EN BANC
[ G.R. No. 196342, August 08, 2017 ]
PEOPLE OF THE PHILIPPINES, PETITIONER, V. NOEL GO CAOILI ALIAS "BOY TAGALOG", RESPONDENT.
[G.R. No. 196848, August 8, 2017]
NOEL GO CAOILI, PETITIONER, V. PEOPLE OF THE PHILIPPINES, RESPONDENT.
D E C I S I O N
TIJAM, J.:
The Facts
On June 22, 2006, First Assistant Provincial Prosecutor Raul O. Nasayao filed an Information against Caoili, charging him with the crime of rape through sexual intercourse in violation of Article 266-A, in relation to Article 266-B, of the RPC as amended by R.A. No. 8353, and R.A. No. 7610.[6] The accusatory portion of the Information reads:
That on or about the 23rd day of October 2005, at 7:00 o'clock in the evening, more or less, in Purok [III], Barangay [JJJ], [KKK], [LLL], Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with full freedom and intelligence, with lewd design, did, then and there, willfully, unlawfully and feloniously had sexual intercourse with one [AAA],[7] a minor, fifteen (15) years of age and the daughter of the herein accused, through force, threat and intimidation and against her will, to her damage and prejudice in the amount as may be allowed by law.
CONTRARY TO Article 266-A, in relation to Article 266-B of R.A. 8353, with the aggravating circumstance that the accused is the father of the victim and R.A. 7610[.][8]
On July 31, 2006, the RTC issued an Order[9] confirming Caoili 's detention at the Municipal Station of the Bureau of Jail Management and Penology after his arrest[10] on October 25, 2005.
Upon arraignment on September 15, 2006,[11] Caoili pleaded not guilty to the crime charged. After the pre-trial, trial on the merits ensued.
The victim, AAA, testified that on October 23, 2005, at 7:00p.m., her father, Caoili, sexually molested her at their house located in Barangay JJJ, Municipality of KKK, in the Province of LLL. Caoili kissed her lips, touched and mashed her breast, inserted the fourth finger of his left hand into her vagina, and made a push and pull movement into her vagina with such finger for 30 minutes. AAA felt excruciating pain during and after the ordeal. Against her father's harsh warning not to go out of the house, AAA proceeded to the house of her uncle, BBB, located 20 meters away from their house. When he learned of this, Caoili fetched AAA and dragged her home. He beat and hit her with a piece of wood, and boxed her on the stomach.[12]
On October 26, 2005, AAA disclosed to Emelia Loayon (Loayon), the guidance counselor at AAA's school, the sexual molestation and physical violence committed against her by her own father. Loayon accompanied AAA to the police station to report the sexual and physical abuse. AAA also executed a sworn statement[13] regarding the incident before the Municipal Mayor.[14]
AAA underwent a medical examination conducted by Dr. Ramie Hipe (Dr. Hipe) at the [KKK] Medicare Community Hospital. Dr. Hipe issued a medical certificate dated October 26, 2005 showing that AAA had suffered:[15]
xxxx
- Contusion, 5 inches in width, distal 3rd, lateral aspect, left Thigh.
- Contusion, 2 cms in width, distal 3rd, lateral aspect, left Forearm
- (+) tenderness, left parietal area, head
- (+)tenderness, over the upper periumbilical area of abdomen
- tenderness, over the hypogastric area
xxxx
Genital Examination
xxxx
Hymen- fimbriated in shape
- with laceration on the following:
-complete laceration - 12 o'clock position
- partial laceration - 3 o'clock position
-complete laceration - 6 o'clock position
-partial laceration - 8 o'clock position
-complete laceration - 9 o'clock position
-partial laceration - 11 o'clock position[16]
Dr. Hipe referred AAA to a Medical Specialist, Dr. Lucila Clerino (Dr. Clerino), for further Medico-Legal examination and vaginal smear. Dr. Clerino issued a Supplementary Medical Certificate dated October 28, 2005, indicating that AAA's hymenal area had lacerations complete at 6 o'clock and 9 o'clock superficial laceration at 12 o'clock.[17]
AAA sought the assistance of the Department of Social Welfare and Development which facilitated her admission to a rehabilitation center run by the Missionary Sisters of Mary.[18]
For his defense, Caoili denied molesting AAA. He alleged that on October 23, 2005, at about 7:00p.m., he saw AAA with her boyfriend at the cassava plantation. He recognized AAA by the fragrance of her perfume and by the outline of her ponytail. He even greeted them "good evening" but they did not respond. He then went home. When AAA arrived at their house, he confronted her and the latter admitted that she was with her boyfriend "Dodong" earlier that evening. He was so angry so he struck AAA's right thigh with a piece of wood and pushed the same piece of wood on her forehead. When AAA cried out in pain, he became remorseful and asked for forgiveness, but AAA kept mum. After they had supper, Caoili and his son slept in one room; while AAA and her siblings slept in another room.[19]
The RTC's Ruling
On June 17, 2008, the RTC rendered its Decision[20] declaring Caoili guilty of rape by sexual assault. The dispositive portion of the Decision reads:
WHEREFORE, finding the accused NOEL GO CAOILI alias "Boy Tagalog" guilty beyond reasonable doubt, as principal, of the crime of rape, defined and penalized in paragraph 2 of Article 266-A in relation to Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353, and after considering the aggravating circumstance of being the parent of the complainant, who was fourteen (14) years, one (1) month and ten (10) days old at the time of the incident in question, there being no mitigating circumstance to off-set the same, this Court hereby sentences the said accused to suffer imprisonment for an indefinite period of TEN (10) YEARS and ONE (1) DAY of Prision Mayor in its maximum period, as minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal in its maximum period, as maximum, and to pay the costs. Four-fifths (4/5) of the preventive detention of said accused shall be credited to his favor.
The same accused is hereby ordered to pay complainant [AAA] an indemnity ex delicto of P50,000.00; moral damages of P50,000.00; and exemplary damages of another P50,000.00.
SO ORDERED.[21]
On September 29, 2008, pursuant to a Commitment Order[22] issued by the RTC on August 27, 2008, provincial jail guards escorted Caoili for his confinement at the Davao Prisons and Penal Farm, Panabo, Davao del Norte (Davao Penal Colony).[23]
Thereafter, Caoili filed his appeal before the CA.
The CA's Ruling
On July 22, 2010, the CA rendered the assailed Decision,[24] the dispositive portion of which reads, thus:
FOR THESE REASONS, the appealed Decision of Branch 30 of the Regional Trial Court of Surigao City, in Criminal Case Nos. 7363, is SET ASIDE. Let this case be as it is IMMEDIATELY REMANDED to the trial court for further proceedings consistent with this opinion. Costs de oficio.
SO ORDERED.[25]
The CA held that although Caoili is clearly guilty of rape by sexual assault, what the trial court should have done was to direct the State Prosecutor to file a new Information charging the proper offense, and after compliance therewith, to dismiss the original Information. The appellate court found it "imperative and morally upright" to set the judgment aside and to remand the case for further proceedings pursuant to Section 14, Rule 110,[26] in relation to Section 19, Rule 119[27] of the Rules of Court.
Thereafter, Caoili and the Office of the Solicitor General (OSG) filed their respective petitions for review before this Court: G.R. No. 196342 was instituted by the OSG and G.R. No. 196848 was filed by Caoili. These petitions were ordered consolidated by the Court in its Resolution[28] dated on August 1, 2011.
In G.R. No. 196342, the OSG assails the CA's Decision for not being in accord with the law and established jurisprudence. Their petition was anchored on the following grounds:[29]
I.
[CAOILI] WAS CONVICTED OF A CRIME NECESSARILY INCLUDED IN THE OFFENSE CHARGED IN THE INFORMATION AND EMBRACED WITHIN THE SAME ARTICLE OF [R.A. NO.] 8353.
II.
[CAOILI'S] CONSTITUTIONAL RIGHT TO BE INFORMED OF THE CHARGE AGAINST HIM WAS NOT VIOLATED SINCE HE ACTIVELY PARTICIPATED DURING THE TRIAL PROCEEDINGS AND NEVER QUESTIONED THE PRESENTATION OF EVIDENCE SHOWING THAT THE CRIME COMMITTED WAS SEXUAL ASSAULT AND NOT SIMPLE RAPE.
III.
THE HONORABLE [CA] HAS ALREADY AFFIRMED THE CONVICTION OF [CAOILI] FOR THE CRIME OF RAPE BY SEXUAL ASSAULT.
IV.
THE LAST PARAGRAPH OF SECTION 14, RULE 110 OF THE RULES OF COURT, IN RELATION TO SECTION 19, RULE 119, OF THE SAME RULES, IS NOT APPLICABLE IN THE INSTANT CASE.
In G.R. No. 196848, Caoili raises the following issues[30] for our consideration:
I.
WHETHER RAPE BY SEXUAL ASSAULT IS NECESSARILY INCLUDED IN RAPE BY SEXUAL INTERCOURSE;
II.
WHETHER THE CASE MAY BE REMANDED TO THE COURT A QUO FOR FURTHER PROCEEDINGS PURSUANT TO SECTION 14, RULE 110 AND SEC. 19, RULE 119 OF THE RULES OF COURT;
III.
WHETHER THE PROSECUTION HAS SUFFICIENTLY ESTABLISHED BEYOND REASONABLE DOUBT THE GUILT OF [CAOILI] ON [sic] THE CRIME CHARGED IN THE INFORMATION;
IV.
WHETHER THE DECISION OF THE HONORABLE [CA] ACQUITTED [CAOILI.]
The Court's Ruling
The petitions lack merit.
The prosecution has established rape by sexual assault. |
R.A. No. 8353 or the "Anti-Rape Law of 1997" amended Article 335, the provision on rape in the RPC, reclassifying rape as a crime against persons and introducing rape by "sexual assault," as differentiated from rape through "carnal knowledge" or rape through "sexual intercourse."[31] Incorporated into the RPC by R.A. No. 8353, Article 266-A reads:
Article 266-A. Rape, When and How Committed. Rape is committed -
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
(a) Through force, threat or intimidation;
(b) When the offended party is deprived of reason or is 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.[32] (Emphasis ours)
Thus, rape under the RPC, as amended, can be committed in two ways:
(1) Article 266-A paragraph 1 refers to rape through sexual intercourse, also known as "organ rape" or "penile rape." The central element in rape through sexual intercourse is carnal knowledge, which must be proven beyond reasonable doubt.
(2) Article 266-A paragraph 2 refers to rape by sexual assault, also called "instrument or object rape," or "gender-free rape." It must be attended by any of the circumstances enumerated in sub-paragraphs (a) to (d) of paragraph 1.[33] (Emphasis ours)
Through AAA's testimony, the prosecution was able to prove that Caoili molested his own daughter when he inserted his finger into her vagina and thereafter made a push and pull movement with such finger for 30 minutes,[34] thus, clearly establishing rape by sexual assault[35] under paragraph 2, Article 266-A of the RPC.
Caoili, however, questions AAA's credibility, arguing that her testimony lacked veracity since she harbored hatred towards him due to the latter's strict upbringing.[36]
The Court however, oppugns the veracity of Caoili's claim.
It is settled that ill motives become inconsequential if there is an affirmative and credible declaration from the rape victim, which clearly establishes the liability of the accused.[37]
AAA was a little over 15 years old when she testified,[38] and she categorically identified Caoili as the one who defiled her. She positively and consistently declared that Caoili inserted his finger into her vagina and that she suffered tremendous pain during the insertion. Her account of the incident, as found by the RTC[39] and the CA,[40] was clear, convincing and straightforward, devoid of any material or significant inconsistencies.
In People v. Pareja,[41] the Court held that:
[T]he "assessment of the credibility of witnesses is a domain best left to the trial court judge because of his unique opportunity to observe their deportment and demeanor on the witness stand; a vantage point denied the appellate courts, and when his findings have been affirmed by the CA, these are generally binding and conclusive upon this Court."[42]
While there are recognized exceptions to the rule, this Court has found no substantial reason to overturn the identical conclusions of the trial and appellate courts on the matter of AAA's credibility.[43]
When a rape victim's testimony on the manner she was molested is straightforward and candid, and is corroborated by the medical findings of the examining physician, as in this case, the same is sufficient to support a conviction for rape.[44] In a long line of cases,[45] this Court has given full weight and credit to the testimonies of child victims, considering that their youth and immaturity are generally badges of truth and sincerity. Indeed, leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse.[46]
It is likewise settled that in cases where the rape is committed by a close kin, such as the victim's father, stepfather, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed; moral influence or ascendancy takes the place of violence or intimidation.[47]
Verily, the prosecution has sufficiently proved the crime of rape by sexual assault as defined in paragraph 2 of Article 266-A of the RPC. Caoili, however, cannot be convicted of said crime.
Rape by sexual assault is not subsumed in rape through sexual intercourse. |
We cannot accept the OSG's argument that based on the variance doctrine,[48] Caoili can be convicted of rape by sexual assault because this offense is necessarily included in the crime of rape through sexual intercourse.
The variance doctrine, which allows the conviction of an accused for a crime proved which is different from but necessarily included in the crime charged, is embodied in Section 4, in relation to Section 5 of Rule 120 of the Rules of Court, which reads:
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. (Emphasis ours)
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.
By jurisprudence,[49] however, an accused charged in the Information with rape by sexual intercourse cannot be found guilty of rape by sexual assault, even though the latter crime was proven during trial. This is due to the substantial distinctions between these two modes of rape.[50]
The elements of rape through sexual intercourse are: (1) that the offender is a man; (2) that the offender had carnal knowledge of a woman; and (3) that such act is accomplished by using force or intimidation.[51] Rape by sexual intercourse is a crime committed by a man against a woman, and the central element is carnal knowledge.[52]
On the other hand, the elements of rape by sexual assault are: (1) that the offender commits an act of sexual assault; (2) that the act of sexual assault is committed by inserting his penis into another person's mouth or anal orifice or by inserting any instrument or object into the genital or anal orifice of another person; and that the act of sexual assault is accomplished by using force or intimidation, among others.[53]
In the first mode (rape by sexual intercourse): (1) the offender is always a man; (2) the offended party is always a woman; (3) rape is committed through penile penetration of the vagina; and (4) the penalty is reclusion perpertua.[54]
In the second mode (rape by sexual assault): (1) the offender may be a man or a woman; (2) the offended party may be a man or a woman; (3) rape is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) the penalty is prision mayor.[55]
The Court en banc's categorical pronouncement in People v. Abulon,[56] thus, finds application:
In view of the material differences between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the accusation against him.[57]
Our esteemed colleague, Justice Marvic M.V.F. Leonen (Justice Leonen), is of the view that Caoili should be convicted of rape by sexual intercourse.[58] According to him, sexual intercourse encompasses a wide range of sexual activities, and is not limited to those involving penetration, genitals, and opposite sexes;[59] it may be penetrative or simply stimulative.[60] Thus, he maintains that Caoili's act of inserting his finger into his daughter's genitalia qualifies as carnal knowledge or sexual intercourse.[61]
The Court, however, cannot adopt Justice Leonen's theory.
The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended by R.A. No. 8353, provides the elements that substantially differentiate the two forms of rape, i.e., rape by sexual intercourse and rape by sexual assault. It is through legislative process that the dichotomy between these two modes of rape was created. To broaden the scope of rape by sexual assault, by eliminating its legal distinction from rape through sexual intercourse, calls for judicial legislation which We cannot traverse without violating the principle of separation of powers. The Court remains steadfast in confining its powers within the constitutional sphere of applying the law as enacted by the Legislature.
In fine, given the material distinctions between the two modes of rape introduced in R.A. No. 8353, the variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape through sexual intercourse, since the former offense cannot be considered subsumed in the latter.
The Court, thus, takes this occasion to once again remind public prosecutors of their crucial role in drafting criminal complaints or Information. They have to be more judicious and circumspect in preparing the Information since a mistake or defect therein may not render full justice to the State, the offended party and even the offender.
Thus, in Pareja,[62] the Court held that:
The primary duty of a lawyer in public prosecution is to see that justice is done - to the State, that its penal laws are not broken and order maintained; to the victim, that his or her rights are vindicated; and to the offender, that he is justly punished for his crime.[63]
Caoili can be convicted of the crime of lascivious conduct under Section 5(b) of R.A. No. 7610. |
R.A. No. 7610[64] finds application when the victims of abuse, exploitation or discrimination are children or those "persons below 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."[65]
It is undisputed that at the time of the commission of the lascivious act, AAA was fourteen (14) years, one (1) month and ten (10) days old. This calls for the application of Section 5(b) of R.A. No. 7610[66] which 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. (Emphasis ours.)
The elements of sexual abuse under Section 5(b) of R.A. No. 7610 are as follows:
(1) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.[67] (Emphasis ours)
The prosecution's evidence has sufficiently established the elements of lascivious conduct under Section 5(b) of R.A. No. 7610.
Caoili's lascivious conduct
The evidence confirms that Caoili committed lascivious acts against AAA when he kissed her lips, touched and mashed her breast, and inserted his finger into her vagina and made a push and pull movement with such finger for 30 minutes.
AAA's testimony during direct examination showed how her father, Caoili, committed lascivious acts against her:
(On Direct Examination) Pros. Silvosa
AAA likewise confirmed on cross examination[69] that Caoili molested her. She even recounted that her father threatened her not to tell anybody about the incident.
Caoili's acts are clearly covered by the definitions of "sexual abuse" and "lascivious conduct" under Section 2 of the rules and regulations[70] of R.A. 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. (Emphasis ours)
It has been settled that Section 5(b) of R.A. No. 7610 does not require a prior or contemporaneous abuse that is different from what is complained of, or that a third person should act in concert with the accused.[71]
The victim's minority
AAA was a child below 18 years old at the time the lascivious conduct was committed against her. Her minority was both sufficiently alleged in the Information and proved.
Influence and coercion
"Influence" is the improper use of power or trust in any way that deprives a person of free will and substitutes another's objective. On the other hand, "coercion" is the improper use of power to compel another to submit to the wishes of one who wields it.[72]
In People v. Leonardo,[73] the Court ruled that:
Section 5 of R.A. 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. 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.[74]
It cannot be denied that AAA, who is only a little over 14 years old at the time the offense was committed, was vulnerable and would have been easily intimidated by an attacker who is not only a grown man but is also someone exercising parental authority over her. Even absent such coercion or intimidation, Caoili can still be convicted of lascivious conduct under Section 5(b) of R.A. No. 7610 as he evidently used his moral influence and ascendancy as a father in perpetrating his lascivious acts against AAA. It is doctrinal that moral influence or ascendancy takes the place of violence and intimidation.[75]
It bears emphasis, too, that consent is immaterial in cases involving violation of Section 5 of R.A. No. 7610.[76] The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense because it is a malum prohibitum, an evil that is proscribed.[77]
Clearly, therefore, all the essential elements of lascivious conduct under Section 5(b) of R.A. No. 7610 have been proved, making Caoili liable for said offense.
Variance doctrine applied
Caoili had been charged with rape through sexual intercourse in violation of Article 266-A of the RPC and R.A. No. 7610. Applying the variance doctrine under Section 4, in relation to Section 5 of Rule 120 of the Revised Rules of Criminal Procedure, Caoili can be held guilty of the lesser crime of acts of lasciviousness performed on a child, i.e., lascivious conduct under Section 5(b) of R.A. No. 7610, which was the offense proved, because it is included in rape, the offense charged.[78] This echoes the Court's pronouncement in Leonardo, viz.:
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 court['s] 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, x x x:
xxxx
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.[79] (Emphasis ours)
The due recognition of the constitutional right of an accused to be informed of the nature and cause of the accusation through the criminal complaint or information is decisive of whether his prosecution for a crime stands or not.[80] Nonetheless, the right is not transgressed if the information sufficiently alleges facts and omissions constituting an offense that includes the offense established to have been committed by the accused,[81] which, in this case, is lascivious conduct under Section 5(b) of R.A. No. 7610.
Guidelines: Nomenclature of crime and penalties for lascivious conduct under Section 5(b) of R.A. No. 7610 |
The Court is aware of its previous pronouncements where, applying the variance doctrine, it convicted the accused, charged with the rape of a minor, for the offense designated not as "Lascivious Conduct under Section 5(b) of R.A. No. 7610" but as "Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610."
Thus, in People v. Bon,[82] the accused was charged with having carnal knowledge of a six-year-old child against her will and with the use of force and intimidation. The trial court convicted the accused of rape. The evidence, however, merely showed that accused inserted his finger into the victim's vaginal orifice. Applying the variance doctrine, the Court en banc held that the accused could still be made liable for acts of lasciviousness under the RPC because said crime is included in rape. The accused was convicted of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610, since all the elements of the said offense were established.
Likewise, in Navarrete v. People,[83] the accused was charged with statutory rape for having sexual intercourse with a five-year-old girl. Absent clear and positive proof of the entry of accused's penis into the labia of the victim's vagina, the trial court convicted the accused of the crime of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610. The CA and this Court affirmed the conviction. In the case of Bon,[84] the Court held that the crime of acts of lasciviousness is included in rape. The Court likewise found that the victim's testimony established that accused committed acts of lewdness which amounted to lascivious conduct under R.A. No. 7610.
So also, in People v. Rellota,[85] the Court modified the accused's conviction for attempted rape[86] of a 12-year-old minor to a conviction for Acts of Lasciviousness as defined in the RPC in relation to Section 5 of R.A. No. 7610, holding that the accused's acts, while lascivious, did not exactly demonstrate an intent to have carnal knowledge with the victim. The Court applied the variance doctrine and reiterated that the crime of acts of lasciviousness is included in rape. The conviction was based on the Court's finding that the elements of acts of lasciviousness under Article 336 of the RPC and of lascivious conduct as defined in the rules and regulations of R.A. No. 7610 have been established.
Based on the language of Section 5(b) of R.A. No. 7610, however, the offense designated as Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5 of R.A. No. 7610 should be used when the victim is under 12 years of age at the time the offense was committed. This finds support in the first proviso in Section 5(b) of R.A. No. 7610 which requires 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." Thus, pursuant to this proviso, it has been held that before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for act 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.[87]
Conversely, when the victim, at the time the offense was committed, is aged twelve (12) years or over but under eighteen (18), or is eighteen (18) or older but unable to fully take care of herself/himself or protect himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition,[88] the nomenclature of the offense should be Lascivious Conduct under Section 5(b) of R.A. No. 7610, since the law no longer refers to Article 336 of the RPC, and the perpetrator is prosecuted solely under R.A. No. 7610.
In the case at bar, AAA was a little over 14 years old when the lascivious conduct was committed against her. Thus, We used the nomenclature "Lascivious Conduct" under Section 5(b) of R.A. No. 7610.
Accordingly, for the guidance of public prosecutors and the courts, the Court takes this opportunity to prescribe the following guidelines in designating or charging the proper offense in case lascivious conduct is committed under Section 5(b) of R.A. No. 7610, and in determining the imposable penalty:
1. The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the nomenclature of the crime should be "Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5(b) of R.A. No. 7610." Pursuant to the second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period.
3. If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as "Lascivious Conduct under Section 5(b) of R.A. No. 7610," and the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.[89]
The CA's order to remand the case to the trial court is procedurally infirm. |
The CA erred in remanding the case to the trial court for the purpose of filing the proper Information on the basis of the last paragraph of Section 14, Rule 110 and Section 19, Rule 119 of the Rules of Court, which read:
Sec. 14. Amendment or substitution. — x x x
xxxx
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.
Sec. 19. When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Emphasis ours)
It is clear that the rules are applicable only before judgment has been rendered. In this case, the trial has been concluded. The RTC already returned a guilty verdict, which has been reviewed by the CA whose decision, in turn, has been elevated to this Court.
The CA's judgment did not amount to an acquittal. |
Contrary to Caoili's stance, the CA's decision did not amount to a judgment of acquittal. It is true the CA declared that given the substantial distinctions between rape through sexual intercourse, as charged, and rape by sexual assault, which was proved, "no valid conviction can be had without running afoul of the accused's Constitutional right to be informed of the charge." This statement, however, must be read alongside the immediately succeeding directive of the appellate court, remanding the case to the RTC for further proceedings pursuant to Section 14, Rule 110 and Section 19, Rule 119 of the Rules of Court. Said directive clearly shows that the CA still had cause to detain Caoili and did not discharge him; in fact, the CA would have Caoili answer for the proper Information which it directed the prosecution to file. These are not consistent with the concept of acquittal which denotes a discharge, a formal certification of innocence, a release or an absolution.[90] While the procedure adopted by the CA is certainly incorrect, its decision cannot be deemed to have the effect of an acquittal.
Penalty and Damages
Considering that AAA was over 12 but under 18 years of age at the time of the commission of the lascivious act, the imposable penalty is reclusion temporal in its medium period to reclusion perpetua.
Since the crime was committed by the father of the offended party, the alternative circumstance of relationship should be appreciated.[91] In crimes against chastity, such as acts of lasciviousness, relationship is always aggravating.[92] With the presence of this aggravating circumstance and no mitigating circumstance, the penalty shall be applied in its maximum period, i.e., reclusion perpetua,[93] without eligibility of parole.[94] This is in consonance with Section 31(c)[95] of R.A. No. 7610 which expressly provides that the penalty shall be imposed in its maximum period when the perpetrator is, inter alia, the parent of the victim.
Likewise, Section 31(f)[96] of R.A. No. 7610 imposes a fine upon the perpetrator, which jurisprudence pegs in the amount of Php 15,000.[97]
Parenthetically, considering the gravity and seriousness of the offense, taken together with the evidence presented against Caoili, this Court finds it proper to award damages.
In light of recent jurisprudential rules, when the circumstances surrounding the crime call for the imposition of reclusion perpetua, the victim is entitled to civil indemnity, moral damages and exemplary damages each in the amount of Php 75,000.00, regardless of the number of qualifying aggravating circumstances present.[98]
The fine, civil indemnity and all damages thus imposed shall be subject to interest at the rate of six percent (6%) per annum from the date of finality of this judgment until fully paid.[99]
WHEREFORE, both petitions are DENIED. The Court of Appeals' July 22, 2010 Decision and March 29, 2011 Resolution are SET ASIDE. Accused Noel Go Caoili alias Boy Tagalog is guilty of Lascivious Conduct under Section 5(b) of Republic Act No. 7610. He is sentenced to suffer the penalty of reclusion perpetua, without eligibility of parole, and to pay a fine of Php 15,000.00. He is further ordered to pay the victim, AAA, civil indemnity, moral damages and exemplary damages each in the amount of Php 75,000.00. The fine, civil indemnity and damages so imposed are subject to interest at the rate of six percent (6%) per annum from the date of finality of this Decision until fully paid.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Bersamin, Del Castillo, Mendoza, Perlas-Bernabe, Jardeleza, and Reyes, JJ., concur.
Peralta, J., see separate concurring opinion.
Leonen and Martires, JJ., see dissenting opinion.
Caguioa, J., see separate opinion.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on August 8, 2017 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled cases, the original of which was received by this Office on September 26, 2017 at 1:35 p.m.
Very truly yours, | |
(SGD.) FELIPA G. BORLONGAN-ANAMA Clerk of Court |
[1] Rollo (G.R. No. 196342), pp. 11-48; rollo (G.R. No. 196848), pp. 11-35.
[2] Penned by Associate Justice Edgardo A. Camello, concurred in by Associate Justices Leoncia R. Dimagiba and Nina G. Antonio-Valenzuela; CA rollo, pp. 109-119.
[3] Rollo (G.R. No. 196342), pp. 62-67.
[4] Penned by Presiding Judge Floripinas C. Buyser: records, pp. 87-97.
[5] The Anti-Rape Law of 1997.
[6] AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES. Approved on June 17, 1992.
[7] The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination. and for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefrom; and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence Against Women and Their Children, effective November 5, 2004. (People v. Dumadag, 667 Phil. 664 [2011])
[8] Records, p. 1.
[9] Id. at 17.
[10] Apprehension Report, id. at 8.
[11] Certificate of Arraignment, id. at 22.
[12] Rollo (G.R. No. 196342), pp. 15-16.
[13] Pangutana Ug Tubag, records, p. 5.
[14] Rollo (G.R. No. 196342), p. 17.
[15] Id.
[16] Exhibits, pp. 10-11.
[17] Rollo (G.R. No: 196342), p. 18.
[18] CA rollo, p. 44.
[19] Id. at 47-48.
[20] Records, pp. 87-97.
[21] Records, p. 97.
[22] CA rollo, p. 7.
[23] Id. at 8.
[24] Id. at 109-119.
[25] Id. at 119.
[26] Sec. 14. Amendment or substitution.—x x x
xxxx
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.
[27] Sec. 19. When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.
[28] Rollo (G.R. No. 196848), p. 160.
[29] Rollo (G.R. No. 196342), pp. 27-28.
[30] Rollo (G.R. No. 196848), pp. 21-22.
[31] People v. Pareja, 724 Phil. 759 (2014).
[32] Id. at 781.
[33] Id. at 782.
[34] Records, p. 88.
[35] Rape by sexual assault has the following elements: (1) That the offender commits an act of sexual assault; (2) That the act of sexual assault is committed by any of the following means: (a) By inserting his penis into another person's mouth or anal orifice; or (b) By inserting any instrument or object into the genital or anal orifice of another person; (3) That the act of sexual assault is accomplished under any of the following circumstances: (a) By using force and intimidation; (b) When the woman is deprived of reason or otherwise unconscious; or (c) By means of fraudulent machination or grave abuse of authority; or (d) When the woman is under 12 years of age or demented. (People v. Soria, 698 Phil. 676 [2012])
[36] Rollo (G.R. No. 196848), p. 28.
[37] Rondina v. People, 687 Phil. 274 (2012).
[38] Records, p. 96.
[39] The RTC's Decision states: "x x x this Court finds the testimony of AAA, who was little over fifteen years old at the time she testified, to be clear, convincing and straightforward, devoid of any material or significant inconsistencies. x x x." Id.
[40] The CA held: "We also find no cogent reason to disturb the findings of the trial court upholding [AAA]'s credibility. x x x." Rollo (G.R. No. 196342), p. 58.
[41] Supra note 31.
[42] Id. at 773.
[43] Id.
[44] People v. Soria, supra note 35.
[45] Ricalde v. People, 751 Phil. 793, 805 (2015), citing Pielago v. People, 706 Phil. 460 (2013); Campos v. People, 569 Phil. 658, 671 (2008), quoting People v. Capareda, 473 Phil. 301, 330 (2004); People v. Galigao, 443 Phil. 246, 260 (2003).
[46] Ricalde v. People, supra note 45.
[47] People v. Padua, 661 Phil. 366 (2011 ); People v. Corpuz, 597 Phil. 459 (2009).
[48] Embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Court.
[49] People v. Abulon, 557 Phil. 428 (2007); People v. Pareja, supra note 31; People v. Cuaycong, 718 Phil. 633 (2013).
[50] People v. Pareja, supra note 31.
[51] People v. Alfredo, 653 Phil. 435 (2010).
[52] People v. Espera, 718 Phil. 680 (2013).
[53] People v. Alfredo, supra note 51.
[54] People v. Espera, supra note 52, citing People v. Abulon, supra note 49.
[55] Id.
[56] Supra note 49.
[57] Id. at 455.
[58] Dissenting Opinion of Justice Marvic M.V.F. Leonen; p. 6.
[59] Id. at 12.
[60] Id.
[61] Id. at 7.
[62] Supra note 31.
[63] Id. at 785.
[64] Special Protection of Children against Abuse, Exploitation and Discrimination Act.
[65] People v. Chingh, 661 Phil. 208, 223 (2011).
[66] Id.
[67] Roallos v. People, 723 Phil. 655 (2013); Caballo v. People, 710 Phil. 792 (2013); People v. Rayon, Sr., 702 Phil. 672 (2013); Garingarao v. People, 669 Phil. 672 (2011); and Olivarez v. CA and People, 503 Phil. 421 (2005).
[68] TSN, January 10,2007, pp. 7-8, 12.
[69] Id. at 30-31.
[70] Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (Done in the City of Manila: October 1993).
[71] Quimvel v. People, G.R. No. 214497, April 18, 2017.
[72] Caballo v. People, supra note 67.
[73] 638 Phil. 161 (2010).
[74] Id. at 188.
[75] People v. Deligero, 709 Phil. 783 (2013).
[76] Caballo v. People, supra note 67.
[77] Id.
[78] See People v. Leonardo, supra note 73.
[79] Id. at 197-198.
[80] People v. Manansala, 708 Phil. 66 (2013).
[81] Id.
[82] 444 Phil. 571 (2003).
[83] 542 Phil. 496 (2007).
[84] People v. Bon, supra note 82.
[85] 640 Phil. 471 (2010).
[86] Accused in this case was also convicted of two (2) counts of consummated rape.
[87] People v. Bonaagua, 665 Phil. 750 (2011); Navarrete v. People, supra note 83, citing Amployo v. People, 496 Phil. 747 (2005).
[88] See Section 3(a), R.A. No. 7610.
[89] People v. Bacus, G.R. No. 208354, August 26, 2015, 768 SCRA 318; People v. Baraga, 735 Phil. 466 (2014); and People v. Rayon, 702 Phil. 672 (2013).
[90] See definitions of "Acquittal" and "Acquitted" in Black's Law Dictionary, Fifth Edition.
[91] People v. Sumingwa, 618 Phil. 650 (2009).
[92] Id.
[93] People v. Gaduyon, 720 Phil. 750 (2013); People v. Sumingwa, supra note 91.
[94] People v. Bacus, supra note 89.
[95] Article XII, Section 31. Common Penal Provisions. -
xxxx
(c) The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a manager or owner of an establishment which has no license to operate or its license has expired or has been revoked.
xxxx
[96] Article XII, Section 31. Common Penal Provisions.-
xxxx
(f) A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.
xxxx
[97] People v. Bacus, supra note 89.
[98] People v. Jugueta, G.R. No. 202124, April 5, 2016, 788 SCRA 331.
[99]