Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 186441               March 3, 2010

SALVADOR FLORDELIZ y ABENOJAR, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

NACHURA, J.:

For review are the Court of Appeals (CA) Decision1 and Resolution2 dated July 29, 2008 and February 16, 2009, respectively, in CA-G.R. CR No. 30949. The assailed decision affirmed the Regional Trial Court’s3 (RTC’s) Joint Judgment4 dated March 9, 2007, convicting petitioner Salvador Flordeliz y Abenojar of nine (9) counts of Rape and one (1) count of Acts of Lasciviousness, with a modification of the award of damages, while the assailed resolution denied petitioner’s motion for reconsideration.

The case stemmed from the following facts:

Sometime in March 1995, ABC, the wife of petitioner and the mother of private complainants AAA and BBB, left for Malaysia as an overseas worker. AAA and BBB were left under the care and custody of petitioner. They resided in a small house in Quezon Hill, Baguio City.5

In April 1995, while sleeping with BBB and AAA, who was then eleven (11) years old, petitioner woke up AAA, touched her vagina, then played with it. AAA cried and told petitioner that it was painful. The latter stopped, but warned AAA not to tell anyone about it; otherwise, she would be harmed.6 Petitioner allegedly committed the same acts against AAA repeatedly.

Petitioner and his daughters later transferred residence and lived with the former’s siblings. Not long after, petitioner was convicted of homicide and imprisoned in Muntinlupa City. Consequently, AAA and BBB lived with their grandparents in La Trinidad, Benguet.7 While petitioner was incarcerated, AAA and BBB visited him and sent him two greeting cards containing the following texts, among others: "happy valentine"; "ur the best dad in the world"; "I love you papa, love BBB, Love BJ"; "till we meet again"; portrait of Jesus Christ with a heart, "this is for you dad"; "flordeliz, AAA P., love AAA and Iyos."8

In 2001, petitioner was released on parole. He would frequently fetch AAA and BBB from their grandparents’ house during weekends and holidays and they would stay with him in Gabriela Silang, Baguio City.9

Unsatisfied with the abuses committed against AAA, petitioner allegedly started molesting BBB in May 2002.10 In 2003, BBB spent New Year’s Day with her father. On January 3, 2003, while they were sleeping, petitioner inserted his two (2) fingers into BBB’s vagina.11 BBB did not attempt to stop petitioner because of fear. Thereafter, they slept beside each other.12 BBB suffered the same ordeal the following night.13

On February 8, 2003, BBB visited petitioner. Again, petitioner held her vagina, played with it and inserted his fingers, which caused her pain.14

The same incident allegedly took place on August 3, 2003.15 On October 26, 2003, a day before AAA’s birthday, while BBB was with petitioner, the latter committed the same dastardly act. This time, it was for a longer period.16

During All Saints’ Day of 2003, BBB spent two nights with her father and, during those nights (November 1 and 2), she experienced the same sexual abuse.17 The same thing happened on December 28, 2003.18

Notwithstanding the repeated incidents of sexual abuse committed against her, BBB did not reveal her ordeal to anybody because of fear for her life and that of her mother.19

AAA and BBB had the chance to reveal their horrifying experiences when their mother ABC arrived for a vacation. AAA immediately told ABC what petitioner did to her. When confronted by ABC, BBB likewise admitted the repeated abuses committed by petitioner. ABC forthwith reported the incidents to the National Bureau of Investigation.20

After conducting medical examinations on AAA and BBB, the attending physician remarked that there was a "disclosure of sexual abuse and she noted the presence of hymenal notch in posterior portion of hymenal rim that may be due to previous blunt force or penetrating trauma suggestive of abuse."21

With these findings, petitioner was charged with the crimes of Acts of Lasciviousness,22 committed against AAA, and nine (9) counts of Qualified Rape through Sexual Assault,23 committed against BBB, before the RTC. The crime of acts of lasciviousness was allegedly committed as follows:

That sometime in the month of April 1995 up to 1996 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and deliberate intent to cause malice and satisfy his lascivious desire, did then and there willfully, unlawfully and feloniously touched and play the private part of the offended party AAA, a minor 14 years of age against her will and consent which act debeased (sic), demeaned and degraded the intrinsic worth and dignity of the minor as a human being.

CONTRARY TO LAW.24

On the other hand, except for the dates of the commission of the crime, each Information for Rape reads:

That on or about the 8th day of February 2003, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation and taking advantage of his moral ascendancy over the private offended party he being the biological father of said offended party, did then and there remove the pants and underwear of said offended party and thereupon fondles her private part and forcibly inserted his finger into the vagina of the offended party BBB, a minor, 11 years of age against her will and consent, which acts constitute Rape as defined under Republic Act 8353 and which acts demeaned, debased and degraded the intrinsic worth and dignity of the minor as a human being.

CONTRARY TO LAW.25

Upon arraignment, petitioner pleaded "Not guilty" to all the charges. During trial, he interposed the defense of denial and insisted that the charges against him were fabricated by his wife to cover up the infidelity she committed while working abroad.26 Petitioner also relied on the testimonies of Florabel Flordeliz, Levy Hope Flordeliz and Roderick Flordeliz, whose testimonies consisted mainly of the alleged infidelity of ABC; and petitioner, being a good father, was often visited by his daughters at his residence, where the rooms they occupied were only separated by see-through curtains.27

On March 9, 2007, the RTC rendered a Joint Judgment28 finding petitioner guilty as charged, the dispositive portion of which reads:

WHEREFORE, premises all duly considered[,] the court finds that the prosecution has established the guilt of the accused beyond reasonable doubt and hereby imposes upon him the following penalties:

1. In Criminal Case No. 23145-R for Acts of Lasciviousness, the Indeterminate Penalty of 6 months of Arresto Mayor as the minimum penalty to 6 years of Prision Correccional as the maximum penalty and to indemnify the victim AAA the amount of P20,000.00 as moral damages and to pay the costs.

The penalty shall also carry the accessory penalty of perpetual special disqualification from the right of suffrage (Art. 43, Revised Penal Code)[.]

2. In Criminal Cases Nos. 23072-R to 23080-R, the Indeterminate Penalty of twelve (12) years of Prision Mayor as the minimum penalty to twenty (20) years of Reclusion Temporal as the maximum penalty for each case or nine (9) counts of sexual assault considering the aggravating/qualifying circumstance of relationship against the accused and to indemnify BBB the amount of P75,000.00 as moral damages and to pay the costs.

The penalties shall carry with them the accessory penalties of civil interdiction for life and perpetual absolute disqualification (Art. 41, Revised Penal Code).

The accused shall be credited with 4/5 of his preventive imprisonment in the service of his sentences.

In the service of his sentences, the same shall be served successively subject to the provisions of Article 70 of the Revised Penal Code or the Three-Fold Rule.

SO ORDERED.29

On appeal, the CA affirmed petitioner’s conviction with a modification of the amount of his civil liabilities.

Petitioner now comes before us, raising the following errors:

ACTS OF LASCIVIOUSNESS

The Honorable Court A Quo gravely erred in affirming the judgment of conviction of the Honorable Regional Trial Court for the crime charged despite the fact that the guilt of the

petitioner has not been proven beyond reasonable doubt with moral certainty.

RAPES THROUGH SEXUAL ASSAULT

1. The Honorable Court A Quo gravely erred in affirming the judgments of conviction of the Honorable Regional Trial Court in Criminal Cases Nos. 23075-R (alleged rape through sexual assault sometime in May, 2002) and 23078-R (alleged rape through sexual assault on August 3, 2003) respectively, despite thecomplete absence of evidence   to show how the alleged incidents of rape through sexual assault were committed by petitioner on said particular dates.

2. The Honorable Court A Quo gravely erred in affirming the judgments of conviction of the Honorable Regional Trial Court in the other alleged counts of rape through sexual assault despite the fact that the guilt of the petitioner has not been proven beyond reasonable doubt with moral certainty.30

Simply put, petitioner assails the factual and legal bases of his conviction, allegedly because of lack of the essential details or circumstances of the commission of the crimes. Petitioner, in effect, questions the credibility of the witnesses for the prosecution and insists that the charges against him were designed to conceal ABC’s infidelity.

We have repeatedly held that when the offended parties are young and immature girls, as in this case, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the matter about which they testified were not true.31

It is not uncommon in incestuous rape for the accused to claim that the case is a mere fabrication, and that the victim was moved by familial discord and influence, hostility, or revenge. There is nothing novel about such defense, and this Court had the occasion to address it in the past. In People v. Ortoa,32 we held that:

Verily, no child would knowingly expose herself and the rest of her family to the humiliation and strain that a public trial surely entails unless she is so moved by her desire to see to it that the person who forcibly robbed her of her cherished innocence is penalized for his dastardly act. The imputation of ill motives to the victim of an incestuous rape [or lascivious conduct] becomes even more unconvincing as the victim and the accused are not strangers to each other. By electing to proceed with the filing of the complaint, the victim risks not only losing a parent, one whom, before his moral descent, she previously adored and looked up to, but also the likelihood of losing the affection of her relatives who may not believe her claim. Indeed, it is not uncommon for families to be torn apart by an accusation of incestuous rape. Given the serious nature of the crime and its adverse consequences not only to her, it is highly improbable for a daughter to manufacture a rape charge for the sole purpose of getting even with her father. Thus, the alleged ill motives have never swayed the Court against giving credence to the testimonies of victims who remained firm and steadfast in their account of how they were ravished by their sex offenders.33

Neither can we sustain petitioner’s claim that the charges against him were products of ABC’s fabrication to cover up the infidelity she committed while working abroad. No matter how enraged a mother may be, it would take nothing less than psychological depravity for her to concoct a story too damaging to the welfare and well-being of her own daughter. Courts are seldom, if at all, convinced that a mother would stoop so low as to expose her own daughter to physical, mental and emotional hardship concomitant to a rape prosecution.34

We now proceed to discuss the specific crimes with which petitioner was charged.

Criminal Case Nos. 23072-R, 23073-R, 23074-R, 23076-R, 23077-R, 23079-R, and 23080-R for Rape Through Sexual Assault

The RTC, affirmed by the CA, correctly convicted petitioner of Rape in Criminal Case Nos. 23072-R, 23073-R, 23074-R, 23076-R, 23077-R, 23079-R, and 23080-R.

In her direct testimony, BBB clearly narrated that, on seven (7) separate occasions, petitioner woke her up, held her vagina, played with it, and inserted his fingers. During trial, the prosecutor presented a small doll where BBB demonstrated how petitioner inserted his forefinger and middle finger, making an up and down motion between the doll’s legs.35

The insertion of petitioner’s fingers into the victim’s vagina constituted the crime of Rape through sexual assault36under Republic Act (R.A.) No. 8353, or "The Anti-Rape Law of 1997," which in part provides:

Art. 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.

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.37

Aside from proving the fact that Rape was committed, the prosecution also established that petitioner is the biological father of BBB and that the latter was less than twelve (12) years old at the time of the commission of the crimes. Under Article 266-B of the Revised Penal Code (RPC), rape by

sexual assault, if attended by any of the aggravating circumstances under paragraph 138 of Article 266-B, would carry the penalty of reclusion temporal, ranging from twelve (12) years and one (1) day to twenty (20) years.

Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the RPC. Other than the aggravating/qualifying circumstances of minority and relationship (which are already taken into account to raise the penalty from prision mayor to reclusion temporal),39no other aggravating circumstance was alleged and proven. Hence, the penalty shall be imposed in its medium period, or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

On the other hand, the minimum term of the indeterminate sentence should be within the range of the penalty next lower in degree than that prescribed by the Code which is prision mayor or six (6) years and one (1) day to twelve (12) years.

For each count of sexual assault, petitioner should be meted the indeterminate sentence of ten (10) years of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum.

In line with prevailing jurisprudence, the victim of Rape through sexual assault is entitled to recover civil indemnity in the amount of P30,000.00 for each count. This is mandatory upon a finding of the fact of Rape.40 Moreover, the award of moral damages is automatically granted without need of further proof, it being assumed that a rape victim has actually suffered moral damages entitling her to such award. She is, thus, entitled to recover moral damages of P30,000.00 for each count.41 In addition, the presence of the aggravating circumstances of minority and relationship entitles her to an award of exemplary damages. The amount of P30,000.00 for each count is appropriate under the circumstances.

Criminal Case Nos. 23075-R and 23078-R

In Criminal Case No. 23075-R, it was alleged that petitioner sexually abused BBB on August 3, 2003. Indeed, the RTC and the CA stated in their narration of facts that on that particular date, while BBB was visiting her father, the incident happened. A perusal of the transcript of the prosecution witnesses’ testimonies, however, reveals that no such incident took place. No details were related by BBB herself as to the circumstances surrounding the alleged incident.

In Criminal Case No. 23078-R, it was also stated in the Information that, from May 2002 to December 2003, petitioner committed the crime of Rape through sexual assault against BBB. The Court notes, however, that the RTC decision is silent as to the sexual abuse allegedly committed in May 2002. The RTC’s narration of facts started only with the incident that occurred in January 2003. While the CA stated that, in May 2002, petitioner started sexually abusing BBB, the statement was merely a conclusion unsupported by proof of how the crime was committed. Assuming that acts of Rape were indeed committed in 2003 (which is within the period from May 2002 to December 2003 as stated in the Information), those instances could very well be the same incidents covered by the other Informations discussed earlier.

Absent specific details of how and when the sexual abuses were committed, petitioner should be acquitted in Criminal Case Nos. 23075-R and 23078-R.

Criminal Case No. 23145-R for Acts of Lasciviousness

In Criminal Case No. 23145-R, petitioner was charged with and convicted of Acts of Lasciviousness and sentenced to suffer the penalty prescribed by Article 336 of the RPC. While we sustain petitioner’s conviction of acts of lasciviousness, we modify the assailed Decision in order to give the proper designation to the crime committed and the law violated, and eventually to impose the proper penalty.

It is undisputed that at the time of the commission of the sexual abuse, AAA was eleven (11) years old.42 This calls for the application of R.A. No. 7610 or "The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," which defines sexual abuse of children and prescribes the penalty therefor in its Article III, Section 5, to wit:

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 x

(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.43

Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation where a child is abused for profit, but also where one -- through coercion, intimidation or influence -- engages in sexual intercourse or lascivious conduct with a child.44

However, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct committed against a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of R.A. No. 7610.45

The crime of Acts of Lasciviousness, as defined in Article 336 of the RPC, has the following elements:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex.46

In addition, the following elements of sexual abuse under Section 5, Article III of R.A. No. 7610 must be proven:

(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.47

Section 32, Article XIII of the Implementing Rules and Regulations of R.A. No. 7610 defines lascivious conduct as follows:

[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.48

Based on the foregoing definition, petitioner’s act of touching AAA’s vagina and playing with it obviously amounted to lascivious conduct. Considering that the act was committed on a child less than twelve years old and through intimidation, it is beyond cavil that petitioner is guilty under the aforesaid laws.

We are aware that the Information specifically charged petitioner with Acts of Lasciviousness under the RPC, without stating therein that it was in relation to R.A. No. 7610. However, the failure to designate the offense by statute or to mention the specific provision penalizing the act, or an erroneous specification of the law violated, does not vitiate the information if the facts alleged therein clearly recite the facts constituting the crime charged. The character of the crime is not determined by the caption or preamble of the information nor by the specification of the provision of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information.49

In the instant case, the body of the Information contains an averment of the acts alleged to have been committed by petitioner and unmistakably describes acts punishable under Section 5(b), Article III of R.A. No. 7610.1avvphi1

It is also undisputed that petitioner is the father of AAA. The RTC did not appreciate the alternative circumstance of

relationship, because it was not alleged in the Information. We do not agree.

The resolution50 of the investigating prosecutor, which formed the basis of the Information, a copy of which is attached thereto, stated that petitioner is the victim’s biological father. There was, therefore, substantial compliance with the mandate that an accused be informed of the nature of the charge against him.51

In crimes against chastity, like acts of lasciviousness, relationship is considered aggravating.52 Considering that AAA was less than twelve (12) years old at the time the crime was committed, petitioner should be meted the penalty of reclusion temporal in its medium period, or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, petitioner should be meted the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal as maximum.

With respect to the lascivious conduct amounting to child abuse under Section 5(b) of R.A. No. 7610 committed by petitioner, we impose a fine of P15,000.00.53

Civil indemnity ex delicto in the amount of P20,000.00 shall be awarded.54 Additionally, upon a finding of guilt of the accused for acts of lasciviousness, the amount of P15,000.00 as moral damages may be awarded to the victim in the same way that moral damages are awarded to victims of rape even without need of proof because it is assumed that they suffered moral injury.55 In view of the presence of the aggravating circumstance of relationship, the amount of P15,000.00 as exemplary damages should likewise be awarded.

WHEREFORE, premises considered, the Court of Appeals’ July 29, 2008 Decision and February 16, 2009 Resolution in CA-G.R. CR No. 30949 are AFFIRMED with MODIFICATIONS. The Court finds petitioner Salvador Flordeliz y Abenojar:

1. GUILTY of seven (7) counts of RAPE Through Sexual Assault in Criminal Case Nos. 23072-R, 23073-R, 23074-R, 23076-R, 23077-R, 23079-R, and 23080-R. He is sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for each count. Petitioner is ordered to indemnify BBB P30,000.00 as civil indemnity; P30,000.00 as moral damages; and P30,000.00 as exemplary damages, for each count;

2. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case No. 23145-R. He is sentenced to suffer the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal, as maximum. He is likewise ordered to pay a fine of P15,000.00 and to indemnify AAA P20,000.00 as civil indemnity, P15,000.00 as moral damages, and P15,000.00 as exemplary damages;

3. NOT GUILTY in Criminal Case Nos. 23075-R and 23078-R.

SO ORDERED.

ANTONIO EDUARDO B. NACHURAAssociate Justice

WE CONCUR:

RENATO C. CORONAAssociate JusticeChairperson

PRESBITERO J. VELASCO, JR.Associate Justice

MARIANO C. DEL CASTILLO*

Associate Justice

JOSE CATRAL MENDOZAAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAAssociate JusticeChairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNOChief Justice

Footnotes

* Additional member in lieu of Associate Justice Diosdado M. Peralta per Special Order No. 824 dated February 12, 2010.

1 Penned by Associate Justice Magdangal M. de Leon, with Associate Justices Josefina Guevara-Salonga and Ramon R. Garcia, concurring; CA rollo, pp. 392-402.

2 Id. at 412-413.

3 Branch 59, Baguio City.

4 Penned by Judge Iluminada P. Cabato; records (Criminal Case Nos. 23072-R), pp. 691-715.

5 Rollo, p. 95.

6 Records (Criminal Case No. 23072-R), p. 701.

7 Rollo, p. 95.

8 Id.

9 Id.

10 Id.

11 BBB demonstrated how her father touched her vagina with her forefinger and middle finger by making a sliding up and down motion on the area between the two legs of the doll. (Id. at 96.)

12 TSN, February 7, 2005; records (Criminal Case No. 23072-R), pp. 441-445.

13 TSN, June 2, 2005; id. at 452-453.

14 Id. at 454-455.

15 Rollo, p. 96.

16 TSN, June 2, 2005; records (Criminal Case No. 23072-R), pp. 456-457.

17 Id. at 458-461.

18 Id. at 461-462.

19 Rollo, p. 97.

20 Id.

21 Records (Criminal Case No. 23072-R), p. 7.

22 Docketed as Criminal Case No. 23145-R.

23 Docketed as Criminal Case Nos. 23072-80.

24 Records (Criminal Case No. 23145-R), p. 1.

25 Records (Criminal Case No. 23072-R), p. 1.

26 Rollo, p. 98.

27 Id. at 98-99.

28 Records (Criminal Case No. 23072-R), pp. 691-715.

29 Id. at 714-715.

30 Rollo, pp. 26-27.

31 People v. Candaza, G.R. No. 170474, June 16, 2006, 491 SCRA 280, 295-296.

32 G.R. No. 176266, August 8, 2007, 529 SCRA 536.

33 Id. at 552.

34 Id. at 553.

35 Records (Criminal Case No. 23072-R), p. 702.

36 People v. Hermocilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296; People v. Palma, 463 Phil. 767 (2003).

37 Emphasis supplied.

38 Article 266-B. Penalties. – x 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.

39 See People v. Noveras, G.R. No. 171349, April 27, 2007, 522 SCRA 777, 794; see also People v. Tonyacao, G.R. No. 134531-32, July 7, 2004, 433 SCRA 513, 534.

40 People v. Bunagan, G.R. No. 177161, June 30, 2008, 556 SCRA 808, 814; People v. Hermocilla, supra note 36, at 305.

41 People v. Bunagan, supra, at 814; People v. Hermocilla, supra note 36, at 305.

42 TSN, March 8, 2005; records (Criminal Case No. 23145-R), p. 217.

43 Emphasis ours.

44 Malto v. People, G.R. No. 164733, September 21, 2007, 533 SCRA 643, 656-657.

45 Navarrete v. People, G.R. No. 147913, January 31, 2007, 513 SCRA 509, 517; Amployo v. People, 496 Phil. 747, 755 (2005).

46 Navarrete v. People, supra, at 517; Amployo v. People, supra, at 755; People v. Bon, 444 Phil. 571, 583-584 (2003).

47 People of the Philippines v. Salvino Sumingwa, G.R. No. 183619, October 13, 2009; People v. Montinola, G.R. No. 178061, January 31, 2008, 543 SCRA 412, 431; Navarrete v. People, supra note 45, at 521; Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465 SCRA 465, 473; Amployo v. People, supra note 45, at 758.

48 Navarrete v. People, supra note 45, at 521-522; Olivarez v. Court of Appeals, supra, at 473-474; People v. Bon, supra note 46, at 584.

49 People of the Philippines v. Salvino Sumingwa, supra note 47, citing Malto v. People, supra note 44; and Olivarez v. Court of Appeals, supra note 47.

50 Records (Criminal Case No. 23145-R), p. 3.

51 Olivarez v. Court of Appeals, supra note 47, at 478-479.

52 People of the Philippines v. Salvino Sumingwa, supra note 47; People v. Montinola, supra note 47, at 432.

53 People of the Philippines v. Salvino Sumingwa, supra note 47; People v. Montinola, supra note 47; People v. Candaza, supra note 31; Amployo v. People, supra note 45, at 762-763.

54 See People v. Palma, supra note 36.

55 Amployo v. People, supra note 45, at 761-762.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 181036               July 6, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.ADRIANO LEONARDO y DANTES, Accused-Appellant.

PEREZ, J.:

For review is the Decision1 dated 28 May 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 01092 affirming in toto the Joint Decision2 dated 28 January 2005 of the Regional Trial Court (RTC) of Valenzuela City, Branch 172, in Criminal Case Nos. 348-V-02, 544-V-02, 545-V-02, 549-V-02, 552-V-02 and 553-V-02, finding herein appellant Adriano Leonardo y Dantes guilty beyond reasonable doubt of six counts of rape, and in Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02 for five counts of sexual abuse as defined and penalized under Section 5(b), Article III of Republic Act No. 7610,3 committed against AAA.4 The appellant was sentenced to suffer the penalty of reclusion perpetua for each count of rape and the indeterminate penalty of 8 years and 1 day of prision mayor as minimum to 15 years, 6 months and 20 days of reclusion temporal as maximum for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610. The appellant was further ordered to pay the victim the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages for each count of rape and the amount of P25,000.00 as civil indemnity and P25,000.00 as moral damages for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610.

In Criminal Case Nos. 550-V-02 and 551-V-02, however, the appellant was acquitted of the charges of rape for failure of the prosecution to prove his guilt beyond reasonable doubt.

Appellant Adriano Leonardo y Dantes was charged in 13 separate Informations5 with the crime of rape, in relation to Republic Act No. 7610, committed against AAA, the accusatory portion of which state:

In Criminal Case No. 348-V-02:

That on or about [11 May 2002] in XXX City and within the jurisdiction of this Honorable Court, the above-named [appellant], with lewd design, by means of force and intimidation employed upon AAA, 12 years old, did then and there willfully, unlawfully and feloniously have carnal knowledge of said AAA, thereby subjecting the said minor to sexual abuse which debased, degraded and demeaned her intrinsic worth and dignity as a human being.6

In Criminal Case No. 544-V-02:

That on or about [10 May 2002] in XXX City and within the jurisdiction of this Honorable Court, the above-named [appellant], being then the uncle-in-law of AAA, with lewd design, by means of force and intimidation employed upon AAA, 12 years old, did then and there willfully, unlawfully and feloniously have carnal knowledge of said AAA, thereby subjecting the said minor to sexual abuse which debased, degraded and demeaned her intrinsic worth and dignity as a human being.7

The Informations in Criminal Case Nos. 545-V-02, 546-V-02, 547-V-02, 548-V-02, 549-V-02, 550-V-02, 551-V-02, 552-V-02, 553-V-02, 554-V-02 and 555-V-02 contained similar averments except for the different dates of commission on the first week of April 2002, second week of April 2002, 1 May 2002, 2 May 2002, 3 May 2002, 4 May 2002, 5 May 2002, 6 May 2002, 7 May 2002, 8 May 2002 and 9 May 2002, respectively.

Upon arraignment, the appellant, assisted by counsel de parte, pleaded NOT GUILTY8 to all the charges against him. At the pre-trial conference, the prosecution and the defense stipulated9 that AAA is a minor having been born on 28 July 1989 as evidenced by her Certificate of Live Birth.10 After the pre-trial was terminated, trial on the merits ensued.

The prosecution presented the following witnesses, namely: AAA, the private complainant; BBB, the biological mother of AAA; Police Senior Inspector Pierre Paul F. Carpio (P/Sr. Insp. Carpio), Medico-Legal Officer of the Philippine National Police (PNP) Crime Laboratory, Camp Crame, Quezon City, who examined AAA; and CCC, the aunt of AAA who allegedly had an illicit relationship with the appellant, as rebuttal witness. The prosecution also submitted pieces of documentary evidence marked as Exhibits "A" to "H,"11 inclusive of submarkings.

The evidence for the prosecution, culled from the testimonies of the aforesaid witnesses, established that:

AAA was 12 years old when the appellant desecrated her. She was then living with her aunt, DDD, and the latter’s husband, who became her foster parents from the time her biological mother, BBB, left her under their care when she was only six months old, in order to work and earn a living. Now, AAA is already under the care of her biological mother.12

The harrowing experience of AAA in the hands of the appellant, who is the brother-in-law of her foster mother, DDD, and the brother of her foster father, EEE,13 began in the afternoon of the first week of April 2002. On the said date, the appellant saw AAA while he was gathering vegetables in the garden near his house. He immediately instructed AAA to buy him cigarettes and to bring the same inside the warehouse located at the back of his house. Following the instruction of

the appellant, AAA brought the cigarettes inside the warehouse. Once inside, the appellant did not allow her to go out anymore; instead, he showed her a knife and he then closed the door of the warehouse. Subsequently, the appellant told AAA to undress and to lie down on a piece of lumber located in the warehouse to which she acceded because the appellant was holding a knife. While AAA was lying down, the appellant removed his shorts and showed his sex organ to AAA while still wearing his brief. Later, the appellant went on top of AAA, inserted his sex organ into AAA’s vagina, touched AAA’s breasts and made push and pull movements. AAA felt pain in her private part but she did not bleed. The appellant stopped what he was doing to AAA when he heard his daughter calling him. He then ordered AAA to dress up. AAA did not report to anyone the said incident because she was afraid of the appellant.14

Then, in the second week of April 2002 at around 4:30 in the afternoon, while AAA was alone in their house because her foster mother was working as a laundrywoman and her foster father was in a drinking spree with his friends, the appellant suddenly came in drunk and immediately closed the door of their house. The appellant then began touching AAA’s breasts, however, the latter’s foster mother arrived. At once, the appellant went out of the house through the back door.15

Again, on 1 May 2002 at around 8:30 in the morning, while AAA was left alone inside their house, the appellant surprisingly arrived thereat. Upon knowing that AAA had no other companion, he began touching AAA’s breasts and vagina. Afterwards, CCC, the aunt of AAA, arrived and this prompted the appellant to leave the house.16

The following day, or on 2 May 2002 at around 8:00 o’clock in the morning, while AAA was cleaning their house, the appellant arrived. He then inquired if there were other persons inside the house. As he found no other person thereat, except AAA, he commanded AAA to close the windows and the door located at the back of the house. He then opened the television set, increased its volume and closed the main door of the house. Thereafter, he touched the private parts of AAA and told her to remove her clothes. After removing her clothes, the appellant held her breasts and touched her vagina. However, upon hearing his daughter’s voice calling and looking for him, he instantly went out of the house.17

On 3 May 2002 at around 2:00 o’clock in the afternoon, AAA was sleeping alone inside their house. Since the door was unlocked, the appellant entered the house, woke up AAA and asked her if there were other persons inside. He himself inspected the room of the house, finding none, he asked AAA to get him a glass of water and to buy him cigarettes. When AAA returned, the appellant requested her to turn on the television set. Then, he began touching AAA’s private parts and he even instructed AAA to undress. Thereafter, the appellant told AAA to lie down on the bed inside the room to which she acceded because the appellant was holding a knife that he got from his waist. The appellant followed AAA inside the room where he removed his shorts and underwear. He then inserted his penis into AAA’s vagina and made push and pull movements. After satisfying his lust, he told AAA to dress up and he went out of the house.18

In the afternoon of 4 May 2002, when AAA was hanging their washed clothes in the clothesline located at the back of the house of the appellant, which was only adjacent to their house, the appellant called her and asked her to buy cigarettes. After

buying cigarettes, she brought the same to the appellant who was already inside the warehouse at the back of his house. While they were inside the warehouse, the appellant touched her breasts and vagina. This same incident of appellant’s touching AAA’s breasts and vagina was repeated the following day, 5 May 2002.19

Then again, on 6 May 2002 at around 3:30 o’clock in the afternoon, AAA saw the appellant circumcising children. Afterwards, the appellant went to the house of AAA who was watching television at that time. Once inside, the appellant closed the main door of the house, instructed AAA to go inside the room and to remove her clothes. The appellant then told AAA to lie down on the bed. Subsequently, the appellant went on top of AAA, inserted his penis into her vagina and made push and pull movements. After doing such bestial act, the appellant went out of the house.20

The next day, or on 7 May 2002, at around 7:00 o’clock in the evening while AAA’s foster parents were not yet home and AAA had just finished washing the dishes, the appellant entered their house through the main door and asked AAA to buy him cigarettes as he would always do. When AAA came back, she handed the cigarettes to the appellant. The latter then ordered AAA to turn on the television and to lock the door. The appellant also told AAA to sit beside him on the sofa and he then began touching AAA’s private parts. The appellant, thereafter, instructed AAA to go inside the room, to remove her shorts and panty and to lie down on the bed, to which she complied because the appellant was holding a knife. The appellant then placed the knife beside the bed, removed his shorts and undergarment, lay on top of AAA, inserted his penis into AAA’s vagina and made push and pull movements. After satisfying his hideous desire, the appellant asked AAA to put on her clothes. He then proceeded to the sala and watched a television program. When AAA’s foster mother arrived at around 9:00 o’clock in the evening, the appellant was no longer there.21

On 8 May 2002 at around 8:30 o’clock in the morning, AAA was once again left alone in their house because her foster parents and their children went to work. The appellant then went inside the house and asked AAA to buy him cigarettes. When AAA came back, she gave the cigarettes to the appellant who was then watching a television program. AAA proceeded to the kitchen to clean the table and to put the dishes outside of their house. While the appellant was still watching a television program at the sala, AAA went upstairs but the appellant called her and told her to go inside the room where the appellant began touching her vagina. The appellant likewise told AAA to undress and thereafter, he started fondling her breasts. Suddenly, the appellant heard AAA’s cousin calling her from the outside. The appellant promptly told AAA to dress up and to go out of the room.22

On 9 May 2002 at around 3:30 o’clock in the afternoon, AAA was at the back of their house playing with her sister. The appellant called her and asked her if her foster mother and the latter’s children were in their house to which AAA replied in the negative. The appellant again asked AAA to buy him cigarettes. AAA then brought the cigarettes at the back of their house believing that the appellant was still there. Unknowingly, the appellant was already inside their house. When AAA saw the appellant inside their house, she gave him the cigarettes and the appellant asked her to switch on the television. When AAA was about to get out of the house, the appellant prevented her, instead, he ordered AAA to go inside the room, but AAA insisted to go out as she wanted to continue playing

with her sister. The appellant then showed AAA his knife and told her to remove all her clothing. Afraid, AAA could not do anything but to submit to the vicious desire of the appellant. The latter then touched AAA’s breasts and vagina. Thereafter, the appellant ordered AAA to put on her clothes and left.23

On 10 May 2002, at around 6:30 o’clock in the afternoon, while AAA was playing in front of their house, the appellant saw her and commanded her to buy him cigarettes. He also told AAA to bring the same to the warehouse. Upon giving the cigarettes to the appellant, the latter instructed AAA to go inside the warehouse but she refused as she was still playing outside. The appellant, however, did not allow her to go out anymore and he, once again, showed his knife to AAA. Out of fear, AAA stayed inside the warehouse. Later, the appellant told AAA to undress and he proceeded to touch her breasts. He also inserted his finger into the vagina of AAA. Thereafter, he removed his finger into AAA’s vagina and made her lie down on the floor. He then removed his shorts, mounted AAA, inserted his penis into AAA’s vagina and made push and pull movements. AAA felt pain in her private organ. After being satisfied, the appellant instructed AAA to dress up and to go home.24

The last sexual advances of the appellant to AAA happened on 11 May 2002 at around 7:00 o’clock in the evening near the well located at the back of the house of the appellant. During that time AAA was removing their washed clothes from the clothesline at the back of the house of the appellant. The appellant, who was then taking a bath at the well near their house, saw her, called her and requested her to buy him one stick of cigarette. After she bought cigarette, she gave it to the appellant who was still taking a bath at the well. When AAA was about to go home, the appellant prevented her and showed her his knife tucked on his waist. The appellant instructed AAA to undress to which the latter obeyed because the appellant was holding a knife. When AAA was totally naked, the appellant touched her private parts and told her to lie down on the grassy ground. She felt itchy as she was lying on the grassy ground. While in that position, the appellant went on top of AAA, inserted his penis into her vagina and made push and pull movements. AAA felt pain. When the appellant heard his wife calling him, he stopped what he was doing to AAA and told the latter to put on her clothes. AAA went home. At the time this incident happened, the appellant was drunk as he just came from a birthday party.25

When AAA went home, her aunt, CCC, who was there cooking, asked her why she was pale and uneasy. Her aunt also wondered why she was scratching her back. AAA did not immediately tell CCC what truly happened. However, when CCC became so persistent to know what really happened to her, AAA began to cry. She then disclosed to CCC what happened to her on that day, as well as all her harrowing experiences in the hands of the appellant.26CCC instantly called up AAA’s biological mother, BBB, whose house was only three meters away from CCC and informed her of AAA’s ordeal. Thereafter, BBB came to accompany AAA in going to the police station to report what the appellant did to her. At the police station, AAA gave her written statements against the appellant.27

The following day, AAA was subjected to a medical examination by P/Sr. Insp. Carpio, a medico-legal officer of the PNP Crime Laboratory in Camp Crame, Quezon City, which examination yielded the following results:28

EXTERNAL AND EXTRAGENITAL

PHYSICAL BUILT: Light built.

MENTAL STATUS: Coherent female child.

BREAST: Conical with light brown areola and nipples from which no secretions could be pressed out.

ABDOMEN: Flat.

PHYSICAL INJURIES: No external signs of application of any form of trauma.

GENITAL

PUBIC HAIR: Absent growth.

LABIA MAJORA: Full, convex and coaptated.

LABIA MINORA: light brown; non-hypertrophied.

HYMEN: deep healed laceration at 8 o’clock position.

POSTERIOIR FOURCHETTE: sharp.

EXTERNAL VAGINAL ORIFICE: Offers strong resistance of the examining index finger.

VAGINAL CANAL: Narrow.

CERVIX:

PERIURETHRAL AND VAGINAL SMEARS: Negative for spermatozoa.

CONCLUSION:

Subject is in non-virgin state physically. There are no external signs of application of any form of trauma. [Emphasis supplied].29

Thereafter, 13 separate Informations for rape, in relation to Republic Act No. 7610, were filed against the appellant.

For its part, the defense presented the following witnesses, to wit: the appellant, who interposed the defense of denial and alibi; Candida Urbina (Candida), neighbor and cousin of the appellant; Lea Mae Leonardo (Lea Mae), niece of the appellant; and Ma. Victoria Leonardo (Ma. Victoria), wife of the appellant. The defense likewise submitted pieces of documentary evidence marked as Exhibits "1" to "6,"30 inclusive of submarkings.

When the appellant took the witness stand, he admitted that he knows AAA because she was his neighbor and her foster father who reared her since childhood is his brother, which is the reason why AAA called him Mama Adring, although he was not related to her by blood in any manner. The appellant even described AAA as "gala" as she used to roam around, and there were times that her foster father would ask him as to the whereabouts of AAA.31

The appellant, however, denied all the rape charges against him and claimed that they were all lies and that he was just framed up. He argued that these cases were only filed against him by AAA upon the initiative of her aunt, CCC, with whom he had an illicit affair.32 The appellant even professed that in April 2002, AAA’s aunt, CCC, made a proposal to him to leave their respective spouses and children so that the two of them can begin to live together as husband and wife in Pampanga. The appellant claimed that CCC even offered to buy him a tricycle. When the appellant did not agree with CCC’s proposal, the latter threatened him that she would file a case against him.33

The appellant also maintained that it was impossible for him to rape AAA on 1 May 2002 because on the said date at around 7:00 o’clock in the morning, he was in Angat, Bulacan, with his children as they had an excursion with the members of AMATODA, an association of tricycle owners and drivers in their place. It was already 10:00 o’clock in the evening when they got home.34

Similarly, the appellant denied having raped AAA on 2 May 2002 until 4 May 2002. The appellant stated that on 4 May 2002, he was again in an excursion in Angat, Bulacan, this time, with CCC and her mother. While in the said place, he and CCC had an intimate moment with one another.35 On the succeeding dates beginning 5 May 2002 up to 10 May 2002, the appellant also denied having raped AAA without giving any explanations therefor.36

The appellant also denied having raped AAA on 11 May 2002. He avowed that as early as 9:00 o’clock in the morning of the said date, he was already at the house of his cousin, Candida, located at 103 NY Street, Bisalao, Bagbaguin, Valenzuela City, where he assisted in the cooking of the food for the birthday celebration of Candida’s nephew. In the evening thereof, the appellant engaged in a drinking session with his cousins and friends who attended the said birthday party. He stayed there until 10:00 o’clock in the evening and then he went home. At around 11:00 o’clock in the evening, he was arrested by the police authorities because AAA had filed a complaint against him charging him with 13 counts of rape.37

To buttress the theory of the defense, Candida testified affirming that on 11 May 2002, the appellant was at their house as early as 9:00 o’clock in the morning as she had invited him as a cook for the birthday celebration of her nephew. She stated that the appellant stayed at their house the whole day because after the preparation of the food they had a drinking session which started at around 5:00 o’clock in the afternoon and lasted until 10:00 0’clock in the evening. To prove the same, the defense even presented pictures depicting that the appellant was among those having a drinking spree at the house of Candida. The latter admitted, however, that there was an instance on that date when the appellant left her house when she requested him to get the big casserole from the house of his sister living nearby. After less than an hour, the appellant returned. Candida also disclosed that her house was just a 15 minute-walk away from the house of the appellant.38

To establish that AAA is a girl of ill repute, the defense presented Lea Mae, the niece of the appellant, who testified that she knows AAA as she is her neighbor and friend. Lea Mae declared in open court that AAA has two boyfriends, one whose name is "alias Pogi" and the other is known to her only as "Frankie." She knew that they were AAA’s boyfriends because AAA herself told her so. Lea Mae further testified that on one occasion AAA requested her to deliver a letter to

"Frankie" but she was not able to do so as her mother might get angry. Having failed to deliver the said letter, Lea Mae, instead of giving it back to AAA, just kept the same. Later, Lea Mae gave the said letter to her aunt, the wife of the appellant, after the filing of the rape cases against the latter. Her only reason for doing so is because she trusted her aunt. Lea Mae divulged, however, that she did not see AAA writing the said letter.39

The defense also presented the wife of the appellant who testified that prior to the filing of the rape cases against the appellant, she and CCC had a quarrel regarding the rumor that the latter and the appellant were having an illicit affair.

On rebuttal, the prosecution presented CCC who denied having an illicit affair with the appellant. She maintained that before the rape cases against the appellant commenced, their family are in good terms as neighbors. She used to sell food and the appellant’s wife used to buy from her. However, from the time the appellant was arrested and incarcerated in connection with the rape cases filed against him by her niece, AAA, both the appellant and his wife did not talk to her anymore.40

After trial, a Joint Decision was rendered by the court a quo on 28 January 2005 giving credence to the testimonies of the prosecution witnesses particularly of AAA and rejecting the defense of denial and alibi proffered by the appellant. The trial court thus decreed:

WHEREFORE, judgment is hereby rendered as follows:

1. In Crim. Cases Nos. 550-V-02 and 551-V-02, the Court finds the guilt of [appellant] ADRIANO LEONARDO not to have been proven beyond reasonable doubt and acquits him of the charges therein for insufficiency of evidence, with costs de officio;

2. In Crim. Cases Nos. 348-V-02, 544-V-02, 545-V-02, 549-V-02, 552-V-02 and 553-V-02, the Court finds [appellant] ADRIANO LEONARDO guilty beyond reasonable doubt and as principal of six (6) counts of rape without any mitigating or aggravating circumstance and hereby sentences him to suffer the penalty ofreclusion perpetua in each case with all the accessory penalties provided for by law. Further, the [appellant] is sentenced to pay [private] complainant AAA the amount of P50,000.00 as indemnity, and the amount ofP50,000.00 as moral damages in each case, without subsidiary imprisonment in case of insolvency. Finally, the [appellant] is sentenced to pay the costs of suit; and

3. In Crim. Cases Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02 the Court finds [appellant] ADRIANO LEONARDO guilty beyond reasonable doubt and as principal of the crime of sexual abuse as defined in and penalized under Section 5(b) of Article III of Republic Act No. 7610 without any attending mitigating or aggravating circumstance and hereby sentences him to suffer the penalty of EIGHT (8) YEARS and ONE (1) DAY of prision mayor as minimum to FIFTEEN (15) YEARS, SIX (6) MONTHS and TWENTY (20) DAYS of  reclusion temporal  as maximum in each case with all the accessory penalties provided for by law. Further, the [appellant]

is sentenced to pay [private] complainant AAA the amount of P25,000.00 as indemnity and the amount of P25,000.00 as moral damages in each case without subsidiary imprisonment in case of insolvency. Finally, the [appellant] is sentenced to pay the costs of suit.

The [appellant] being a detention prisoner, he shall be credited the preventive imprisonment he has undergone in the service of his sentence.41 [Emphasis supplied].

The appellant appealed his convictions to the Court of Appeals. In his brief, the appellant assigned the following errors:

1. THE TRIAL COURT SERIOUSLY ERRED IN FINDING THAT [APPELLANT] IS GUILTY BEYOND REASONABLE DOUBT IN CRIMINAL CASES NOS. 348-V-02, 544-V-02, 545-V-02, 549-V-02, 552-V-02 AND 553-V-02 WITHOUT GIVING WEIGHT AND CREDENCE TO THE EVIDENCE PRESENTED BY THE [APPELLANT].

2. THE TRIAL COURT SERIOUSLY ERRED IN FINDING THAT [APPELLANT] IS GUILTY BEYOND REASONABLE DOUBT IN CRIMINAL CASES NOS. 546-V-02, 547-V-02, 548-V-02, 554-V-02 AND 555-V-02 WITHOUT GIVING WEIGHT AND CREDENCE TO THE EVIDENCE PRESENTED BY THE [APPELLANT].

3. THE TRIAL COURT SERIOUSLY ERRED IN CONCLUDING THAT THE PROSECUTION SUFFICIENTLY PROVED THE ESSENTIAL ELEMENTS OF THE CRIME AS CHARGED. THE PROSECUTION’S EVIDENCE FELL SHORT OF THE DEGREE OF PROOF THAT IS PROOF BEYOND REASONABLE DOUBT REQUIRED BY LAW TO BE ESTABLISHED IN ORDER TO OVERCOME THE CONSTITUTIONALLY ENSHRINED PRESUMPTION OF INNOCENCE IN FAVOR OF [APPELLANT].42

On 28 May 2007, the Court of Appeals rendered a Decision affirming in toto the 28 January 2005 Joint Decision of the trial court. The appellate court ratiocinated as follows:

Based on the records and transcript of stenographic notes taken during the proceedings of the cases, appellant has nothing to offer but denial and alibi for his defense. He now faults the trial court for his conviction as it allegedly relied solely on AAA’s declarations in court.

x x x x

In finding appellant guilty, it is not as if the trial court relied only on AAA’s testimony, without any critical assessment at all, as appellant would like it to appear. It should be noted that the testimony of AAA was corroborated by the findings of [P/Sr. Insp. Carpio] that she was indeed violated. Where a rape victim’s testimony is corroborated by the physical findings of penetration, there is sufficient basis for concluding that sexual intercourse did take place.43 The proceedings before the trial court indicated that the trial court gave credence to her testimony only after it has satisfied itself that the same was

competent and credible as shown by the manner in which she testified and her demeanor on the witness stand.

x x x x

Anent the third assigned error, appellant insists that the prosecution failed to sufficiently establish his guilt beyond reasonable doubt of the crimes charged. It is doctrinal that the requirement of proof beyond reasonable doubt in criminal law does not mean such a degree of proof as to exclude the possibility of error and produce absolute certainty. Only moral certainty is required or that degree of proof which produces conviction in an unprejudiced mind.44 All the prosecution needs to prove, which it did, was carnal knowledge of the victim by the [appellant] against her will and without her consent and that she was sexually abused and molested through appellant’s lascivious conduct.45 [Emphasis supplied].

The appellant appealed to this Court contending that his convictions for the crimes charged were based mainly on the bare allegations of AAA as there were no evidences presented to corroborate her allegations that he truly raped her. The appellant also harps on the possibility that the laceration found on AAA’s vagina may be due to her having sex with her boyfriends because the prosecution did not submit or present even a single evidence or witness who actually saw that he raped AAA. Moreover, the appellant asserts that AAA’s testimony contains inconsistencies that would readily show that she is not telling the truth. Also, the long delay on the part of AAA in reporting the rape incidents created doubts that she was raped by the appellant. Thus, the self-serving allegations of AAA that she was raped many times by the appellant deserved scant consideration.

The appellant further argues that the court a quo failed to consider that AAA was merely forced by her aunt, CCC, who has moral ascendancy and authority over her to file the rape cases against him as a form of revenge for his refusal to live with her in Pampanga.

Finally, the appellant posits that the essential elements of the crimes charged were not sufficiently proven by the prosecution and that the pieces of evidence presented by the prosecution fell short of the degree of proof required by law to convict him of the crimes charged. Therefore, the appellant strongly calls for his acquittal.

The appellant’s contentions are bereft of merit.

This Court will concurrently discuss the aforesaid arguments raised by the appellant.

The appellant attempts to convince this Court of his innocence by averring that the prosecution failed to sufficiently prove the elements of the crimes of which he was convicted and that the pieces of evidence presented fell short of the degree of proof required to establish his guilt thereof.

This Court holds otherwise.

Article 266-A of the Revised Penal Code provides:

ART. 266-A. Rape; When and How Committed. – Rape is committed:

1) By a man who have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

x x x x [Emphasis supplied].

In this case, the records reveal that the prosecution was able to prove appellant’s carnal knowledge of AAA through threat or intimidation. The records support his conviction of six counts of rape. During her testimony before the trial court, AAA clearly, candidly, straightforwardly and explicitly narrated before the trial court how the appellant took advantage of her on the 1st week of April 2002, 3 May 2002, 6 May 2002, 7 May 2002, 10 May 2002 and 11 May 2002. AAA repeatedly pointed out the horrendous part of her ordeal when the appellant would command her to undress, would place himself on top of her, would insert his penis into her vagina and would make push and pull movements. She was cowed into submission to the appellant’s beastly desires because the latter always had a knife tucked to his waist and whenever she would resist his sexual advances, the appellant would draw the knife from his waist and wield it on her. Considering that AAA was barely out of childhood at the time when her person was criminally violated, the mere sight of the deadly weapon in the hands of the appellant intimidated her; and easily so because appellant was a 49 year-old man of superior strength to the child. On top of these, the appellant is not just AAA’s neighbor - he is also the brother of AAA’s foster father. These concurring circumstances provided the occasion for the infliction of appellant’s bestiality upon AAA’s hapless helplessness.

It is a well-entrenched law that intimidation in rape includes the moral kind of intimidation or coercion. Intimidation is a relative term, depending on the age, size and strength of the parties, and their relationship with each other. It can be addressed to the mind as well. For rape to exist it is not necessary that the force or intimidation employed be so great or of such character as could not be resisted. It is only necessary that the force or intimidation be sufficient to consummate the purpose which the accused had in mind. Intimidation must be viewed in the light of the victim's perception and judgment at the time of the rape and not by any hard and fast rule. It is therefore enough that it produces fear -- fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment or thereafter, as when she is threatened with death if she reports the incident. Intimidation would also explain why there are no traces of struggle which would indicate that the victim fought off her attacker.46

With the aforesaid, the prosecution, indeed, has proven beyond reasonable doubt the existence of carnal knowledge through threat or intimidation, which is enough to establish the crime of rape.

The prosecution likewise proved the essential elements of sexual abuse under Section 5(b), Article III of Republic Act No. 7610. It thus provides:

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 x

(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; x x x.

The elements of sexual abuse under the above provision 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.47

AAA testified that on the 2nd week of April 2002, 1 May 2002, 2 May 2002, 8 May 2002 and 9 May 2002, the appellant touched her breasts and vagina. The said incidents happened inside the house of AAA’s parents whenever AAA was left alone. In all instances, there was no penetration, or even an attempt to insert appellant’s penis into AAA’s vagina.

The aforesaid acts of the appellant are covered by the definitions of "sexual abuse" and "lascivious conduct" under Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions of Republic Act No. 7610:

(g) "Sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children;

(h) "Lascivious conduct" means the 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.48

The second element is also present. Section 5 of Republic Act No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child is coerced to engage in lascivious conduct.49 To repeat, intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. This is especially true in the case of young, innocent and immature girls who

could not be expected to act with equanimity of disposition and with nerves of steel. Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat.50

The circumstances of the rapes are the same as that which occasioned the sexual abuses. AAA was a 12 year-old girl who was the object of the criminal carnality of a male adult. Access to the girl was easy for the predator is one of the folks being a neighbor and a brother of AAA’s foster father. Moreover, to repeat the statement of AAA on cross-examination, she was afraid of the appellant because he was always carrying a knife and he showed it to her whenever she failed to follow his wishes. Appellant virtually enslaved AAA.

As regards the third element, it is undisputed that AAA was below 18 years of age when she was sexually abused by the appellant.

Thus, all the elements of sexual abuse under Section 5(b), Article III of Republic Act No. 7610 were also proven by the prosecution.

No significance can be given to the claim of the appellant that his convictions for the crimes charged were based mainly on the bare allegations of AAA, as there was no evidence presented to corroborate her allegations that he truly raped her.

It is a fundamental rule that the trial court’s factual findings, especially its assessment of the credibility of witnesses, are accorded great weight and respect and binding upon this Court, particularly when affirmed by the Court of Appeals.51 This Court has repeatedly recognized that the trial court is in the best position to assess the credibility of witnesses and their testimonies because of its unique position of having observed that elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying, which opportunity is denied to the appellate courts. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath.52 These are significant factors in evaluating the sincerity of witnesses, in the process of unearthing the truth.53 The appellate courts will generally not disturb such findings unless it plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.54 In this case, none of these circumstances are present.

Credible witness and credible testimony are the two essential elements for the determination of the weight of a particular testimony. This principle could not ring any truer where the prosecution relies mainly on the testimony of the complainant, corroborated by the medico-legal findings of a physician. Be that as it may, the accused may be convicted on the basis of the lone, uncorroborated testimony of the rape victim, provided that her testimony is clear, convincing and otherwise consistent with human nature.55

Needless to say, this is a matter best assigned to the trial court which had the first-hand opportunity to hear the testimonies of the witnesses and observe their demeanor, conduct, and attitude during cross-examination. Such matters cannot be gathered from a mere reading of the transcripts of stenographic notes. Hence, the trial court’s findings carry great weight and substance.56

As aptly stated by the Court of Appeals in its Decision, the trial court did not unthinkingly rely on the testimony of AAA in finding the appellant guilty of the crimes charged. There was a critical assessment of her testimony and the manner it was given. The first hand observation was that AAA’s testimony was spontaneous, positive, straightforward and candid. Without flourish and innuendo, AAA recounted in detail how the appellant took advantage of her from the first week of April 2002 until 11 May 2002. The trial court noted that AAA was crying while testifying. The crying was a natural display of emotion indicating the pain that the victim feels when asked to recount her traumatic experience.57 The tears indicate truth and sincerity.

Moreover, AAA’s testimony that she was repeatedly raped and sexually abused by the appellant was corroborated by the medico-legal findings of the examining physician, P/Sr. Insp. Carpio. Settled is the rule that where a rape victim's testimony is corroborated by the physical findings of penetration, there is sufficient basis for concluding that sexual intercourse did take place.58

While it is true that aside from AAA herself, the prosecution did not present any other witness who actually saw that the appellant raped and sexually abused AAA, such fact was not fatal to the prosecution’s cause. There is no claim that other witnesses saw or could have seen the crime but were not presented in court. Indeed, credibility does not go with numbers. The testimony of a single witness, if categorical and candid, suffices. It is of judicial notice that the crime of rape is usually committed in a private place where only the aggressor and the rape victim are present.59 Further, AAA has positively identified the appellant as the person who raped and sexually abused her and this negates the theory proffered by the appellant that the laceration found on AAA’s vagina could have been caused by AAA’s sexual intercourse with either of her two boyfriends.

It is time once more to stress that no woman would concoct a story of defloration, allow the examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and impelled to seek justice for the wrong done to her. It is a settled jurisprudence that when a woman says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed. A woman would think twice before she concocts a story of rape unless she is motivated by a patent desire to seek justice for the wrong committed against her.60 When her testimony passes the test of credibility, the accused can be convicted on the basis thereof. This is because from the nature of the crime, the only evidence that can be offered to establish the guilt of the accused is the complainant’s testimony.61

We cannot sustain appellant’s contention that AAA’s testimony contains inconsistencies that put her credibility in doubt. The supposed inconsistencies or contradictions refer to alleged variance in the dates and times that the appellant committed the crimes. Particularly alluded to was AAA’s testimony that the two sons of her foster parents reported for work on 1 May 2002 despite the fact that it was a regular holiday. AAA testified that she was sexually assaulted by the appellant on 1 May 2002 at 8:30 o’clock in the morning, however, on the said date the appellant claimed that he left their house at 7:00 o’clock in the morning to attend an excursion and he returned home only at 10:00 o’clock in the evening. Also, AAA stated that on 11 May 2002, the appellant raped her at 7:00 o’clock in the evening but the appellant avowed that on the said date he was at the house of her cousin, Candida, from 7:00 o’clock in the morning

until 10:00 o’clock in the evening. Further, AAA initially said that on 1 May 2002 the two sons of her foster parents reported for work, however, she changed her statement that they did not report for work on that date, then again, she claimed that she was not sure whether they reported for work or not but she was certain that they left the house.

The appellate court satisfactorily explained the aforesaid inconsistencies in this wise:62

The perceived inconsistencies or contradictions referred to by the appellant pertain only to the date and time differences on the commission of the act which are minor and insignificant details which, even if considered, would not alter the fact that indeed appellant raped and sexually abused AAA. x x x Besides both the prosecution and the defense merely gave estimates of time as to when the act complained of happened and where the appellant was, at that particular time. x x x Moreover, the date and time are not an essential element of the crime.63 It is not even necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.64

Indeed, it is clear that the inconsistencies regarding the date and time of commission pointed out by the appellant are not really inconsistencies in the statement of AAA, but more of contradictions between the testimonies offered by him and by AAA. Naturally, the appellant would contradict the statements of AAA as a matter of defense to exonerate himself of the crimes charged. Further, the inconsistent statements of AAA as to whether or not the two sons of her foster parents reported for work on 1 May 2002 is too trivial and inconsequential and would not alter the fact that the appellant had raped and sexually abused AAA. Time-honored is the doctrine that discrepancies referring to minor details and collateral matters do not affect the veracity of the witnesses’ declarations. In fact, they strengthen, rather than impair, the witnesses’ credibility, for they erase any suspicion of rehearsed testimony.65

Similarly, the delay on the part of AAA in reporting the rape incidents cannot cast doubt on her credibility. It must be emphasized that people may react differently to the same set of circumstances. There is no standard reaction of a victim in a rape incident. Not every victim of rape can be expected to act with reason or in conformity with the usual expectations of everyone. The workings of a human mind placed under emotional stress are unpredictable; people react differently. Some may shout, some may faint, while others may be shocked into insensibility.66 The delay on the part of AAA in disclosing the sexual defilement to her aunt, CCC, and to her mother is understandable. As adequately elucidated by the appellate court, AAA’s complete obedience to appellant, her lack of struggle and silence about her ordeal were all brought about by a genuine fear posed upon her by the appellant who always had a knife tucked to his waist whenever he wanted to see AAA to satisfy his lust.67 The appellant is the brother of AAA’s foster father and their houses are adjacent to each other. Well-entrenched is the rule that delay in reporting an incident of rape is not an indication of a fabricated charge, nor does it cast doubt on the credibility of a complainant.68 More significantly, a one-month delay cannot be regarded as unreasonable. We have had cases where the delay in reporting the crime lasted for months, yet the testimonies of the victims therein were found to be plausible and credible.69

As regards appellant’s assertions that the rape charges against him were fabricated and initiated only by the aunt of AAA in revenge for his refusal to live with her in Pampanga, the same remains unsubstantiated, thus, stands on hollow ground. Here we quote the trial court’s pronouncement on this matter:

The [appellant] would want this Court to believe that the charges against him were trumped up, borne by the desire of CCC, the sister of the [biological] mother of AAA to exact revenge upon him. The [appellant] would have it that CCC was his lover, having had carnal knowledge of her once in a local motel but became furious of him and threatened to bring the fury of hell to him when he denied her request to live with her as husband and wife in Pampanga. Such a defense burdens the imagination. It is utterly preposterous and unthinkable. Both the [appellant] and CCC are presently married to and living with their respective spouses. The Court failed to see anything so appealing on the part of the [appellant] as to drive CCC, who was already 41 years of age x x x and with six (6) children with her husband, out of her mind to make such proposal to the [appellant]. As a laundrywoman and a food vendor on the side, CCC would not be financially in a position to offer to buy for the [appellant] a passenger tricycle as their means of livelihood in Pampanga. In any event, the [appellant] failed to substantiate his said claim by document or other evidence of relationship like mementos, love letters, notes, pictures and the like.

Even in the remote possibility that CCC was indeed so obsessed to have the [appellant] as her live-in partner, it does not follow that she can impose her will on AAA and her mother for them to concoct a story of not just one but multiple rape alleged to have been committed against AAA. The [biological] mother of AAA would particularly not allow her daughter to be used by her sister as an engine of malice, specially (sic) since to do so would expose her daughter to embarrassment and public trial.70

As has been repeatedly stated by this Court in a number of cases, it is unnatural for a parent to use her offspring as an engine of malice if it will subject her to embarrassment and even stigma. No mother would stoop so low as to subject her daughter to the hardships and shame concomitant to a rape prosecution just to assuage her own hurt feelings, more so, of her sister. It is unthinkable that a mother would sacrifice her daughter’s honor to satisfy her grudge or even her sister’s grudge, knowing fully well that such an experience would certainly damage her daughter’s psyche and mar her entire life. A mother would not subject her daughter to a public trial with its accompanying stigma on her as the victim of rape, if said charges were not true.71

In contrast, the evidence presented by the defense consisted mainly of bare denials and alibi. As the Court has oft pronounced, both denial and alibi are inherently weak defenses which cannot prevail over the positive and credible testimony of the prosecution witness that the accused committed the crime.72 For the defense of alibi to prosper, it is not sufficient that appellant prove that he was somewhere else when the crime was committed, he must also show that it was physically impossible for him to be at the locus criminis or its immediate vicinity when the crime was perpetrated.73 Further, the defense of alibi may not prosper if it is established mainly by the accused themselves and their relatives like in this case and not by credible persons.74

In the case at bench, the appellant vehemently averred that at the time of the incidents on 1 May 2002 and on 11 May 2002

he was in Angat, Bulacan, and in Bagbaguin, Valenzuela City, respectively. On 1 May 2002, the appellant insisted that it was impossible for him to sexually abuse AAA at 8:30 in the morning because as early as 7:00 o’clock in the morning he already went out of his house to join the excursion of his co-drivers in Angat, Bulacan, and returned home only at 10:00 o’clock in the evening. Also, on 11 May 2002, at around 7:00 o’clock in the evening, the appellant claimed that it was not possible for him to rape AAA because as early as 9:00 o’clock in the morning he was already at the house of his cousin in Bagbaguin, Valenzuela City, to assist in the cooking of food for the birthday celebration of his cousin’s nephew and he went home only at around 10:00 o’clock in the evening. However, these assertions of time and hour are bare and bereft of support. Neither is there any evidence to prove that it was physically impossible for him to be present at the place where the crimes were committed at the time they happened.

Additionally, it is worthy to note the findings of the trial court, which was affirmed by the appellate court, that from the time the appellant left his house on 1 May 2002 at 7:00 o’clock in the morning up to the time the incident of sexual abuse happened at 8:30 in the morning of the same day, there is only a time difference of one and one-half hour, thus, it was entirely possible that before leaving his house he had already committed the act complained of against AAA. Besides, the appellant can easily give a different time to make it appear that at the time of the incident he was no longer at the place where it happened. In the same breath, though the appellant was at the house of his cousin at the time the crime of rape was committed on 11 May 2002, it was not physically impossible for him to be present at the crime scene at the time it happened because the records clearly show that his cousin’s house is only a 15-minute-walk away from the house of AAA.

The testimonies of the appellant’s wife, cousin and niece designed to strengthen his defense of denial and alibi cannot be given any value for their testimonies are suspect because of their relationship to appellant. This Court has held that relatives would freely perjure themselves for the sake of their loved ones.75 Notably, the cousin of the appellant even admitted that on 11 May 2002 there was an instance when the appellant left her house for about an hour and then returned to continue with the drinking session. This indicates the possibility that it was during that hour that appellant raped AAA.

For failure of the appellant to support by clear and convincing evidence his defense of denial and alibi, and in light of the positive declaration of AAA, who in a simple and straightforward manner convincingly identified the appellant as her ravisher, the defense offered by the appellant must necessarily fail.

Given the foregoing, this Court affirms appellant’s convictions in Criminal Case Nos. 545-V-02, 549-V-02, 552-V-02, 553-V-02, 544-V-02 and 348-V-02 for six counts of rape and in Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02 for five counts of sexual abuse under Section 5(b), Article III of Republic Act No. 7610.

This Court holds that the lower courts properly convicted the appellant in Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02 for five counts of sexual abuse under Section 5(b), Article III of Republic Act No. 7610 even though the charges against him in the aforesaid criminal cases were for rape in relation to Republic Act No. 7610. The lower courts’ ruling is in conformity with the variance doctrine

embodied in Section 4, in relation to Section 5, Rule 120 of the Revised Rules of Criminal Procedure, which specifically provides:

SEC. 4. Judgment in case of variance between allegation and proof. – When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.

With the aforesaid provisions, the appellant can be held guilty of a lesser crime of acts of lasciviousness performed on a child, i.e., sexual abuse under Section 5(b), Article III of Republic Act No. 7610, which was the offense proved because it is included in rape, the offense charged.

As to penalty. This Court similarly affirms the penalty of reclusion perpetua76 imposed by the lower courts against the appellant for each count of rape in Criminal Case Nos. 545-V-02, 549-V-02, 552-V-02, 553-V-02, 544-V-02 and 348-V-02.

This Court, however, modifies the penalty imposed by the lower courts against the appellant in Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02 for sexual abuse under Section 5(b), Article III of Republic Act No. 7610.

For acts of lasciviousness performed on a child under Section 5(b), Article III of Republic Act No. 7610, the penalty prescribed is reclusion temporal in its medium period to reclusion perpetua. Notwithstanding that Republic Act No. 7610 is a special law, the appellant may enjoy the benefits of the Indeterminate Sentence Law.77

Applying the Indeterminate Sentence Law, the appellant shall be entitled to a minimum term to be taken within the range of the penalty next lower to that prescribed by Republic Act No. 7610. The penalty next lower in degree is prision mayor medium to reclusion temporal minimum, the range of which is from 8 years and 1 day to 14 years and 8 months. On the other hand, the maximum term of the penalty should be taken from the penalty prescribed under Section 5(b), Article III of Republic Act No. 7610, which is reclusion temporal in its medium period to reclusion perpetua, the range of which is from 14 years, 8 months and 1 day to reclusion perpetua. The minimum, medium and maximum term of the same is as follows: minimum – 14 years, 8 months and 1 day to 17 years and 4 months; medium – 17 years, 4 months and 1 day to 20 years; and maximum – reclusion perpetua.

In this case, the trial court imposed on the appellant an indeterminate sentence of 8 years and 1 day of prision mayor as minimum to 15 years, 6 months and 20 days of reclusion temporal as maximum for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610. The minimum term imposed is correct because it is within the range of prision mayor medium to reclusion temporal minimum, the penalty

next lower in degree to that imposed by Republic Act No. 7610. But the maximum term thereof is wrong. The maximum term of the indeterminate sentence should be anywhere from 14 years, 8 months and one day to reclusion perpetua. We, thus, impose on the appellant the indeterminate sentence of 8 years and 1 day of prision mayor as minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610 in Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02.

As to damages. This Court affirms the awards of P50,000.00 as civil indemnity and P50,000.00 as moral damages given by the lower courts to AAA for each count of rape. Civil indemnity, which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape.78 Moral damages in rape cases should be awarded without need of showing that the victim suffered trauma of mental, physical, and psychological sufferings constituting the basis thereof. These are too obvious to still require their recital at the trial by the victim, since we even assume and acknowledge such agony as a gauge of her credibility.79

In line with this Court’s ruling in Abenojar v. People,80 this Court deems it proper to reduce the award of civil indemnity from P25,000.00 to P20,000.00, as well as the award of moral damages from P25,000.00 to P15,000.00 for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610. In the same breath, in line with this Court’s ruling in People v. Sumingwa,81 this Court impose a fine of P15,000.00 on the appellant for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01092 dated 28 May 2007 finding herein appellant guilty beyond reasonable doubt in Criminal Case Nos. 545-V-02, 549-V-02, 552-V-02, 553-V-02, 544-V-02 and 348-V-02 of six counts of rape and in Criminal Case Nos. 546-V-02, 547-V-02, 548-V-02, 554-V-02 and 555-V-02 of five counts of sexual abuse under Section 5(b), Article III of Republic Act No. 7610 is hereby AFFIRMED with the following MODIFICATIONS: (1) the maximum term of the indeterminate sentence to be imposed upon the appellant for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610 should be 17 years, 4 months and 1 day of reclusion temporal; (2) the awards of civil indemnity and moral damages for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610 are reduced from P25,000.00 to P20,000.00 and from P25,000.00 to P15,000.00, respectively; and (3) a fine of P15,000.00 is imposed on the appellant also for each count of sexual abuse under Section 5(b), Article III of Republic Act No. 7610. Costs against appellant.

SO ORDERED.

JOSE PORTUGAL PEREZAssociate Justice

WE CONCUR:

RENATO C. CORONAChief JusticeChairperson

PRESBITERO J. TERESITA LEONARDO-

VELASCO, JR.Associate Justice

DE CASTROAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAChief Justice

Footnotes

1 Penned by Associate Justice Marlene Gonzales-Sison with Associate Justices Juan Q. Enriquez, Jr. and Vicente S. E. Veloso, concurring. Rollo, pp. 2-23.

2 Penned by Judge Floro P. Alejo. CA rollo, pp. 35-50.

3 Otherwise known as "The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act."

4 This is pursuant to the ruling of this Court in People of the Philippines v. Cabalquinto [G.R. No. 167693, 19 September 2006, 502 SCRA 419], wherein this Court resolved to withhold the real name of the victim-survivor and to use fictitious initials instead to represent her in its decisions. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well as those of their immediate family or household members, shall not be disclosed. The names of such victims, and of their immediate family members other than the accused, shall appear as "AAA," "BBB," "CCC," and so on. Addresses shall appear as "XXX" as in "No. XXX Street, XXX District, City of XXX."

The Supreme Court took note of the legal mandate on the utmost confidentiality of proceedings involving violence against women and children set forth in Sec. 29 of Republic Act No. 7610, otherwise known as Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act; Sec. 44 of Republic Act No. 9262, otherwise known as Anti-Violence Against Women and Their Children Act of 2004; and Sec. 40 of A.M. No. 04-10-11-SC, known as Rule on Violence Against Women and Their Children effective 15 November 2004.

5 CA rollo, pp. 7-19.

6 CA rollo, p. 7.

7 Id. at 8.

8 As evidenced by Order dated 31 May 2002, Records, p. 10.

9 As evidenced by a Pre-trial Order dated 14 August 2002. Id. at 19.

10 Records (Indexes of Exhibits), p. 1.

11 Exhibit "A" – Certificate of Live Birth of AAA; Exhibit "B" – Baptismal Certificate of AAA; Exhibit "C" – Sworn Statement of AAA; Exhibit "D" – String; Exhibits "E" to "G" – Photographs; and Exhibit "H" – Medico-Legal Report No. M-1477-02, Records (Indexes of Exhibits) pp. 1-6.

12 Testimony of BBB, TSN, 14 August 2002, pp. 8-12.

13 Id. at 8.

14 Testimony of AAA, TSN, 14 August 2002, pp. 53-56.

15 Id. at 56-58.

16 Id. at 58-59.

17 Id. at 59-61.

18 Id. at 61-64.

19 Id. at 64-65.

20 Id. at 65-66.

21 Id. at 66-69.

22 Testimony of AAA, TSN, 2 September 2002, pp. 2-6.

23 Id. at 6-9.

24 Id. at 10-11.

25 Testimony of AAA, TSN, 14 August 2002, pp. 22-43.

26 Id. at 43-45.

27 Id. at 46-47. Testimony of BBB, TSN, 2 September 2002, pp. 12-13.

28 Testimony of AAA, TSN, 14 August 2002, pp. 48-49; Testimony of AAA, TSN, 2 September 2002, pp. 12-13.

29 Medico-Legal Report No. M-1477-02 dated 13 May 2002, Records (Indexes of Exhibits), p. 6.

30 Exhibits "1" to "5" – colored photographs of the appellant while attending a birthday party in a nearby house; and Exhibit "6" – the alleged letter of AAA

addressed to a certain Frankie. Records (Indexes of Exhibits), pp. 7-10.

31 Testimony of the appellant, TSN, 1 March 2004, pp. 4, 9-11.

32 Id.

33 Id. at 13-14; TSN, 31 March 2004, pp. 3-5.

34 Testimony of the appellant, TSN, 1 March 2004, pp. 6-7.

35 Id. at 7 and 12.

36 Id. at 8.

37 Id. at 4-6 and 8.

38 Testimony of Candida, TSN, 8 October 2003, pp. 3-16.

39 Testimony of Lea Mae, TSN, 23 July 2003, pp. 2-5.

40 Testimony of CCC, TSN, 3 September 2004, pp. 3-5.

41 CA rollo, pp. 49-50.

42 Id. at 74.

43 People v. Valdez, 446 Phil. 116, 137 (2004).

44 People v. Guihama, 452 Phil. 824, 843 (2003).

45 Rollo, pp. 15-16 and 22.

46 People v. Ardon, 407 Phil. 104, 121-122 (2001).

47 Amployo v. People, G.R. No. 157718, 26 April 2005, 457 SCRA 282, 295.

48 People v. Sumingwa, G.R. No. 183619, 13 October 2009.

49 Amployo v. People, supra note 47 at 295-296.

50 Id.

51 People v. Mahinay, G.R. No. 179190, 20 January 2009, 576 SCRA 777, 782.

52 People v. Dy, 425 Phil. 608, 645-646 (2002).

53 People v. Benito, 363 Phil. 90, 98 (1999).

54 People v. De Guia, G.R. No. 123172, 2 October 1997, 280 SCRA 141, 150.

55 People v. Dy, supra note 52 at 645.

56 Id.

57 People v. Ancheta, 464 Phil. 360, 371 (2004).

58 People v. Suarez, G.R. Nos. 153573-76, 15 April 2005, 456 SCRA 333, 350.

59 People v. Dela Cruz, G.R. No. 118458, 24 July 1997, 276 SCRA 191, 197-198.

60 People v. Bontuan, 437 Phil. 233, 241 (2002).

61 People v. Dy, supra note 52 at 645-646.

62 Rollo, pp. 16-17.

63 People v. Valindo, 429 Phil. 114, 120 (2002).

64 Section 11, Rule 110, Revised Rules of Criminal Procedure.

65 People v. Ugang, 431 Phil. 552, 566 (2002).

66 People v. Suarez, supra note 58 at 345-346.

67 Rollo, p. 17.

68 People v. Catoltol, Sr., G.R. No. 122359, 28 November 1996, 265 SCRA 109, 118-119.

69 People v. Suarez, supra note 58 at 346.

70 CA rollo, p. 48.

71 People v. Monfero, 367 Phil. 675, 690-691 (1999).

72 People v. Veloso, 386 Phil. 815, 825 (2000).

73 People v. Pedroso, 391 Phil. 43, 55 (2000).

74 People v. Gopio, 400 Phil. 217, 239 (2000).

75 Id.

76 ART. 266-B. Penalties. ─ Rape under paragraph 1 of the next preceeding article shall be punished by reclusion perpetua. (Revised Penal Code).

77 People v. Bon, 444 Phil. 571, 585-586 (2003).

78 People v. Callos, 424 Phil. 506, 516 (2002).

79 People v. Docena, 379 Phil. 903, 917-918 (2000).

80 G.R. No. 186441, 3 March 2010.

81 People v. Sumingwa, supra note 48.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 178323               March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.ARMANDO CHINGH y PARCIA, Accused-Appellant.

D E C I S I O N

PERALTA, J.:

Armando Chingh y Parcia (Armando) seeks the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01119 convicting him of Statutory Rape and Rape Through Sexual Assault.

The factual and procedural antecedents are as follows:

On March 19, 2005, an Information for Rape was filed against Armando for inserting his fingers and afterwards his penis into the private part of his minor victim, VVV,2 the accusatory portion of which reads:

That on or before March 11, 2004 in the City of Manila, Philippines, [Armando], with lewd design and by means of force, violence and intimidation did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious conduct upon a ten (10) year old minor child, [VVV], by then and there pulling her in a dark place then mashing her breast and inserting his fingers in her vagina and afterwards his penis, against her will and consent, thereby causing serious danger to the normal growth and development of the child [VVV], to her damage and prejudice.

Contrary to law.3

Upon his arraignment, Armando pleaded not guilty to the charge. Consequently, trial on the merits ensued.

At the trial, the prosecution presented the testimonies of the victim, VVV; the victim’s father; PO3 Ma. Teresa Solidarios; and Dr. Irene Baluyot. The defense, on the other hand, presented the lone testimony Armando as evidence.

Evidence for the Prosecution

Born on 16 September 1993, VVV was only 10 years old at the time of the incident. On 11 March 2004 at around 8:00 p.m., along with five other playmates, VVV proceeded to a store to buy food. While she was beckoning the storekeeper, who was not then at her station, Armando approached and pulled her hand and threatened not to shout for help or talk. Armando brought her to a vacant lot at Tindalo Street, about 400 meters from the store. While in a standing position beside an unoccupied passenger jeepney, Armando mashed her breast and inserted his right hand index finger into her private part. Despite VVV’s pleas for him to stop, Armando unzipped his pants, lifted VVV and rammed his phallus inside her vagina, causing her to feel excruciating pain.

Threatened with death if she would tell anyone what had happened, VVV kept mum about her traumatic experience when she arrived home. Noticing her odd and uneasy demeanor as well as her blood-stained underwear, however, her father pressed her for an explanation. VVV confessed to her father about her unfortunate experience. Immediately, they reported the matter to the police authorities. After his arrest, Armando was positively identified by VVV in a police line-up.

The genital examination of VVV conducted by Dr. Irene Baluyot (Dr. Baluyot) of the Philippine General Hospital’s Child Protection Unit, in the morning of 12 March 2004, showed a "fresh laceration with bleeding at 6 o’clock position" in the child’s hymen and "minimal bleeding from [said] hymen laceration." Her impression was that there was a "clear evidence" of "penetrating trauma" which happened within 24 hours prior to the examination. The photograph of the lacerated genitalia of VVV strongly illustrated and buttressed Dr. Baluyot’s medical report.4

Evidence for the Defense

Armando denied that he raped VVV. Under his version, in (sic) the night of 11 March 2004, he and his granddaughter were on their way to his cousin’s house at Payumo St., Tondo, Manila. As it was already late, he told his granddaughter to just go home ahead of him while he decided to go to Blumentritt market to buy food. While passing by a small alley on his way thereto, he saw VVV along with some companions, peeling "dalanghita." VVV approached him and asked if she could go with him to the market because she will buy "dalanghita" or sunkist. He refused her request and told VVV instead to go home. He then proceeded towards Blumentritt, but before he could reach the market, he experienced rheumatic pains that prompted him to return home. Upon arriving home, at about 8:30 o’clock in the evening, he watched television with his wife and children. Shortly thereafter, three (3) barangay officials arrived, arrested him, and brought him to a police precinct where he was informed of VVV’s accusation against him.5

On April 29, 2005, the RTC, after finding the evidence of the prosecution overwhelming against the accused’s defense of denial and alibi, rendered a Decision6 convicting Armando of Statutory Rape. The dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds accused ARMANDO CHINGH GUILTY beyond reasonable doubt as principal of the crime of Statutory Rape defined and penalized under Article 266-A, paragraph 1 (d) of the Revised Penal Code as amended by RA 8353 and is hereby sentenced to suffer the penalty of Reclusion Perpetua and to indemnify private complainant [VVV] the amount of fifty thousand pesos (P50,000) as moral damages and to pay the costs.

It appearing that accused is detained, the period of his detention shall be credited in the service of his sentence.

SO ORDERED.

Aggrieved, Armando appealed the Decision before the CA, which was docketed as CA-G.R. CR-H.C. No. 01119.

On December 29, 2006, the CA rendered a Decision7 finding Armando not only guilty of Statutory Rape, but also of Rape Through Sexual Assault. The decretal portion of said Decision reads:

WHEREFORE, the assailed decision of the trial court is AFFIRMED with the following MODIFICATIONS: accused-appellant is hereby found GUILTY of two counts of rape and is, accordingly, sentenced to suffer, for the crime of statutory rape, the penalty of reclusion perpetua and, for the offense of rape through sexual assault, the indeterminate penalty of 3 years, 3 months and 1 day of prision correccional, as minimum, to 8 years and 11 months and 1 day of prision mayor, as maximum. He is likewise ordered to pay the victim, a total of P80,000.00 as civil indemnity, P80,000.00 as moral damages; and P40,000.00 as exemplary damages, or a grand total ofP200,000.00 for the two counts of rape.

Costs against accused-appellant.

SO ORDERED.8

In fine, the CA affirmed the decision of the RTC, and considering that the appeal opened the entire case for judicial review, the CA also found Armando guilty of the crime of Rape Through Sexual Assault. The CA opined that since the Information charged Armando with two counts of rape: (1) by inserting his finger in the victim’s vagina, which is classified as Rape Through Sexual Assault under paragraph 2, Article 266-A of the Revised Penal Code, as amended; and (2) for inserting his penis in the private part of his victim, which is Statutory Rape, and considering that Armando failed to object thereto through a motion to quash before entering his plea, Armando could be convicted of as many offenses as are charged and proved.

The CA ratiocinated that coupled with the credible, direct, and candid testimony of the victim, the elements of Statutory Rape and Rape Through Sexual Assault were indubitably established by the prosecution.

Armando now comes before this Court for relief.

In a Resolution9 dated September 26, 2007, the Court required the parties to file their respective supplemental briefs. In their respective Manifestations,10 the parties waived the filing of their supplemental briefs, and instead adopted their respective briefs filed before the CA.

Hence, Armando raises the following errors:

I

The trial court gravely erred in finding the accused guilty of the crime of rape under article 266-a, paragraph 1 (d) of the revised penal code in spite the unnatural and unrealistic testimony of the private complainant.

II

The trial court erred in finding the accused guilty of the offense charged beyond reasonable doubt.

Simply stated, Armando is assailing the factual basis of his conviction, which in effect, mainly questions the credibility of the testimony of the witnesses for the prosecution, particularly his victim, VVV.

Armando maintains that the prosecution failed to present sufficient evidence that will overcome the presumption of innocence. Likewise, Armando insists that the RTC gravely erred in convicting him based on the unrealistic and unnatural testimony of the victim. Armando claims that VVV’s testimony was so inconsistent with common experience that it deserves careful and critical evaluation. First, it was so unnatural for VVV to remain quiet and not ask for help when the accused allegedly pulled her in the presence of several companions and bystanders; second, VVV did not resist or cry for help while they were on their way to the place where she was allegedly abused, which was 300 to 400 meters away from where he allegedly pulled her; third, VVV could have run away while Armando was allegedly molesting her, but she did not; fourth, Armando could not have inserted his penis in the victim’s organ while both of them were standing, unless the victim did not offer any resistance.

Generally, the Court will not disturb the findings of the trial court on the credibility of witnesses, as it was in the better position to observe their candor and behavior on the witness stand. Evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court; it had the unique opportunity to observe the witnesses and their demeanor, conduct, and attitude, especially under cross-examination. Its assessment is entitled to respect unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case.11

From the testimony of the victim, VVV, she positively identified Armando as the one who ravaged her on that fateful night of March 11, 2004. VVV clearly narrated her harrowing experience in the hands of the accused. Notwithstanding her innocence and despite the thorough cross-examination by Armando’s counsel, VVV never faltered and gave a very candid and truthful testimony of the traumatic events. VVV’s testimony was corroborated and bolstered by the findings of Dr. Irene Baluyot that the victim’s genital area showed a fresh laceration with bleeding at 6 o’clock position in her hymen.12 Dr. Baluyot concluded that an acute injury occurred within 24 hours prior to the examination and that the occurrence of rape within that period was very possible.13 Also, the age of VVV at the time the incident occurred, which was 10 years old, was duly established by her birth certificate,14 her testimony,15 and that of her father’s.16

Time and again, this Court has held that when the offended parties are young and immature girls, as in this case, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the matter about which they testified were not true.17 A young girl would not usually concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the examination of her private parts; and undergo all the trouble and inconvenience, not to mention the trauma and scandal of a public trial, had she not in fact been raped and been truly moved to protect and preserve her honor, and motivated by the desire to obtain justice for the wicked acts committed against her.18 Moreover, the Court has repeatedly held that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction.19

On the other hand, Armando admitted that he saw VVV on the date of the incident, but denied the accusations against him and merely relied on his defense that he was watching TV with his family when barangay officials arrested him.

Armando’s defenses were also unavailing. His contention that it was unnatural and unrealistic for VVV to remain quiet when he pulled her from her companions and why she did not cry for help or run away when he was allegedly ravaging her deserves scant consideration. Clearly, the reason why VVV did not shout for help was because Armando told her not to shout or talk.20 Likewise, the reason why VVV did not run when Armando was molesting her was because his finger was still inside her private part.21 Moreover, Armando’s argument that he could not have inserted his penis in the victim’s organ while both of them were standing is preposterous. It is settled that sexual intercourse in a standing position, while perhaps uncomfortable, is not improbable.22

Armando tendered nothing but his bare denial and contention that he was elsewhere when the crime was committed. Aside from this, he presented no more evidence to substantiate his claims. Jurisprudence dictates that denial and alibi are the common defenses in rape cases. Sexual abuse is denied on the allegation that the accused was somewhere else and could not have physically committed the crime. This Court has always held that these two defenses are inherently weak and must be supported by clear and convincing evidence in order to be believed. As negative defenses, they cannot prevail over the positive testimony of the complainant.23Consequently, Armando’s bare denial and alibi must fail against the testimony of VVV and her positive identification that he was the perpetrator of the horrid deed. Unmistakably, it has been proved beyond reasonable doubt that Armando had carnal knowledge of VVV.1awphil

Anent Armando’s conviction for the crime of Rape Through Sexual Assault.

The CA correctly found Armando guilty of the crime of Rape Through Sexual Assault under paragraph 2, Article 266-A, of the Revised Penal Code, as amended by Republic Act No. (R.A.) 8353, or The Anti-Rape Law of 1997.24 From the Information, it is clear that Armando was being charged with two offenses, Rape under paragraph 1 (d), Article 266-A of the Revised Penal Code, and rape as an act of sexual assault under paragraph 2, Article 266-A. Armando was charged with having carnal knowledge of VVV, who was under twelve years of age at the time, under paragraph 1 (d) of Article 266-A, and he was also charged with committing an act of sexual assault by inserting his finger into the genital of VVV under the second paragraph of Article 266-A. Indeed, two instances of rape were proven at the trial. First, it was established that Armando inserted his penis into the private part of his victim, VVV. Second, through the testimony of VVV, it was proven that Armando also inserted his finger in VVV’s private part.

The Information has sufficiently informed accused-appellant that he is being charged with two counts of rape. Although two offenses were charged, which is a violation of Section 13, Rule 110 of the Revised Rules of Criminal Procedure, which states that "[a] complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses." Nonetheless, Section 3, Rule 120 of the Revised Rules of Criminal Procedure also states that "[w]hen two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict the appellant of as many as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense." Consequently, since Armando failed to file a motion to quash the Information, he can be convicted with two counts of rape.

As to the proper penalty, We affirm the CA’s imposition of Reclusion Perpetua for rape under paragraph 1 (d), Article 266-A. However, We modify the penalty for Rape Through Sexual Assault.

It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old. This calls for the application of R.A. No. 7610, or "The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," which defines sexual abuse of children and prescribes the penalty therefor in Section 5 (b), Article III, to wit:

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 x

(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.25

Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation where a child is abused for profit, but also where one — through coercion, intimidation or influence — engages in sexual intercourse or lascivious conduct with a child.26

Corollarilly, Section 2 (h) of the rules and regulations27 of R.A. No. 7610 defines "Lascivious conduct" as:

[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.28

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. 8353,29 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 Court is not unmindful to the fact that the accused who commits acts of lasciviousness 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."30

Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the law, which is fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal. On the other hand, the minimum term shall be within the range of the penalty next lower in degree, which is reclusion temporal in its minimum period, or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.

Hence, Armando should be meted the indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.

As to Armando’s civil liabilities, the CA correctly awarded the following damages: civil indemnity of P50,000.00 and another P50,000.00 as moral damages for Rape under paragraph 1(d), Article 266-A; and civil indemnity ofP30,000.00 and moral damages also of P30,000.00 for Rape under paragraph 2, Article 266-A. In line, however, with prevailing jurisprudence, we increase the award of exemplary damages from P25,000.00 and P15,000.00, for Rape under paragraph 1 (d), Article 266-A and Rape under paragraph 2, Article 266-A, respectively, toP30,000.00 for each count of rape.31

WHEREFORE, premises considered, the Court of Appeals Decision dated December 29, 2006 in CA-G.R. CR-H.C. No. 01119 is AFFIRMED with MODIFICATION. For Rape under paragraph 1 (d), Article 266-A, Armando Chingh y Parcia is sentenced to suffer the penalty of Reclusion Perpetua; and for Rape Through Sexual Assault under paragraph 2, Article 266-A, he is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. He is likewise ordered to pay VVV the total of P80,000.00 as civil indemnity, P80,000.00 as moral damages, and P60,000.00 as exemplary damages.

SO ORDERED.

DIOSDADO M. PERALTAAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate JusticeChairperson

PRESBITERO J. VELASCO, JR.Associate Justice

ROBERTO A. ABADAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIOAssociate JusticeSecond Division, Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAChief Justice

Footnotes

* Designated as an additional member in lieu of Associate Justice Antonio Eduardo Nachura, per Special Order No. 933, dated January 24, 2011.

1 Penned by Associate Justice Rebecca De Guia-Salvador, with Associate Justices Magdangal M. De Leon and Ramon R. Garcia, concurring; rollo, pp. 2-26.

2 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; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

3 Records, p. 1.

4 Rollo, pp. 4-5.

5 Id. at 5-6.

6 CA rollo, pp. 51-59.

7 Rollo, pp. 2-26.

8 Id. at 25-26.

9 Id. at 29.

10 Id. at 30-31 and 33-34.

11 People v. Tormis, G.R. No. 183456, December 18, 2008, 574 SCRA 903.

12 TSN, (Dr. Irene Baluyot), June 27, 2004, p. 23.

13 Id. at 29-30.

14 Records, p. 63.

15 TSN, (VVV), August 23, 2004, p. 7.

16 TSN, September 13, 2004, p. 10.

17 Flordeliz v. People, G.R. No. 186441, March 3, 2010, 614 SCRA 225, 234.

18 People v. Matunhay, G.R. No. 178274, March 5, 2010, 614 SCRA 307, 316.

19 Id. at 317, citing People v. Quiñanola, 366 Phil. 390 (1999).

20 TSN, (VVV), August 23, 2004, pp. 6-7.

21 Id. at 10.

22 People v. Iroy, G.R. No. 187743, March 3, 2010, 614 SCRA 245, 250; People v. Castro, G.R. No. 91490, May 6, 1991, 196 SCRA 679.

23 Supra note 18, at 317.

24 Art. 266-A. Rape: When and How Committed. - Rape is committed –

x x x x

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.

25 Emphasis supplied.

26 Supra note 17, at 240.

27 Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (adopted on October 11, 1993).

28 Supra note 17, at 241, citing Navarrete v. People, 513 SCRA 509, 521-522 (2007); Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465 SCRA 465, 473-474; People v. Bon, 444 Phil. 571, 584 (2003).

29 R.A. No. 8353 or the Anti-Rape Law of (which took effect on October 22, 1997) reclassified rape as a crime against person and repealed Article 335 of the Revised Penal Code. The new provisions on rape are found in Articles 266-A to 266-D of the said Code.

30 R.A. No. 7610. Art. I, Sec. 3 (a).

31 People v. Lindo, G.R. No. 189818, August 9, 2010, 519 SCRA 13.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 188897               June 6, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs.IRENO BONAAGUA y BERCE, Appellant.

D E C I S I O N

PERALTA, J.:

Ireno Bonaagua (Ireno) seeks the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03133 convicting him with three (3) counts of Statutory Rape under Paragraph 2, Article 266-A of the Revised Penal Code (RPC), as amended, in relation to Republic Act No. 7610 (R.A. No. 7610) and Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610.

The factual and procedural antecedents are as follows:

In four (4) separate Informations, Ireno was charged by the Office of the City Prosecutor of Las Piñas City with four (4) counts of Rape under Paragraph 2, Article 266-A of the RPC, as amended, in relation to R.A. No. 7610, for inserting his tongue and his finger into the genital of his minor daughter, AAA.2

The accusatory portion of the Information in Criminal Case No. 03-0254 against Ireno reads:

That on or about the month of December 1998 in the City of Las Piñas and within the jurisdiction of this Honorable Court, the above-named accused, with abuse of influence and moral ascendancy, by means of force, threat and intimidation, did

then and there willfully, unlawfully and feloniously insert his tongue and finger into the genital of his daughter, [AAA], a minor then eight (8) years of age, against her will and consent.

CONTRARY TO LAW and with the special aggravating/qualifying circumstance of minority of the private offended party, [AAA], being then only eight (8) years of age and relationship of the said private offended party with the accused, Ireno Bonaagua y Berce, the latter being the biological father of the former.3

The Information in Criminal Case No. 03-02554 has the same accusatory allegations while the Informations in Criminal Case Nos. 03-02565 and Criminal Case Nos. 03-02576 are similarly worded, except for the date of the commission of the crime and the age of AAA, which are December 2000 and ten (10) years old, respectively.

The cases were later consolidated7 and upon his arraignment, Ireno pleaded not guilty to the four (4) counts of rape with which he was charged. Consequently, trial on the merits ensued.

At the trial, the prosecution presented the testimonies of the victim, AAA; the victim’s mother; and Dr. Melissa De Leon. The defense, on the other hand, presented the lone testimony of the accused as evidence.

Evidence for the Prosecution

The prosecution established that in 1998, AAA and her mother left their house in Candelaria, Quezon to spend the Christmas with accused-appellant in Las Piñas City. They stayed in the house of a certain Lola Jean, the godmother in the wedding of her parents, at Sta. Cecilia Subdivision, Las Piñas City.

AAA was inside a room lying in bed one afternoon while her younger brothers were playing outside the house and her mother was not home. Accused-appellant entered the room. He approached her, rolled her shirt upward, and removed her shorts and panty. She tried to resist by putting her clothes back on, but her father’s strength prevailed. Thereafter, accused-appellant touched and caressed her breasts. He licked her vagina then inserted his finger into it.

In the evening of the same day, the accused-appellant raped AAA again in the same manner and under the same circumstances. AAA did not tell her mother that she was raped because accused-appellant threatened to kill her mother by placing the latter’s body in a drum and have it cemented if she would report the incidents. She returned to Quezon with her mother before the end of the Christmas season.

In December 1999, AAA was raped by accused-appellant for the third time when he went to Candelaria, Quezon. In December 2000, AAA and her mother spent the Yuletide season with accused-appellant in Pulanglupa, Las Piñas City. In a single day, AAA was raped for the fourth and fifth time. While spending the afternoon inside her father’s room at the car-wash station, he removed her shorts and panty then proceeded to touch and insert his finger into her vagina. Accused-appellant repeated the same sexual assault shortly thereafter. AAA again did not report these incidents for fear that her mother would be killed and cemented inside a drum.

On January 26, 2001, AAA complained of severe abdominal pain which prompted her mother to take her to Gregg Hospital in Sariaya, Quezon. AAA was transferred to the Quezon Memorial Hospital in Lucena City where Dr. Melissa De Leon performed on her a physical examination. The results revealed that there was a healed superficial laceration at the 9 o’clock position on the hymen of AAA. This medical finding forced AAA to reveal to her mother all the incidents of rape committed by accused-appellant.

After being discharged from the hospital, AAA’s mother took her to the Police Headquarters of Sariaya, Quezon to file a complaint for rape against accused-appellant. AAA’s mother also took her to the office of the National Bureau of Investigation in Legaspi City where she executed a sworn statement against accused-appellant.8

Evidence for the Defense

Accused-appellant denied committing the charges of rape hurled against him. He claimed to be working in Las Piñas City while AAA, her mother and siblings where (sic) in Sariaya, Quezon at the time the alleged rapes occurred. While he admitted that there were times when AAA and her mother would visit him in Las Piñas City, he nonetheless averred that they would leave on the same day they arrived after he gives them money.

Accused-appellant asserted further that the charges of rape against him were fabricated by AAA’s mother, who suspected him of having an affair with another woman in Las Piñas City.9

On August 6, 2007, the Regional Trial Court (RTC), after finding the evidence for the prosecution overwhelming against the accused’s defense of denial and alibi, rendered a Decision10 convicting Ireno with four (4) counts of Rape, the dispositive portion of which reads:

WHEREFORE, premises considered, there being proof beyond reasonable doubt that accused IRENO BONAAGUA, has committed four (4) counts of RAPE under par. 2 of Article 266-A of the Revised Penal Code, as amended, in relation to R.A. 7610, as charged, the Court hereby pronounced him GUILTY and sentences him to suffer the penalty of RECLUSION PERPETUA for each case and to pay private complainant [AAA], the amount of Php50,000 for each case, or a total of Php200,000, by way of civil indemnity plus Php50,000 for each case or a total of Php200,000 as moral damages.

Costs against the accused.

SO ORDERED.11

Aggrieved, Ireno appealed the Decision before the CA, which appeal was later docketed as CA-G.R. CR-H.C. No. 03133.

On March 31, 2009, the CA rendered a Decision12 affirming the decision of the RTC with modifications on the imposable penalty in Criminal Case Nos. 03-0254, 03-0256, and 03-0257, and finding Ireno guilty of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610, instead of Rape, in Criminal Case Nos. 03-0255, the decretal portion of which reads:

WHEREFORE, the Decision of the Regional Trial Court of Las Piñas City, Branch 254, finding Ireno Bonaagua y Berce guilty

beyond reasonable doubt of the crime of rape is AFFIRMED with MODIFICATIONS:

1. Ireno Bonaagua y Berce is hereby sentenced to suffer the indeterminate penalty of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, for each rape in Criminal Case Nos. 03-0254, 03-0256 and 03-0257 and is ordered to pay AAA the amount of P25,000.00 as exemplary damages in each case, apart from the civil indemnity and moral damages that have already been awarded by the trial court;

2. Ireno Bonaagua y Berce is hereby held guilty beyond reasonable doubt of the crime of acts of lasciviousness in Criminal Case No. 03-0255, with relationship as an aggravating circumstance. He is, accordingly, sentenced to suffer the indeterminate penalty of 12 years and 1 day to 17 years and 4 months of reclusion temporal in its minimum and medium periods and ordered to pay AAA the amount of PhP15,000 as moral damages and a fine of PhP15,000.00.

SO ORDERED.13

In fine, the CA found Ireno’s defense of denial and alibi inherently weak against the positive identification of AAA that he was the culprit of the horrid deed. Thus, aside from modifying the imposable penalty in Criminal Case Nos. 03-0254, 03-0256 and 03-0257, the CA affirmed the decision of the RTC finding Ireno guilty of the crime of Rape Through Sexual Assault.

In Criminal Case No. 03-0255, however, after a diligent review of the evidence adduced by the prosecution, the CA only found Ireno guilty of the crime of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610. The CA opined that since the prosecution failed to establish the act of insertion by Ireno of his finger into the vagina of AAA, Ireno could only be found guilty of Acts of Lasciviousness, a crime which is necessarily included in the Information filed against him in Criminal Case No. 03-0255.

Ireno now comes before this Court for relief.

In a Resolution14 dated December 16, 2009, the Court informed the parties that they may file their respective supplemental briefs if they so desire. In their respective Manifestations,15 the parties waived the filing of their supplemental briefs and, instead, adopted their respective briefs filed before the CA.

Hence, Ireno raises the lone error:

I

The COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME OF RAPE DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.16

Simply put, Ireno maintains that the testimony of AAA was replete with inconsistencies and was extremely unbelievable. Ireno insists that the allegation that he inserted his tongue and

finger into the genital of AAA was manifestly incredible as the deed is physiologically impossible. Moreover, the medical findings are grossly inconclusive to prove that AAA was raped, since it only established that there was only one healed superficial laceration.

This Court, however, finds the arguments raised by Ireno untenable. To determine the innocence or guilt of the accused in rape cases, the courts are guided by three well-entrenched principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the accused, though innocent, to disprove; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.17

After perusing the testimony of the victim, AAA, the prosecution has indubitably established that Ireno was the one who sexually assaulted her. AAA categorically narrated that Ireno sexually abused her on several occasions and even threatened AAA that he would kill her mother if she would report the incidents.

Time and again, this Court has consistently held that in rape cases, the evaluation of the credibility of witnesses is best addressed to the sound discretion of the trial judge whose conclusion thereon deserves much weight and respect because the judge had the direct opportunity to observe them on the stand and ascertain if they were telling the truth or not. Generally, appellate courts will not interfere with the trial court’s assessment in this regard, absent any indication or showing that the trial court has overlooked some material facts of substance or value, or gravely abused its discretion.18

It is well entrenched in this jurisdiction that when the offended parties are young and immature girls, as in this case, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the matter about which they testified were not true.19 A young girl would not usually concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the examination of her private parts; and undergo all the trouble and inconvenience, not to mention the trauma and scandal of a public trial, had she not in fact been raped and been truly moved to protect and preserve her honor, and motivated by the desire to obtain justice for the wicked acts committed against her.20 Moreover, the Court has repeatedly held that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction.21

Moreover, contrary to Ireno’s contention, the medical findings of Dr. Melissa De Leon did not refute AAA’s testimony of defilement, but instead bolstered her claim. The RTC correctly concluded:

It is true that Dr. Melissa De Leon, when called to the witness stand to substantiate the same medical certification, did not rule out the possibility that the laceration might have been inflicted through some other causes and that there could have been only one instance of finger insertion into the vagina of private complainant. However, it is equally true that Dr. De Leon also did not rule out the possibility that finger insertion might have been the cause of the laceration (pp. 7-12, TSN,

January 31, 2006). Dr. De Leon also clarified that only one laceration may be inflicted although a finger is inserted into the vagina on separate instances (pp. 19-26, supra). According to Dr. De Leon, this instance depends on the force exerted into the vagina and on whether or not the hymen is membranous or firm and thick. A membranous hymen is easily lacerated and so when a force is exerted into it on several occasions, several lacerations may occur. A thick and firm hymen is not easily lacerated and so a force exerted into it on several occasions may cause only one laceration. Private complainant has thick and firm hymen and this may explain why there is only (sic) laceration on her hymen although she claimed her father inserted into her vagina his finger several times (pp. 19-29, supra).

This non-categorical stance of Dr. De Leon is nonetheless understandable because Dr. De Leon has no personal knowledge of what actually happened to private complainant that she (complainant) suffered hymenal laceration. However, there is one thing very certain though in the testimony of Dr. De Leon – that she medically examined [AAA], herein private complainant, because of the information that [AAA] was sexually abused by her [AAA’s] own father (pp. 5-6, supra). And indeed, as already discussed lengthily above, there is no reason to doubt the veracity of AAA’s allegation.22

The same conclusion was also arrived at by the CA, to wit:

While the medico-legal findings showed a single healed superficial laceration on the hymen of AAA, Dr. De Leon clarified that it is not impossible for a hymen to sustain only one laceration despite the fact that a finger had been inserted into the vagina on several accounts. This situation may arise depending on the force extended into the vagina and on whether or not the hymen of the victim is membranous or firm and thick. A membranous hymen is easily lacerated; thus, when a force is exerted into it on several occasions, several lacerations may occur. On the other hand, a thick and firm hymen is not easily lacerated; a force exerted into it on several occasions may cause only one laceration. According to Dr. De Leon, AAA has thick and firm hymen and this may explain why it has only one laceration despite her claim that accused-appellant inserted his finger inside her vagina several times.23

Even Ireno’s contention that the charges against him were merely fabricated by his wife because she suspects that he is having an affair with another woman deserves scant consideration. Aside from the fact that the said allegation was not proved, it must be emphasized that no member of a rape victim’s family would dare encourage the victim to publicly expose the dishonor to the family unless the crime was in fact committed, especially in this case where the victim and the offender are relatives.24 It is unnatural for a mother to use her daughter as an engine of malice, especially if it will subject her child to embarrassment and lifelong stigma.25

Also, Ireno cannot likewise rely on the Affidavit of Desistance stating that AAA and her mother are no longer interested in pursuing the case filed against him.

Rape is no longer a crime against chastity for it is now classified as a crime against persons.26 Consequently, rape is no longer considered a private crime or that which cannot be prosecuted, except upon a complaint filed by the aggrieved party. Hence, pardon by the offended party of the offender in the crime of rape will not extinguish the offender’s criminal liability. Moreover, an Affidavit of Desistance even when

construed as a pardon in the erstwhile "private crime" of rape is not a ground for the dismissal of the criminal cases, since the actions have already been instituted. To justify the dismissal of the complaints, the pardon should have been made prior to the institution of the criminal actions.27 As correctly concluded by the CA, the said affidavit was executed in connection with another accusation of rape which Ireno committed against AAA in Candelaria, Quezon and not the four cases of rape subject of this appeal. In addition, AAA’s mother testified that she executed the said affidavit to regain custody of her children who were brought to Bicol by Ireno’s siblings.28

It has been repeatedly held by this Court that it looks with disfavor on affidavits of desistance. As cited in People v. Alcazar,29 the rationale for this was extensively discussed in People v. Junio:30

x x x We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having the [appellant] arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, [the rape victim] would suddenly turn around and declare that [a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution.

Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule [would] make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable.31

Amidst the overwhelming evidence against him, Ireno offered nothing but his bare denial of the accusations against him and that he was someplace else when the dastardly acts were committed. No jurisprudence in criminal law is more settled than that alibi is the weakest of all defenses, for it is easy to contrive and difficult to disprove, and for which reason it is generally rejected.32 It has been consistently held that denial and alibi are the most common defenses in rape cases. Denial could not prevail over complainant’s direct, positive and categorical assertion. As between a positive and categorical testimony which has the ring of truth, on one hand, and a bare denial, on the other, the former is generally held to prevail.33 All said, as found by the CA, the prosecution has convincingly proved and more than sufficiently established that: (1) Ireno committed the accusations of Rape Through Sexual Assault against AAA in Criminal Cases Nos. 03-0254, 03-0256, and 03-0257; (2) that AAA was a minor when Ireno committed the sexual assault against her;34 and (3) that Ireno was the biological father of AAA.35

Verily, in criminal cases, an examination of the entire records of a case may be explored for the purpose of arriving at a correct conclusion, as an appeal in criminal cases throws the whole case open for review, it being the duty of the court to correct such error as may be found in the judgment appealed

from.36 Since the CA found Ireno guilty of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610 in Criminal Case No. 03-0255 instead of rape, the Court should thus determine whether the evidence presented by the prosecution was sufficient to establish that the intentional touching of the victim by Ireno constitutes lascivious conduct and whether the CA imposed the appropriate penalties.

As aptly found by the CA:

A diligent review of the evidence adduced by the prosecution, however, shows that accused-appellant cannot be held guilty as charged for the crime of rape in Criminal Case No. 03-0255. The prosecution failed to establish insertion by accused-appellant of his finger into the vagina of AAA, who testified on direct examination that accused-appellant "touched my private part and licked it but he did not insert his finger inside my vagina." In fact, even the trial court asked AAA if accused-appellant inserted his finger inside her vagina. She answered in the negative and averred that he licked her vagina and touched her breasts. In reply to the prosecution’s query if accused-appellant did anything else aside from licking her organ, she said he also touched it. During cross-examination, AAA testified that accused-appellant "merely touched her vagina but did not insert his finger."37

Section 5 (b), Article III of R.A. No. 7610, defines and penalizes acts of lasciviousness committed against a child as follows:

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.

x 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.38

Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation where a child is abused for profit, but also where one through coercion, intimidation or influence engages in sexual intercourse or lascivious conduct with a child.39

However, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct committed against a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of R.A. No. 7610.40

Acts of Lasciviousness, as defined in Article 336 of the RPC, has the following elements:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise

unconscious; or

c. When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex.41

In addition, the following elements of sexual abuse under Section 5, Article III of R.A. No. 7610 must be established:

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.

3. The child, whether male or female, is below 18 years of age.42

Corollarilly, Section 2 (h) of the rules and regulations43 of R.A. No. 7610 defines "Lascivious conduct" as:

[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.44

Undeniably, all the afore-stated elements are present in Criminal Case No. 03-0255. Ireno committed lascivious acts against AAA by touching her breasts and licking her vagina and the lascivious or lewd acts were committed against AAA, who was 8 years old at the time as established by her birth certificate.45 Thus, the CA correctly found Ireno guilty of the crime of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610.1avvphi1

It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what

specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault.

Penalties and Award of Damages

Having found Ireno guilty beyond reasonable doubt of Rape Through Sexual Assault in Criminal Case Nos. 03-0254, 03-0256, and 03-0257 and Acts of Lasciviousness in Criminal Case No. 03-0255, We shall proceed to determine the appropriate penalties imposable for each offense.

Criminal Case Nos. 03-0254, 03-0256, and 03-0257

Under Article 266-B of the RPC, the penalty for rape by sexual assault is reclusion temporal "if the rape is committed by any of the 10 aggravating/qualifying circumstances mentioned in this article."46 In Criminal Case Nos. 03-0254, 03-0256, and 03-0257, the aggravating/qualifying circumstance of minority and relationship are present, considering that the rape was committed by a parent against his minor child. Reclusion temporal ranges from twelve (12) years and one (1) day to twenty (20) years.

Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the RPC. Other than the aggravating/qualifying circumstances of minority and relationship which have been taken into account to raise the penalty to reclusion temporal,47 no other aggravating circumstance was alleged and proven. Hence, the penalty shall be imposed in its medium period,48 or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

On the other hand, the minimum term of the indeterminate sentence should be within the range of the penalty next lower in degree than that prescribed by the Code which is prision mayor or six (6) years and one (1) day to twelve (12) years.49 Thus, Ireno should be meted the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.

It must be clarified, however, that the reasoning expounded by the Court in the recent case of People v. Armando Chingh y Parcia,50 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 said case, the Court, acknowledging the fact that to impose the lesser penalty would be unfair to the child victim, meted upon the accused the higher penalty of reclusion temporal in its medium period as provided in Section 5 (b), Article III of R.A. No. 7610, instead of the lesser penalty of prision mayor prescribed by Article 266-B for rape by sexual assault under paragraph 2, Article 266-A of the RPC. The Court elucidated:

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 Art. 266-A, par. 2 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 Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Art. 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 RA 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."

In the present case, the factual milieu was different since the offender, Ireno, 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 RPC. Considering that the RPC 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.

As to civil liabilities, the damages awarded in the form of civil indemnity in the amount of P50,000.00 and moral damages, also in the amount of P50,000.00, for each count of Rape must be both reduced to P30,000.00, respectively, in line with current jurisprudence.51 Also, the amount of exemplary damages awarded in the amount of P25,000.00 must be increased to P30,000.00 for each count of Rape.52

Criminal Case No. 03-0255

It is beyond cavil that when the sexual abuse was committed by Ireno, AAA was only eight (8) years old. Hence, the provisions of R.A. No. 7610, or The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, should be applied.

Thus, 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 which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. As 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.53 Therefore, Ireno should be meted the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal, as maximum.

Moreover, the award in the amount of P15,000.00 as moral damages and a fine in the amount of P15,000.00, is proper in

line with current jurisprudence.54 However, civil indemnity ex delicto in the amount of P20,000.00 should also be awarded.55 In view of the presence of the aggravating circumstance of relationship, the amount ofP15,000.00 as exemplary damages should likewise be awarded.56

WHEREFORE, premises considered, the Decision of the Court of Appeals, dated March 31, 2009 in CA-G.R. CR-H.C. No. 03133, is AFFIRMED with MODIFICATIONS:

1. In Criminal Case Nos. 03-0254, 03-0256, and 03-0257, IRENO BONAAGUA y BERCE is hereby sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for each count. He is likewise ordered to pay AAA the amounts ofP30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages for each count of Qualified Rape Through Sexual Assault or a total of P90,000.00 for each count.

2. In Criminal Case No. 03-0255, IRENO BONAAGUA y BERCE is meted to suffer the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal, as maximum. In addition to moral damages and fine, he is likewise ordered to pay P20,000.00 as civil indemnity and P15,000.00 as exemplary damages.

SO ORDERED.

DIOSDADO M. PERALTAAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate JusticeChairperson

ANTONIO EDUARDO B. NACHURAAssociate Justice

ROBERTO A. ABADAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIOAssociate JusticeSecond Division, Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAChief Justice

Footnotes

1 Penned by Associate Justice Mariano C. del Castillo (now a member of this Court), with Associate Justices Isaias P. Dicdican and Ramon M. Bato, Jr., concurring; rollo, pp. 2-19.

2 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; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

3 Records, Criminal Case No. 03-0254, pp. 4-5.

4 Records, Criminal Case No. 03-0255, pp. 1-3

5 Records, Criminal Case No. 03-0256, pp. 1-3.

6 Records, Criminal Case No. 03-0255, pp. 1-3.

7 Records, Criminal Case No. 03-0254, p. 39.

8 Rollo, pp. 4-6.

9 Id. at 6-7.

10 CA rollo, pp. 12-32.

11 Id. at 32.

12 Rollo, pp. 2-19.

13 Id. at 18-19.

14 Id. at 34-35.

15 Id. at 36-38; 41-43.

16 CA rollo, p. 52.

17 People v. Perez, G.R. No. 182924, December 24, 2008, 575 SCRA 653, 664-665.

18 People v. Alcazar, G.R. No. 186494, September 15, 2010, 630 SCRA 622, 632.

19 Flordeliz v. People, G.R. No. 186441, March 3, 2010, 614 SCRA 225, 234.

20 People v. Matunhay, G.R. No. 178274, March 5, 2010, 614 SCRA 307, 316-317.

21 Id. at 317, citing People v. Quiñanola, 366 Phil. 390 (1999).

22 CA rollo, pp. 29-30.

23 Rollo, pp. 11-12.

24 People v. Flores, 448 Phil. 840, 855-846 (2003).

25 People v. Ibarrientos, 476 Phil. 493, 512 (2004).

26 Republic Act No. 8353.

27 People v. Montes, 461 Phil. 563, 584 (2003).

28 Rollo, p. 11.

29 Supra note 18, at 635-636.

30 G.R. No. 110990, October 28, 1994, 237 SCRA 826.

31 Id. at 834. (Emphasis omitted.)

32 People v. Balunsat, G.R. No. 176743, July 28, 2010, 626 SCRA 77, 97-98.

33 Supra note 20, at 317.

34 Record, Criminal Case No. 03-0254, pp. 48 and 107.

35 Id.; TSN, June 13, 2006, p. 6.

36 Gelig v. People, G.R. No. 173150, July 28, 2010, 626 SCRA 48, 49.

37 Rollo, p. 13. (Emphasis theirs).

38 Emphasis supplied.

39 Flordeliz v. People, supra note 19, at 240.

40 Navarrete v. People, G.R. No. 147913, January 31, 2007, 513 SCRA 509, 517.

41 Flordeliz v. People, supra note 19, at 240-241; Navarrete v. People, supra.

42 Malto v. People, G.R. No. 164733, September 21, 2007, 533 SCRA 643, 656; Navarrete v. People, supra note 40, at 521; Olivares v. Court of Appeals, 503 Phil. 421, 431 (2005).

43 Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (adopted on October 11, 1993).

44 Flordeliz v. People, supra note 19, at 241, citing Navarrete v. People, supra note 40, at 521-522; Olivarez v. Court of Appeals, supra note 42, at 431-432; People v. Bon, 444 Phil. 571, 584 (2003).

45 Record, Criminal Case No. 03-0254, p. 107.

46 ART. 266-B. Penalties. – x x x

x x x x

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.

47 Flordeliz v. People, supra note 19, at 243.

48 Revised Penal Code, Art. 64, Par. 1.

49 Supra note 19, at 243.

50 G.R. No. 178323, March 16, 2011.

51 People v. Alfonso, G.R. No. 182094, August 18, 2010, 628 SCRA 431, 452-453.

52 Id. at 452, citing People v. Lindo, 627 SCRA 519, 533 (2010).

53 People v. Montinola, G.R. No. 178061, January 31, 2008, 543 SCRA 412, 432.

54 Id.; People v. Candaza, G.R. No. 170474, June 16, 2006, 491 SCRA 280; Olivares v. Court of Appeals, supra note 42.

55 Flordeliz v. People, supra note 19, at 243; People v. Palma, 463 Phil. 767 (2003).

56 Flordeliz v. People, supra.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 192760               July 20, 2011

JOJIT GARINGARAO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the 26 November 2009 Decision2 and 22 June 2010 Resolution3 of the Court of Appeals in CA-G.R. CR No. 31354. The Court of Appeals affirmed with modifications the decision of the Regional Trial Court of San Carlos City, Pangasinan, Branch 56 (trial court), finding Jojit Garingarao (Garingarao) guilty beyond reasonable doubt of the crime of acts of lasciviousness in relation to Republic Act No. 7610 (RA 7610).4

The Antecedent Facts

The facts of the case, as can be gleaned from the decision of the Court of Appeals, are as follows:

On 28 October 2003, AAA5 was brought to the Virgen Milagrosa Medical Center by her father BBB and mother CCC due to fever and abdominal pain. Dr. George Morante (Dr. Morante), the attending physician, recommended that AAA be confined at the hospital for further observation. AAA was admitted at the hospital and confined at a private room where she and her parents stayed for the night.

On 29 October 2003, BBB left the hospital to go to Lingayen, Pangasinan to process his daughter’s Medicare papers. He arrived at Lingayen at around 8:00 a.m. and left the place an hour later. CCC also left the hospital that same morning to attend to their store at Urbiztondo, Pangasinan, leaving AAA alone in her room.

When BBB returned to the hospital, AAA told him that she wanted to go home. Dr. Morante advised against it but due to AAA’s insistence, he allowed AAA to be discharged from the hospital with instructions that she should continue her medications. When AAA and her parents arrived at their house around 11:30 a.m., AAA cried and told her parents that Garingarao sexually abused her. They all went back to the hospital and reported the incident to Dr. Morante. They inquired from the nurses’ station and learned that Garingarao was the nurse on duty on that day.

On 20 January 2004, the City Prosecutor filed an Information against Garingarao for acts of lasciviousness in relation to RA 7610, as follows:

That on or about the 29th day of October 2003, at Virgen Milagrosa University Hospital, San Carlos City, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there, willfully, unlawfully and feloniously touched the breast of AAA, 16 years of age, touched her genitalia, and inserted his finger into her vagina, to the damage and prejudice of said AAA who suffered psychological and emotional disturbance, anxiety, sleeplessness and humiliation.

Contrary to Article 336 of the Revised Penal Code in relation to RA 7610.6

During the trial, AAA testified that on 29 October 2003, between 7:00 a.m. and 8:00 a.m., Garingarao, who was wearing a white uniform, entered her room and asked if she already took her medicines and if she was still experiencing pains. AAA replied that her stomach was no longer painful. Garingarao then lifted AAA’s bra and touched her left breast. Embarrassed, AAA asked Garingarao what he was doing.

Garingarao replied that he was just examining her. Garingarao then left the room and returned 15 to 30 minutes later with a stethoscope. Garingarao told AAA that he would examine her again. Garingarao lifted AAA’s shirt, pressed the stethoscope to her stomach and touched her two nipples. Garingarao then lifted AAA’s pajama and underwear and pressed the lower part of her abdomen. Garingarao then slid his finger inside AAA’s private part. AAA instinctively crossed her legs and again asked Garingarao what he was doing. She asked him to stop and informed him she had her monthly period. Garingarao ignored AAA and continued to insert his finger inside her private part. Garingarao only stopped when he saw that AAA really had her monthly period. He went inside the bathroom of the private room, washed his hands, applied alcohol and left. When BBB arrived at the hospital, AAA insisted on going home. She only narrated the incident to her parents when they got home and they went back to the hospital to report the incident to Dr. Morante.

Dr. Morante testified on AAA’s confinement to and discharge from the hospital.

The prosecution presented the following documents before the trial court:

(a) AAA’s birth certificate to establish that she was 16 years old at the time of the incident;

(b) AAA’s medical records establishing her confinement to and discharge from Virgen Milagrosa Medical Center;

(c) the schedule of duties of the nurses at the hospital showing that Garingarao was on duty from 12:00 a.m. to 8:00 a.m. on 29 October 2003;

(d) a certificate from the Department of Education Division Office showing that BBB was present at the office from 8:00 a.m. to 9:00 a.m. on 29 October 2003;

(e) AAA’s Medical Payment Notice;

(f) the incident report filed by AAA’s parents with the police; and

(g) a letter from the hospital administrator requiring Garingarao to explain why no administrative action should be filed against him in view of the incident.

For the defense, Garingarao gave a different version of the incident. Garingarao alleged that on 29 October 2003, he and his nursing aide Edmundo Tamayo (Tamayo) went inside AAA’s room to administer her medicines and check her vital signs. BBB then accused them of not administering the medicines properly and on time. Garingarao told BBB that they should not be told how to administer the medicines because they knew what they were doing and that they would be accountable should anything happen to AAA. A heated argument ensued between BBB and Garingarao. BBB told Garingarao he was an arrogant nurse. Garingarao replied that if BBB had any complaint, he could report the matter to the hospital. Garingarao denied that he inserted his finger into AAA’s private part and that he fondled her breasts. Garingarao alleged that the filing of the case was motivated by the argument he had with BBB.

Tamayo testified that he was with Garingarao when they went to AAA’s room between 7:00 a.m. and 8:00 a.m. of 29 October 2003. He alleged that BBB was present and he accused Garingarao of not administering the medications properly. Tamayo alleged that Garingarao and BBB had an argument. Tamayo stated that he would always accompany Garingarao whenever the latter would visit the rooms of the patients.

The Decision of the Trial Court

In its Decision7 dated 5 November 2007, the trial court found Garingarao guilty as charged. The trial court gave credence to the testimony of AAA over Garingarao’s denial. The trial court ruled that Garingarao was positively identified by AAA as the person who entered her room, touched her breasts and inserted his finger into her private part. The trial court also found that the prosecution was able to establish that BBB and CCC were not in the room when Garingarao went inside.

The trial court found as baseless Garingarao’s defense that the case was only motivated by the argument he had with BBB. The trial court ruled that it was illogical for BBB to convince his daughter to fabricate a story of sexual abuse just to get even at Garingarao over a heated argument.

The dispositive portion of the trial court’s Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused Jojit Garingarao GUILTYbeyond reasonable doubt of the crime of acts of lasciviousness in relation to Republic Act 7610, and sentencing him to suffer the penalty of imprisonment ranging from 12 years to 1 day of Reclusion Temporal as minimum to 14 years and 8 months of Reclusion Temporal as maximum.

The accused is ordered to pay to the minor victim [AAA] P20,000.00 as moral damages and P10,000.00 as fine.

SO ORDERED.8

Garingarao appealed from the trial court’s Decision.

The Decision of the Court of Appeals

In its 26 November 2009 Decision, the Court of Appeals affirmed the trial court’s decision with modifications.

The Court of Appeals ruled that while Garingarao was charged for acts of lasciviousness in relation to RA 7610, he should be convicted under RA 7610 because AAA was 16 years old when the crime was committed. The Court of Appeals ruled that under Section 5(b) of RA 7610, the offender shall be charged with rape or lascivious conduct under the Revised Penal Code (RPC) only if the victim is below 12 years old; otherwise, the provisions of RA 7610 shall prevail.

The Court of Appeals ruled that based on the evidence on record and the testimony of AAA, the decision of the trial court has to be affirmed. The Court of Appeals ruled that under Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, the introduction of any object into the genitalia of the offended party as well as the intentional touching of her breasts when done with the intent to sexually gratify the offender qualify as a lascivious act. AAA’s

testimony established that Garingarao committed the lascivious acts.

The Court of Appeals found no reason for AAA or her family to fabricate the charges against Garingarao. The Court of Appeals ruled that Garingarao’s claim that the case was filed so that BBB could get even with him because of the argument they had was too shallow to be given consideration. The Court of Appeals likewise rejected Garingarao’s defense of denial which could not prevail over the positive testimony of AAA.

The Court of Appeals modified the penalty imposed by the trial court. The Court of Appeals ruled that the duration of reclusion temporal in its maximum period should be 17 years, 4 months and 1 day to 20 years and not 14 years and 8 months as imposed by the trial court. The Court of Appeals also raised the award of moral damages and fine, which was deemed as civil indemnity, to conform with recent jurisprudence.

The dispositive portion of the Court of Appeals’ Decision reads:

WHEREFORE, in view of the foregoing, the Decision dated November 5, 2007 of the Regional Trial Court of San Carlos City, Pangasinan in Criminal Case No. SCC-4167 is hereby AFFIRMED with the following MODIFICATIONS:

1. The penalty imposed on the accused-appellant is 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum[;]

2. The award of moral damages is raised from P20,000.00 to P50,000.00; and

3. The award of indemnity is raised from P10,000.00 to P50,000.00.

SO ORDERED.9

Garingarao filed a motion for reconsideration. In its 22 June 2010 Resolution, the Court of Appeals denied the motion.

Hence, the petition before this Court.

The Issue

The only issue in this case is whether the Court of Appeals committed a reversible error in affirming with modifications the trial court’s decision.

The Ruling of this Court

The petition has no merit.

Garingarao alleges that the Court of Appeals erred in affirming the trial court’s decision finding him guilty of acts of lasciviousness in relation to RA 7610. Garingarao insists that it was physically impossible for him to commit the acts charged against him because there were many patients and hospital employees around. He alleges that AAA’s room was well lighted and that he had an assistant when the incident allegedly occurred. Garingarao further alleges that, assuming the charges were correct, there was only one incident when he allegedly touched AAA and as such, he should have been

convicted only of acts of lasciviousness and not of violation of RA 7610.

We do not agree.

Credibility of Witnesses

The Court has ruled that in case of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.10 In this case, both the trial court and the Court of Appeals found the testimony of AAA credible over Garingarao’s defense of denial and alibi. It is a settled rule that denial is a weak defense as against the positive identification by the victim.11 Both denial and alibi are inherently weak defenses and constitute self-serving negative evidence which cannot be accorded greater evidentiary weight than the positive declaration by a credible witness.12 Garingarao’s defense of denial and alibi must fail over the positive and straightforward testimony of AAA on the incident. Further, like the trial court and the Court of Appeals, we find incredible Garingarao’s defense that the case was an offshoot of a heated argument he had with AAA’s father over the manner Garingarao was giving AAA’s medications. It is hard to believe that AAA’s parents would expose her to a public trial if the charges were not true.13 In addition, the prosecution was able to establish that, contrary to Garingarao’s allegation, both BBB and CCC were not in AAA’s room at the time of the incident.

Violation of RA 7610

Section 5, Article III of RA 7610 provides:

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:

(a) 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 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) yeas of age shall be reclusion temporal in its medium period, x x x

(c) x x x

The elements of sexual abuse under Section 5, Article III of RA 7610 are the following:

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.14

Under Section 32, Article XIII of the Implementing Rules and Regulations of RA 7610, lascivious conduct is defined as follows:

[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 the 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.15

In this case, the prosecution established that Garingarao touched AAA’s breasts and inserted his finger into her private part for his sexual gratification. Garingarao used his influence as a nurse by pretending that his actions were part of the physical examination he was doing. Garingarao persisted on what he was doing despite AAA’s objections. AAA twice asked Garingarao what he was doing and he answered that he was just examining her.

The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult.16 In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will.17 In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her.

Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he should not be convicted of violation of RA 7610 because the incident happened only once. Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610.

Garingarao’s argument has no legal basis.

The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once.18Section 3(b) of RA 7610 provides that the abuse may be habitual or not.19 Hence, the fact that the offense occurred only once is enough to hold Garingarao liable for acts of lasciviousness under RA 7610.

Indemnity and Moral Damages

In view of recent jurisprudence, we deem it proper to reduce the amount of indemnity to P20,00020 and moral damages awarded by the Court of Appeals to P15,000.21 We also impose on Garingarao a fine of P15,000.22

WHEREFORE, we DENY the petition. We AFFIRM the 26 November 2009 Decision and 22 June 2010 Resolution of the Court of Appeals in CA-G.R. CR No. 31354 with MODIFICATIONS. The Court finds Jojit Garingarao GUILTYbeyond reasonable doubt of acts of lasciviousness in relation to Republic Act No. 7610. He is sentenced to suffer the penalty of 14 years and 8 months

of reclusion temporal as minimum to 20 years of reclusion temporal as maximum and ordered to pay AAA P20,000 as civil indemnity, P15,000 as moral damages and a fine of P15,000.

SO ORDERED.

ANTONIO T. CARPIOAssociate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO*

Associate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTA**

Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIOAssociate JusticeChairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAChief Justice

Footnotes

* Designated acting member per Special Order No. 1006 dated 10 June 2011.

** Designated acting member per Special Order No. 1040 dated 6 July 2011.

1 Under Rule 45 of the 1997 Rules of Civil Procedure.

2 Rollo, pp. 42-62. Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Mario L. Guariña III and Jane Aurora C. Lantion, concurring.

3 Id. at 63-64.

4 An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation

and Discrimination, Providing Penalties for its Violation, and for Other Purposes.

5 The real names of the victim and her family were not disclosed pursuant to the ruling of this Court inPeople v. Cabalquinto, G.R. No. 167693, 19 September 2006, 502 SCRA 419.

6 Rollo, p. 43.

7 Id. at 68-76. Penned by Presiding Judge Hermogenes C. Fernandez.

8 Id. at 75-76.

9 Id. at 61.

10 People v. Mendoza, G.R. No. 180501, 24 December 2008, 575 SCRA 616.

11 People v. Fetalino, G.R. No. 174472, 19 June 2007, 525 SCRA 170.

12 People v. Candaza, G.R. No. 170474, 16 June 2006, 491 SCRA 280.

13 People v. Ortoa, G.R. No. 174484, 23 February 2009, 580 SCRA 80.

14 Olivarez v. Court of Appeals, 503 Phil. 421 (2005).

15 Id. at 431-432. Emphasis in the original text.

16 Olivarez v. Court of Appeals, supra note 14.

17 People v. Abello, G.R. No. 151952, 25 March 2009, 582 SCRA 378.

18 Olivarez v. Court of Appeals, supra note 14.

19 Id.

20 Flordeliz v. People, G.R. No. 186441, 3 March 2010, 614 SCRA 225.

21 Id.; People v. Montinola, G.R. No. 178061, 31 January 2008, 543 SCRA 412.

22 Id.

THIRD DIVISION

G.R. No. 193660 : November 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AVELINO SUBESA y MOSCARDON, Accused-Appellant.

D E C I S I O N

MENDOZA, J.:

The perpetuation by a father of his lecherous passion on his four (4) guileless daughters can be considered the most perverted form of sexual felony a man can commit. In committing incestuous rape, man reduces himself into a creature lower than the lowliest beast.1red

For final review is the October 19, 2009 Decision2red and the April 14, 2010 Resolution3red of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 03406, affirming with modification the April 30, 2008 Joint Decision4red of the Regional Trial Court, Angeles City, Pampanga, Branch 60 (RTC), which found accused Avelino Subesa y Moscardon (Subesa) guilty beyond reasonable doubt of having committed dastardly perversions against his four (4) daughters: AAA, BBB, CCC, and DDD.5red

On April 10, 2001, five (5) separate informations were filed against Subesa with the RTC. The Informations read: chanroblesvirtuallawlibrary

CRIMINAL CASE NO. 01-246:

(Acts of Lasciviousness in Relation to R.A. No. 7610)

That on several occasions in the year 1999, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force and intimidation did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of AAA, an 8-year old minor, by touching the private organs of the said complainant and by inserting his finger into the vagina of the complainant, AAA, by means of force and against the will of the said complainant. That accused is the father of the complainant.

ALL CONTRARY TO LAW.

CRIMINAL CASE NO. 01-247:

(Rape in Relation to R.A. No. 7610)

That sometime in the year 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of the innocence and tender age of the victim, did, then and there willfully, unlawfully and feloniously by means of threats and intimidation have carnal knowledge with one BBB, being then 9 years old, by inserting his penis into the vagina of the complainant BBB, against her will and consent. That accused is the father of the complainant.

ALL CONTRARY TO LAW.

CRIMINAL CASE NO. 01-248:

(Acts of Lasciviousness in Relation to R.A. No. 7610)

That sometime in the year 1995, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force and intimidation did then and there willfully, unlawfully and feloniously commits acts of lasciviousness upon the person of BBB, a (sic) 8 year old minor, by touching the private parts of the complainant BBB, by means of force and against the will of the said complainant. That accused is the father of the complainant.

ALL CONTRARY TO LAW.

CRIMINAL CASE NO. 01-249:

(Rape in Relation to R.A. No. 7610)

That sometime in the year 1993, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of the innocence and tender age of the victim, did, then and there willfully, unlawfully and feloniously by means of threats and intimidation have carnal knowledge with one CCC, being then 11 years old, by inserting his penis into the vagina of the complainant CCC, against her will and consent. That accused is the father of the complainant.

ALL CONTRARY TO LAW.

CRIMINAL CASE NO. 01-250:

(Rape in Relation to R.A. No. 7610)

That on or about the 4th day of October, 1998, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of the innocence and tender age of the victim, did, then and there willfully, unlawfully and feloniously by means of threats and intimidation have carnal knowledge with one DDD, a girl of 9 years of age, by inserting his penis into the vagina of the complainant DDD, against her will and consent. That accused is the father of the complainant.

ALL CONTRARY TO LAW.

Upon arraignment, Subesa, assisted by counsel, pleaded not guilty to all the charges. The criminal actions were then jointly tried. In the course of the trial, the prosecution presented the testimonies of the private complainants AAA, BBB, CCC, DDD, their mother, EEE, and Dr. Josiah Joma Espanta. For its part, the defense presented the sole testimony of Subesa.

The respective versions of the prosecution and the defense, as summarized by the CA in its assailed Decision read: chanroblesvirtuallawlibrary

CCC was seventeen (17) years old and in first year college at the time she testified. She narrated that in

1993, she was then eleven (11) years old and living with his father, mother, sisters and brothers. They are nine (9) in the family, four (4) boys and five (5) girls including herself. When their mother was out working as a laundrywoman, she was left with her younger sisters while her brothers were in school. Sometime in 1993, she was outside when her father, accused-appellant Avelino Subesa, called her inside the room. He closed the door and took off his pants. She got scared but did not do anything because she was still young then. She was standing when her father removed her shorts and panty. He went on top of her. He threatened to kill her mother if she told anybody about him raping her. She could not remember whether it was during that time when he was able to insert his penis or on the subsequent incidents. Her father did it to her every time he had a chance, especially when her brothers and mother were out of the house. He either embraced or raped her. She felt pain when his penis touched hervagina. She could not remember if her vagina bled during the first time. She did not tell her mother because of fear that her mother, who was always being mauled by her father, would be killed.

In the year 2000, she found out that her father was also raping her three (3) sisters, DDD, BBB and AAA. That was the time she decided to tell her mother what her father was doing to her. One  time, her father did not know that she saw him call her younger sister to the bedroom. She went to her older sister and told her what their father was doing to them. When she was in Grade VI, she stayed outside and ran away whenever he called her. Their father inflicted injuries on them whenever they commit even slight mistakes. She was examined by a doctor and was issued a medical certificate. She executed a Sinumpaang Salaysay dated December 13, 2000.

AAA was already eleven (11) years old and in Grade V when she testified on July 31, 2002. In 1999, while she was inside her sister's room, accused-appellant lay down beside her on the bed. Her sister DDD was also there but she was already asleep. She recounted how her father embraced her and touched her vagina with his hand. She was lying on her right side and her father embraced her from behind. At the time, she was wearing t-shirt, shorts and panty. He slid his left hand inside her shorts until he touched her vagina. She did not feel his finger enter her vagina but only the hand touching it and in a moving and caressing manner. It did not take long as he stopped voluntarily and he went out of the room. AAA went back to sleep.

In another occasion, she was alone in her old room playing with her doll when accused-appellant went inside and sat beside her. She was told to stand up and he pulled her shorts and panty down to her knees. He was standing behind slightly bent forward when he placed his hand on her private part and inserted his finger into her vagina. She felt pain but she did not tell her father because he would get angry. He said he would kill them all if she told anyone of what he did to her. When someone knocked on the door, her father stopped and told her to put on her shorts and left the room. She saw her brother but they did not say anything to each other.

One day, she was alone in the room of her sister CCC playing with her doll. Accused-appellant entered and told her to stop playing. He also told her to remove her shorts and panty. While her father was seated on a wooden bed, he inserted his finger (right hand) into her vagina. Her father did not say anything. She felt the pain but did not tell her father because she was afraid that he would get mad at her. When her brother knocked at the door, her father stopped and told her to put on her shorts back. There were also times when her father beat her using his belt whenever he called them and they did not immediately approach him. They were afraid of their father because he also beat up their mother by kicking and slapping her. She was examined by a doctor who submitted a medical certificate indicating that there were lacerations of her hymen. She also executed Sinumpaang Salaysay which she identified in open court.

BBB was already sixteen (16) years old when she testified. The first time she was touched by accused-appellant was in 1993 when she was in Grade III but she could not recall where. In 1995, she was eight (8) years old when her father touched her again for the second time. She was in the bedroom with CCC when he touched her private parts. She could not recall how many times she was touched but she remembered that he went inside their bedroom when her mother was working. They were lying down while their father was seated between them with his clothes on. In 1996, he was in the bathroom naked and he removed her clothes. He then inserted his penis into her vagina. The bathroom was closed and she did not shout because her father threatened to kill them. On October 16, 1996, when she was in first year in high school, her father raped her inside their store. She told DDD to call their mother. When her mother came, he left the store. BBB claimed that she was molested by her father in 1993, 1995 and 1996. She was examined by a doctor who issued a Medical Certificate indicating therein that there were healed lacerations on her hymen. BBB also executed a sworn statement which she identified in open court.

DDD was already twelve (12) years old when she testified. On October 4, 1998, at around5:00 pm., her father, who was only wearing shorts, called her inside the bathroom. He removed his shorts and placed them on the cabinet. He also pulled down her shorts. She was nervous and did not say anything because he would always hurt them. Sometimes he would kick them and bumped their bodies against the wall. Accused-appellant removed her panty. He was sitting on the toilet bowl totally naked. He asked her to sit on top of him and facing him with open legs. He inserted his penis inside her vagina. At first he had difficulty in inserting his organ because she was  crying as it was painful. Her father got angry and withdrew his penis. She went to her mother and told her what happened. They went home together but their father was not around when they got home. When he continued to abuse them, they finally had the courage to tell the police. DDD executed a statement on December 14, 2000 which she identified in open court.

The mother of the victims testified that the first time she was informed of the rape was on October 4, 1998

when her daughter CCC fetched her from work. At home, she talked to DDD, who told her what happened as she was crying. On December 13, 200[1] , she saw CCC crying and telling her that accused-appellant was calling her to the comfort room. The witness was beaten and kicked by the accused-appellant. He left and when he returned ten (10) minutes later, he was very drunk and started hurting her again. CCC went with her mother to the barangay to ask for help. She learned that all her daughters were raped by accused-appellant. They filed cases against him.

Dr. Josiah Joma Espanta testified that on December 13, 1999, he was at the Ospital Ning Angeles, Angeles City, as he was the resident physician on duty. He examined the four (4) complainants and required them to submit to urine analysis and cervical smear. He issued medical certificates for all the complainants.

For his part, accused Avelino Subesa testified that prior to the filing of the cases, he was a security guard from the years 1998 to 2000. He has nine (9) children. He has a son living in Sta. Rita, Olongapo City, while another child is in another country. Their other children were living with them. A couple also lived with them and were left in the house when he was on duty. His wife was also left in the house while he was on his job. His house had two (2) rooms, one (1) used by his children and the other one (1) by the couple. Every time he went home, his wife was not around and there was no food on the table. He further testified that sometime in 1996, he noticed that his daughter CCC was missing. A friend told him that he saw CCC talking to a male person. When CCC arrived after5:00 pm., she was in a state of shock and went directly to her room. They wanted to talk to her but the room was locked. He told his wife to bring CCC to the police station but his wife refused. He denied the rape charges against him. Sometime in 1999 or 2000, his wife woke him up at1:15 am. warning him that something will happen to his life. When he asked why, she accused him of having a relationship with her sister. This was the reason why he quarrelled with his wife. After their last quarrel, he was picked up by the police because of his wife's complaint for physical injuries. He only learned about the complaints of abuse filed by his daughters when he was incarcerated.

After the trial, the RTC found the testimonies of the private complainants to be straightforward as they lacked any ill motive to testify against their very own father.6red Taking into consideration the aggravating circumstances of relationship and minority without any mitigating circumstance, the trial court disposed of the cases against Subesa in the following manner: chanroblesvirtuallawlibrary

WHEREFORE, finding the guilt of the accused Avelino Subesa to have been proved beyond reasonable doubt and there being aggravating circumstances of relationship (accused being the father of the victims) and minority without the presence of any mitigating circumstance to offset the same, the Court hereby sentences said accused:chanroblesvirtuallawlibrary

1. In Crim. Case No. 01-246 for Acts of Lasciviousness in relation to RA 7610, to a penalty of reclusion temporal in its medium period.

2. In Crim. Case No. 01-247 for Rape (Violation of Art. 334, RPC, as amended by RA 7659 in relation to RA 7610) to a penalty of reclusion perpetua.

3. In Crim. Case No. 01-248 for Acts of Lasciviousness in relation to RA 7610 to a penalty of reclusion temporal in its medium period.

4. In Crim. Case No. 01-249 for Rape (Violation of Art. 334, RPC, as amended by RA 7659 in relation to RA 7610) to a penalty of reclusion perpetua.

5. In Crim. Case No. 01-250 for Rape (Violation of Art. 334, RPC, as amended by RA 7659 in relation to RA 7610) to a penalty of reclusion perpetua.

Accused is ordered to indemnify each victim in each case the amount of ₱75,000.00 and moral damages in the amount of ₱75,000.00.

SO ORDERED.

As the RTC did, the CA7red found Subesa guilty of sexually abusing his daughters. With respect to Criminal Case No. 01-246, however, the CA stated that the crime committed by the accused was “Rape through Sexual Assault” under Article 266-A (2) of the Revised Penal Code (RPC) when he inserted his finger into AAA’s vagina. According to the CA, it is of no moment that the designation of the offense was “Acts of Lasciviousness in Relation to R.A. No. 7610,” since the recital of facts in the Information sufficiently apprised Subesa of the nature of the charge against him. The CA also modified the penalty imposed by the RTC on Subesa in the said case. Thus, affirming with modification the Joint Decision of the RTC, the CA disposed: chanroblesvirtuallawlibrary

WHEREFORE, the Joint Decision of the Regional Trial Court of Angeles City, Pampanga, Branch 60, dated April 30, 2008 and promulgated on May 21, 2008 is hereby AFFIRMED with MODIFICATIONS as follows: 1) In Criminal Case No. 01-246, accused-appellant is found guilty beyond reasonable doubt of Rape through Sexual Assault under paragraph 2 of Article 266-A of the Revised Penal Code, as amended, and he is hereby sentenced to suffer the indeterminate penalty of twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; and 2) In Criminal Case No. 01-248, accused-appellant is hereby sentenced to  suffer the indeterminate penalty of twelve (12) years and one (1) day of reclusion temporalminimum, as minimum, to seventeen (17) years of reclusion temporalmedium, as maximum.

In its Resolution8red dated November 17, 2010, the Court required the parties to file their respective supplemental briefs within thirty (30) days from notice, if they so desired. Both the prosecution9red and the defense,10red however, manifested that they would no

longer file any brief and they would just stand by their respective briefs filed before the CA.

After carefully going over the records of the case, the Court sustains the assailed Decision of the CA, albeit with modification as to the penalties imposed.

In almost all cases of sexual abuse, the credibility of the victim’s testimony is crucial in view of the intrinsic nature of the crime where only the persons involved can testify as to its occurrence. I n this case, the Court finds no reason to disturb the findings of the RTC, as affirmed by the CA.Time and again, the Court has emphasized that the manner of assigning values to declarations of witnesses at the witness stand is best and most competently performed by the trial judge who has the unique and unmatched opportunity to observe the demeanor of witnesses and assess their credibility. In essence, when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial court is generally given the highest degree of respect, if not finality. The assessment made by the trial court is even more enhanced when the CA affirms the same, as in this case.11red

The Court finds that the prosecution successfully proved beyond reasonable doubt the charges of rape and acts of lasciviousness against Subesa. All his four children positively identified him as their molester. In rape cases, the accused may be convicted solely on the testimony of the victim, provided it is credible, convincing, and consistent with human nature and the normal course of things.12red Its examination of the records shows no indication that the Court should view the testimony of the private complainants in a suspicious light.

The defense of denial interposed by Subesa cannot prevail over the positive testimony of his children. Denial is one of the weakest of all defenses because it is easy to concoct and fabricate.13red To be believed, denial must be supported by a strong evidence of innocence; otherwise, it is regarded as purely self-serving. In this regard, the Court notes the ratiocination by the trial court. Thus: chanroblesvirtuallawlibrary

Accused did not refute these charges by any independent evidence other than his mere denial. Other than his assertion in reference to what happened to his children CCC and DDD where he wanted to show that something may have happened to them and his verbal denial of the charges, accused failed to show any convincing proofs that he did not commit these acts charged against him by his own daughters. Though he asserted that something may have happened to CCC sometime in 1996, he did not categorically state what particularly happened to her. He declared that he allegedly told his wife to report the matter to the police or for her daughter to submit to the doctor for examination, but he did not state what his suspicions were which would require the attention or help of the police or doctor. He did not make any move to actually bring his daughter CCC to a doctor on his suspicion that something may have happened to

her. To the mind of the Court, this is just a weak attempt on his part to exculpate himself from the charges filed against him by his daughters. He wanted to project himself as a caring and protective father who almost always quarrelled with his wife as the latter did not take care of their children. Yet, in this instance, he did not do anything except to tell his wife to talk with their daughter CCC on why she was missing on that one morning and arriving at home late in the afternoon and as if in a state of shock. He also admitted inflicting physical injuries against his wife allegedly in defense of his children who had no food on the table prepared by his wife. He declared that his suggestions were not heeded or followed by his wife who allegedly just told him to just “concentrate” on their work. All these are mere attempts of the accused to evade answering the charges filed against him by his daughter.

Accused failed to refute the charges of sexual molestations filed against him by his four (4) daughters. He failed to state any ill motive on the part of their daughters which made them file these cases. On the contrary, his children even kept to themselves the sexual abuses committed against them by their father for fear that he would carry out his threat to kill them once they told their mother or anybody about his vicious acts. In fact, CCC was willing to keep to herself the harrowing experience she had with her father until she learned that she was not the only one being abused by her father. It was only when CCC saw h[er] sister DDD entering the room, upon being summoned by the accused, that her suspicion was confirmed that her other sister was also being sexually abused by the accused. It was also during that fateful day of confrontation when CCC and her mother came to know that DDD, BBB and AAA were also victims of sexual abuses by their very own father. xxx

It has been repeatedly held that a young girl’s revelation that she had been raped, coupled with her voluntary submission to a 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.14red When a woman or a girl-child says that she was raped, she says in effect all that is necessary to show that rape has indeed been committed.15red

In imposing the penalty of reclusion perpetuain Criminal Case Nos. 01-247, 01-249 and 01-250, however, the courts belowfailed to qualify that thepenalty of reclusion perpetuais without eligibility for parole as held in the case of People v. Antonio Ortiz. 16red This should be rectified.

As regard Criminal Case No. 01-246, the Court agrees with the CA in its ruling that the crime committed was “Rape through Sexual Assault” under Article 266-A (2) of the RPC and not “Acts of Lasciviousness in relation to R.A. No. 7610.” The very definition of Rape through Sexual Assault under Article 266-A (2) or the “Anti-Rape Law of 1997,” specifically includes the insertion of any instrument into the genital orifice of another person. It has also been settled that the character of the crime is not determined by the caption or preamble of the information or by the specification of the

provision of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information.17red

The Court, however, modifies the penalty imposed in Criminal Case No. 01-246. Under Article266-B of the RPC, the penalty for rape by sexual assault is reclusion temporal. In Criminal Case No. 01-246, the aggravating/qualifying circumstances of minority and relationship are present, considering that the rape was committed by a parent against his minor child.   The penalty of reclusion temporal ranges from twelve (12) years and one (1) day to twenty (20) years.  

Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the RPC. Other than the aggravating/qualifying circumstances of minority and relationship which have been taken into account to raise the penalty toreclusion temporal, no other aggravating circumstance was alleged and proven. Hence, the penalty shall be imposed in its medium period, or from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. 18red On the other hand, the minimum term of the indeterminate sentence should be within the range of the penalty next lower in degree than that prescribed by the Code which is prision mayoror six (6) years and one (1) day to twelve (12) years. Thus, the Court modifies the penalty and deems as proper the indeterminate penalty of imprisonment ranging from ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.19red

As for the civil liabilities imposed in the said case, Subesa must pay civil indemnity of P 30,000.00, moral damages of P 30,000.00 and exemplary damages of P 30,000.00.

As for Criminal Case No. 01-248, the penalty imposed must likewise be modified. The appropriate imposable penalty should be that provided in Section 5 (b), Article III of Republic Act (R.A.) No. 7610, which is reclusion temporalin its medium period which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. As 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. Therefore, Subesa should be meted the indeterminate penalty of imprisonment ranging from thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years and five (5) months and ten (10) days of reclusion temporal, as maximum.20red

The same must be said with respect to the civil liabilities of the accused in the said case. For Acts of Lasciviousness in relation to R.A. 7610, jurisprudence21red dictates that the following civil liabilities should be imposed: (1) a fine of P 15,000.00; (2) civil indemnity of P 20,000.00; (3) moral damages ofP 15,000.00; and (4) exemplary damages of P 15,000.00.

WHEREFORE, the October 19, 2009 Decision of the Court of Appeals in CA-G.R. CR. H.C. No. 03406 isAFFIRMED WITH MODIFICATIONS. The accused, Avelino Subesa y Moscardon, is hereby found:chanroblesvirtuallawlibrary

1) GUILTY of Rape in Criminal Case Nos. 01-247, 01-249 and 01-250. He is hereby sentenced, in each case, to suffer thepenalty of reclusion perpetua without eligibility for parole and ordered to pay each victim civil indemnity of P75,000.00, moral damages ofP75,000.00 and exemplary damages of P30,000.00.

2) GUILTY of Rape Through Sexual Assault in Criminal Case No. 01-246. He is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging fromten (10) years prision mayor, as minimum, to seventeen (17) years, four (4) months of reclusion temporal, as maximum, and ordered to pay his victim civil indemnity of P30,000.00, moral damages of P30,000.00 and exemplary damages of P30,000.00.

3) GUILTY of Acts of Lasciviousness in relation to R.A. 7610 in Criminal Case No. 01-248. He is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging from thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years and five (5) months and ten (10) days of reclusion temporal, as maximum,and ordered to pay his victima fine of P15,000.00, civil indemnity of P20,000.00, moral damages of P15,000.00, and exemplary damages of P15,000.00.

SO ORDERED.

JOSE CATRAL MENDOZAAssociate Justice

WE CONCUR:

VELASCO, JR., J., Chairperson, BERSAMIN,* ABAD, and PEREZ,** JJ.

Endnotes:

* Designated as additional member in lieu of Associate Justice Diosdado M. Peralta, per Raffle dated June 21, 2011.

** Designated as additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per Special Order No. 1152 dated November  11, 2011.

1red See People v. Sangil, Sr., 342 Phil. 499, 502 (1997).

2red Penned by Associate Justice Martin S. Villarama, Jr. (now an Associate Justice of the Court), with Associate Justice Magdangal M. De Leon and Associate Justice Ricardo R. Rosario, concurring; rollo, pp. 2-23.

3red Rollo, p. 28.

4red CA rollo, pp. 14-28.

5red The Court shall use fictitious initials in lieu of the real names and circumstances of the victim and the latter's immediate family members other than accused-appellant. SeePeople v. Gloria, G.R. No. 168476, September 27, 2006, 503 SCRA 742; citing Sec. 29 of Republic Act (R.A.) No. 7610, Sec. 44 of R.A. No. 9262, and Sec. 40 of the Rule on Violence Against Women and Their Children; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

6red CA rollo, p. 26.

7red Supra, note 2.

8red Rollo, p. 30.

9red Id. at 33.

10red Id. at 41-44.

11red People v. Espino, Jr., G.R. No. 176742, June 17, 2008, 554 SCRA 682, 696-697.

12red People v. Glivano, G.R. No. 177565, January 28, 2008, 542 SCRA 656.

13red People v. Ayade, G.R. No. 188561, January 15, 2010, 610 SCRA 246.

14red People v. Cabillan, 334 Phil. 912 (1997); People v. Gaban, 331 Phil. 87 (1996);People v. Derpo, 250 Phil. 447 (1988); and People v. Molas, 350 Phil. 333 (1998).

15red People v. Diaz, 338 Phil. 219, 230 (1997).

16red G. .R. No. 179944, September 4, 2009, 598 SCRA 452.

17red Flordeliz v. People, G.R. No. 186441, March 3, 2010, 614 SCRA 225.

18red People v. Bonaagua, G.R. No. 188897, June 6, 2011.

19red Id.

20red Id.

21red People v. Fragante, G.R. No. 182521, February  9, 2011.