. at 95-96.
20 REV. PEN. CODE, art. 266-A provides:
chanRoblesvirtualLawlibraryArticle 266-A. Rape: When And How Committed. - Rape is committed:
chanRoblesvirtualLawlibrary1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
....
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.
21 REV. PEN. CODE, art. 266-B provides:
Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
....
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
chanRoblesvirtualLawlibrary10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
22Rollo, pp. 3-4.
23 Article 266-A. Rape: When And How Committed. - Rape is committed:
.....
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
24 Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
....
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
.....
10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
.....
Reclusion temporal shall be imposed if the rape is committed by any of the ten aggravating/ qualifying circumstances mentioned in this article.
25cralawred Rollo, p. 4.
26 Rep. Act No. 7610 (1992), Special Protection of Children Against Abuse, Exploitation and Discrimination Act, sec. 5 provides:
chanRoblesvirtualLawlibrarySection 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:
.....
(b) Those who commit the act of sexual intercourse of 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[.]
27Rollo, p. 4.
28 CA rollo, p. 91.
29 Id. at 98.
30 Id.
31 Id.
32 Id. at 107.
33 Id. at 98.
34 Id. at 103.
35 Id. at 101-105.
36 Id. at 99.
37 Id. at 130.
38 Id. at 146.
39Rollo, p. 14.
40 CA rollo,p.98.
41 Id. at 107.
42Rollo, p. 12.
43 CA rollo, p. 146.
44Rollo, pp. 6-7.
45 CA rollo, p. 99.
46 Id. at 69, Brief for the Accused-Appellant.
47 Id. at 99.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id. at 95-110. The case is docketed as Criminal Case Nos. 127823-26-H. The Decision was penned by Judge Lorifel L. Pahimna of Branch 69 of the Regional Trial Court, Pasig City, Stationed in Taguig City.
53 Id. at 110.
54Rollo, pp. 2-20. The Decision was penned by Associate Justice Jane Aurora C. Lantion and concurred in by Associate Justices Ramon M. Bato, Jr. and Eduardo B. Peralta, Jr. of the Special Twelfth Division, Court of Appeals, Manila.
55 Id. at 19.
56 Id. at 21.
57 Id. at 35-37.
58 Id. at 31-34.
59 CA rollo, p. 110.
60 GR. No. 199402, November 12, 2014, 740 SCRA 179 [Per J. Leonen, Second Division].
61 Id. at 202.
62 See REV. PEN. CODE, art. 266-B(6), which provides: "The death penalty shall be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances[.]"
63 Article 335(3), was repealed by Rep. Act No. 8353 (1997), Anti-Rape Law of 1997. It is now Article 266-A(l)(d). See REV. PEN. CODE, art. 336, which provides:
chanRoblesvirtualLawlibraryArt. 336. Acts of lasciviousness.- Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correctional.
64 See Garingarao v. People, 669 Phil. 512, 523 (2011) [Per J. Carpio, Second Division]; See also People v. Chingh, 661 Phil. 208, 222 (2011) [Per J. Peralta, Second Division].
65People v. Fernandez, 403 Phil. 803, 816-817 (2001) [Per C.J. Davide, En Banc].
66 Id. at 816.
67People v. De Jesus, 695 Phil. 114, 122 (2012) [Per J. Brion, Second Division].
68 633 Phil. 428 (2010) [Per J. Mendoza, Third Division].
69 Id. at 448.
70Rollo, p. 9.
71 Id.
72 Id.
73 Id. at 12.
74People v. Brondial, 397 Phil. 663, 688 (2000) [Per Curiam, En Banc].
75Rollo, pp. 10-12.
76 Id. at 15.
77 CA rollo, p. 145.
78Rollo, p. 16.
79 Id. at 14.
80 Id. at 6.
81People v. Itdang, 397 Phil. 692-706, 701 (2000) [Per J. Melo, Third Division].
82People v. Mitra, 385 Phil. 515, 533 (2000) [Per J. Puno, First Division].
83People v. Liwanag, et al, 415 Phil. 271,295 (2001) [Per J. Ynares-Santiago, First Division].
84Rollo, pp. 7-19.
85 CA rollo, pp. 107-109.
86People v. Guzman, 107 Phil. 1122, 1125-1126 (1960) [Per J. Gutierrez David, En Banc].
87Rollo, p. 49 Id, at 19.
89 Id.
90 Rev. Pen. Code, art. 64(6) provides:
chanRoblesvirtualLawlibraryArticle 64. Rules for the application of penalties which contain three periods. -
....
6. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period.
91People v. Chingh, 661 Phil. 208, 222 (2011) [Per J. Peralta, Second Division].
92 661 Phil. 208 (2011) [Per J. Peralta, Second Division].
93 G.R. No. 211002, January 21, 2015, 747 SCRA 542 [Per J. Leonen, Second Division].
94 Rep. Act No. 7610, art. 3, sec. 5(b).
95 665 Phil. 750 (2011) [Per J. Peralta, Second Division].
96 Id. at 770-772.
97People v. Jugueta, G.R. No. 202124, April 5, 2016 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/april2016/202124.pdf > 29-30 [Per J. Peralta, En Banc].
98People v. Quintos, G.R. No. 199402, November 12, 2014, 740 SCRA 179, 207 [Per J. Leonen, Second Division].
99 People v. Padigos, 700 Phil. 368, 381 (2012) [Per J. Leonardo-De Castro, First Division].
100 People v. Buclao, G.R. No. 208173, June 11, 2014, 726 SCRA 365, 382 [Per J. Leonen, Third Division].
101 See Ricalde v. People, G.R. No. 211002, January 21, 2015, 747 SCRA 542, 551 [Per J. Leonen, Second Division].