FIRST DIVISION
G.R. No. 240229, June 17, 2020
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. NIEL RAYMOND A. NOCIDO, ACCUSED-APPELLANT.
D E C I S I O N
PERALTA, C.J.:
For consideration of the Court is the appeal of the Court of Appeals (CA) Decision1 dated April 25, 2017, which affirmed with modification the Partial Decision2 dated August 5, 2015 of the Regional Trial Court (RTC), Makati City, Branch 136, finding accused-appellant Niel Raymond A. Nocido (Nocido) guilty of the crimes of Rape through Sexual Intercourse and Rape by Sexual Assault. The accusatory portions of the two (2) Amended Informations state: ChanRoblesVirtualawlibrary
Criminal Case No. 09-1772Nocido pleaded not guilty5 to both charges. Trial on the merits proceeded even in the absence of co-accused Marianito Bagon (Bagon) and Paul Justin Ventura (Ventura), who are both at-large.
On the 3rd day of August 2009, in the [C]ity of Makati, the Philippines, accused conspiring and confederating with Paul Justin Ventura and Marianito Bagon @ Bok, whose whereabouts are still unknown, by means of force, violence and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge of complainant [AAA],3 12 years old, minor, against her will and consent.
CONTRARY TO LAW.
Criminal Case No. 09-1773
On the 3rd day of August 2009, in the [C]ity of Makati, the Philippines, accused conspiring and confederating with Paul Justin Ventura and Marianito Bagon @ Bole, whose whereabouts are still unknown, by means of force, violence and intimidation did then and there willfully, unlawfully, and feloniously insert his finger and penis into the anal orifice and mouth of [the] complainant [AAA], 12 years old, minor, against her will and consent.
CONTRARY TO LAW.4
The prosecution presented three witnesses, namely: (1) PO2 Maria Cecilia Fajardo [PO2 Fajardo]; (2) Police Chief Inspector Joseph Palmero, M.D. [PCI Palmero]); and (3) the victim AAA.
PO2 Fajardo was the police investigator assigned at the Women's Desk, who interviewed AAA. Private complainant AAA narrated what transpired; and while she answered some questions, she looked tired, scared and worried. On the other hand, it was PCI Palmero who conducted a medico-legal examination on AAA on August 4, 2009 and concluded that the contusions and other injuries AAA suffered suggest sexual and/or physical abuse.
The victim, AAA, a 12-year[-]old lass. She narrated that on August 3, 2009, she and her friends attended a wake. At around 3:00 o'clock in the morning, her friends walked her home until they reached xxxxxxxx St. While walking along xxxxxxxx St. accused [Bagon] suddenly accosted and pointed a fan knife at her. As soon as [Bagon] got hold of her, accused-appellant Nocido and accused [Ventura] approached her. Fearing for her life, she struggled to free herself. Unfortunately, [Ventura] and [Bagon] were able to forcibly bring her to an alley that leads to a vacant house. It was accused-appellant who guided them to the secluded area.
Inside the vacant house, all of the accused simultaneously hit AAA. Accused-appellant slapped her several times while [Ventura] punched her in the stomach to stop her from further resisting. As a consequence, AAA fell down. To prevent them from further harming her, AAA pretended to have fainted. At that point, [Bagon] pinned her down. Taking advantage of the situation, [Bagon] and accused-appellant removed her clothes, while [Ventura] held a lighter to illuminate the area. [Bagon] removed AAA's shorts and panties, kissed her lips, and proceeded downwards her body to lick her vagina. Afterwards, [Ventura] lifted AAA and mounted her on top of [Bagon]. After [Bagon] inserted hi s finger into AAA's vagina, he pushed his penis inside AAA's vagina. While [Bagon] was mashing AAA's breasts, accused-appellant also tried to insert his penis into AAA's vagina. Accused-appellant then tried to enter (sic) his penis into AAA's anus, but failed; he used his finger instead. Thereafter, [Bagon] tried to insert his penis into the mouth of AAA, but since AAA feigned unconsciousness, he was not able to open her mouth.
Since dawn was already breaking, the three accused transferred AAA to the comfort room as someone might see her. Afterwards, they put on her jumper and gave her a t-shirt. [Bagon] carried her towards an alley. xxx. She attempted to shout for help but [Bagon] covered her mouth. [Bagon] threatened to kill her if she would tell anybody of what just happened. Thereafter, she immediately gathered her clothes and ran away without wearing any bra. She proceeded to the house of xxxxxxxx, a friend in xxxxxxxx Street. There, she recounted and relayed her nightmare in the hands of the felons to xxxxxxxx's mother. In no time, they went to the barangay ball to lodge a complaint against accused-appellant Nocido, accused [Bagon] and accused [Ventura]. At around 1:30 in the afternoon, AAA's father was informed by one xxxxxxxx that his daughter was in the barangay hall looking for him. AAA 's father immediately proceeded to the place. When he arrived thereat, his daughter told him of her horrible ordeal.6
xxx According to him, on August 3, 2009, he, [Bagon], and [Ventura] borrowed a speaker and a DVD from a certain xxxxxxxx. While they were walking along xxxxxxxx St., they met AAA. [Bagon] and [Ventura] talked to her and were able to convince her to go to an alley that leads to a vacant house. After some time, AAA tried to leave but she was prevented by [Bagon] and [Ventura]. When she tried to escape, [Bagon] held her and pushed her to a wall causing her to fall down. Accused-appellant tried to stop [Bagon] and [Ventura] but the latter prevailed. [Ventura] then carried AAA to the vacant house. [Ventura] lit his lighter and watched [Bagon] having sexual intercourse with AAA. Thereafter, [Bagon] and [Ventura] switched places. Accused-appellant further alleged that out of fear, he was not able to leave the place and seek help; and that the door was also blocked by [Bagon] and [Ventura]. Later on, [Ventura] brought AAA outside the house, while [Bagon] threatened her not to tell the incident to anybody. Accused-appellant slightly slapped AAA's face to awaken her. When she regained consciousness, he assisted her to the nearest store. He left the place, went home and slept until 8:00 o'clock in the evening. Upon waking up, he was surprised about the presence of police officers in his house. They forcibly boarded him to a van and told him that he was being charged with the rape of AAA. Subsequently, he was brought to the police station and incarcerated.7
WHEREFORE, the Court renders judgment finding accused Niel Raymond A. Nocido GUILTY beyond reasonable doubt [of] the crime of Rape [t]hrough Sexual Intercourse in Criminal Case No. 09-1772 and Rape [by] Sexual Assault in Criminal Case No. 09-1773.The RTC convicted Nocido for rape by sexual assault, which he personally committed. He was also held liable for rape through sexual intercourse committed by the other two accused. The RTC explained that Nocido's cooperation in the consummation of the rape through sexual intercourse made him a co-conspirator.
In Criminal Case No. 09-1772, he is sentenced to suffer the penalty of imprisonment of reclusion perpetua. In Criminal Case No. 09-1773, he is sentenced to suffer the indeterminate penalty of imprisonment of six years of prision correccional to ten years of prision mayor.
For each case, the Court orders him to pay the complainant the amounts of P50,000 as civil indemnity, P50,000 as moral damages, and P25,000 as exemplary damages.
No costs.
Pending their apprehension, these cases shall remain ARCHIVED insofar as accused Bagon and Ventura are concerned.
IT IS SO ORDERED.8
WHEREFORE, the instant appeal is hereby DENIED.The CA affirmed the conviction of Nocido. According to the CA, the credibility of AAA's testimony is not affected by minor inconsistencies.10 The alleged inconsistencies in AAA's testimony with respect to who held her arms when she was forcibly taken at the alley, and her failure to scream despite the presence of neighbors which allegedly made her testimony contrary to human experience, are minor details which have nothing to do with the elements of the crime of rape.11 There was nothing substantial on the records that will warrant a reversal of the assessment made by the RTC on AAA's narration of the incident.12
The Decision dated August 5, 2015 of the Regional Trial Court, Branch 136, Makati City, in Criminal Case Nos. 09-1772 to 09-1773 finding accused-appellant Niel Raym[o]nd A. Nocido, guilty beyond reasonable doubt of the crimes of Rape through Sexual Intercourse and Rape [by] Sexual Assault defined under Article 266-A (1) and Article 266-A (2), respectively, of the Revised Penal Code and punishable under Republic Act No. 7659, as amended by Republic Act No. 8353, is AFFIRMED with the following MODIFICATIONS: ChanRoblesVirtualawlibraryThe monetary awards shall earn interest of six percent (6%) per annum from the date of finality of judgment until fully paid.
a) In Criminal Case No. 09-1772, accused-appellant is not eligible for parole; b) In Criminal Case No. 09-1773, accused-appellant is sentenced to suffer the indeterminate penalty of imprisonment of six (6) years of prision correccional[,] as minimum[,] to seventeen (17) years and four (4) months of reclusion temporal[,] as maximum; and c) Accused-appellant is ordered to pay the victim One Hundred Thousand Pesos (Php100,000.00) as moral damages, One Hundred Thousand Pesos (Php100,000.00) as civil indemnity, and One Hundred Thousand Pesos (Php100,000.00) as exemplary damages.
SO ORDERED.9
On the issue of the absence of proof of hymenal laceration, this does not negate the commission of rape, as the slightest penetration of the male organ within the labia or pudendum of the female organ is sufficient to convict the rapist.17
(1) accused [Bagon] poked [the] knife at AAA's neck; (2) accused-appellant and accused [Bagon] held her arms and dragged her to a secluded area; (3) all of the accused slapped and punched AAA to overpower her; (4) accused-appellant and accused [Bagon] removed AAA's clothes while accused [Ventura] was holding a lighter to illuminate the place; (5) all the accused simultaneously abused her until they were satisfied.
Nocido faults the CA for affirming his conviction on the basis of AAA's inconsistent and incredible testimony. According to Nocido, a closer scrutiny of AAA's testimony would show that there are discernible improbabilities that strongly militate against being accorded the full credit it was given by the CA.19
- Whether the CA erred in giving due weight and credence to AAA's testimony.
- Whether the CA erred in convicting Nocido guilty beyond reasonable doubt of the crimes of rape through sexual intercourse and rape by sexual assault under Articles 266- A(1)(A) and 266-A(2), respectively.
a. Whether Nocido is guilty as a conspirator.
While the factual setting back then would have been appropriate to say it is natural for a woman to be reluctant in disclosing a sexual assault; today we simply cannot be stuck to the Maria Clara stereotype of a demure and reserved Filipino woman. We should stay away from such mindset and accept the realities of a woman's dynamic role in society today; she who has over the years transformed into a strong and confidently intelligent and beautiful person, willing to fight for her rights.26Through this, the Court can evaluate the weight and credibility of a private complainant of rape without gender bias or cultural misconception.27
Q: Will you please tell the Honorable Court how you were brought to that vacant house from that alley you were mentioning before?However, during her cross-examination AAA testified that it was Bagon and Nocido who held her arms: ChanRoblesVirtualawlibrary
A: [Ventura] and [Bagon] were holding me sir.
xxxx
Q: You mentioned that the two held you, how about the other, what did he do while the two you mentioned here [were] holding you?
A: He was holding a speaker because he was walking ahead of us, sir.
xxxx
Q: So both your hands or arms were being held by the two, [Bagon] and [Ventura] and you were pulled, correct?
A: It was [Bagon] who was pulling me, sir.
Q: How about [Ventura]? He was just holding your hand?
A: Yes, sir.
Q: How about Neil Raymond Nocido alias Arabo, what was his participation in transferring or in bringing you to the vacant house from there?
A: He was going ahead of us and he was the one who opened the door, sir.33
Q: Nung naglalakad na kayo hawak-hawak ka ba nila?The alleged inconsistency is a trivial matter which cannot be a basis for acquittal. This is because the inconsistency does not hinge on any essential element of the crime of rape or lascivious conduct.35 The fact is that, AAA was pulled and led by appellant, together with the other two co-accused, in a vacant house, where AAA was raped and sexually abused.
A: Si [Bagon] po.
Q: Si [Bagon] lang ang naghahawak sa iyo?
A: At saka po si [Nocido].
Q: Silang dalawa ang naghahawak sa iyo?
A: Opo tapos nasa liked po si [Ventura].
Q: Ano ang ginagawa ni [Ventura] kung alam mo?
A: Nasa likod lang po siya sumusunod.34
Q: How far is the nearest neighbor of that vacant house?The failure of AAA to shout and resist while the three accused committed rape and acts of lasciviousness, is not tantamount to her consent.
A: Dikit-dikit po ang mga bahay.38
xxxx
Q: Pero sa itaas noon may tao?
A:Opo.
Q: Habang ikaw ay hin[a]h[a]lay nila hindi sila nagsalita?
A: Opo.
Q: Hindi ka rin nagsalita?
A: Opo.39
Q: Tapos nung nilapitan ka nya, ano ang nangyari?Based on the foregoing, Nocido and the two co-accused employed force, threat, intimidation and violence against AAA, in satisfying their carnal desires.
A: Tinutukan nya po ko.
Q: Tinutukan ka ng?
A: Kutsilyo po.
Q: Saan ka tinutukan?
A: Sa leeg po una.
Q: Sinabi mo una. Bakit, meron pa bang sumunod na pangyayari?
A: Meron po, sa tagiliran po.
Q: So ang ibig mo bang sabihin pagkatapos ka nyang tutukan sa leeg ay inilipat nya yung tutok nya sa iyong bewang, ano ang nangyari?
A: Pagtutok nya po sa tagiliran ko, bigla pong lumapit si [Ventura] at si [Nocido].
xxxx
Q: So anong ginawa mo nung tinutukan ka?
A: Nanlaban po ako.
Q: Nasabi mo rin sa ilang mga testimonya mo na ikaw ay sinaktan nung tatlo. Maaari mo bang sabihin kung paano ka sinaktan at kung sino ang nanakit sayo?
A: Sinampal po ako ni [Nocido] tapos pinagsusuntok po ako ni [Bagon].
Q: So si [Nocido], pinagsasampal ka? Mga ilang beses?
A: Mga tatlo po o apat.
Q: Sino ang nagsuntok sayo?
A: Si [Bagon] po, saka si [Ventura] po.
Q: Saan ka sinuntok?
A: Sa mukha po.
Q: Pareho sila, sa mukha ka sinuntok?
A: [S]i [Ventura] po sinikmuraan po ako.44
xxxx
Q: So ikaw, yung ibabaw lang ang merong kasuotan. Sabi mo rin nung maguumaga na nun, merong babae na dumaan sa harap ng bahay kung saan kayo naroroon, bakit hindi ka sumigaw at humingi ng tulong?
A: Sumigaw po ako nun, sabi ko po "Ate tulungan mo ko." Tapos po hinawakan po ni [Bagon] ang bunganga ko.
Q: Tapos?
A: Sabi nya po, "Subukan mong magtawag," madadamay po siya.45
First, if sexual intercourse is committed with an offended party who is a child less than 12 years old or is demented, whether or not exploited in prostitution, it is always a crime of statutory rape; more so when the child is below 7 years old, in which case the crime is always qualified rape.Applying these principles to the case at bar, the Court affirms the ruling of the CA in convicting Nocido of rape under Article 266-A(1)(a) of the RPC.
Second, when the offended party is 12 years old or below 18 and the charge against the accused is carnal knowledge through "force, threat or intimidation," then he will be prosecuted for rape under Article 266-A (1) (a) of the RPC. In contrast, in case of sexual intercourse with a child who is 12 years old or below 18 and who is deemed "exploited in prostitution or other sexual abuse," the crime could not be rape under the RPC, because this no longer falls under the concept of statutory rape, and the victim indulged in sexual intercourse either "for money, profit or any other consideration or due to coercion or influence of any adult, syndicate or group," which deemed the child as one "exploited in prostitution or other sexual abuse."
xxxxThe penalty for Lascivious conduct under Section 5(b) of R.A. 7610 is reclusion temporal medium to reclusion perpetua, which is higher than the prescribed penalty of prision mayor to reclusion temporal as provided under Article 266-B of the RPC, for the crime of rape by sexual assault committed by two (2) or more persons. This is consistent with the declared policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development.52
(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.
Q: And after they were able to lower your short pants together with your panty, what else happened?During AAA's cross-examination on September 20, 2013, it was clarified that Nocido did not personally commit the crime of rape through sexual intercourse: ChanRoblesVirtualawlibrary
A: [Bagon] was kissing me tapos pa ano...
INTERPRETER
Let it be put on record that the witness is finding bard to complete her answer due to her emotional state.
FISCAL MATIRA
Q: Do you want to continue?
A: Yes, sir.
Q: Okay, please continue with your answer.
A: [Bagon] was kissing me on my lips moving downward and trying to insert his private part into my private part, sir.
Q: So he started kissing your lips downward, did [Bagon] able to touch your breast?
A: Yes, from my lips downward, sir.
Q: Up to your private part?
A: Yes, sir.
Q: Were you able to feel that he touched your clitoris by means of his tongue or lips?
A: Yes, sir.
Q: By lips or by tongue?
A: By lips, sir.
Q: While [Bagon] was doing that act, what did [Ventura] and [Nocido] do?
A: [Ventura] was keeping the lighter lighted at the time while [Nocido] was mashing my breast at inilawan din po ni [Ventura] habang nagpapalitan sina [Bagon] at [Nocido] sa akin.
Q: You mentioned nagpapapalitan, what do you mean by that?
A: Ginawa po nila akong palaman... nakahiga po si [Bagon] tapos nakapatong po ako sa kanya tapos nakapatong po sa akin si [Nocido].
Q: Of the three again, who kissed your lips first?
A: It was [Bagon], sir.
Q: So [Bagon,] after kissing your lips downward up to your vagina... question: what did he do after that?
A: He inserted his finger first into my vagina before inserting his penis into my vagina, sir.
xxxx
Q: So [Ventura] did not even attempt to insert his penis into your vagina?
A: No, sir.
Q: And while [Nocido] was able to insert his penis into your vagina, the two others were there acting in concert?
A: [Bagon] was there mashing my breast and [Nocido] did not insert his penis into my vagina instead he tried to insert his penis in to my anus, sir.
Q: Was [Nocido] able to insert his penis into your anus?
A: No sir, only his finger.
Q: Because you said the penis was not able to penetrate into your anus, he used his finger?
A: Yes, sir.
Q: Let us clear the facts of the case, [Bagon was] the one who kissed your lips up to your vagina was able to insert his penis into your vagina, correct?
A: Yes, sir.
xxxx
Q: Then followed by the act attempting to insert his penis into your anus but was not able to do so and instead using his finger to penetrate your anus?
A: Yes, sir.
Q: [Ventura] did not insert or attempt to insert his penis into your anus or into your vagina?
A: Yes, sir.
Q: He was there using light lighting the acts?
A: Yes, sir.
Q: Did he touch any part of your body while keeping the light lighted?
A: He only kissed me on my lips, sir.
Q: The first who kissed you and was able to insert his penis into your vagina for the first time, did he attempt for the second time?
A: Opo, yun nga po yung ginawa po nila akong palaman.56
Atty. AldovinoIn summary, AAA categorically described before the RTC how Nocido and the other two accused took advantage of her. The Court finds that conspiracy was established in this case. Conspiracy exists when the acts of the accused demonstrate a common design of accomplishing the same unlawful purpose.59
Q: Binanggit mo rin [AAA] na itong si [Nocido] ay ipinasok din niya ang ari nya sa ari mo? Kinukumpirma mo pa rin ba iyon na pinasok ni [Nocido] ang ari niya sa ari mo?
A: Hindi po.
Q: Hindi niya ipinasok?
A: Opo.
Q: Walang naganap na pagpasok ng ari niya sa ari mo?
A: Wala po kasi po sa likod.
Interpreter: Sa likod?
Court: Sa puwit.57
xxxx
Q: Sabi mo habang ikaw ay nakadapa kay [Bagon] nakapatong na noon iyo si [Nocido], tama?
A: Opo.
Q: Ano naman ang ginagawa ni [Nocido]?
A: Pinipilit nya pong ipasok ang ari nya po.
Q: Doon sa?
A: Sa puwit po.
Q: Hindi niya ipinapasok sa "pepe" mo?
A: Hindi po.
Q: [Noong] pinapasok nya naramdaman mo na matigas ang ari niya?
A: Opo.
Q: At sabi mo pilit nyang pinapasok doon sa puwet mo?
A: Opo.58
Endnotes:
1 Penned by Associate Justice Henri Jean Paul B. Inting (now a member of this Court), with Associate Justices Ramon R. Garcia and Leoncia R. Dimagiba concurring; rollo, pp. 2-22.
2 Penned by Presiding Judge Rico Sebastian D. Liwanag; CA rollo pp. 47-54.
3 The identity of the victim or any information to 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"; Section 40 of A.M. No. 04-10-11-SC, known as the "Rule on Violence Against Women and Their Children," effective November 5, 2004; People v. Cabalquinto, 533 Phil. 703, 709 (2006); and Amended Administrative Circular No. 83-2015 dated September 5, 2017, Subject: Protocols and Procedures in the Promulgation, Publication, and Posting on the Websites of Decisions, Final Resolutions, and Final Orders Using Fictitious Names/Personal Circumstances.
4 Records, pp. 2-6.
5Id. at 53.
6Rollo, pp. 4-5. (Citations omitted)
7Id. at 5-6.
8 CA rollo, p. 53.
9Rollo, pp. 21-22.
10Id. at 8.
11Id. at 9.
12Id.
13Id. at 10.
14Id. at 12.
15Id.
16Id. at 17.
17Id. at 19.
18Id.
19 CA rollo, p. 36.
20Id. at 39.
21Id.
22Id. at 41.
23Id.
24People v. Taño, 109 Phil. 912, 915 (1960).
25 G.R. Nos. 225642-43, January 17, 2018.
26Id.
27Id.
28People v. Barberan, et al., 788 Phil. 103, 109 (2016).
29People v. XXX, G.R. No. 225793, August 14, 2019.
30Id.
31Id.
32Id.
33 TSN, July 26, 2012, pp. 4-7.
34 TSN, September 20, 2013, pp. 22-23.
35People v. XXX, G.R. No. 229836, July 17, 2019.
36People v. Camat, et al., 692 Phil. 55, 74 (2012).
37Id. at 74-75.
38 TSN, July 26, 2012, pp. 10-11.
39 TSN, September 20, 2013, p. 26.
40People v. Ballacillo, 792 Phil. 404, 418 (2016).
41Id.
42Id.
43People v. Joson, 751 Phil. 450, 460 (2015).
44 TSN, June 26, 2013, pp. 3-4.
45Id. at 7.
46People v. ZZZ, G.R. No. 229862, June 19, 2019.
47Id.
48Id.
49People v. YYY, G.R. No. 224626, June 27, 2018.
50Id.
51 G.R. No. 227363, March 12, 2019.
52Id.
53People v. Moya, G.R. No. 228260, June 10, 2019.
54Id.
55Id.
56 TSN, July 26, 2012, pp. 14-18.
57 TSN, September 20, 2013, p. 31.
58Id. at 35-36.
59People v. Pal, G.R. No. 223565, June 18, 2018.
60Id.
61 SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.
SEC. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.
62People v. Lapore, G.R. No. 191197, June 22, 2015.
63 Article 63(2) of the RPC provides:
Article 63. Rules for the Application of Indivisible Penalties. -
xxxx
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:
xxxx
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.
64 R.A. 7610, § 31.
Section 31. Common Penal Provisions. -
(a) The penalty provided under this Act shall be imposed in its maximum period if the offender has been previously convicted under this Act;
(b) When the offender is a corporation, partnership or association, the officer or employee thereof who is responsible for the violation of this Act shall suffer the penalty imposed in its maximum period;
(c) The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant, parent guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a manager or owner of an establishment which has no license to operate or its license has expired or has been revoked;
(d) When the offender is a foreigner, he shall be deported immediately after service of sentence and forever barred from entry to the country;
(e) The penalty provided for in this Act shall be imposed in its maximum period if the offender is a public officer or employee: Provided, however, That if the penalty imposed is reclusion perpelua or reclusion temporal, then the penalty of perpetua or temporary absolute disqualification shall also be imposed: Provided, finally, That if the penalty imposed is prision correccional or arresto mayor, the penalty of suspension shall also be imposed; and
(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.
65 Article 64(1) of the Revised Penal Code provides:
1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period.
66 Art. 64, RPC.
67People v. Tulagan, G.R. No. 227363, March 12, 2019.
68Id.
In summary, the award of civil indemnity, moral damages and exemplary damages in Acts of Lasciviousness under Article 336 of the RPC, Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 761 0, Lascivious Conduct under Section 5(b) of R.A. No. 7610, Sexual Assault under paragraph 2, Article 266-A of the RPC, and Sexual Assault in relation to Section 5(b) of R.A. No. 7610, are as follows:
Crime Civil Indemnity Moral Damages Exemplary Damages xxx Sexual Abuse or Lascivious Conduct under Section 5(b) of R.A. No. 7610 [Victim is a child 12 years old
and below 18, or above 18 under special circumstances] P75,000.00 (If penalty imposed is reclusion perpetua) P75,000.00 (If penalty imposed is reclusion perpetua) P75,000.00 (If penalty imposed is reclusion perpetua) P50,000.00 (If penalty imposed is within the range of reclusion temporal medium) P50,000.00 (If penalty imposed is within the range of reclusion temporal medium) P50,000.00 (If penalty imposed is within the range of reclusion temporal medium) xxx
69People v. Jugueta, 783 Phil. 806 (2016).
II. For Simple Rape/Qualified Rape:
2.1 Where the penalty imposed is reclusion perpetua[;] other than [where the penalty imposed is Death but reduced to reclusion perpetua because of RA 9346, or where the crime committed was not consummated but merely attempted] xxx: ChanRoblesVirtualawlibrarya. Civil indemnity - P75,000.0070Id.
b. Moral damages - P75,000.00
c. Exemplary damages - P75,000.00
CAGUIOA, J.:
I concur with the ponencia insofar as it affirms the guilt of the accused-appellant Niel Raymond A. Nocido (Nocido) for the crimes he was charged with.
I disagree, however, that the nomenclature of the crime should be modified from "rape by sexual assault" to "lascivious conduct under Section 5(b), Republic Act No. 7610," and the penalty increased from "prision mayor to reclusion temporal"1 to "reclusion temporal in its medium period to reclusion perpetua."2
I reiterate and maintain my position in People v. Tulagan3 that Republic Act No. (RA) 7610 and the Revised Penal Code (RPC), as amended by RA 8353, "have different spheres of application; they exist to complement each other such that there would be no gaps in our criminal laws. They were not meant to operate simultaneously in each and every case of sexual abuse committed against minors."4 Section 5(b) of RA 7610 applies only to the specific and limited instances where the child-victim is "exploited in prostitution or subjected to other sexual abuse" (EPSOSA).
In other words, for an act to be considered under the purview of Section 5(b), RA 7610, so as to trigger the higher penalty provided therein, "the following essential elements need to be proved: (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."5 Hence, it is not enough that the victim be under 18 years of age. The element of the victim being EPSOSA - a separate and distinct element - must first be both alleged and proved before a conviction under Section 5(b), RA 7610 may be reached.
Specifically, in order to impose the higher penalty provided in Section 5(b) as compared to Article 266-B of the RPC, as amended by RA 8353, it must be alleged and proved that the child - (1) for money, profit, or any other consideration or (2) due to the coercion or influence of any adult, syndicate or group-indulges in sexual intercourse or lascivious conduct.6
In this case, the Information only alleged that the victim was a 12-yearold minor, but it did not allege that she was EPSOSA. Likewise, there was no proof or evidence presented during the trial that she indulged in sexual intercourse of lascivious conduct either for a consideration, or due to the coercion or influence of any adult.
Thus, while I agree that Nocido's guilt was proven beyond reasonable doubt, it is my view that his conviction in Criminal Case No. 09-1773 should be for Rape by Sexual Assault, defined and punished under Article 266-A(2), in relation to Article 266-B, of the RPC, as amended by RA 8353 - not Lascivious Conduct under Section 5(b), RA 7610. Accordingly, the penalty that ought to be imposed on him should be within the range of prision correccional to reclusion temporal7 instead of the one imposed by the ponencia which is within the range of prision mayor to reclusion temporal.
Meanwhile, I fully concur with the ponencia as regards its affirmance of his conviction in Criminal Case No. 09-1772 for Rape by Sexual Intercourse, defined and punished under Article 266-A(l)(a), in relation to Article 266-B, of the RPC, as amended by RA 8353.
Endnotes:
1 Penalty imposed under Article 266-B, Republic Act No. 3815, as amended by Section 2, Republic Act No. 8353, for Rape by Sexual Assault committed by two or more persons.
2 Penalty imposed under Section 5(b), Republic Act No. 7610 for Lascivious Conduct.
3 G.R. No. 227363, March 12, 2019, accessed at .
4 Dissenting Opinion of Justice Caguioa in People v. Tulagan, id.
5 Id., citing People v. Abello, 601 Phil. 373, 392 (2009).
6 Id.
7 After the application of the Indeterminate Sentence Law.chanRoblesvirtualLawlibrary