FIRST DIVISION
G.R. No. 238112, December 05, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ANDRES TALIB-OG Y TUGANAN, Accused-Appellant.
D E C I S I O N
TIJAM, J.:
This is an appeal from the Decision1 dated December 15, 2017 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01536-MIN, affirming with modification the Joint Judgment2 dated April 20, 2015 of the Regional Trial Court (RTC) of Dipolog City, Branch 7, in Criminal Case Nos. 12890, 13001, 13002 and 13003, finding accused-appellant Andres Talib-og y Tuganan guilty beyond reasonable doubt of two (2) counts of rape by sexual assault and two (2) counts of statutory rape, committed against AAA,3 a ten-year old girl.
Upon arraignment, accused-appellant pleaded not guilty to each of the crimes charged against him. After the pre-trial conference, the cases were heard on consolidated trial.6Criminal Case No. 12890
The undersigned City Prosecutor I of Dipolog accuses ANDRES TALIB-OG y Tuganan of the crime of STATUTORY RAPE, committed as follows:
That on November 28, 2004, at 11:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste designs, did then and there willfully, unlawfully and feloniously have carnal knowledge with AAA, a ten-year old minor, against her will and without her consent.
CONTRARY TO LAW.Criminal Case No. 13001
The undersigned Third Assistant City Prosecutor of Dipolog accuses ANDRES TALIB-OG y Tuganan of the crime of 'STATUTORY RAPE', committed as follows:
That on November 13, 2004, at 10:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously have carnal knowledge with AAA, a ten-year old minor, against her will and without her consent.
CONTRARY TO LAW.Criminal Case No. 13002
The undersigned Third Assistant City Prosecutor of Dipolog accuses ANDRES TALIB-OG y Tuganan of the crime of 'STATUTORY RAPE', committed as follows:
Timt on October 25, 2004, at 8:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously insert his middle right finger into the vagina of AAA, a ten-year old minor, against her will and without her consent.
CONTRARY TO LAW.Criminal Case No. 13003
The undersigned Third Assistant City Prosecutor of Dipolog accuses ANDRES TALIB-OG y Tuganan of the crime of 'STATUTORY RAPE', committed as follows:
That on October 28, 2004, at 10:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously insert his middle right finger into the vagina of AAA, a ten-year old minor, against her will and without her consent.
CONTRARY TO LAW.5 (Underscore supplied)
WHEREFORE, judgment is hereby rendered finding accused Andres Talib-og y Tuganan guilty beyond reasonable doubt of the following crimes:Accused-appellant appealed his conviction to the CA and argued that the prosecution failed to prove his guilt beyond reasonable doubt.
1) In Criminal Case No. 13002, the accused is found guilty of rape by sexual assault, a crime defended [sic] under paragraph 2 of Article 266-A of the Revised Penal. Code and is hereby sentenced to suffer the penalty of 2 years, 4 months and I day of prision correccional, as minimum, to 10 years of prision mayor, as maximum. He is further ordered to pay AAA the amounts of P30,000.00 as civil indemnity and P30,000.00 as moral damages, and the costs of the suit;
2) In Criminal Case No. 13003, the accused is found guilty of rape by sexual assault, a crime defined under paragraph 2 of Article 266-A of the Revised Penal Code and is hereby sentenced to suffer the penalty of 2 years, 4 months and 1 day of prision correccional, as minimum, to 10 years of prision mayor, as maximum. He is further ordered to pay AAA the amounts of P30,000.00 as civil indemnity and P30,000.00 as moral damages, and the costs of the suit;
3) In Criminal Case No. 13001, the accused is found guilty of statutory rape by sexual intercourse, a crime defined under paragraph 1 of Article 266-A of the Revised Penal Code and is hereby sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages, and the costs of the suit;
4) In Criminal Case No. 12890, the accused is found guilty of statutory rape by sexual intercourse, a crime defined under paragraph 1 of Article 266-A of the Revised Penal Code and is hereby sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages, and the costs of the suit;
The award of damages shall earn legal interest at the rate of six percent (6%) per annum from the finality of this judgment until fully paid.
SO ORDERED.13
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:In Criminal Case Numbers (Nos.) 12890 and 13001, the prosecution sufficiently established the presence of the elements of statutory rape under paragraph 1(d) as cited above, viz: (1) the offended party is under 12 years of age; and (2) the accused had carnal knowledge of the victim, regardless of whether there was force, threat, or intimidation or grave abuse of authority. It is enough that the age of the victim is proven and that there was sexual intercourse.19 Here, it is undisputed that AAA was a minor when accused-appellant had sexual intercourse with her on two separate incidents, i.e. on November 13 and 28, 2004.
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[.]
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. (Emphasis ours)As narrated by AAA, she was still a minor when accused-appellant inserted his finger into her vagina on October 25 and 28, 2004, or roughly a month before he raped her by sexual intercourse.
In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando's act of inserting his finger in VVV's private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period.The afore-cited rule in Chingh was applied in the case of Ricalde v. People23 wherein although the accused was charged and convicted with the crime of rape by sexual assault, the Court applied the penalty for an offense under Section S(b), Article III of R.A. No. 7610.
The Court is not unmindful to the fact that the accused who commits acts of lasdviousness under Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault, which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.22
From the foregoing, it can be easily discerned that if the courts would not opt to impose the higher penalty provided in R.A. No. 7610 in cases of rape by sexual assault, wherein the victims are children, an accused who commits acts of lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III of R.A. 7610, suffers the more severe penalty of reclusion temporal in its medium period, than the one who ,commits rape by sexual assault which is punishable by prision mayor.Although accused-appellant was not specifically charged for an offense under R.A. 7610, Ricalde instructs that as long as the Information is clear about the facts constitutive of the offense, there is no violation of the right of the accused to due process.25
Endnotes:
1Rollo, pp. 66-75; penned by CA Associate Justice Oscar V. Badelles and concurred in by CA Associate Justices Romulo V. Borja and Perpetua T. Atal-Pano.
2 CA Rollo, pp. 24-36; penned by Judge Rogelio D. Laquihon.
3 The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence against Women and Their Children, effective November 15, 2004. People v. Dumadag, 667 Phil. 664, 669 (2011).
4Rollo, pp. 4-5.
5 Id. at 25-26.
6 Id. at 5.
7 Id.
8 Id.
9 Id. at 6.
10 Id.
11 Id.
12 Id. at 7.
13 CA Rollo, pp. 35-36.
14 Id. at 15-23.
15 Id. at 17.
16 783 Phil. 806 (2016).
17Rollo, pp. 25-32.
18 Id. at 20-23.
19People v. Ronquillo, G.R. No. 214762, September 20, 2017.
20People v. Leonardo, 638 Phil. 161, 189 (2010).
21 661 Phil. 208 (2011).
22 Id. at 222.
23 751 Phil. 793 (2015).
24 G.R. No. 218404, December 13, 2017.
25Ricalde v. People, supra note 28.
26Rollo, pp. 4-5.
27 Section 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 x
(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;
x x x x (Emphasis supplied)
28People v. Ronquillo, supra note 24.
29People v. Marmol, 800 Phil. 813 (2016).