G.R. No.

169533 March 20, 2013

GEORGE BONGALON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Not every instance of the laying of hands on a child constitutes the crime of child abuse
under Section 10 (a) of Republic Act No. 7610.1 Only when the laying of hands is shown
beyond reasonable doubt to be intended by the accused to debase, degrade or demean
the intrinsic worth and dignity of the child as a human being should it be punished as
child abuse. Otherwise, it is punished under the Revised Penal Code.

The Case

On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the petitioner
for the crime of child abuse under Section 10 (a) of Republic Act No. 7610.

Antecedents

On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the petitioner in the
Regional Trial Court (RTC) in Legazpi City with child abuse, an act in violation of Section
10(a) of Republic Act No. 7610, alleging as follows:

That on or about the 11th day of May 2000, in the City of Legazpi Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there
wilfully, unlawfully and feloniously commit on the person of JAYSON DELA CRUZ, a
twelve year-old,

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or
maltreatment by striking said JAYSON DELA CRUZ with his palm hitting the latter at his
back and by slapping said minor hitting his left cheek and uttering derogatory remarks
to the latter’s family to wit: "Mga hayop kamo, para dayo kamo digdi, Iharap mo dito
ama mo" (You all animals, you are all strangers here. Bring your father here), which acts
of the accused are prejudicial to the child’s development and which demean the intrinsic
worth and dignity of the said child as a human being.

CONTRARY TO LAW.3

The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and Roldan,
his older brother, both minors, joined the evening procession for the Santo Niño at Oro
Site in Legazpi City; that when the procession passed in front of the petitioner’s house,
the latter’s daughter Mary Ann Rose, also a minor, threw stones at Jayson and called
him "sissy"; that the petitioner confronted Jayson and Roldan and called them names
like "strangers" and "animals"; that the petitioner struck Jayson at the back with his
hand, and slapped Jayson on the face;4 that the petitioner then went to the brothers’
house and challenged Rolando dela Cruz, their father, to a fight, but Rolando did not
come out of the house to take on the petitioner; that Rolando later brought Jayson to
the Legazpi City Police Station and reported the incident; that Jayson also underwent
medical treatment at the Bicol Regional Training and Teaching Hospital;5 that the
doctors who examined Jayson issued two medical certificates attesting that Jayson
suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular area, left; and
(2) +1x1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm. scapular area,
left.6

On his part, the petitioner denied having physically abused or maltreated Jayson. He
explained that he only talked with Jayson and Roldan after Mary Ann Rose and
Cherrylyn, his minor daughters, had told him about Jayson and Roldan’s throwing stones
at them and about Jayson’s burning Cherrylyn’s hair. He denied shouting invectives at
and challenging Rolando to a fight, insisting that he only told Rolando to restrain his
sons from harming his daughters.7

To corroborate the petitioner’s testimony, Mary Ann Rose testified that her father did not
hit or slap but only confronted Jayson, asking why Jayson had called her daughters
"Kimi" and why he had burned Cherrlyn’s hair. Mary Ann Rose denied throwing stones at
Jayson and calling him a "sissy." She insisted that it was instead Jayson who had pelted
her with stones during the procession. She described the petitioner as a loving and
protective father.8

Ruling of the RTC

After trial, the RTC found and declared the petitioner guilty of child abuse as charged, to
wit:9

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered

finding the accused GEORGE BONGALON @ "GI" GUILTY beyond reasonable doubt of
Violation of Republic Act No. 7610, and is hereby ordered to undergo imprisonment of
six (6) years and one (1) day to eight (8) years of prision mayor in its minimum period.

SO ORDERED.

Ruling of the CA

On appeal, the petitioner assailed the credibility of the Prosecution witnesses by citing
their inconsistencies. He contended that the RTC overlooked or disregarded material
facts and circumstances in the records that would have led to a favorable judgment for
him. He attacked the lack of credibility of the witnesses presented against him, citing the
failure of the complaining brothers to react to the incident, which was unnatural and
contrary to human experience.

The CA affirmed the conviction, but modified the penalty,10 viz:

WHEREFORE, premises considered, the decision dated October 20, 2003 of the Regional
Trial Court, Branch 9 of Legazpi City is hereby AFFIRMED with MODIFICATION in that
accused-appellant George Bongalon is sentenced to suffer the indeterminate penalty of
(4) years, two (2) months and one (1) day of prision correccional, as minimum term, to
six (6) years, eight (8) months and 1 day of prision mayor as the maximum term.

Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the additional
amount of ₱5,000 as moral damages.

SO ORDERED.

Issues

The petitioner has come to the Court via a petition for certiorari under Rule 65 of the
Rules of Court.11

The petitioner asserts that he was not guilty of the crime charged; and that even
assuming that he was guilty, his liability should be mitigated because he had merely
acted to protect her two minor daughters.

Ruling of the Court

At the outset, we should observe that the petitioner has adopted the wrong remedy in
assailing the CA’s affirmance of his conviction. His proper recourse from the affirmance
of his conviction was an appeal taken in due course. Hence, he should have filed a
petition for review on certiorari. Instead, he wrongly brought a petition for certiorari. We
explained why in People v. Court of Appeals:12

The special civil action for certiorari is intended for the correction of errors of jurisdiction
only or grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal
office is only to keep the inferior court within the parameters of its jurisdiction or to
prevent it from committing such a grave abuse of discretion amounting to lack or excess
of jurisdiction. As observed in Land Bank of the Philippines v. Court of Appeals, et al.
"the special civil action for certiorari is a remedy designed for the correction of errors of
jurisdiction and not errors of judgment. The raison d’etre for the rule is when a court
exercises its jurisdiction, an error committed while so engaged does not deprived it of
the jurisdiction being exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction and every erroneous judgment
would be a void judgment. In such a scenario, the administration of justice would not
survive. Hence, where the issue or question involved affects the wisdom or legal
soundness of the decision–not the jurisdiction of the court to render said decision–the
same is beyond the province of a special civil action for certiorari. The proper recourse
of the aggrieved party from a decision of the Court of Appeals is a petition for review on
certiorari under Rule 45 of the Revised Rules of Court.

It is of no consequence that the petitioner alleges grave abuse of discretion on the part
of the CA in his petition. The allegation of grave abuse of discretion no more warrants
the granting of due course to the petition as one for certiorari if appeal was available as
a proper and adequate remedy. At any rate, a reading of his presentation of the issues
in his petition indicates that he thereby imputes to the CA errors of judgment, not errors
of jurisdiction. He mentions instances attendant during the commission of the crime that
he claims were really constitutive of justifying and mitigating circumstances; and
specifies reasons why he believes Republic Act No. 7610 favors his innocence rather
than his guilt for the crime charged.13 The errors he thereby underscores in the petition
concerned only the CA’s appreciation and assessment of the evidence on record, which
really are errors of judgment, not of jurisdiction.

Even if we were to treat the petition as one brought under Rule 45 of the Rules of
Court, it would still be defective due to its being filed beyond the period provided by
law. Section 2 of Rule 45 requires the filing of the petition within 15 days from the
notice of judgment to be appealed. However, the petitioner received a copy of the CA’s
decision on July 15, 2005,14 but filed the petition only on September 12, 2005,15 or well
beyond the period prescribed by the Rules of Court.

The procedural transgressions of the petitioner notwithstanding, we opt to forego

quickly dismissing the petition, and instead set ourselves upon the task of resolving the
issues posed by the petition on their merits. We cannot fairly and justly ignore his plea
about the sentence imposed on him not being commensurate to the wrong he
committed. His plea is worthy of another long and hard look. If, on the other hand, we
were to outrightly dismiss his plea because of the procedural lapses he has committed,
the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice justice in
order to give premium to the rigidity of its rules of procedure. But the Rules of Court has
not been intended to be rigidly enforced at all times. Rather, it has been instituted first
and foremost to ensure justice to every litigant. Indeed, its announced objective has
been to secure a "just, speedy and inexpensive disposition of every action and
proceeding."16 This objective will be beyond realization here unless the Rules of Court be
given liberal construction and application as the noble ends of justice demand. Thereby,
we give primacy to substance over form, which, to a temple of justice and equity like
the Court, now becomes the ideal ingredient in the dispensation of justice in the case
now awaiting our consideration.

The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such

birthright without due process of law unless we shunt aside the rigidity of the rules of
procedure and review his case. Hence, we treat this recourse as an appeal timely
brought to the Court. Consonant with the basic rule in criminal procedure that an appeal
opens the whole case for review, we should deem it our duty to correct errors in the
appealed judgment, whether assigned or not.17

The law under which the petitioner was charged, tried and found guilty of violating is
Section 10 (a), Article VI of Republic Act No. 7610, which relevantly states:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other Conditions
Prejudicial to the Child’s Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or
be responsible for other conditions prejudicial to the child’s development including those
covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by
the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period.

xxxx

Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as
follows:

Section 3. Definition of terms. –

xxxx

(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child which
includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and
emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and
shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in

serious impairment of his growth and development or in his permanent
incapacity or death.

xxxx

Although we affirm the factual findings of fact by the RTC and the CA to the effect that
the petitioner struck Jayson at the back with his hand and slapped Jayson on the face,
we disagree with their holding that his acts constituted child abuse within the purview of
the above-quoted provisions. The records did not establish beyond reasonable doubt
that his laying of hands on Jayson had been intended to debase the "intrinsic worth and
dignity" of Jayson as a human being, or that he had thereby intended to humiliate or
embarrass Jayson. The records showed the laying of hands on Jayson to have been
done at the spur of the moment and in anger, indicative of his being then overwhelmed
by his fatherly concern for the personal safety of his own minor daughters who had just
suffered harm at the hands of Jayson and Roldan. With the loss of his self-control, he
lacked that specific intent to debase, degrade or demean the intrinsic worth and dignity
of a child as a human being that was so essential in the crime of child abuse.

It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is
resolved in favor of the petitioner as the accused. Thus, the Court should consider all
possible circumstances in his favor.18
What crime, then, did the petitioner commit?

Considering that Jayson’s physical injury required five to seven days of medical
attention,19 the petitioner was liable for slight physical injuries under Article 266 (1) of
the Revised Penal Code, to wit:

Article 266. Slight physical injuries and maltreatment. — The crime of slight physical
injuries shall be punished:

1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party for labor from one to nine days, or shall require medical
attendance during the same period.

xxxx

The penalty for slight physical injuries is arresto menor, which ranges from one day to
30 days of imprisonment.20 In imposing the correct penalty, however, we have to
consider the mitigating circumstance of passion or obfuscation under Article 13 (6) of
the Revised Penal Code,21 because the petitioner lost his reason and self-control,
thereby diminishing the exercise of his will power.22 Passion or obfuscation may lawfully
arise from causes existing only in the honest belief of the accused.23 It is relevant to
mention, too, that in passion or obfuscation, the offender suffers a diminution of
intelligence and intent. With his having acted under the belief that Jayson and Roldan
had thrown stones at his two minor daughters, and that Jayson had burned Cherrlyn’s
hair, the petitioner was entitled to the mitigating circumstance of passion. Arresto menor
is prescribed in its minimum period (i.e., one day to 10 days) in the absence of any
aggravating circumstance that offset the mitigating circumstance of passion.
Accordingly, with the Indeterminate Sentence Law being inapplicable due to the penalty
imposed not exceeding one year,24 the petitioner shall suffer a straight penalty of 10
days of arresto menor.

The award of moral damages to Jayson is appropriate. Such damages are granted in
criminal cases resulting in physical injuries.25 The amount of ₱5,000.00 fixed by the
lower courts as moral damages is consistent with the current jurisprudence.26

WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a new
judgment: (a) finding petitioner George Bongalon GUlLTY beyond reasonable doubt of
the crime of SLIGHT PHYSICAL INJURIES under paragraph 1, Article 266, of the Revised
Penal Code; (b) sentencing him to suffer the penalty of 10 days of arresto menor; and
(c) ordering him to pay Jayson Dela Cruz the amount of ₱5,000.00 as moral damages,
plus the costs of suit.

SO ORDERED.
G.R. No. 206627

VAN CLIFFORD TORRES y SALERA, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

LEONEN, J.:

Through this Petition for Review on Certiorari, 1 petitioner Van Clifford Torres y Salera
(Torres) challenges the Court of Appeals Decision2 dated August 11, 2011 and
Resolution3 dated February 22, 2013 in CA-G.R. CEB-CR No. 00481. The assailed
judgments affirmed the Regional Trial Court Decision dated June 5, 2006, which
convicted Torres for violation of

Section 10(a) of Republic Act No. 7610.4

In an Information dated June 9, 2004 filed before Branch 1 of the Regional Trial Court
of Tagbilaran City, Bohol, Torres was charged with other acts of child abuse under
Section 10(a) of Republic Act No. 7610:5

That on or about the 11th day of November, 2003, in the municipality of Clarin, province
of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to harm and humiliate, did then and there, willfully,
unlawfully and feloniously abuse, slap and whip AAA, a 14 year old minor (born on June
5, 1989) with a T-shirt hitting his neck and shoulder and causing him to fall down on the
stairs of the barangay hall which acts are humiliating and prejudicial to the development
of the victim and are covered by Article 59 of Pres. Decree 603, as amended; to the
damage and prejudice of the said victim in the amount to be proved during trial. 6

Upon arraignment, Torres pleaded not guilty. 7 Trial on the merits ensued.8

The prosecution presented the victim AAA, AAA's aunt and uncle, Dr. Vicente Manalo Jr.,
and Barangay Captain Hermilando Miano as witnesses to testify on the alleged
incident.9 The prosecution established the following facts during trial:

CCC, AAA's uncle, previously filed a complaint for malicious mischief against Torres, who
allegedly caused damage to CCC's multicab. 10 AAA witnessed the alleged incident and
was brought by CCC to testify during the barangay conciliation. 11

On November 3, 2003, CCC and AAA were at the barangay hall of Clarin, Bohol waiting
for the conciliation proceedings to begin when they chanced upon Torres who had just
arrived from fishing. 12 CCC's wife, who was also with them at the barangay hall,
persuaded Torres to attend the conciliation proceedings to answer for his
liability. 13 Torres vehemently denied damaging CCC's multicab. 14 In the middle of the
brewing argument, AAA suddenly interjected that Torres damaged CCC's multicab and
accused him of stealing CCC's fish nets. 15
Torres told AAA not to pry in the affairs of adults. He warned AAA that he would whip
him if he did not stop. 16 However, AAA refused to keep silent and continued to accuse
Torres of damaging his uncle's multicab. Infuriated with AAA's meddling, Torres whipped
AAA on the neck using a wet t-shirt. 17 Torres continued to hit AAA causing the latter to
fall down from the stairs. 18 CCC came to his nephew's defense and punched Torres.
They engaged in a fistfight until they were separated by Barangay Captain Hermilando
Miano. 19 Torres hit AAA with a wet t-shirt three (3) times.20

Based on the physical examination conducted by Dr. Vicente Manalo, Jr., AAA sustained
a contusion.21

After the prosecution rested its case, the defense presented the following version of the
incident:

Torres testified that he had just arrived tired from fishing when CCC badgered him to
answer for the damage he had allegedly caused to CCC's multicab. AAA abruptly
interrupted the heated discussion between the two men. 22 Angered by what AAA had
done, Torres told AAA to stop making unfounded accusations or he would be forced to
whip him. AAA called Torres' bluff, which further provoked Torres. Torres attempted to
hit AAA but was thwarted by the timely intervention of CCC, who suddenly attacked
him.23

Torres claimed that CCC filed this case to preempt him from filing a complaint for
physical injuries against CCC. 24 He also claimed that he tried to settle the matter with
CCC and CCC's wife.25 However, the parties failed to reach an agreement due to the
unreasonable demands of the spouses. 26

On June 5, 2006, the Regional Trial Court convicted Torres, thus:

WHEREFORE, premises considered, this Court finds VAN CLIFFORD TORRES y Salera,
the accused[,] GUILTY beyond reasonable doubt of Other Acts of Child Abuse under
Section 10, paragraph A of Republic Act No. 7610 and applying in his favor the beneficial
provisions of The Indeterminate Sentence Law, he is hereby imposed the indeterminate
sentence of imprisonment of SIX (6) YEARS, the maximum period of prision correccional
as minimum to EIGHT (8) YEARS of prision mayor as maximum, the accessory penalties
provided by law and to pay the costs. Van Clifford Torres y Salera is also imposed a
penalty of FINE of FIVE THOUSAND PESOS (PS,000) pursuant to Section 31, Letter f, RA
7610. The Court credits Van Clifford Torres y Salera his preventive imprisonment in the
service of his penalty pursuant to Art. 29 [of] the Revised Penal Code as Amended.

SO ORDERED.27

Torres appealed before the Court of Appeals. 28 He argued that the prosecution failed to
establish all the elements of child abuse and that his guilt was not proven beyond
reasonable doubt.29 He also questioned the lower court's jurisdiction over the case.30

In its Decision31 dated August 11, 2011, the Court of Appeals affirmed the Regional Trial
Court Decision, albeit with modification as to the penalty:
WHEREFORE, in view of the foregoing premises, the instant appeal is hereby DENIED.
The Decision dated 5 June 2006 promulgated by the Regional Trial Court of Bohol,
Branch 1 in Tagbilaran City in Crim. Case No. 12338 is AFFIRMED with MODIFICATION
that the accusedappellant is sentenced to five (5) years, four (4) months and twenty-
one (21) days of prision correccional as minimum, to six (6) years, eight (8) months and
one (1) day of prision mayor as maximum.

SO ORDERED.32 (Emphasis in the original)

Torres moved for reconsideration, but the Motion was denied in the Court of Appeals
Resolution33 dated February 22, 2013.1âwphi1

Aggrieved, Torres filed before this Court this Petition for Review on Certiorari.34

On October 7, 2013, respondent People of the Philippines, through the Office of the
Solicitor General, filed a Comment, 35 to which petitioner filed a Reply36 on February 7,
2014.

Petitioner raises the following issues for this Court's resolution: (1) whether the Court of
Appeals erred in sustaining his conviction on a judgment premised on a
misapprehension of facts; and (2) whether the Court of Appeals erred in affirming his
conviction despite the failure of the prosecution to prove his guilt beyond reasonable
doubt.37

Petitioner invites this Court to review the factual findings on the ground that the
judgment was rendered based on a misapprehension of facts. He argues that both the
Regional Trial Court and the Court of Appeals disregarded certain material facts, which,
if properly considered, would have justified a different conclusion.38 In particular,
petitioner challenges the credibility of the prosecution's witnesses.39 He highlights the
inconsistencies in their testimonies and their failure to clearly establish the presence of
CCC's wife during the incident.40

Petitioner also calls attention to the partiality of the prosecution's witnesses, majority of
whom are relatives of the victim.41 He believes that the prosecution's witnesses could
not have given a true narrative of the incident because of their obvious bias.42 Hence,
their testimonies were undeserving of any weight and credit.

On the other hand, respondent argues that the questions raised by petitioner were
questions of fact, which are generally proscribed in a petition for review under Rule 45.43

We affirm petitioner's conviction. The act of whipping a child three (3) times in the neck
with a wet t-shirt constitutes child abuse.

It is a fundamental rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45.44 The factual findings of the trial court, especially when
affirmed by the Court of Appeals, are generally binding and conclusive on this
Court.45 This Court is not a trier of facts. 46 It is not duty-bound to analyze, review, and
weigh the evidence all over again in the absence of any showing of any arbitrariness,
capriciousness, or palpable error.47 A departure from the general rule may only be
warranted in cases where the findings of fact of the Court of Appeals are contrary to the
findings of the trial court or when these are unsupported by the evidence on record.48

The assessment of the credibility of witnesses is a function properly within the office of
the trial courts.49 It is a question of fact not reviewable by this Court.50 The trial court's
findings on the matter are entitled to great weight and given great respect and "may
only be disregarded ... if there are facts and circumstances which were overlooked by
the trial court and which would substantially alter the results of the case[.]"51

This Court finds no reason to disturb the factual findings of the trial court. The trial court
neither disregarded nor overlooked any material fact or circumstance that would
substantially alter the case. The presence or absence of one person during the incident
is not substantial enough to overturn the finding that petitioner whipped AAA three (3)
times with a wet t-shirt.52

Assuming, without admitting, that petitioner did whip AAA, petitioner argues that it
should not be considered as child abuse because the law requires intent to
abuse.53 Petitioner maintains that he whipped AAA merely to discipline and restrain the
child "from further intensifying the situation."54 He also maintains that his act was
justified because AAA harassed and vexed him. 55 Thus, petitioner claims that there
could not have been any intent to abuse on his part.

Petitioner contends that the injuries sustained by AAA will not affect the latter's physical
growth or development and mental capacity. 56 He argues that he could not be
convicted of child abuse without proof that the victim's development had been
prejudiced. 57 He begs the indulgence of this Court and claims that his conviction would
only serve as a "precedent to all children to act recklessly, errantly[,] and
disobediently"58 and would then create a society ruled by juvenile delinquency and
errant behavior. 59 If at all, petitioner claims that he could only be convicted of slight
physical injuries under the Revised Penal Code for the contusion sustained by AAA. 60

Respondent maintains that the act of whipping AAA is an act of child

abuse.61 Respondent argues that the act complained of need not be prejudicial to the
development of the child for it to constitute a violation of Republic Act No.
7610.62 Respondent, citing Sanchez v. People,63 argues that Section 10(a)64 of Republic
Act No. 7610 defines and punishes four distinct acts.65

We reject petitioner's contention that his act of whipping AAA is not child abuse but
merely slight physical injuries under the Revised Penal Code. The victim, AAA, was a
child when the incident occurred. Therefore, AAA is entitled to protection under Republic
Act No. 7610, the primary purpose of which has been defined in Araneta v. People:66

Republic Act No. 7610 is a measure geared towards the implementation of a national
comprehensive program for the survival of the most vulnerable members of the
population, the Filipino children, in keeping with the Constitutional mandate under
Article XV, Section 3, paragraph 2, that "The State shall defend the right of the children
to assistance, including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development."67 (Emphasis omitted, citation omitted)

Under Section 3(b) of the Republic Act No. 7610, child abuse is defined, thus:

Section 3. Definition of Terms.

….

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which
includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth
and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.
(Emphasis supplied)

As can be gleaned from this provision, a person who commits an act that debases,
degrades, or demeans the intrinsic worth and dignity of the child as a human being,
whether habitual or not, can be held liable for violation of Republic Act No. 7610.

Although it is true that not every instance of laying of hands on the child constitutes
child abuse,68 petitioner's intention to debase, degrade, and demean the intrinsic worth
and dignity of a child can be inferred from the manner in which he committed the act
complained of.

To note, petitioner used a wet t-shirt to whip the child not just once but three (3)
times.69 Common sense and human experience would suggest that hitting a sensitive
body part, such as the neck, with a wet t-shirt would cause an extreme amount of pain,
especially so if it was done several times. There is also reason to believe that petitioner
used excessive force. Otherwise, AAA would not have fallen down the stairs at the third
strike. AAA would likewise not have sustained a contusion.

Indeed, if the only intention of petitioner were to discipline AAA and f stop him from
interfering, he could have resorted to other less violent means. Instead of reprimanding
AAA or walking away, petitioner chose to hit the latter.

We find petitioner liable for other acts of child abuse under Article VI, Section 10(a) of
Republic Act No. 7610, which provides that "a person who shall commit any other acts
of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to
the child's development . shall suffer the penalty of prision mayor in its minimum
period."70

In Araneta:

[Article VI, Section 10(a) of Republic Act No. 7610] punishes not only those enumerated
under Article 59 of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child
abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions
prejudicial to the child's development. The Rules and Regulations of the questioned
statute distinctly and separately defined child abuse, cruelty and exploitation just to
show that these three acts are different from one another and from the act prejudicial to
the child's development. . . . [An] accused can be prosecuted and be convicted under
Section 10(a), Article VI of Republic Act No. 7610 if he commits any of the four acts
therein. The prosecution need not prove that the acts of child abuse, child cruelty and
child exploitation have resulted in the prejudice of the child because an act prejudicial to
the development of the child is different from the former acts.

Moreover, it is a rule in statutory construction that the word "or" is a disjunctive term
signifying dissociation and independence of one thing from other things enumerated. It
should, as a rule, be construed in the sense which it ordinarily implies. Hence, the use of
"or" in Section 10(a) of Republic Act No. 7610 before the phrase "be responsible for
other conditions prejudicial to the child's development" supposes that there are four
punishable acts therein. First, the act of child abuse; second, child cruelty; third, child
exploitation; and fourth, being responsible for conditions prejudicial to the child's
development. The fourth penalized act cannot be interpreted ... as a qualifying condition
for the three other acts, because an analysis of the entire context of the questioned
provision does not warrant such construal.71 (Emphasis supplied)

Petitioner's act of whipping AAA on the neck with a wet t-shirt is an act that debases,
degrades, and demeans the intrinsic worth and dignity of a child. It is a form of cruelty.
Being smacked several times in a public place is a humiliating and traumatizing
experience for all persons regardless of age. Petitioner, as an adult, should have
exercised restraint and self-control rather than retaliate against a 14-year-old child.

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated August 11,
2011 and Resolution dated February 22, 2013 in CA_G.R. CEB-CR No. 00481 affirming
the conviction of petitioner Vam Clifford Torres y Salera for violation of Section 10(a) of
Republic Act No. 7610 are AFFIRMED.

SO ORDERED.
G.R. No. 218970

RICHARD ESCALANTE, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

MENDOZA, J.:

This petition for review on certiorari seeks to reverse and set aside the October 13, 2014
Decision 1 and June 9, 2015 Resolution 2 of the Court Appeals (CA) in CA-G.R. CR No.
35771, which affirmed the May 22, 2013 Decision3 of the Regional Trial Court, Branch
172, Valenzuela City (RTC), finding petitioner Richard Escalante (Escalante) guilty of
violating Section 10(a) of Republic Act (R.A.) No. 7610 or the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act. "

Escalante was charged with the crime of child abuse committed against AAA, who was
then a twelve (12) year old minor. When arraigned, he pleaded "not guilty." Thereafter,
trial ensued.

Evidence of the Prosecution

The prosecution presented private complainant, AAA, and Leonora Abrigo

Mariano (Mariano), Records Custodian of Fatima Medical Center. Their combined
testimonies tended to prove that at around midnight of December 24, 2006, AAA
accompanied his classmate Mark in going home. On his way back from Mark's house,
AAA was called by Escalante and was pulled into a comfort room at the Divine School in
Parada, Valenzuela City. Once inside, Escalante pulled down AAA's shorts and sucked
the latter's penis for about ten (10) minutes. Shortly thereafter, he forcibly inserted
AAA's penis into his anus.

Four (4) days after the incident, AAA complained to his mother that he was experiencing
pain in his penis and had difficulty in urinating. He divulged the incident to his mother,
who then brought him to the Fatima Medical Center for examination. In the course of
the examination, it was determined that he was afflicted with gonorrhoea, a sexually-
transmitted disease and urinary tract infection. 4

Evidence of the Defense

The defense presented Escalante, his father Nicomedes Escalante, and their neighbor
Josephine Salada (Salada). Their combined testimonies tended to establish that at
around midnight of December 24, 2006, Escalante was in Salada's house celebrating
Christmas Eve; that the celebration started at 10:00 o'clock in the evening and lasted
between 1:00 o'clock and 3:00 o'clock the following morning; that he could not have
been in the school because he never left Salada's house as he was tasked with passing
around shots of liquor; and that Salada's house was only a thirty (30)-minute ride away
from the place where the incident occurred.
 The RTC Ruling

In its May 22, 2013 Decision, the RTC found Escalante guilty of violating Section 10 (a)
of R.A. No. 7610. It ruled that the totality of the prosecution's evidence was sufficient to
establish that he physically and sexually abused AAA. The RTC did not give credence to
Escalante's alibi as it found AAA's identification of the accused as his assailant credible.
It added that Escalante's alibi was not convincing enough to prove that it was physically
impossible for him to be at the location of the crime. The dispositive portion of the
decision reads:

WHEREFORE, the court finds the accused RICHARD ESCALANTE guilty beyond
reasonable doubt as principal for violation of Section 1o(a) of R.A. 7610 in relation to
Sec. 3(b), No. 1 & 2, and in the absence of any modifying circumstances, applying the
Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of
imprisonment of four (4) years, nine (9) months and eleven (11) days of prision
correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision
mayor, as maximum.

The accused is likewise ordered to pay AAA the amount of Php 50,ooo.oo as moral
damages and to pay a fine of Php15,ooo.oo.

SO ORDERED.5

Aggrieved, Escalante appealed before the CA. In his Appellant's Brief, 6 he contended
that he was not positively identified by AAA as his abuser; that AAA could not readily
recognize him as the former testified that the place where he was abused was dark; that
more than three (3) years had passed when AAA testified in court, making his
recollection doubtful; and that AAA only identified the supposed culprit by a mere
photograph which had not been authenticated and its origins as well as its processing
were never established.

The CA Ruling

In its assailed Decision, dated October 13, 2014, the CA affirmed Escalante's conviction
for the crime of child abuse under Section 10(a) of R.A. No. 7610. It held that AAA's
testimony was credible because there was no reason for him to fabricate such a story,
considering that he was only a child and it was unlikely that he would place himself in
such a humiliating experience. It disregarded Escalante's alibi as he was positively
identified and it was not physically impossible for him to be at the scene of the crime at
the time of the incident.

Escalante moved for reconsideration, but his motion was denied by the CA in its assailed
Resolution dated June 9, 2015.

Hence, this appeal raising:

 SOLE ISSUE

WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

REGIONAL TRIAL COURT FINDING HEREIN PETITIONER GUILTY DESPITE REASONABLE
DOUBT OWING TO THE FACT THAT THE PETITIONER WAS NOT REALLY POSITIVELY
IDENTIFIED BY THE PRIVATE COMPLAINANT.7

Escalante averred that AAA merely pointed to a picture of him during trial. He argued
that he was not positively identified as the photograph used to identify him was not
authenticated and its origins were never established. Moreover, he challenged the
credibility and accuracy of AAA's testimony as it was given after more than three (3)
years from the date of the alleged abuse.

In its Comment,8 dated January 25, 2016, the Office of the Solicitor
General (OSG) countered that only questions of law may be raised in a petition for
review under Rule 45 of the Rules of Court. At any rate, the OSG argued that even if the
petition be given due course, it is still without merit as Escalante's conviction was proven
beyond reasonable doubt. It explained that AAA had positively identified Escalante as
the assailant, and the fact that it was done through photographs did not diminish the
veracity of the identification. The OSG pointed out that in spite of notice and warning,
Escalante failed to appear in court for identification, and his counsel did not object to
the manner of identification adopted because of his absence. At any rate, it argued that
in-court identification is not essential when there is no doubt as to the identity of the
accused as the person charged in the Information.

The OSG contended that the evidence on record sufficiently established Escalante's guilt
of the crime charged. It stated that his act constituted child abuse as it amounted to
sexual, physical and psychological abuse. The OSG bewailed that Escalante's act was an
assault on the dignity and intrinsic worth of AAA as a human being.

In his Manifestation in lieu ofReply,9 dated August 3, 2016, Escalante averred that he
was adopting his Appellant's Brief before the CA as his Reply as all the relevant issues
had been extensively and exhaustively argued therein.

The Court's Ruling

The petition is bereft of merit.

Only questions of law may be raised

Only questions of law may be raised in a petition for review on certiorari before the
Court. 10 A petition for review on certiorari under Rule 45 is an appeal from a ruling of a
lower tribunal on pure questions of law and only in exceptional circumstances has the
Court entertained questions of fact.11

Although Escalante admits that his petition presents questions of fact, he insists that his
case is an exception to the general rule because the factual findings of the lower courts
are not supported by the records. A scrutiny thereof, however, shows that none of the
exceptions are present to warrant a review.

Granting that exceptional circumstances exist warranting the Court to entertain the
present petition, the merits of the case still fail to convince.

Escalante was sufficiently and appropriately identified

In People v. Pineda, 12 the Court laid down the guidelines m identifications of accused
through photographs, to wit:

The first rule in proper photographic identification procedure is that a series of

photographs must be shown, and not merely of that of the suspect. The second rule
directs that when a witness is shown a group of pictures, their arrangement and display
should in no way suggest which one of the pictures pertains to the
suspect. 13 [Emphases supplied]

The said guidelines are necessary considering that the out-of-court identification of an
accused is susceptible to suggestiveness. These paramaters are in place to make the
identification of the accused as objective as possible.

In the case at bench, there is no reason to doubt AAA's identification of Escalante. It is

noteworthy that the identification was done in open court.1âwphi1 Further, the trial
court adopted a similar manner with out-of-court identifications through photographs. As
culled from the records, AAA was presented with several pictures in open court from
which he was asked to pinpoint who was his abuser. He was able to identify Escalante
without any leading question which clearly suggests that the picture identified was that
of the latter.

Thus, AAA's identification was objective enough to be credible because it was done
under court supervision and with the added parameters usually observed in out-of-court
identifications. Significantly, no objections were raised over the manner in which
Escalante was identified, which, it must be noted, was only resorted to because he failed
to appear in court for identification.

Escalante's alibi fails to impress

In People v. Ramos, 14 the Court explained that in order for alibi to prosper, the accused
must be able to establish that it was physically impossible for him to be at the crime
scene. It wrote:

However, for the defense of alibi to prosper, the accused must prove (a) that she was
present at another place at the time of the perpetration of the crime, and (b) that it was
physically impossible for her to be at the scene of the crime during its commission.
Physical impossibility refers to distance and the facility of access between the crime
scene and the location of the accused when the crime was committed. She must
demonstrate that she was so far away and could not have been physically present at the
crime scene and its immediate vicinity when the crime was committed.15
Escalante himself admitted that Salada's house was merely a thirty (30)-minute ride
away from the scene of the crime. Obviously, it was very possible for him to be at the
place at that time. Escalante's witnesses even testified that they were not with him the
entire time. He could have easily left Salada's house and return without his absence
being noticed considering the number of people present and the proximity of Salada's
house from the crime scene.1âwphi1 Thus, Escalante failed to prove that it was
physically impossible for him to be at the crime scene at the time of the incident.

Further, AAA positively identified Escalante. Alibis and denials are worthless in light of
positive identification by witnesses who have no motive to falsely testify. 16 The RTC and
the CA found no cogent reason for AAA to fabricate his allegations against Escalante.

Child Abuse under Section 5(b) of R.A. No. 7610, not Section 10(a) thereof

It is axiomatic that when an accused appeals his judgment of conviction, he waives his
constitutional guarantee against double jeopardy and throws the entire case open for
appellate review. 17 The Court is tasked to render such judgment as law and justice
dictate in the exercise of its concomitant authority to review and sift through the whole
case and correct any error, even if unassigned. 18 This authority includes modifying the
penalty imposed- either increasing or decreasing the same.

Escalante was convicted by the RTC of child abuse under Section 10(a) of R.A. No.
7610. The correct provision, however, should be Section 5(b) of R.A. No. 7610, which
imposes a higher penalty of reclusion temporal in its medium period to reclusion
perpetua. Section 5(b) of R.A. No. 7610 reads:

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:

xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse: xxx

On the other hand, Section 10(a) thereof states:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development-

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or
be responsible for other conditions prejudicial to the child's development including those
covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by
the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period.

As can be gleaned from the above-mentioned provisions, Section S(b) of R.A. No. 7610
specifically applies in case of sexual abuse committed against children; whereas, Section
l0(a) thereof punishes other forms of child abuse not covered by other provisions of R.A.
No. 7610. Parenthetically, the offense will not fall under Section l0(a) of R.A. No. 7 610
if the same is specifically penalized by a particular provision of the law such as Section
5(b) for sexual abuse.

In People v. Larin, 19 the Court stated that the elements of sexual abuse under Section
S(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. It further ruled:

It must be noted that the law covers not only a situation in which a child is abused for
profit, but also in which a child, through coercion or intimidation, engages in any
lascivious conduct. Hence, the foregoing provision penalizes not only child prostitution,
the essence of which is profit, but also other forms of sexual abuse of
children.20 [Emphasis supplied]

All of the foregoing elements are present in the case at bench.

First, in forcibly sucking AAA's penis and thereafter inserting it in his anus, Escalante,
without question exposed AAA to lascivious conduct. Second, AAA is a child subjected to
other sexual abuse. In Caballo v. People (Caballo),21 the Court ruled that a child who
engages in sexual or lascivious conduct due to the coercion or influence is a child
subjected to other sexual abuse, viz:

As it is presently worded, Section 5, Article III of RA 7610 provides that when a child
indulges in sexual intercourse or any lascivious conduct due to the coercion or influence
of any adult, the child is deemed to be a "child exploited in prostitution and other sexual
abuse." In this manner, the law is able to act as an effective deterrent to quell all forms
of abuse, neglect, cruelty, exploitation and discrimination against children, prejudicial as
they are to their development. 22

In addition, the Court, in Caballo considered the age disparity between an adult and a
minor as indicia of coercion or influence. In the case at bench, AAA was only twelve (12)
years old at the time of the sexual abuse. The records, on the other hand, disclosed that
Escalante was twenty (20) years old at the time of the commission of the crime. The
disparity of eight (8) years between them placed Escalante in a stronger position over
AAA to exert his will upon the latter. In addition, AAA testified in open court that he
could not resist because he feared Escalante as the latter was taller and bigger than
him.

Further, the fact that the sexual encounter between Escalante and AAA occurred only
once does not remove it from the ambit of Section 5(b) of R.A. No. 7610. In Quimvel v.
People,23 the Court expounded that sexual abuse under Section S(b) of R.A. No. 7610
includes sexual maltreatment of the child, whether habitual or not, to wit:

Contrary to the exposition, the very definition of "child abuse" under Sec. 3(b) of RA
7610 does not require that the victim suffer a separate and distinct act of sexual abuse
aside from the act complained of. For it refers to the maltreatment, whether habitual or
not, of the child. Thus, a violation of Sec. 5(b) of RA 7610 occurs even though the
accused committed sexual abuse against the child victim only once, even without a prior
sexual affront.

xxx

It is as my esteemed colleagues Associate Justices Diosdado M. Peralta and Estela M.

Perlas-Bernabe reminded the Court. Ratio legis est anima. The reason of the law is the
soul of the law. In this case, the law would have miserably failed in fulfilling its loft
purpose of providing special protection to children from all forms of abuse if the Court
were to interpret its penal provisions so as to require the additional element or
contemporaneous abuse that is different from what is complained of, ·and if the Court
were to require that a third person act in concert with the accused. [Emphases supplied]

Third, AAA's minority was sufficiently established. As shown by his birth certificate, he
was only twelve (12) years old at the time the alleged sexual assault occurred. All in all,
it is clear that Escalante, an adult with all his influence and power over the minor AAA,
coerced the latter into satiating his sexual urges at the expense of his youth, innocence
and purity. Surely, such perverse actions warrant the harsher penalty under R.A. No.
7610 in consonance with the State's policy to protect children from all forms of abuse or
exploitation.

Finally, even if the Information does not categorically state that Escalante was being
charged with child abuse under Section 5(b) of R.A. No. 7610, he may still be convicted
for the said crime. It is doctrinal that it is not the title of the complaint or information
which is controlling but the recital of facts contained therein. The information must
sufficiently allege the acts or omissions complained of to inform a person of common
understanding what offense he is being charged with-in other words the elements of the
crime must be clearly stated.24 A closer perusal of the allegation under the Information
discloses that it is sufficient to charge Escalante with sexual abuse under the Section
5(b) of R.A. No. 7610 as it read:

That on or about December 25, 2006, in Valenzuela City and within the jurisdiction of
this Honorable Court, the above-named accused, without any justifiable cause, did then
and there willfully and unlawfully committed acts of child abuse against AAA,
(Complainant), 12 years old (DOB: March, 2, 1994), by kissing his neck down to
his sex organ and forced the complainant to insert his sex organ into the anus
of Richard Escalante thereby subjecting said minor to psychological and physical
abuse, cruelty and emotional maltreatment and which act debased, degraded and
demeaned her (sic) intrinsic worth and dignity as a human being. Contrary to
law.25 [Emphasis and underscoring supplied]
In the present case, the Information alleged that Escalante kissed AAA's neck down to
his sex organ and forcibly inserted AAA's penis into his anus. Further, the evidence on
record proves that AAA was coerced into submitting to Escalante's will as he was unable
to put up any resistance out of fear. As earlier stated, AAA's minority was satisfactorily
established.

In the case at bench, both the Information and the evidence on record spell out a case
of sexual abuse punishable under Section 5(b) of R.A. No. 7610. Hence, the penalty
imposed against Escalante should be modified accordingly.

To recapitulate, Section 10(a), Article VI ofR.A. No. 7610, wherein a penalty of prision
mayor in its minimum period is prescribed, contemplates any other acts of child abuse,
cruelty or exploitation or other conditions prejudicial to the child's development. In
contrast, Section 5(b) thereof specifically applies to the commission of the act of sexual
intercourse or lascivious conduct to a child subjected to other sexual abuse.

Based on the foregoing, Escalante should suffer the penalties imposed in Section 5(b),
not Section 10(a), of R.A. No. 7610. In Pinlac v. People (Pinlac),26 the Court categorically
enumerated the penalties and damages to be imposed on accused convicted under
Section S(b) of R.A. No. 7610, to wit:

Under Section 5, Article III of RA 7610, the penalty of reclusion temporal in its medium
period to reclusion perpetua shall be imposed on those who commit acts of
lasciviousness with a child exploited in prostitution or subjected to other sexual abuse.
Notwithstanding the fact that RA 7610 is a special law, the petitioner in this case may
enjoy the benefits of the Indeterminate Sentence Law. In applying the Indeterminate
Sentence Law, the penalty next lower in degree is prision mayor in its medium period
to reclusion temporal in its minimum period. Thus, the CA correctly imposed the
indeterminate sentence of eight (8) years and one (1) day of prision mayor as minimum,
to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as
maximum.

The CA likewise correctly ordered petitioner to pay "AAA" the following amounts:
₱20,ooo.oo in the concept of civil indemnity, P15,ooo.oo as moral damages, and a fine
of ₱15,ooo.oo pursuant to Section 31 (f), Article XII of RA 7610. In addition, this Court
also orders petitioner to pay "AAA" ₱15,ooo.oo by way of exemplary damages.

In the case at bench, the imposition of a penalty similar to Pinlac is warranted. In both
cases, the accused performed oral sex on the victim minor. In Pinlac, the accused had
oral sex with the minor for two successive days. On the other hand, Escalante had oral
sex with AAA first and then inserted the latter's penis to his anus.

WHEREFORE, the October 13, 2014 Decision of the Court of Appeals in CA-G.R. CR No.
35771 is hereby MODIFIED, in that, petitioner Richard Escalante, is found guilty of
Child Abuse punishable under Section 5(b) of Republic Act No. 7610 and sentenced to
suffer an indeterminate penalty of Eight (8) years and One (1) day of prision mayor, as
minimum, to Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as maximum. He is also ordered to pay AAA the amounts of ₱20,000.00 as
civil indemnity; ₱15,000.00 as moral damages; ₱15,000.00 as exemplary damages, and
₱15,000.00 fine plus interest on all damages awarded at the rate of 6% per annum from
the date of finality of this decision until the same have been fully paid.

SO ORDERED.

G.R. No. 219889

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
EDWIN DAGSA y BANTAS @ "WING WING", Accused-Appellant

DECISION

PERALTA, J.:

Before the Court is an ordinary appeal filed by accused-appellant Edwin Dagsa y Bantas
@ "Wing Wing" assailing the Decision1 of the Court of Appeals (CA), promulgated on
August 29, 2014, in CA-G.R. CR-H.C. No. 06087, which affirmed, with modification, the
September 21, 2012 Judgment2 of the Regional Trial Court (RTC) of La Trinidad,
Benguet, Branch 9, in Criminal Case No. 04-CR-5629, finding accused-appellant guilty
beyond reasonable doubt of the crime of rape.

The antecedents are as follows:

On October 11, 2004, the victim, AAA, a young girl who was then four (4) years old,
was walking home with two of her classmates after having been dismissed from their
class in Kapangan, Benguet. While they were on their way home, herein accused-
appellant, who is the cousin of AAA's father, blocked their path and told AAA's
classmates to go ahead as he would be 'giving AAA a candy. AAA's classmates left her
and, after walking a little farther, they looked back and saw accused-appellant remove
AAA's panty and proceeded to fondle her vagina. Thereafter, when AAA arrived home,
her mother, BBB, noticed that the victim immediately removed her panty, saying that
she no longer wanted to use it. The following day, while BBB was giving AAA a bath, the
latter refused that her vagina be washed claiming that it was painful. Upon her mother's
inquiry, AAA replied that accused-appellant played with her vagina and inserted his
penis in it. BBB immediately went to talk to AAA's classmates about the incident
whereby the said classmates relayed to her what they saw. They then proceeded to the
police station to report the incident. AAA's classmates gave their statements, but AAA
was not able to give hers as she was too shy. A criminal complaint for rape was
eventually filed against accused-appellant. In an Information dated November 25, 2004,
the Provincial. Prosecutor of Benguet charged accused-appellant with the crime of rape
as defined under Article 266-A, paragraph 1 (d) and penalized under Article 266-B,
paragraph 6(5), both of the Revised Penal Code (RPC), as amended by Republic Act No.
83533 (RA 8353), in relation to Republic Act No. 76104 (RA 7610). The accusatory
portion of the Information reads, thus:

That on or about the 11th day of October 2004, at Paykek, Municipality of Kapangan,
Province of Benguet, Philippines and within the jurisdiction of this Honorable Court, the
above-mentioned accused, did then and there willfully, unlawfully and feloniously have
carnal knowledge with one AAA, a minor, four (4) years, four (4) months and twenty-
one (21) days of age against her will and consent, to her great damage, prejudice and
mental anguish.

CONTRARY TO LAW.5

Upon arraignment, accused-appellant pleaded not guilty.6

The case proceeded to trial where the prosecution presented AAA's mother, AAA’s two
(2) classmates, the police officer who took the statements of AAA's mother and her
classmates, as well as the psychologist who examined AAA. No documentary or object
evidence was presented by the prosecution.

After the prosecution rested its case, accused-appellant, through counsel, chose not to
adduce evidence in his behalf.

After trial, the RTC rendered its Judgment dated September 21, 2012 finding accused-
appellant guilty as charged. The dispositive portion of the trial court's decision reads,
thus:

WHEREFORE, accused EDWIN DAGSA y BANTAS alias "WING WING" is hereby found
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE. He is sentenced to
suffer the penalty of Reclusion Perpetua and is ordered to pay the private complainant
₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages and ₱25,000.00 as
exemplary damages. All damages awarded in this case should be imposed with interest
at the rate of six (6) percent per annum from the finality of this judgment until fully paid
(People v. Asetre, G.R. No. 175834, June 8, 2011).

In view of the prison term of the accused which is more than 3 years, he is considered a
national prisoner (P.D. 29 and Supreme Court Circular No. 4-92-A), hence, he is ordered
transferred to the New Bilibid Prison at Muntinlupa City. By virtue thereof, issue a
corresponding commitment order.

SO ORDERED.7
In convicting accused-appellant, the RTC gave full credence to the testimonies of the
prosecution witnesses finding them to be straightforward, categorical, convincing and
bearing the hallmark of truth. The trial court concluded that the failure of the accused-
appellant to dispute or refute the accusation of rape, coupled with the chain of unbroken
circumstantial evidence, leads to no other conclusion than that accused-appellant raped
AAA.

Accused-appellant appealed8 his case with the CA contending that the testimonies of
AAA's mother and the police officer who took the statement of the mother are not
circumstantial evidence but, in fact, are hearsay evidence because what the mother
testified to in open court are the things that her daughter, AAA, told her regarding her
supposed rape. In the same manner, the testimony of the police officer was essentially
based on the allegations relayed to her by the mother of AAA. Accused-appellant also
contended that the testimonies of AAA's classmates, Michael and Jomie, that they saw
accused-appellant fondle AAA's vagina, is not sufficient to establish the allegation that
accused-appellant raped AAA. As to the testimony of the psychologist, the same is
hearsay because it was based on the narration given to her by AAA. Accused-appellant
also questions the failure of the prosecution to present the result of the medical
examination conducted on 'AAA, considering the admission of AAA's mother that the
child, in fact, underwent such examination. Lastly, accused-appellant attacks the
decision of the prosecution not to present the victim as a witness, considering that the
psychologist testified that, given a friendly and nonthreatening environment, the child-
victim could testify in court. Accused-appellant proceeded to conclude that the
circumstantial evidence presented by the prosecution is not sufficient to reach the
conclusion that he raped AAA.

On August 29, 2014, the CA promulgated its Decision holding that "the combination of
all the circumstances presented by the prosecution does not produce a conviction
beyond reasonable doubt against [accused-appellant] for the crime of rape."9 The CA
found that the evidence of the prosecution failed to establish that [accused-appellant]
had carnal knowledge of AAA."10 What the classmates of AAA saw was that accused-
appellant fondled her vagina. The CA also held that the admission of AAA to her mother
that accused-appellant sexually abused her may not be considered as part of the res
gestae because such was not spontaneously and voluntarily made. The CA, nonetheless,
held that accused-appellant may be convicted of the crime of acts of lasciviousness as
the said crime is included in the crime of rape, and the elements of which were
sufficiently established during trial. Thus, the CA disposed as follows:

FOR THE STATED REASONS, the September 21, 2011 (sic) Decision of the Regional Trial
Court is AFFIRMED with MODIFICATIONS that accused-appellant EDWIN DAGSA y
BANTAS @ "WING WING" is sentenced to suffer an indeterminate penalty of thirteen
(13) years, nine (9) months and eleven (11) days of reclusion temporal in its minimum
period, as minimum, to sixteen (16) years, five (5) months and nine (9) days
of reclusion temporal in its medium period, as maximum, and further ORDERED to pay
the victim, AAA, Php20,000.00 as civil indemnity, Php30,000.00 as moral damages, and
Phpl0,000.00 as exemplary damages, all with interest at the rate of 6% per annum from
the date of finality of this judgment until its satisfaction.
SO ORDERED.11

On September 1 7, 2014, accused-appellant, through counsel, filed a Notice of

Appeal12 manifesting his intention to appeal the CA Decision to this Court.

In its Resolution dated September 29, 2014, the CA gave due course to accused-
appellant's Notice of Appeal and ordered the elevation of the records of the case to this
Court.13

Hence, this appeal was instituted.

In a Resolution14 dated October 12, 2015, this Court, among others, notified the parties
that they may file their respective supplemental briefs, if they so desire.

In its Manifestation (In Lieu of Supplemental Brief)15 dated December 16, 2015, the
Office of the Solicitor General (OSG) informed this Court that it will no longer file a
supplemental brief "there being no significant transaction, occurrence or event that
happened since the filing of its Appellee's Brief [with the CA] dated March 17, 2014."

Accused-appellant, likewise filed a Manifestation (In Lieu of a Supplemental

Brief)16 dated December 28, 2015, indicating that he will no longer file a Supplemental
Brief "since no new issues material to the case which were not elaborated upon in the
Appellant's Brief were discovered and that he "had exhaustively argued all the relevant
issues in his brief, hence, the filing of a Supplemental Brief would only be a repetition of
the arguments raised therein."

The appeal lacks merit.

The CA did not commit error in finding accused-appellant not liable for rape. Pertinent
portions of the CA Decision, which the Court quotes with approval, are as follows:

xxx xxx xxx

In the present case, the combination of all the circumstances presented by the
prosecution does not produce a conviction beyond reasonable doubt against Edwin for
the crime of rape.

xxx xxx xxx

Here, the evidence of the prosecution failed to establish that Edwin had carnal
knowledge of AAA. Michael's testimony did not show that Edwin had carnal knowledge
with AAA. He only testified that he saw Edwin holding AAA's vagina. x x x

Jomie corroborated Michael's testimony, x x x

Clearly, Michael and Jomie's testimonies failed to prove that Edwin inserted his penis
[into] AAA's vagina. What they saw was only his act of fondling AAA's private part which
is not rape.
BBB's testimony that AAA admitted to her that she was sexually molested by Edwin
cannot be treated as part of the res gestae. To be admissible as part of the res
gestae, a statement must be spontaneous, made during a startling occurrence or
immediately prior or subsequent thereto, and must relate to the circumstance of such
occurrence. Here, AAA did not immediately tell BBB of the alleged rape. It was only the
next day that she told her mother of the incident after she was asked what was wrong.
Verily, the declaration was not voluntarily and spontaneously made as to preclude the
idea of deliberate design.

xxx xxx x x x17

Nonetheless, the Court agrees with the ruling of the CA that accused-appellant is guilty
of the crime of acts of lasciviousness. Under the variance doctrine embodied in Section
4,18 in relation to Section 5,19 Rule 120 of the Rules of Criminal Procedure and affirmed
by settled jurisprudence,20 even though the crime charged against the accused was for
rape through carnal knowledge, he can be convicted of the crime of acts of
lasciviousness without violating any of his constitutional rights because said crime is
included in the crime of rape.

The ruling of the CA finding accused-appellant guilty of the crime of acts of

lasciviousness is based on the testimonies of the two classmates of the victim, AAA, who
saw accused-appellant fondle the latter's vagina.

Witness, Michael, clearly narrated the details of the fondling incident and positively
identified accused-appellant as the perpetrator. In a simple, spontaneous, and
straightforward manner, Michael testified as follows:

PROS. PATARAS ON DIRECT EXAMINATION:

Q You are a Grade I pupil?

A Yes sir.

Q In what school?

A In Paykek.

Q And as a Grade I pupil, you know that telling a lie is not good?

A Yes sir.

Q What you tell is only the truth?

A Yes sir.

Q Do you [know] a person by the name of [AAA]?

A Yes sir.

Q Why do you know her?

A (No answer)

COURT:

Make the question simple.

Q [AAA] was your classmate?

A Yes sir.

Q [AAA] was your classmate while you were also in kindergarten?

A Yes sir.

Q She is also your neighbor?

A Yes sir.

Q And she is also your playmate?

A Yes sir.

Q You always go to school together?

A Yes sir.

Q And whenever you go home, you always go home with her?

A Yes sir.

Q You have the same pathway in going to school and in going home?

A Yes sir.

Q How about a person by the name of Wingwing, do you know a person by that name

A Yes sir

Q Will you point to us this Wingwing that you know?

INTERPRETER:

The person pointed to by the witness identified himself as Edwin Dagsa alias Wingwing
Q Did you see anything that Wingwing do to[ AAA]?

A Yes sir.

Q What did this Wingwing do to [AAA] that you saw?

A "Kinawet na ti pipit ni [AAA]"

Q He used his hands in doing that?

A Yes sir.

Q Do you still recall where did this Wingwing do that to [AAA]?

A Yes sir.

Q Where?

A In Paykek.

Q Were you going to school at that time or were you already dismissed from school
when you saw Wingwing do that to [AAA]?

A Yes sir.

Q So you were already going home when Wingwing did that to (AAA]?

A Yes sir.

Q So you were just dismissed from school?

A Yes sir.

Q Before Wingwing put his hands in the vagina on this [AAA], did he talk to anyone of
you?

A Yes sir.

Q What did Wingwing tell you?

A He said that we will go down so that he will give candy to [AAA].

Q Aside from [AAA], do you recall if you have other companions when Wingwing put his
hands at the vagina of [AAA]?

A Yes sir.
Q Who?

A Arnold, Dave, Joemi and I.

Q When you said Joemi, you are referring to Joemi Oyani?

A Yes sir.

Q After you saw Wingwing put his hands on the vagina of [AAA], where did you go?

A I went down.

xxx xxx xxx

ATTY SAYOG ON CROSS EXAMINATION;

Q Michael, is [AAA] your neighbor too?

A Yes ma'am

Q Michael, you said that you saw Wingwing put his hands into the vagina of Jerrilyn, are
you far when you saw Wingwing put his hands on the vagina of [AAA]?

A Yes ma'am.

Q From where you are s1ttmg, can you point to how far was Wingwing when he put his
hands into the vagina of [AAA]?

A Where the Fiscal is sitting down.

COURT:

That would be about two (2) meters.

Q When you allegedly saw Wingwing did that act to [AAA], did you tell it to anyone?

A Yes ma'am

Q And to whom did you tell it? Your mother, your uncle?

A My mother, ma'am.

xxx xxx x x x21

In the same manner, Jomie corroborated the testimony of Michael and narrated, thus:

PROS. PATARAS ON DIRECT EXAMINATION

Q You know that telling a lie is bad or not good?

A Yes sir.

Q And what you will tell is only the truth?

A Yes sir.

Q Do you know this [AAA]?

A Yes sir.

Q Why do you know [AAA]?

A Yes sir.

Q Is she your neighbor?

A No sir.

21
TSN, March 21, 2006, records, pp. 70-74.

Q Will you tell us why you know [AAA]?

A She was my classmate in kinder.

Q How about a person by the name of Wingwing, do you know such a person named
Wingwing? A Yes sir.

JEFFRY TAYNAN:

The witness pointed to a person who identified himself as Edwin Dagsa.

Q While you were classmates with [AAA], did you see anything that Wingwing did to
[AAA]? A Yes sir.

Q What did you see that Wingwing did to [AAA]?

A While [we] were walking, he blocked our way and he told us to go down so that he
will give [AAA] candy and when we did not go, he let [AAA] sit down.

Q After he let [AAA] sit down, what did he do to [AAA]?

A He held her vagina.

Q After he held the vagina of [AAA], what did he do next, if you have seen any?
A We went home.

Q How many times did you see Wingwing hold the vagina of [AAA]?

A Once only.

Q Did you tell this to the police?

A No sir.

Q I'm showing you a document with a name Jomie Uyan and above it is a signature, will
you see whose signature is this?

A Mine sir.

Q Is that your signature?

A Yes sir.

Q So you recall that a policeman went to talk to you about what Wingwing did to [AAA]?

A Yes sir.

The trial court found the testimonies of Michael and Jomie to be straightforward,
categorical and convincing. It is settled that the assessment of the credibility of
witnesses is within the province of the trial court.23 All questions bearing on the
credibility of witnesses are best addressed by the trial court by virtue of its unique
position to observe the crucial and often incommunicable evidence of the witnesses'
deportment while testifying, something which is denied to the appellate court because of
the nature and function of its office.24 The trial judge has the unique advantage of
actually examining the real and testimonial evidence, particularly the demeanor of the
witnesses.25 Hence, the trial judge's assessment of the witnesses' testimonies and
findings of fact are accorded great respect on appeal.26 In the absence of any
substantial reason to justify the reversal of the trial court's assessment and conclusion,
like when no significant facts and circumstances are shown to have been overlooked or
disregarded, the reviewing court is generally bound by the former's findings.27

Moreover, it has been held that when a testimony is given in a candid and
straightforward manner, there is no room for doubt that the witness is telling the
truth.28 Likewise, jurisprudence has consistently given full weight and credence to a
child's testimonies as youth and immaturity are badges of truth and sincerity.29

What is important in the instant case is that Michael and Jomie witnessed the unfolding
of the crime and was able to positively identify accused-appellant as the culprit. Also,
the fact that Michael and Jomie were just a few meters away from the victim and the
accused-appellant, and that the crime was committed in broad daylight, bolster their
testimonies as to the particular acts committed by accused-appellant and their
identification of the latter as the perpetrator of the lascivious acts committed against the
victim.

On the other hand, accused-appellant failed to refute the testimonies of Michael and
Jomie who categorically pointed to him as the person who fondled the victim's private
organ. He also failed to attribute any improper motive to the child witnesses to falsely
testify against him. There was no evidence to establish that Michael and Jomie harbored
any ill-will against accused-appellant or that they had reasons to fabricate their
testimony. In the absence of proof to the contrary, the presumption is that the witness
was not moved by any ill-will and was untainted by bias, and thus, worthy of belief and
credence.30

Under these circumstances, the rule that where the prosecution eyewitnesses were
familiar with both the victim and the accused, and where the locus criminis afforded
good visibility, and where no improper motive can be attributed to the witnesses for
testifying against the accused, then their version of the story deserves much weight,
thus applies.31 The Court is, therefore, convinced that accused-appellant's culpability for
lascivious acts committed against the victim was duly established by the testimony of
the child witnesses.

The CA found accused-appellant guilty of the crime of acts of lasciviousness under

Article 336 of the RPC, in relation to Section 5 (b), Article III of RA 7610, which 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.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

xxx xxx xxx

(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; x x x

xxx xxx xxx

The essential elements of this provision are:

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.32

As to the first element, paragraph (h), Section 2 of the Implementing Rules and
Regulations of RA 7 610 defines lascivious conduct as a crime committed through the
intentional touching, either directly or through the clothing of the genitalia, anus, groin,
breast, inner thigh or buttocks with the intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, among others. Records show that the
prosecution duly established this element when the witnesses positively testified that
accused-appellant fondled AAA's vagina sometime in October 2004.

The second element requires that the lascivious conduct be committed on a child who is
either exploited in prostitution or subjected to other sexual abuse.33 This second element
requires evidence proving that: (a) AAA was either exploited in prostitution or subjected
to sexual abuse; and (b) she is a child as defined under RA 7610.34

In the case of Olivarez v. Court of Appeals, 35 this Court explained that the phrase,
"other sexual abuse" in the above provision covers not only a child who is abused for
profit, but also one who engages in lascivious conduct through the coercion or
intimidation by an adult. In the latter case, there must be some form of compulsion
equivalent to intimidation which subdues the free exercise of the offended party's
will.36 Intimidation need not necessarily be irresistible.37 As in the present case, it is
sufficient that some compulsion equivalent to intimidation annuls or subdues the free
exercise of the will of the offended party.38 This is especially true in the case of young,
innocent and immature girls, like AAA, who could not be expected to act with
equanimity of disposition and with nerves of steel.39 Young girls cannot be expected to
act like adults under the same circumstances or to have the courage and intelligence to
disregard the threat.40

Anent the third element, there is no dispute that AAA was four years old at the time of
the commission of the crime.1âwphi1 Thus, on the basis of the foregoing, the Court
finds that the CA correctly found accused-appellant guilty of the crime of acts of
lasciviousness under Article 336 of the RPC in relation to Section 5 (b), Article III of RA
7610

With respect to the proper penalty to be imposed, Section 5(b) of RA 7610 provides that
the penalty for lascivious conduct, when the victim is under twelve (12) years of age,
shall be reclusion temporal in its medium period, which ranges from fourteen (14) years,
eight (8) months and one (1) day to seventeen (17) years and four (4) months. Citing
the cases of People v. Simon41and People v. Santos, 42 this Court, in the case of Quimvel
v. People, 43 deemed it proper to apply the provisions of the ·Indeterminate Sentence
Law in imposing the penalty upon the accused who was similarly charged with the crime
of acts of lasciviousness under Article 336 of the RPC in relation to Section 5(b) of RA
7610.
Thus, in the present case, in the absence of any mitigating or aggravating circumstance,
the maximum term of the sentence to be imposed shall he taken from the medium
period of reclusion temporal in its medium period, which ranges from fifteen (15) years,
six (6) months and twenty-one (21) days to sixteen (16) years, five (5) months and nine
(9) days. On the other hand, the minimum term shall be taken from the penalty next
lower to reclusion temporal medium, that is reclusion temporal minimum, which ranges
from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.

Hence, from the foregoing, the penalty imposed by the CA, which is thirteen (13) years,
nine (9) months and eleven (11) days of reclusion temporal in its minimum period, as
minimum, to sixteen (16) years, five (5) months and nine (9) days of reclusion
temporal in its medium period, as maximum, should be modified to conform to
prevailing jurisprudence. Accordingly, the minimum prison term is reduced to twelve
(12) years and one (1) day, while the maximum term is likewise reduced to fifteen (15)
years, six (6) months and twenty-one (21) days

Finally, in light of this Court's recent ruling in People v. Caoili,44 where the accused was
found guilty of lascivious conduct under Section S(b) of RA 7610, committed against a
fourteen (14)- year-old minor, and was meted the maximum penalty of reclusion
perpetua, as opposed to the present case where the victim is only four (4) years old and
the imposable penalty under existing law is only reclusion temporal in its medium
period, it bears to reiterate the present ponente's disquisition in his Separate Concurring
Opinion in Quimvel, 45 to wit:

Having in mind the State policies and principles behind R.A. 7610 (Special Protection of
Children Against Abuse, Exploitation, and Discrimination Act) and R.A. 8353 (Anti-Rape
Law of 1997), as well as the statutory construction rules that penal laws should be
strictly construed against the state and liberally in favor of the accused, and that every
law should be construed in such a way that it will harmonize with existing laws on the
same subject matter, I submit that the following are the applicable l.aws and imposable
penalties for acts of lasciviousness committed against a child under Article 336 of the
RPC, in relation to R.A. 7610:

1. Under 12 years old - Section 5(b), Article III of R.A. 7610, in relation to .Article 336 of
the RPC, as amended by R.A. 8353, applies and the imposable penalty is reclusion
temporal in its medium period, instead of prision correccional. In People v. Fragante,
lmbo v. People of the Philippines, and People of the Philippines v. Santos, the accused
were convicted of acts of lasciviousness committed against victims under 12 years old,
and were penalized under Section 5(b ), Article III of R.A. 7 610, and not under Article
336 of the RPC, as amended.

2. 12 years old and below 18, or 18 or older under special circumstances under Section
3(a) of R.A. 7610 - Section S(b), Article III of R.A. 7610 in relation to Article 336 of the
RPC, as amended, applies and the penalty is reclusion temporal in its medium period
to reclusion perpetua. This is because the proviso under Section S(b) appl[ies] only if
the victim is under 12 years old, but silent as to those 12 years old and below 18;
hence, the main clause thereof still applies in the absence of showing that the
legislature intended a wider scope to include those belonging to the latter age bracket.
The said penalty was applied in People of the Philippines v. Bacus had People of the
Philippines v. Baraga where the accused were convicted of acts of lasciviousness
committed against victims 12 years old and below 18, and were penalized under Section
5(b ), Article III of R.A. 7610. But, if the acts of lasciviousness is not covered by
lascivious conduct as defined in R.A. 7610, such as when the victim is 18 years old and
above, acts of lasciviousness under Article 336 of the RPC applies and the penalty
is prision correccional.

Curiously, despite the clear intent of R.A. 7610 to provide for stronger deterrence and
special protection against child abuse, the penalty [reclusion temporal medium] when
the victim is under 12 years old is lower compared to the penalty [reclusion
temporal medium to reclusion perpetua] when the victim is 12 years old and below 18.
The same holds true if the crime of acts of lasciviousness is attended by an aggravating
circumstance or committed by persons under Section 31, Article XII of R.A. 7610, in
which case, the imposable penalty is reclusion perpetua. In contrast, when no mitigating
or aggravating circumstance attended the crime of acts of lasciviousness, the penalty
therefor when committed against a child under 12 years old is aptly higher than the
penalty when the child is 12 years old and below 18. This is because, applying the
Indeterminate Sentence Law, the minimum term in the case of the younger victims shall
be taken from reclusion temporal minimum, whereas as the minimum term in the ·case
of the older victims shall be taken from prision mayor medium to reclusion temporal
minimum. It is a basic rule in statutory construction that what courts may correct to
reflect the real and apparent intention of the legislature are only those which are clearly
clerical errors or obvious mistakes, omissions, and misprints, but not those due to
oversight, as shown by a review of extraneous circumstances, where the law is clear,
and to correct it would be to change the meaning of the law. To my mind, a corrective
legislation is the proper remedy to address the noted incongruent penalties for acts of
lasciviousness committed against a child.

Too, it bears emphasis that R.A. 8353 did not expressly repeal Article 336 of the RPC, as
amended. Section 4 of R.A. 8353 only states that Article 336 of the RPC, as amended,
and all laws, rules and regulations inconsistent with or contrary to the provisions thereof
are deemed amended, modified or repealed, accordingly. There is nothing inconsistent
between the provisions of Article 336 of the RPC, as amended, and R.A. 8353, except in
sexual assault as a form of rape. Hence, when the lascivious act is not covered by R.A.
8353, then Article 336 of the RPC is applicable, except when the lascivious conduct is
covered by R.A. 7610.

In fact, R.A. 8353 only modified Article. 336 of the RPC, as follows: (1) by carrying over
to acts of lasciviousness the additional circumstances applicable to rape, viz.: threat and
fraudulent machinations or grave abuse of authority; (2) by retaining the circumstance
that the offended party is under 12 years old, and including dementia as another one, in
order for acts of lasciviousness to be considered as statutory, wherein evidence of force
or intimidation is immaterial because the offended party who is under 12 years old or
demented, is presumed incapable of giving rational consent; and (3) by removing from
the scope of acts of lasciviousness and placing under the crime of rape by sexual assault
the specific lewd act of inserting the offender's penis into another person's mouth or
anal orifice, or any instrument or object into the genital or anal orifice of another
person. In fine, Article 336 of the RPC, as amended, is still a good law despite the
enactment of R.A. 8353 for there is no irreconcilable inconsistency between their
provisions.

Meanwhile, the Court is also not unmindful of the fact that the accused who commits
acts of lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III
of R.A. 7610, suffers the more severe penalty of reclusion temporal in its medium
period, than the one who commits Rape Through Sexual Assault, which is merely
punishable by prision mayor. In People v. Chingh, the Court noted that the said fact is
undeniably unfair to the child victim, and it was not the intention of the framers of R.A.
8353 to have disallowed the applicability of R.A. 7610 to sexual abuses committed to
children. The Court held that despite the passage of R.A. 8353, R.A. 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."

Finally, as the Court stressed in Dimakuta v. People, where the lascivious conduct is
covered by the definition under R.A. 7610 where the penalty is reclusion
temporal medium and the said act is likewise covered by sexual assault under Article
266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender
should be liable for violation of Section 5(b), Article III of R.A. 7610, where the law
provides the higher penalty of reclusion temporal medium, if the offended party is a
child. But if the victim is at least eighteen (18) years of age, the offender should be
liable under Article 266-A, par. 2 of the RPC and not R.A. 7610, unless the victim is at
least 18 years old and she is unable to fully take care of herself or protect from· herself
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition, in which case, the offender may still be held liable of
sexual abuse under R.A. 7610. The reason for the foregoing is that, aside from the
affording special protection and stronger deterrence against child abuse, R.A. 7 610 is a
special law which should clearly prevail over R.A. 8353, which is a mere general law
amending the RPC.46

WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 06087, finding accused-appellant Edwin Dagsa y Bantas @ "Wing
Wing" guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the
Revised Penal Code in relation to Section 5(b) of RA 7610, is hereby AFFIRMED with
MODIFICATION by sentencing accused-appellant to an indeterminate penalty of
imprisonment of twelve (12) years and one (1) day of reclusion temporal in its minimum
period, as minimum, to fifteen (15) years six (6) months and twenty-one (21) days
of reclusion temporal in its medium period, as maximum.

As reference for possible corrective legislation on the basis of the above observations,
let a Copy of this Decision be furnished the President of the Republic of the Philippines,
through the Department of Justice, pursuant to Article 547 of the Revised Penal Code.
Also, let a copy of this Decision be furnished the President of the Senate and the
Speaker of the House of Representatives.
SO ORDERED.

G.R. No. 211721

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
WILLINGTON RODRIGUEZ y HERMOSA, Accused-Appellant

DECISION

MARTIRES, J.:

We resolve Willington Rodriguez y Hermosa's (Rodriguez) appeal assailing the 5

December 2013 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 05335.
The CA affirmed Rodriguez's conviction for qualified trafficking in persons, in violation of
Republic Act (R.A.) No. 9208, otherwise known as the Anti-Trafficking in Persons Act of
2003.

THE FACTS

Rodriguez was charged before the Regional Trial Court, Branch 81 of Quezon City (RTC),
in an information which reads:

That on or about the 8th day of August 2006, in Quezon City, Philippines, the above-
named accused, did then and there willfully, unlawfully and feloniously recruit,
transport, harbor, provide, introduce or match for money for the purpose of prostitution,
pornography or sexual exploitation, the following trafficked persons, namely ELSINE
(sic) DELA CRUZ y BEATRIZ, ASHLEY MADRIGAL y RAMOS and JOSEPHINE CRUZ y
ROMAN.

The offense was committed in large scale as it was committed against three (3) or more
trafficked persons, individually or as a group.2

During his arraignment, Rodriguez pleaded not guilty.3 The evidence for the prosecution
is anchored solely on the testimony of Police Officer I Raymond Escober (PO1 Escober),
on the joint sworn affidavit of the arresting officers dated 9 August 2006,4 and on a
photocopy of the pre-marked ~500.00 bill.5

According to his testimony, at around 11 :00 P.M. on 8 August 2006, PO1 Escober was
at the police station preparing for the police operation called Oplan Bugaw for the
purpose of eliminating prostitution on Quezon Avenue in Quezon City.6 PO1 Escober,
designated to pose as customer, was accompanied by P02 Reynaldo Bereber (P02
Bereber) as his backup, and Police Inspector Pruli James D. Lopez (P/lnsp. Lopez).7
While parking their vehicles at the target area, PO1 Escober was flagged down by
Rodriguez who allegedly offered the sexual services of three (3) pickup girls.8 PO1
Escober readily gave Rodriguez the pre-marked ₱500.00 bill as payment.9 This signaled
his backup to enter the scene and aid in the arrest. PO1 Escober then retrieved the pre-
marked bill.10

Thereafter, the officers brought Rodriguez and the three (3) pickup girls to the police
station.

In his defense, Rodriguez denied that he had offered a girl for sexual purposes to PO1
Escober.11 He said that he was only selling cigarettes on Quezon Avenue when he was
arrested by the police officers.12 He only found out that he was being accused of human
trafficking after he was brought to the City Hall.13

The Ruling of the Trial Court

In its 18 October 2011 Decision,14 the RTC found Rodriguez guilty beyond reasonable
doubt of large-scale trafficking. The dispositive portion reads:

WHEREFORE, premises considered, the Court finds accused WILLINGTON RODRIGUEZ y

HERMOSA guilty beyond reasonable doubt of the offense as charged [Violation of
Republic Act 9208 committed in a large scale] and is hereby sentenced to suffer the
penalty of life imprisonment and to pay a fine of ₱2,000,000.00.15

The trial court held that Rodriguez's acts of offering sex to PO1 Escober, calling the
three (3) pickup girls for him to choose from, and receiving money are clearly acts of
human trafficking.16 It gave more weight to the positive testimony of POl Escober over
Rodriguez's unsubstantiated denial.17 Likewise, the trial court noted that PO1 Escober
had no improper motive to falsely testify against the accused.18 Finally, it held that
absent ill motive, the presumption of regularity in the performance of duty must
prevail.19

The trial court explicitly said:

The acts of the accused in offering sex to PO1 Escober, calling the three [3] pick-up girls
so that he could choose from them and receiving money therefor are clearly acts of
human trafficking or trafficking in persons defined and penalized under Sec. 10 [c] of
R.A. No. 9208.

Accused denied the charge[s] by testifying that he was in front of McDonalds Restaurant
in Quezon A venue selling cigarettes.

Where there is positive identification of the accused as the perpetrators of the crime,
their defense of denial and alibi cannot be sustained.

Denial and alibi, unsubstantiated by clear and convincing evidence, are self-serving and
hardly deserve greater evidentiary weight than the declaration of witnesses on
affirmative defenses. (citations omitted)
Accused likewise testified that while he was selling cigarettes, PO1 Escober grabbed him
and together with his fellow police officer[s], they brought him to Police Station 2 where
he was investigated and subsequently charged contrary to the testimony of PO1 Escober
that it was the accused who flagged the vehicle they were riding in and offered sex.

There is no improper motive that could be imputed to PO 1 Escober that he would

falsely testify against the accused. The absence of evidence as to an improper motive
entitles PO1 Escober's testimony to full faith and credit.

The testimony of police officers carried with it the presumption of regularity in the
performance of official functions.

In the absence of ill motive, the presumption of regularity in the performance of the
policeman's official duty must prevail. (citations omitted)

The Arguments of the Accused

On appeal, Rodriguez anchored his defense on the failure of the prosecution to present
any evidence that would establish that he recruited, transported, or transferred the
alleged three (3) women for the purpose of prostitution.20 These women, in fact, were
not presented in court and neither did they execute any sworn statement.21

Rodriguez also faulted the prosecution for not presenting the original marked money
despite the fact that it was in P/Insp. Lopez's possession.22 In addition, the prosecution
did not present any evidence of the alleged request from the barangay officials to get rid
of prostitutes in the area.23

Finally, Rodriguez maintained that the testimony of PO1 Escober was not corroborated
by any of his companions who allegedly took part in the operations.24

The Assailed CA Decision

Unmoved, the CA affirmed the trial court's decision and gave great weight to its factual
findings. It likewise found no merit in the arguments raised by Rodriguez, to wit:

The non-presentation of the three women is not fatal to the prosecution. Unlike in illegal
recruitment cases, where the victim will part money against the recruiter, [w]e cannot
expect the three women to give something to herein accused-appellant. On the
contrary, it may be accused-appellant who would have to give them their proportionate
share for every successful transaction. Thus, they cannot be expected to take an active
part in the case, since they are relatively not adversely affected. In other words,
testifying or executing an affidavit against accused-appellant would be of no value to
them. Accused-appellant himself admitted the presence of three women when he was
being cross-examined, viz:

Q: [PROS. TORRALBA]: Did he also grab the three (3) women whom you introduced to
him?
A: No, sir.

With respect to the non-presentation of the request of the barangay officials, the same
is not a material element of the offense. Neither should the police operation depend on
it. To think otherwise would open the floodgates of abuse as law enforcers will only
move if there are requests from the people. They will become passive instead of
becoming proactive.

The non-presentation of the original of the marked money does not weaken the case,
nor destroy the presumption of regularity of performance of duty. For one, it is also
impossible that the crime of human trafficking be committed even without the money
being paid, as when the potential customer did not proceed with the transaction or was
not able to choose from among the girls presented to him. Secondly, POl Escober is
categorical in his testimony that he prepared the same and had it initialed with "R" and
"E" at the forehead of Ninoy Aquino [on the ₱500 peso bill], the letters being the initials
of his name.

POl Escober positively identified accused-appellant. Neither could accused-appellant

impute ill-motive against him. All that he could offer is his denial which is not
corroborated by any other testimonial evidence. Following our "unbending"
jurisprudence, such positive identification prevails over denial and is in fact sufficient for
conviction.25 (citations omitted)

OUR RULING

The appeal is meritorious.

It is a basic rule that the conviction of the accused must rest not on the weakness of the
defense but on the strength of the prosecution. This is premised on the constitutional
presumption that the accused is innocent unless his guilt is proven beyond reasonable
doubt. This standard is demanded by the due process clause of the Constitution which
protects the accused from conviction except upon proof beyond reasonable doubt of
every fact necessary to constitute the crime he is charged with.26

Proof beyond reasonable doubt does not, of course, mean such degree of proof as,
excluding the possibility of error, to produce absolute certainty.

Only moral certainty is required, or that degree of proof which produces conviction in an
unprejudiced mind. In other words, the conscience must be satisfied that the accused is
responsible for the offense charged.27 Reasonable doubt does not refer to any doubt or
a mere possible doubt because everything in human experience is subject to possible
doubt. Rather, it is that state of the case which, after a comparison of all the evidence,
does not lead the judge to have in his mind a moral certainty of the truth of the charge.
Where there is reasonable doubt as to the guilt of the accused, there must be an
acquittal. 28

Rodriguez was charged and convicted for qualified trafficking in persons under Section
4(a), in relation to Section 6(c), of R.A. No. 9208, which read:
Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or
juridical, to commit any of the following acts:

(a) To recruit, transport, transfer, harbor, provide, or receive a person by any means,
including those done under the pretext of domestic or overseas employment or training
or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;

xxxx

Section 6. Qualified Trafficking in Persons. - The following are considered qualified

trafficking:

xxxx

(c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed
committed by a syndicate if carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is deemed committed in large scale if
committed against three (3) or more persons, individually or as a group;

Section 3(a)29 provides the elements of trafficking in persons: (1) the ruj of recruitment,
transportation, transfer or harboring, or receipts of persons with or without the victim's
consent or knowledge, within or across national borders; (2) the means used which
include "threat or use of force, or other forms of coercion, abduction, fraud, deception,
abuse of power or of position, taking advantage of the vulnerability of the person, or the
giving or receiving of payments or benefits to achieve the consent of a person having
control over another; and (3) the purpose of trafficking is exploitation which includes
"exploitation or the prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the removal or sale of organs."30

A careful review of the records shows that the prosecution failed to prove the presence
of these elements beyond reasonable doubt, nor did we find the second and third
elements proven by the prosecution.

A review of emerging jurisprudence on human trafficking readily shows that a successful

prosecution, to a certain extent, relies greatly on entrapment operations.31 Thus, just
like in any operation that involves capturing the perpetrator in flagrante delicto, the
testimonies of the apprehending officers on what transpired are crucial for a conviction.
In People v. Casio, 32 having similar factual circumstances with the case at hand, the
Court upheld the conviction of the accused for qualified human trafficking. In that case,
the accused came up to the police officers and asked if they were interested in young
girls. After receiving a positive response, the accused picked up two (2) minor girls and
presented them to the police officers. Thereafter, they all proceeded to the motel room
where the accused was arrested.

The case before us differs from the Casio case where more than one (1) credible
witness, the minor victims, were presented in court by the prosecution, and allowed to
testify on the circumstances on how they were recruited by the accused and later
offered for sex in exchange for money. Significantly, the testimony of PO1 Escober in
the case before us lacks the material details to convince us that Rodriguez had
committed human trafficking.

In the instant case, only PO1 Escober testified as to the actual unfolding of
circumstances which led him to believe that Rodriguez was committing human
trafficking. On cross-examination, PO1 Escober testified that:

Q: And what was the accused doing at that time when you first saw [him]?

A: He stopped us and he offered us the services of prostitutes.

Q: To whom was this offered?

A: To me, sir.

xxxx

Q: While on board the Toyota Revo, can you tell this [c]ourt how [did] the transaction
transpire?

A: When we were flagged down, I opened [the] window of the car and he offered us a
woman.

Q: And could you tell this Honorable Court what exactly the accused already told you?

A: "Sir, sir, babae,sir."

Q: And what was your reaction, Mr. Witness?

A: I responded, "Magkano ang ibabayad ko?"

Q: So, it would be correct to state that when the accused [said], "Sir, sir, babae, sir,"
she was offering to you [a] woman?

A: Yes, sir.

Q: And because of that interpretation of yours, you asked him again the cost?

A: Yes, sir.33 (italics supplied)

Surprisingly, the circumstances about the initial contact between PO1 Escober and
Rodriguez and their negotiations came out only during crossexamination. PO1 Escober's
direct testimony showed the fact that he had in his possession the pre-marked ₱500.00
bill and that he was able to retrieve it from Rodriguez after the arrest. There was no
mention about how Rodriguez allegedly called on the three (3) pickup girls and offered
them for sexual purposes.
The exchanges between PO1 Escober and Rodriguez would suggest that PO1 Escober
already knew what Rodriguez meant when he said "Sir, sir, babae, sir," and thus
assumed that Rodriguez was offering women for sex. However, his testimony is bare as
to the fact that the offer of women was explicitly for sexual purposes. It also lacked the
necessary details on how Rodriguez allegedly called on the pickup girls to display them
for PO1 Escober to choose from.

We must remember that suspicion, no matter how strong, must never sway judgment.
It is pivotal in criminal cases that we evaluate the evidence for the prosecution against
the required quantum of evidence in criminal cases. When there is reasonable doubt,
the evidence must be interpreted in favor of the accused. Under the equiPO1se rule, if
the evidence admits two interpretations, one of which is consistent with guilt, and the
other with innocence, the accused must be given the benefit of the doubt and should be
acquitted.34

Apart from the deficient testimony of PO1 Escober, the prosecution did not bother to
present the testimonies of the alleged victims.1âwphi1 It is grossly erroneous to say that
"the non-presentation of the three women is not fatal to the prosecution." Their
testimonies that they were sexually exploited against their will through force, threat or
other means of coercion are material to the cause of the prosecution. These women
would be in the best position to say that Rodriguez had recruited or used these women
by giving them payments or benefits in exchange for sexual exploitation. To rely solely
on the testimony of PO1 Escober as basis for convicting Rodriguez would run riot against
logic and reason, and against the law. To sustain this whimsical reasoning would
encourage anyone to accuse a person of "trafficking in persons" or of any other crime,
without presenting the material testimony of the alleged victim. Given that PO1
Escober's testimony is missing on material details, the prosecution should have
presented in court at least one of the three (3) women that indeed they were sexually
exploited or recruited by the accused for prostitution as alleged in the information. Even
a neophyte police officer of the lowest rank would be stupefied why PO1 Escober and
the two (2) other police officers allegedly with him failed to get the statements of the
alleged victims while they were under police custody after the entrapment operation.

Although the finding of guilt based on the testimony of a lone witness is not uncommon,
the testimonies of P/Insp. Lopez and P02 Bereber would have helped the prosecution
prove the crime. Corroborative evidence is necessary when there are reasons to warrant
the suspicion that the witness falsified the truth or that his observation had been
inaccurate.35 Again, PO1 Escober' s lone testimony lacked the material details to
establish all the elements of the crime which the prosecution, unfortunately, only took
cognizance of.

The only possible evidence that could explicitly prove the necessary elements of the
offense charged would be the joint sworn affidavit executed by the arresting officers.
Even if this document were to be considered, we remain unconvinced that the three (3)
women were offered to PO1 Escober particularly for sexual purposes. Still, it would fail
to convince us that this piece of evidence would not help the prosecution meet the
degree of proof required in criminal cases because a sworn statement cannot be fully
relied upon. We are not unmindful that affidavits are usually abbreviated and inaccurate;
oftentimes, an affidavit is incomplete and results in inconsistencies with the declarant's
testimony in court. 36

All said, absent any direct or circumstantial evidence to prove with moral certainty that
Rodriguez had offered three (3) women to PO1 Escober, his appeal warrants an
acquittal. The gravamen of the crime of human trafficking is not so much the offer of a
woman or child; it is the act of recruiting or using, with or without consent, a fellow
human being for sexual exploitation. In this case, the prosecution miserably failed to
prove this.37

We are reminded that the overriding consideration in criminal cases is not whether the
court doubts the innocence of the accused but whether it entertains a reasonable doubt
as to his guilt. 38 Where there is reasonable doubt as to the guilt of the accused, he
must be acquitted even though his innocence may be doubted since the constitutional
right to be presumed innocent until proven guilty can only be overthrown by proof
beyond reasonable doubt.39 To conclude, because of this doubt that lingers in our mind,
Rodriguez must be acquitted. Pursuant to Rodriguez's guaranteed right to be presumed
innocent under the Bill of Rights, it is our constitutional duty to free him.

WHEREFORE, the appeal is GRANTED. The 5 December 2013 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 05335 is hereby REVERSED and SET ASIDE. For
failure of the prosecution to prove his guilt beyond reasonable doubt, WILLINGTON
RODRIGUEZ y HERMOSA is hereby ACQUITTED of the offense charged.
His IMMEDIATE RELEASE from detention is hereby ORDERED, unless he is being
held for another lawful cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections in
Muntinlupa City for immediate implementation. The Director shall submit to this Court,
within five (5) days from receipt of the copy of the Decision, the action taken thereon.

SO ORDERED.
G.R. No. 211465 December 3, 2014

PEOPLE OF THE :PHILIPPINES, Plaintiff-appellee,

vs.
SHIRLEY A. CASIO, Accused-appellant.

DECISION

LEONEN, J.:

"Chicks mo dong?"1

With this sadly familiar question being used on the streets of many of our cities, the fate
of many desperate women is sealed and their futures vanquished. This case resulted in
the rescue of two minors from this pernicious practice. Hopefully, there will be more
rescues. Trafficking in persons is a deplorable crime. It is committed even though the
minor knew about or consented to the act of trafficking.

This case involves Republic Act No. 9208,2 otherwise known as the "Anti-Trafficking in
Persons Act of 2003."3

Accused Shirley A. Casio was charged for the violation of Republic Act No. 9208, Section
4(a), qualified by Section 6(a). The information against accused, dated May 5, 2008,
states:

That on or about the 3rd day of May 2008, at about 1:00 o’clock A.M., in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
with deliberate intent, with intent to gain, did then and there hire and/or recruit AAA, a
minor, 17 years old and BBB for the purpose of prostitution and sexual exploitation, by
acting as their procurer for different customers, for money, profit or any other
consideration, in Violation of Sec. 4, Par. (a), Qualified by Sec. 6, Par. (a), of R.A. 9208
(Qualified Trafficking in Persons).

CONTRARY TO LAW.4

The facts, as found by the trial court and the Court of Appeals, are as follows:

On May 2, 2008, International Justice Mission (IJM),5 a nongovernmental organization,

coordinated with the police in order to entrap persons engaged in human trafficking in
Cebu City.6

Chief PSI George Ylanan, SPO1 Felomino Mendaros, SPO1 Fe Altubar, PO1 Albert
Luardo, and PO1 Roy Carlo Veloso composed the team of police operatives.7 PO1 Luardo
and PO1 Veloso were designated as decoys, pretending to be tour guides looking for
girls to entertain their guests.8 IJM provided them with marked money, which was
recorded in the police blotter.9
The team went to Queensland Motel and rented Rooms 24 and 25. These rooms were
adjacent to each other. Room 24 was designated for the transaction while Room 25 was
for the rest of the police team.10

PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem Street in Barangay Kamagayan,
Cebu City’s red light district. Accused noticed them and called their attention by saying
"Chicks mo dong?" (Do you like girls, guys?).11

During trial, PO1 Luardo and PO1 Veloso testified that their conversation with accused
went as follows:

Accused: Chicks mo dong?(Do you like girls, guys?)

PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi guests naghulat sa motel.
(Are they new? They must be young because we have guests waiting at the motel.)

Accused: Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get them.)12

At that point, PO1 Luardo sent a text message to PSI Ylanan that they found a
prospective subject.13

After a few minutes, accused returned with AAA and BBB, private complainants in this
case.14 Accused: Kining duha kauyon mo ani? (Are you satisfied with these two?)

PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well, are they good in
sex?)15 Accused gave the assurance that the girls were good in sex. PO1 Luardo inquired
how much their serviceswould cost. Accused replied, "Tag kinientos" (₱500.00).16

PO1 Veloso and PO1 Luardo convinced accused to come with them to Queensland
Motel. Upon proceeding toRoom 24, PO1 Veloso handed the marked money to
accused.17

As accused counted the money, PO1 Veloso gave PSI Ylanan a missed call. This was
their pre-arranged signal. The rest of the team proceeded to Room 24, arrested
accused, and informed her of her constitutional rights. The police confiscated the
marked money from accused.18 Meanwhile, AAA and BBB "were brought to Room 25 and
placed in the custody of the representatives from the IJM and the DSWD."19

During trial, AAA testified that she was born on January 27, 1991. This statement was
supported by a copy of her certificate of live birth.20

AAA narrated that in 2007, she worked as a house helper in Mandaue City. In March
2008 she stopped working as a house helper and transferred to Cebu City. She stayed
with her cousin, but she subsequently moved to a boarding house. It was there where
she met her friend, Gee Ann. AAA knew that Gee Ann worked in a disco club. When Gee
Ann found out that AAA was no longer a virgin, she offered AAA work. AAA agreed
because she needed the money in order to helpher father. AAA recalled that she had sex
with her first customer. She was paid ₱200.00 and given an additional ₱500.00 as tip.
For the first few weeks, Gee Ann provided customers for AAA. Eventually, Gee Ann
brought her to Barangay Kamagayan, telling her that there were more customers in that
area.21

AAA stated that she knew accused was a pimp because AAA would usually see her
pimping girls to customers in Barangay Kamagayan.22 AAA further testified that on May
2, 2008, accused solicited her services for a customer. That was the first time that she
was pimped by accused.23 Accused brought her, BBB, and a certain Jocelyn to
Queensland Motel.24

AAA testified that Jocelyn stayed inthe taxi, while she and BBB went to Room 24. It was
in Room 24 where the customer paid Shirley. The police rushed in and toldAAA and BBB
to go to the other room. AAA was then met by the Department of Social Welfare and
Development personnel who informed her that she was rescued and not arrested.25

AAA described that her job as a prostitute required her to display herself, along with
other girls, between 7 p.m. to 8 p.m. She received ₱400.00 for every customer who
selected her.26

The prosecution also presented the police operatives during trial. PSI Ylanan, SPO1
Mendaros, and SPO1 Altubar testified that after PO1 Veloso had made the missed call to
PSI Ylanan, they "rushed to Room 24 and arrested the accused."27 SPO1 Altubar
retrieved the marked money worth ₱1,000.00 from accused’s right hand "and upon
instruction from PCINSP Ylanan recorded the same at the ‘police blotter prior operation’.
. . ."28

The trial court noted that AAA requested assistance from the IJM "in conducting the
operation against the accused."29

Version of the accused

In defense, accused testified thatshe worked as a laundry woman. On the evening of

May 2, 2008, she went out to buy supper. While walking, she was stopped by two men
on board a blue car. The two men asked her if she knew someone named Bingbing. She
replied that she only knew Gingging but not Bingbing. The men informed her that they
were actually looking for Gingging, gave her a piece of paper witha number written on
it, and told her to tell Gingging to bring companions. When accused arrived home, she
contacted Gingging. Gingging convinced her to come because allegedly, she would be
given money by the two males.30 Ruling of the trial court

The Regional Trial Court, Branch 14 in Cebu City found accused guilty beyond
reasonable doubt and held31 that:

Accused had consummated the act of trafficking of person[s] . . . as defined under

paragraph (a), Section 3 of R.A. 9208 for the purpose of letting her engage in
prostitution asdefined under paragraph [c] of the same Section; the act of "sexual
intercourse" need not have been consummated for the mere "transaction" i.e. the
‘solicitation’ for sex and the handing over of the "bust money" of Php1,000.00 already
consummated the said act.

....

WHEREFORE, the Court finds accused, SHIRLEY A. CASIO, GUILTY beyond reasonable
doubt of trafficking in persons under paragraph (a), Section 4 as qualified under
paragraph (a), Section 6 of R.A. 9208 and sentenced to suffer imprisonment of TWENTY
(20) YEARS and to pay a fine of ONE MILLION (Php1,000,000.00).

Finally, accused is ordered to pay the costs of these proceedings.

SO ORDERED[.]32

Ruling of the Court of Appeals

The Court of Appeals affirmed the findings of the trial court but modified the fine and
awarded moral damages. The dispositive portion of the decision33 reads:

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby DENIED.
The assailed Decision dated 10 August 2010 promulgated by the Regional Trial Court,
Branch 14 in Cebu City in Crim. Case No. CBU-83122 is AFFIRMED WITH
MODIFICATIONS. The accused-appellant is accordingly sentenced to suffer the penalty
of life imprisonment and a fine of Php2,000,000 and is ordered to pay each of the
private complainants Php150,000 as moral damages.

SO ORDERED.34

Accused filed a notice of appeal35 on August 28, 2013, which the Court of Appeals noted
and gavedue course in its resolution36 dated January 6, 2014. The case records of CA-
G.R. CEB-CR No. 01490 were received by this court on March 17, 2014.37

In the resolution38 dated April 29, 2014, this court resolved to notify the parties that
they may file their respective supplemental briefs within 30 days from notice. This court
also required the Superintendent of the Correctional Institution for Women to confirm
the confinement of accused.39

Counsel for accused40 and the Office of the Solicitor General41 filed their respective
manifestations, stating that they would no longer file supplemental briefs considering
that all issues had been discussed in the appellant’s brief and appellee’s brief filed
before the Court of Appeals. Through a letter42 dated June 17, 2014, Superintendent IV
Rachel D. Ruelo confirmed accused’s confinement at the Correctional Institution for
Women since October 27, 2010.

The sole issue raised by accused iswhether the prosecution was able to prove her guilt
beyond reasonable doubt.
However, based on the arguments raised in accused’s brief, the sole issue may be
dissected into the following:

(1) Whether the entrapment operation conducted by the police was valid,
considering that there was no prior surveillance and the police did not know the
subject of the operation;43

(2) Whether the prosecution was able to prove accused’s guilt beyond
reasonable doubt even though there was no evidence presented to show that
accused has a history of engaging in human trafficking;44 and

(3) Whether accused was properly convicted of trafficking in persons,

considering that AAA admitted that she works as a prostitute.45

Arguments of accused

Accused argues that there was no valid entrapment. Instead, she was instigated into
committing the crime.46 The police did not conduct prior surveillance and did not
evenknow who their subject was.47 Neither did the police know the identities of the
alleged victims.

Accused further argues that under the subjective test, she should be acquitted because
the prosecution did notpresent evidence that would prove she had a history of engaging
in human trafficking or any other offense. She denied being a pimp and asserted that
she was a laundry woman.48 In addition, AAA admitted that she worked as a prostitute.
Thus, it was her decision to display herself to solicit customers.49

Arguments of the plaintiff-appellee

The Office of the Solicitor General, counsel for plaintiff-appellee People of the
Philippines, argued that the trial court did not err in convicting accused because
witnesses positively identified her as the person who solicited customers and received
money for AAA and BBB.50 Entrapment operations are valid and have been recognized
by courts.51 Likewise, her arrest in flagrante delicto is valid.52 Hence, the trial court was
correct in stating that accused had "fully consummated the act of trafficking of persons.
. ."53

We affirm accused Shirley A. Casio’s conviction.

I.

Background of Republic Act No. 9208

The United Nations Convention against Transnational Organized Crime (UN CTOC) was
"adopted and opened for signature, ratification and accession"54 on November 15, 2000.
The UN CTOC is supplemented by three protocols: (1) the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children; (2) the Protocol
against the Smuggling of Migrants by Land, Sea and Air; and, (3) the Protocol against
the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and
Ammunition.55

On December 14, 2000, the Philippines signed the United Nations "Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children" (Trafficking
Protocol).56 This was ratified by the Philippine Senate on September 30, 2001.57 The
Trafficking Protocol’s entry into force was on December 25, 2003.58

In the Trafficking Protocol, human trafficking is defined as:

Article 3 Use of terms For the purposes of this Protocol:

(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer,

harbouring or receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power or
of a position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the exploitation
of the prostitution of others or other forms of sexual exploitation, forced labour
or services, slavery or practices similar to slavery, servitude or the removal of
organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation

set forth in subparagraph (a) of this article shall be irrelevant where any of the
means set forth in subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for

the purpose of exploitation shall be considered "trafficking in persons" even if
this does not involve any of the means set forth in subparagraph (a) of this
article;

(d) "Child" shall mean any person under eighteen years of age.

Senator Loren Legarda, in her sponsorship speech, stated that the "Anti-Trafficking Act
will serve as the enabling law of the country’s commitment to [the] protocol."59

Senator Luisa Ejercito Estrada also delivered a sponsorship speech and described
trafficking in persons as follows:

Trafficking in human beings, if only to emphasize the gravity of its hideousness, is

tantamount to modern-day slavery at work. It is a manifestation of one of the most
flagrant forms of violence against human beings. Its victims suffer the brunt of this
insidious form of violence. It is exploitation, coercion, deception, abduction, rape,
physical, mental and other forms of abuse, prostitution, forced labor, and indentured
servitude.

....
As of this time, we have signed the following: the Convention on the Elimination of all
Forms of Discrimination Against Women; the 1995 Convention on the Rights of the
Child; the United Nations Convention on the Protection of Migrant Workers and their
Families; and the United Nations’ Resolution on Trafficking in Women and Girls, among
others.

Moreover, we have also expressed our support for the United Nations’ Convention
Against Organized Crime, including the Trafficking Protocol in October last year.

At first glance, it appears thatwe are very responsive to the problem. So it seems.

Despite these international agreements, we have yet to come up with a law that shall
squarely address human trafficking.60

During the interpellation of Republic Act No. 9208, then numbered as Senate Bill No.
2444, Senator Teresa Aquino-Oreta asked if there was a necessity for an anti-trafficking
law when other laws exist that cover trafficking.61

Senator Luisa Ejercito Estrada explained:

At present, Mr. President, the relevant laws to the trafficking issue are the Revised Penal
Code, Republic Act No. 8042 or the Migrant Workers and Overseas Filipino Act,
R[epublic] A[ct] No. 6955 or the Mail-Order Bride Act, and Republic Act No. 8239 or the
Philippine Passport Act. These laws address issues such as illegal recruitment,
prostitution, falsification of public documents and the mail-order bride scheme. These
laws do not respond to the issue of recruiting, harboring or transporting persons
resulting in prostitution, forced labor, slavery and slavery-like practices. They only
address to one or some elements of trafficking independent of their results or
consequence.62 (Emphasis supplied)

Thus, Republic Act No. 9208 was enacted in order to fully address the issue of human
trafficking. Republic Act No. 9208 was passed on May 12, 2003, and approved on May
26, 2003.

II.

Elements of trafficking in persons

The elements of trafficking inpersons can be derived from its definition under Section
3(a) of Republic Act No. 9208, thus:

(1) The actof "recruitment, transportation, transfer or harbouring, or receipt of

persons with or without the victim’s consent or knowledge, within or across
national borders."

(2) The means used which include "threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or receiving of
 payments or benefits to achieve the consent of a person having control over
another; and

(3) The purpose of trafficking is exploitation which includes "exploitation or the

prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of organs."63

On January 28, 2013,Republic Act No. 1036464 was approved, otherwise known as the
"Expanded Anti-Trafficking in Persons Act of 2012." Section 3(a) of Republic Act No.
9208 was amended by Republic Act No. 10364 as follows:

SEC. 3. Section 3 of Republic Act No. 9208 is hereby amended to read as follows:

"SEC. 3. Definition of Terms. – As used in this Act:

"(a) Trafficking in Persons – refers to the recruitment, obtaining, hiring, providing,

offering, transportation, transfer, maintaining, harboring, or receipt of persons with or
without the victim’s consent or knowledge, within or across national borders by means
of threat, or use of force, or other forms of coercion, abduction, fraud, deception, abuse
of power or of position, taking advantage of the vulnerability of the person, or, the
giving or receiving of payments or benefits to achieve the consent of a person having
control over another person for the purpose of exploitation which includes at a
minimum, the exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

"The recruitment, transportation, transfer, harboring, adoption or receipt of a child for

the purpose of exploitation or when the adoption is induced by any form of
consideration for exploitative purposes shall also be considered as ‘trafficking in persons’
even if it does not involve any of the means set forth in the preceding paragraph.
(Emphasis supplied)

Under Republic Act No. 10364, the elements of trafficking in persons have been
expanded to include the following acts:

(1) The act of "recruitment, obtaining, hiring, providing, offering, transportation,

transfer, maintaining, harboring, or receipt of persons with or without the
victim’s consent or knowledge, within or across national borders;"

(2) The means used include "by means of threat, or use of force, or other forms
of coercion, abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person"

(3) The purpose of trafficking includes "the exploitation or the prostitution of

others or other forms of sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs" (Emphasis supplied)
The Court of Appeals found thatAAA and BBB were recruited by accused when their
services were peddled to the police who acted as decoys.65 AAA was a child at the time
that accused peddled her services.66 AAA also stated that she agreed to work as a
prostitute because she needed money.67 Accused took advantage of AAA’s vulnerability
as a child and as one who need money, as proven by the testimonies of the witnesses.68

III.

Knowledge or consent of the minor is not a defense under Republic Act No. 9208.

Accused claims that AAA admitted engaging in prostitution even before May 2, 2008.
She concludes that AAA was predisposed to having sex with "customers" for
money.69 For liability under our law, this argument is irrelevant. As defined under
Section 3(a) of Republic Act No. 9208, trafficking in persons can still becommitted even
if the victim gives consent.

SEC. 3. Definition of Terms.— As used in this Act:

a. Trafficking in Persons - refers to the recruitment, transportation, transfer or

harboring, or receipt of persons with or without the victim's consent or
knowledge, within or across national borders by means of threat or use of force,
or other forms of coercion, abduction, fraud, deception, abuse of power or of
position, taking advantage of the vulnerability of the persons, or, the giving or
receiving of payments or benefits to achieve the consent of a person having
control over another person for the purpose of exploitation which includes ata
minimum, the exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal or sale of
organs.

The recruitment transportation, transfer, harboring or receipt of a child for the purpose
of exploitation shall also be considered as "trafficking in persons" even if it does not
involve any of the means set forth in the preceding paragraph.70 (Emphasis supplied)

The victim’s consent is rendered meaningless due to the coercive, abusive, or deceptive
means employed by perpetrators of human trafficking.71 Even without the use of
coercive, abusive, or deceptive means, a minor’s consent is not given outof his or her
own free will.

Section 4 of Republic Act No. 9208 enumerates the different acts of trafficking in
persons. Accused was charged under Section 4(a), which states:

SEC. 4. Acts of Trafficking in Persons.— It shall be unlawful for any person, natural or
judicial, to commit any of the following acts.

a. To recruit, transport, transfer, harbor, provide, or receive a person by any

means, including those done under the pretext of domestic or overseas
employment or training or apprenticeship, for the purpose of prostitution,
 pornography, sexual exploitation, forced labor, slavery, involuntary servitude or
debt bondage;72

Republic Act No. 9208 further enumerates the instances when the crime of trafficking in
persons is qualified.

SEC. 6. Qualified Trafficking in Persons.— The following are considered as qualified

trafficking: a. When the trafficked person is a child;

b. When the adoption is effected through Republic Act No. 8043, otherwise
known as the "Inter-Country Adoption Act of 1995" and said adoption is for the
purpose of prostitution, pornography, sexual exploitation,forced labor, slavery,
involuntary servitude or debt bondage;

c. When the crime is committed by a syndicate, or in large scale. Trafficking is

deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring or confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons, individually or as a
group;

d. When the offender is an ascendant, parent, sibling, guardian or a person who

exercise authority over the trafficked person or when the offense is committed
by a public officer or employee;

e. When the trafficked person is recruited to engage in prostitution with any

member of the military or law enforcement agencies;

f. When the offender is a member of the military or law enforcement agencies;

and

g. When by reason or on occasion of the act of trafficking in persons, the

offended party dies, becomes insane, suffers mutilation or is afflicted with
Human Immunod eficiency Virus (HIV) or the Acquired Immune Deficiency
Syndrome (AIDS). (Emphasis supplied)73

Section 3 (b) of Republic Act No. 9208 defines "child" as:

SEC. 3. Definition of Terms.— As used in this Act:

....

b. Child- refers to a person below eighteen (18) years of age or one who is over
eighteen (18) but isunable to fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical or mental disability
or condition.74

Based on the definition of trafficking in persons and the enumeration of acts of

trafficking in persons, accused performed all the elements in the commission of the
offense when she peddled AAA and BBB and offered their services to decoys PO1 Veloso
and PO1 Luardo in exchange for money. The offense was also qualified because the
trafficked persons were minors.

Here, AAA testified as to how accused solicited her services for the customers waiting at
Queensland Motel. AAA also testified that she was only 17 years old when accused
peddled her. Her certificate of live birth was presented as evidence to show that she
was born on January 27, 1991.

The prosecution was able to prove beyond reasonable doubt that accused committed
the offense of trafficking in persons, qualified by the fact that one of the victims was a
child. As held by the trial court:

[T]he act of "sexual intercourse" need not have been consummated for the mere
"transaction" i.e. that ‘solicitation’ for sex and the handing over of the "bust money" of
Php.1,000.00 already consummated the said act.75

IV.

Validity of the entrapment operation

In People v. Doria,76 this court discussed the objective test and the subjective test to
determine whether there was a valid entrapment operation:

. . . American federal courts and a majority of state courts use the "subjective" or "origin
of intent" test laid down in Sorrells v. United States to determine whether entrapment
actually occurred. The focus of the inquiry is on the accused's predisposition to commit
the offense charged, his state of mind and inclination before his initial exposure to
government agents. All relevant facts such as the accused's mental and character traits,
his past offenses, activities, his eagerness in committing the crime, his reputation, etc.,
are considered to assess his state of mind before the crime. The predisposition test
emphasizes the accused's propensity to commit the offense rather than the officer's
misconduct and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal." If the accused was found to have been
ready and willing to commit the offense at any favorable opportunity, the entrapment
defense will fail even if a police agent usedan unduly persuasive inducement.

Some states, however, have adopted the "objective" test. . . . Here, the court considers
the nature of the police activity involved and the propriety of police conduct. The inquiry
is focused on the inducements used by government agents, on police conduct, not on
the accused and his predisposition to commit the crime.For the goal of the defense is to
deter unlawful police conduct. The test of entrapment is whether the conduct of the law
enforcement agent was likely to induce a normally law-abiding person, other than one
who is ready and willing, to commit the offense; for purposes of this test, it is presumed
that a law-abiding person would normally resist the temptation to commit a crime that is
presented by the simple opportunity to act unlawfully. (Emphasis supplied, citations
omitted)77
Accused argued that in our jurisprudence, courts usually apply the objective test in
determining the whether there was an entrapment operation or an
instigation.78 However, the use of the objective test should not preclude courts from also
applying the subjective test. She pointed out that:

Applying the "subjective"test it is worth invoking that accusedappellant procures income

from being a laundry woman. The prosecution had not shown any proof evidencing
accused-appellant’s history in human trafficking or engagement in any offense. She is
not even familiar to the team who had has [sic] been apprehending human traffickers
for quite some time.79 (Citations omitted)

Accused further argued that the police should have conducted a prior surveillance before
the entrapment operation.

Time and again, this court has discussed the difference between entrapment and
instigation. In Chang v. People,80 this court explained that:

There is entrapment when law officers employ ruses and schemes to ensure the
apprehension of the criminal while in the actual commission of the crime. There is
instigation when the accused is induced to commit the crime. The difference in the
nature of the two lies in the origin of the criminal intent. In entrapment, the mens
reaoriginates from the mind of the criminal. The idea and the resolve to commit the
crime comes from him. In instigation, the law officer conceives the commission of the
crime and suggests to the accused who adopts the idea and carries it into execution.81

Accused contends that using the subjective test, she was clearly instigated by the police
to commit the offense. She denied being a pimp and claimed that she earned her living
as a laundrywoman. On this argument, we agree with the finding of the Court of
Appeals:

[I]t was the accused-appellant who commenced the transaction with PO1 Luardo and
PO1 Veloso by calling their attention on whether they wanted girls for that evening, and
when the officers responded, it was the accused-appellant who told them to wait while
she would fetch the girls for their perusal.82

This shows that accused was predisposed to commit the offense because she initiated
the transaction. As testified by PO1 Veloso and PO1 Luardo, accused called out their
attention by saying "Chicks mo dong?" If accused had no predisposition to commit the
offense, then she most likely would not have asked PO1 Veloso and PO1 Luardo if they
wanted girls.

The entrapment would still be valid using the objective test. The police merely
proceeded to D. Jakosalem Street in Barangay Kamagayan. It was accused who asked
them whether they wanted girls. There was no illicit inducement on the part of the
police for the accused to commit the crime.
When accused was arrested, she was informed of her constitutional rights.83 The
marked money retrieved from her was recorded in the police blotter prior to the
entrapment operation and was presented in court as evidence.84

On accused’s alibi thatshe was merely out to buy her supper that night, the Court of
Appeals noted that accused never presented Gingging in court. Thus, her alibi was
unsubstantiated and cannot be given credence.85

With regard to the lack of prior surveillance, prior surveillance is not a condition for an
entrapment operation’s validity.86 In People v. Padua87 this court underscored the value
of flexibility in police operations:

A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust

operation, the conduct of which has no rigid or textbook method. Flexibility is a trait of
good police work. However the police carry out its entrapment operations, for as long as
the rights of the accused have not been violated in the process, the courts will not pass
on the wisdom thereof. The police officers may decide that time is of the essence and
dispense with the need for prior surveillance.88 (Citations omitted)

This flexibility is even more important in cases involving trafficking of persons. The
urgency of rescuing the victims may at times require immediate but deliberate action on
the part of the law enforcers.

V.

Imposition of fine and award of damages

The Court of Appeals properly imposed the amount of 2,000,000.00. Section 10 (b) of
Republic Act No. 9208 provides that:

SEC. 10. Penalties and Sanctions.— The following penalties and sanctions are hereby
established for the offenses enumerated in this Act:

....

c. Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty
of life imprisonment and a fine of not less than Two million pesos (₱2,000,000.00) but
not more than Five million pesos (₱5,000,000.00);

However, we modify by raising the award of moral damages from ₱150,000.0089 to

₱500,000.00. We also award exemplary damages in the amount of ₱100,000.00. These
amounts are in accordance with the ruling in People v. Lalli90 where this court held that:

The payment of ₱500,000 as moral damages and ₱100,000 as exemplary damages for
the crime of Trafficking in Persons as a Prostitute finds basis in Article 2219 of the Civil
Code, which states:

Art. 2219. Moral damages may be recovered in the following and analogous cases:
 (1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and
35.

....

The criminal case of Trafficking in Persons as a Prostitute is an analogous case to the

crimes of seduction, abduction, rape, or other lascivious acts. In fact, it is worse. To be
trafficked as a prostitute without one’s consent and to be sexually violated four to five
times a day by different strangers is horrendous and atrocious. There is no doubt that
Lolita experienced physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, and social humiliation when she was
trafficked as a prostitute in Malaysia. Since the crime of Trafficking in Persons was
aggravated, being committed by a syndicate, the award of exemplary damages is
likewise justified.91

Human trafficking indicts the society that tolerates the kind of poverty and its
accompanying desperation that compels our women to endure indignities. It reflects the
weaknesses of that society even as it convicts those who deviantly thrive in such
hopelessness. We should continue to strive for the best of our world, where our choices
of human intimacies are real choices, and not the last resort taken just to survive.
Human intimacies enhance our best and closest relationships. It serves as a foundation
for two human beings to face life’s joys and challenges while continually growing
together with many shared experiences. The quality of our human relationships defines
the world that we create also for others.

Regardless of the willingness of AAA and BBB, therefore, to be trafficked, we affirm the
text and spirit of our laws. Minors should spend their adolescence moulding their
character in environments free of the vilest motives and the worse of other human
beings. The evidence and the law compel us to affirm the conviction of accused in this
case.
But this is not all that we have done. By fulfilling our duties, we also express the hope
that our people and our government unite against everything inhuman. We contribute to
a commitment to finally stamp out slavery and human trafficking.

There are more AAA's and BBBs out there. They, too, deserve to be rescued. They, too,
need to be shown that in spite of what their lives have been, there is still much good in
our world.

WHEREFORE, premises considered, we AFFIRM the decision of the Court of Appeals

dated June 27, 2013, finding accused Shirley A. Casio guilty beyond reasonable doubt of
violating Section 4(a), qualified by Section 6(a) of Republic Act No. 9208, and
sentencing her to suffer the penalty of life imprisonment and a fine of ₱2,000,000.00,
with the MODIFICATION that accused-appellant shall not be eligible for parole under Act
No. 4103 (Indeterminate Sentence Law) in accordance with Section 3 of Republic Act
No. 9346.92

The award of damages is likewise MODIFIED as follows:

Accused is ordered to pay each of the private complainants:

(1) ₱500,000.00 as moral damages; and

(2) ₱100,000.00 as exemplary damages.

SO ORDERED.
G.R. No. 214673

RIZALDO L. ORSOS, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated June 21, 2013
and the Resolution3 dated September 3, 2014 rendered by the Court of Appeals (CA) in
CA-G.R. CEB-CR No. 01574, which affirmed with modification the Decision4 dated
October 5, 2010 of the Regional Trial Court of Mambusao, Capiz, Branch 20 (RTC)
finding petitioner Rizaldo L. Orsos (petitioner) guilty beyond reasonable doubt for acts of
lasciviousness, defined and penalized under Article 336 of the Revised Penal Code
(RPC), as amended, and sentenced him to suffer the indeterminate penalty of
imprisonment for a period of three (3) months and one (1) day of arresto mayor, as
minimum, to two (2) years and five (5) months of prision correccional, as maximum,
and to pay the amounts of ₱25,000.00 as moral damages and ₱25,000.00 as civil
indemnity.

The Facts

At the time material to this case, the minor victim (AAA5 ) was only fourteen (14) years
old, having been born on July 6, 1992, as evidenced by her Certificate of Live Birth.6 She
was then a third year high school student at Dumalag Central National High School
(DCNHS) in Dumalag, Capiz, where petitioner was then working as a teacher and
Citizen's Army Training (CAT) Commandant.7 AAA was one of petitioner's students.8

At around 9:30 in the morning of April 21, 2007, while the CAT trainees, including AAA,
were at the Sohot Spring in Dumalag for a cleanup drive, petitioner called AAA and
asked her if she had decided on becoming a CAT officer, to which she answered
yes.9 Petitioner then instructed her to go to his house at 1:00 in the afternoon of the
same day for her supposed initiation. As she did not know where petitioner's house was
located, she went back to the school at around 12:30 in the afternoon instead and
waited for him to arrive. When petitioner saw AAA, he told her to follow him to his
house and keep a little distance between them.10

Upon arrival thereat, petitioner instructed her to take a seat while he went to the
bathroom for a few minutes. AAA noticed that except for the two of them, no one else
was in the house. Thereafter, he emerged from the bathroom and asked her if she was
really determined to become a CAT officer, to which she replied yes.11 Petitioner then
told her that he had a crush on her, that he wanted her to become his mistress, and
that he will give her all her needs.12 Then, he pulled her to his lap and asked her to kiss
him. Thinking it was part of the initiation rites, AAA kissed his right cheek. Thereafter,
petitioner asked her to sit on the sofa and proceeded to kiss her on the lips, leading her
to cry. Petitioner then instructed her to lie down on the sofa, lifted her shirt and
underwear, and sucked her right breast for about two minutes.13 AAA was frightened
and could not complain. Petitioner was about to unzip her pants when she pleaded for
him not to do so as she had her menstrual period then.14 At this point, petitioner stood
up and went back to the bathroom. When he re-emerged, he told her to stop crying and
not to report the incident if she truly wanted to become a CAT officer.15 Although AAA
told her friend about the incident, she decided not to tell her family.16 Instead, she told
her parents that she wanted to rest, quit school, and spend some time with her sisters
in Manila.17 After a year in Manila, she went back to Dumalag, Capiz and enrolled in
fourth year high school.18

Sometime in July 2008, several female CAT officers in DCNHS revealed that petitioner
had molested them and filed cases against him in court.19 Prompted by her mother's
inquiry if petitioner had also molested her, AAA finally disclosed the details of the
incident to her and the reason why she did not do so sooner.20

Consequently, a complaint21 charging petitioner with acts of lasciviousness, defined and

penalized under Article 336 of the RPC, as amended, in relation to Republic Act (RA) No.
7610, was filed on October 6, 2008, the accusatory portion of which reads:

"That on or about 1:00 o'clock in the afternoon of 21 April 2007, in Brgy. Poblacion,
Municipality of Dumalag, Province of Capiz, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, with lewd designs, did then and there
willfully, unlawfully and feloniously kiss the lips and suck the breasts of one [AAA], a
female and minor of 16 years old without her consent and against her will, and which
acts of the former likewise constitute other child abuse.

By reason of the unlawful acts of the accused, the victim is entitled for damages
pursuant to the provision of the New Civil Code.

CONTRARY TO LAW."22

When arraigned with the assistance of counsel, petitioner entered a plea of "not
guilty."23 During trial, he denied the charges against him and claimed that when he was
a teacher and the CAT Commandant in DCNHS, AAA never became his student and that
he did not meet her as an applicant to become a CAT officer.24 He averred that CAT
initiation rites were conducted during the school year and inside the school
premises.25 Moreover, it was the senior CAT officers who recruited the new ones, and
that AAA did not apply to become a CAT officer in 2007.26 He asserted that no initiation
rites were conducted in April 2007 nor did he invite AAA to his house for any such
initiation.27 On the contrary, he claimed to be in his house in Malonoy, Dao, Capiz in
April 2007, for a summer vacation.28
 The RTC Ruling

In a Decision29 dated October 5, 2010, the RTC convicted petitioner of acts of

lasciviousness and sentenced him to suffer the penalty of imprisonment for a period of
three (3) months and one (1) day of arresto mayor medium, as minimum, to two (2)
years and five (5) months of prision correccional medium, as maximum, and to pay AAA
the amount of ₱25,000.00 as moral and exemplary damages.30

In so ruling, the RTC gave more credence to the clear and straightforward testimony of
AAA on how petitioner sexually abused her. Citing the well-settled rule that no girl would
concoct a story of sexual assault nor subject herself and her family to trauma and
embarrassment unless she was speaking the truth, the R TC found no evidence that AAA
and her family fabricated the story in order to humiliate petitioner, who was then the
CAT Commandant of DCNHS.31 Conversely, the RTC rejected petitioner's defense of
denial, finding the same insufficient to absolve him of criminal liability.32

Aggrieved, petitioner appealed33 to the CA.1âwphi1

The CA Ruling

In a Decision34 dated June 21, 2013, the CA affirmed petitioner's conviction for acts of
lasciviousness, with modification as to damages. The CA found that AAA's testimony
clearly and categorically established petitioner's identity as the person who molested
her.35 As such, there being no showing that AAA was actuated by improper motive, the
presumption is that she was not so actuated and her testimony is entitled to full faith
and credence.36 Moreover, petitioner failed to show that it was physically impossible for
him to be at the locus criminis or its immediate vicinity at the time of the commission of
the crime. Although he testified that he and his wife were at their residence in Malonoy,
Dao, Capiz for a summer vacation, it was not impossible for him to be at Dumalag, Capiz
at the time of the incident, the two places being proximate to each other.37

Further, the CA found that petitioner committed lewd acts against AAA when he kissed
her on the lips and sucked her right breast.38 Rejecting petitioner's argument that the
elements of force and intimidation were not established by the prosecution, the CA held
that petitioner's moral ascendancy or influence, being AAA' s teacher, substitutes for the
element of force and intimidation.39

Accordingly, the CA sustained the penalty imposed by the RTC but modified the amount
of damages, awarding the sum of ₱25,000.00 as moral damages and ₱25,000.00 as civil
indemnity.40 However, it deleted the award for exemplary damages in the absence of
any aggravating circumstances in this case.41

Petitioner's motion for reconsideration42 was denied in a Resolution43 dated September

3, 2014; hence, this petition.

The Issue Before the Court

The sole issue for the Court's resolution is whether or not the CA erred in affirming
petitioner's conviction for acts of lasciviousness under Article 336 of the RPC, as
amended.

The Court's Ruling

The petition is bereft of merit.

At the outset, it bears to emphasize the recognized rule in this jurisdiction that the
assessment of the credibility of witnesses is a domain best left to the trial court judge
because of his unique opportunity to observe the deportment and demeanor of a
witness on the stand, a vantage point denied appellate courts; and when his findings
have been affirmed by the CA, these are generally binding and conclusive upon this
Court. While there are recognized exceptions to the rule, the Court found no substantial
reason to overturn the identical conclusions of the trial and appellate courts on the
matter of AAA's credibility.44

Acts of lasciviousness is defined and penalized under Article 336 of the RPC, which
reads:

Article 336. Acts of Lasciviousness. - Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional.

There must be a confluence of the following elements before conviction can be had for
such crime: (1) that the offender commits any act of lasciviousness or lewdness; (2)
that it is done 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; and (3) that the
offended party is another person of either sex.45

On the other hand, RA 7610 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."46 Section 5 (b) thereof 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:

xxxx
(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) years of age
shall be reclusion temporal in its medium period[.] (Emphases supplied)

The requisites for sexual abuse under Section 5 (b) of RA 7 610 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) that the child, whether male or female, is below 18 years of age.47

"Lascivious conduct" is defined in Section 32, Article XIII of the Implementing Rules and
Regulations (IRR) of RA 7610, 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 (Emphases supplied)

A meticulous perusal of the records reveals that all the elements of both acts of
lasciviousness under Article 336 of the RPC and lascivious conduct under Section 5 (b) of
RA 7610 have been sufficiently established in this case. AAA's minority, as she was only
14 years old at the time of the incident, had been sufficiently established with the
presentation of her Certificate of Live Birth,49 showing that she was born on July 6,
1992. It was likewise established that petitioner, who was then a teacher and CAT
Commandant in AAA' s school, and therefore, a person who exercised moral ascendancy
and influence upon her, committed lascivious or lewd conduct against her by kissing her
lips and sucking her right breast.

Petitioner insists that force and intimidation as an element of acts of lasciviousness was
not established in this case.50 In Quimvel v. People,51 however, the Court clarified that
"force and intimidation" is subsumed under "coercion and influence," and that "x x x
lascivious conduct under the coercion or influence of any adult exists when there is
some form of compulsion equivalent to intimidation which subdues the free exercise of
the offended party's free will.x x x [T]he term 'influence' means the 'improper use of
power or trust in any way that deprives a person of free will and substitutes another's
objective.' Meanwhile, 'coercion' is the 'improper use of x x x power to compel another
to submit to the wishes of one who wields it.’"52

In this case, it has been established that petitioner, who was AAA's teacher and then the
CAT Commandant in her school, was able to carry out his lewd acts by asking her twice
if she was determined to become a CAT officer. Petitioner's inquiry strongly suggested
that if AAA really wanted to become a CAT officer, she should accede to his demands
and allow him to commit lascivious conduct upon her person. Therefore, petitioner
exercised influence and coercion upon AA.A in order to commit the crime against her,
thereby satisfying the element of force and intimidation in this case. Besides, although
petitioner was not armed nor did he threaten AAA, his moral ascendancy over her is a
sufficient substitute for the use of force or intimidation,53 as pointed out by the CA.

In view of the foregoing, petitioner's conviction is upheld not for the crime of acts of
lasciviousness under Article 336 of the RPC in relation to Section 5 (b) of RA 7610, but
for "lascivious conduct'' under Section 5 (b) of RA 7610, considering that she was
14 years of age at the time of the commission of the crime.54

To note, petitioner separately argued that the RTC that convicted him is a regular court,
not a family court, and therefore, had no jurisdiction over the case.55 Although it is true
that Branch 20 of the RTC of Mambusao, Capiz is a regular court, it has jurisdiction over
the instant case considering that there is no family court constituted in the area where
the crime was committed; moreover, the only family court designated in Capiz is RTC
Branch 14 in Roxas City, Capiz.56 Thus, in accordance with Section 1757 of RA No.
8369,58 which provides that in areas where there are no family courts, the cases falling
under the jurisdiction of the said family courts59 shall be adjudicated by the regular
courts, the RTC correctly exercised jurisdiction over this case.

Under Section 5 (b) of RA 7610, the prescribed penalty for lascivious

conduct is reclusion temporal in its medium period to reclusion perpetua. In the absence
of mitigating or aggravating circumstances, the maximum term of the sentence shall be
taken from the medium period60 thereof. Applying the Indeterminate Sentence Law, the
minimum term shall be taken within the range of the penalty next lower in degree,
which is prision mayor in its medium period to reclusion temporal in its minimum
period.61 Accordingly, petitioner is sentenced to suffer an indeterminate penalty of
imprisonment ranging from a period of ten (10) years and one (1) day of prision
mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day
of reclusion temporal, as maximum. Likewise, and conformably with prevailing
jurisprudence,62 he is directed to pay AAA the amounts of ₱20,000.00 as civil indemnity,
₱15,000.00 as moral damages, ₱l5,000.00 as exemplary damages, and ₱l5,000.00 as
fine, all of which shall earn interest at the rate of six percent (6%) per annum from the
date of finality of this judgment until full payment.

WHEREFORE, the petition is DENIED. Petitioner Rizaldo L. Orsos is

found GUILTY beyond reasonable doubt of the crime of Lascivious Conduct under
Section 5 (b) of Republic Act No. 7610 and accordingly, SENTENCED to suffer the
indeterminate prison term of ten (10) years and one (1) day of pris ion mayor, as
minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion
temporal, as maximum, and further ORDERED to pay private complainant the amounts
of ₱20,000.00 as civil indemnity, ₱l5,000.00 as moral damages, ₱15,000.00 as
exemplary damages, and ₱15,000.00 as fine. All monetary awards shall earn interest at
the legal rate of six percent (6%) per annum from the date of finality of this Decision
until full payment.

SO ORDERED.
 G.R. No. 218592, August 02, 2017

CHRISTOPHER FIANZA A.K.A. "TOPEL," Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated November 24,
2014 and the Resolution3 dated May 29, 2015 of the Court of Appeals (CA) in CA-G.R.
CR No. 35293, which upheld the Decision4 dated September 6, 2012 of the Regional
Trial Court of Tayug, Pangasinan, Branch 52 (RTC) in Criminal Case Nos. T-5144 and T-
5145, finding petitioner Christopher Fianza a.k.a. "Topel" (Fianza) guilty beyond
reasonable doubt of two (2) counts of violation of Section 5 (b),5 Article III of Republic
Act No. (RA) 7610,6 otherwise known as the "Special Protection of Children Against
Abuse, Exploitation and Discrimination Act."

The Facts

Fianza was charged with two (2) counts of violation of Section 5 (b), Article III of RA
7610 under two (2) Informations7 dated April 6, 2011 filed before the RTC.8 The
prosecution's version of the incidents are as follows:

Sometime in July 2010,9 AAA,10 who was then 11 years old, was called by Fianza to his
house and thereupon, was asked to wash his clothes. After AAA was finished with the
laundry, Fianza asked her to go with him to the kamalig. Thereat, they proceeded to the
second floor where Fianza removed his pants and briefs, lied down, and ordered AAA to
hold his penis and masturbate him. After ejaculating, Fianza put on his clothes, and
gave P20.00 to AAA who, thereafter, went home.11

On November 30, 2010, while AAA was home, Fianza called her to his house, and asked
her to clean the same. After she was done sweeping the floor, they proceeded to the
second floor of the kamalig. Thereat, Fianza again removed his pants and briefs, lied
down, and ordered AAA to fondle his penis. After the deed, he gave P20.00 to AAA who,
thereafter, went home.12

After the second incident, AAA related the matter to her cousin, CCC,13 who, in turn, told
BBB,14 AAA's mother, who reported the matter to the police.15

For his part, Fianza interposed the defense of denial and alibi. He claimed that he lived
with his uncle in Andalasi, Pangasinan (Andalasi), while the rest of his family resided in
Sapinit, Pangasinan (Sapinit), and were neighbors with AAA. He averred that in July
2010, he went to Sapinit to gamble all night, and went to his parents' house the
following morning to sleep before going home to Andalasi.16 As for the November 30,
2010 incident, he maintained that he was in Andalasi drinking with his friends as he had
just sold a carabao. The next day, he went to get the carabao that he sold, and bought
more liquor. He proceeded to Sapinit to have another drinking session that lasted until
December 4, 2010.17

The RTC Ruling

In a Decision18 dated September 6, 2012, the RTC found Fianza guilty beyond
reasonable doubt of two (2) counts of violation of Section 5 (b), Article III of RA 7610,
and sentenced him to suffer the penalty of imprisonment for an indeterminate period of
twelve (12) years and one (1) day of reclusion temporal minimum, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as
maximum, and ordered him to pay AAA the amount of P30,000.00 as moral damages for
each count.

The RTC held that for an accused to be convicted of child abuse through lascivious
conduct on a minor below 12 years old, the requisites for acts of lasciviousness under
Article 33619 of the Revised Penal Code (RPC) must be met in addition to the requisites
of sexual abuse under Section 5 of RA 7610,20 which the prosecution was able to
establish. It gave full faith and credence to the testimony of AAA who remained
steadfast in her claim and who was not shown to have been impelled by any ill-motive
to testify falsely against Fianza.21 On the other hand, it declared that Fianza's actions
showed that he took advantage of AAA's naivete and innocence to satisfy his lewd
designs.22

Aggrieved, Fianza elevated23 his conviction to the CA, docketed as CA-G.R. CR No.
35293.

The CA Ruling

In a Decision24 dated November 24, 2014, the CA upheld Fianza's conviction for two (2)
counts of violation of Section 5 (b), Article III of RA 7610.

The CA observed that while Fianza was charged with violations of Section 5 (b), Article
III of RA 7610 (sexual abuse), the proper appellation of the crimes should be violations
of Article 336 of the RPC (Acts of Lasciviousness), in relation to Section 5 (b), Article III
of RA 7610, and found that the prosecution was able to establish all the requisites for
both Acts of Lasciviousness and sexual abuse. It declared that Fianza, a 35-year old
adult, had moral ascendancy over 11-year-old AAA; hence, his act of coercing AAA to
engage in lascivious conduct falls within the meaning of the term sexual abuse.25

However, the CA reduced the award of moral damages to P25,000.00, and further
ordered Fianza to pay a fine in the amount of P15,000.00 for each count of sexual
abuse, with legal interest at the rate of six percent (6%) per annum on the amounts due
from the finality of judgment until full payment.26

Dissatisfied, Fianza moved for reconsideration,27 which was, however, denied in a

Resolution28 dated May 29, 2015; hence, this petition.

The Issue Before the Court

The essential issue for the Court's resolution is whether or not the CA correctly upheld
Fianza's conviction.

The Court's Ruling

At the outset, the Court deems it appropriate to correct the appellation of the crime with
which Fianza was charged to Acts of Lasciviousness under Article 336 of the RPC
considering that the victim, AAA, was only 11 years old at the time of the incidents. In
instances where the child subjected to sexual abuse through lascivious conduct is below
twelve (12) years of age, the offender should be prosecuted under Article 336 of the
RPC, but suffer the higher penalty of reclusion temporal in its medium period in
accordance with Section 5 (b), Article III of RA 7610, which pertinently
reads:chanRoblesvirtualLawlibrary
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:

xxxx

(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 victims [sic] 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. (Emphasis and underscoring supplied)
Pursuant to the foregoing provision, before an accused can be convicted of child abuse
through lascivious conduct on 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 thereunder.29

The elements of Acts of Lasciviousness under Article 336 of the RPC are: (a) the
offender commits any act of lasciviousness or lewdness; (b) the lascivious act is
done under any of the following circumstances: (i) by using force or intimidation; (ii)
when the offended party is deprived of reason or otherwise unconscious; or (iii) when
the offended party is under twelve (12) years of age; and (c) the offended party
is another person of either sex.30 On the other hand, sexual abuse, as defined under
Section 5 (b), Article III of RA 7610 has three (3) elements: (a) the accused commits an
act of sexual intercourse or lascivious conduct; (b) the said act is performed with a
child exploited in prostitution or subjected to other sexual abuse; and (c) the child is
below eighteen (18) years old.31
The term "lewd" is commonly defined as something indecent or obscene; it is
characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the existence of
which can be inferred by overt acts carrying out such intention, i.e., by conduct that can
only be interpreted as lewd or lascivious. The presence or absence of lewd designs
is inferred from the nature of the acts themselves and the environmental
circumstances. Hence, whether or not a particular conduct is lewd, by its very nature,
cannot be pigeonholed into a precise definition.32

Lascivious conduct, on the other hand, is defined under Section 2 (h) of the Rules
and Regulations on the Reporting and Investigation of Child Abuse Cases (Rules on Child
Abuse Cases) as:chanRoblesvirtualLawlibrary
[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;
In the present case, the existence of all the elements of Acts of Lasciviousness under
Article 336 of the RPC, as well as the first and third elements of sexual abuse under
Section 5 (b), Article III of RA 7610, remains undisputed. Records disclose that on two
(2) occasions in July 2010 and on November 30, 2010, Fianza induced AAA, an 11-year-
old minor, to hold his penis and masturbate him. The only point of dispute is with regard
to the existence of the second element of sexual abuse, i.e., whether or not the
lascivious conduct was performed on a child subjected to other sexual abuse.

A child is deemed subjected to other sexual abuse when the child indulges in lascivious
conduct under the coercion or influence of any adult. Case law further clarifies that
lascivious conduct under the coercion or influence of any adult exists when there is
some form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party's free will.33 Corollory thereto, Section 2 (g) of the
Rules on Child Abuse Cases conveys that sexual abuse involves the element of
influence which manifests in a variety of forms. It is defined
as:chanRoblesvirtualLawlibrary
[T]he 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 x x x
The term "influence" means 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 x x x power to compel another to submit to the
wishes of one who wields it."34

With the foregoing parameters considered, the Court finds that Fianza's acts were
attended by coercion or influence within the contemplation of Section 5 (b), Article III of
RA 7610.

It is undisputed that AAA was only 11 years old at the time of the incidents, hence,
considered a child under the law. Section 3 (a), Article I of RA 7610 defines children in
this wise:chanRoblesvirtualLawlibrary
(a) "Children" refers to person 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[.]
Case law states that a child, such as AAA in this case, is presumed to be incapable of
giving rational consent to any lascivious act. In Malto v. People,35 the Court
explained:chanRoblesvirtualLawlibrary
A child cannot give consent to a contract under our civil laws. This is on the rationale
that she can easily be the victim of fraud as she is not capable of fully understanding or
knowing the nature or import of her actions. The State, as parens patriae, is under the
obligation to minimize the risk of harm to those who, because of their minority, are as
yet unable to take care of themselves fully. Those of tender years deserve its protection.

The harm which results from a child's bad decision in a sexual encounter may be
infinitely more damaging to her than a bad business deal. Thus, the law should protect
her from the harmful consequences of her attempts at adult sexual behavior. For this
reason, a child should not be deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical intimacy under a law which seeks
to afford her special protection against abuse, exploitation and discrimination.
(Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted
by the law, to view her as fair game and vulnerable prey.) In other words, a child is
presumed by law to be incapable of giving rational consent to any lascivious
act or sexual intercourse.36
Records likewise indicate that Fianza was about 35 years old at the time of the
commission of the offense,37 or 24 years older than AAA, more or less. The age disparity
between them clearly placed Fianza in a stronger position over AAA which enabled him
to wield his will on the latter.38

However, Fianza assails his conviction for the prosecution's failure: (a) to specify in the
Information in Criminal Case No. T-5144 the date of the commission of the
offense;39 and (b) to indicate in the information in both cases that the complained acts
were performed with a child exploited in prostitution or subjected to other sexual
abuse40 in violation of his right to be informed of the nature and cause of the
accusations against him.

In this relation, Section 6, Rule 110 of the Rules of Court (Rules), which lays down the
guidelines in determining the sufficiency of a complaint or information,
provides:chanRoblesvirtualLawlibrary
SEC. 6. Sufficiency of complaint or information. - A complaint or information is sufficient
if it states the name of the accused; the designation of the offense given by the statute;
the acts or omissions complained of as constituting the offense; the name of the
offended party; the approximate date of the commission of the offense; and the place
where the offense was committed.

xxxx
As to the sufficiency of the allegation on the date of the commission of the offense,
Section 11, Rule 110 of the Rules adds:chanRoblesvirtualLawlibrary
SEC. 11. Date of commission of the offense. - It is not 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.
(Emphasis and underscoring supplied)
Conformably with these provisions, when the date given in the complaint is not of the
essence of the offense, it need not be proven as alleged; thus, the complaint will be
sustained if the proof shows that the offense was committed at any date within the
period of the statute of limitations and before the commencement of the action.41

In this case, Fianza had been fully apprised of the charges against him since the
Informations stated the approximate date of the commission of the offense to be
"sometime during the month of July 2010." Indeed, the precise date and time of the
incidents are not among the elements of sexual abuse under Section 5 (b), Article III of
RA 7610.42

It is likewise well-settled that it is sufficient that the acts or omissions constituting the
offense be stated in the information in ordinary and concise language and not
necessarily in the language used in the statute, albeit in terms sufficient to enable a
person of common understanding to know what offense is being charged and for the
court to pronounce judgment.43

In the instant case, the Informations not only referred to the specific section of
RA 7610 that was violated, but also stated that: (a) AAA was an 11-year-old
minor at the time of the offense; and (b) Fianza committed lascivious conduct
by forcing AAA to masturbate his penis.44

To reiterate, a child is deemed subjected to other sexual abuse when the child indulges
in lascivious conduct under the coercion or intimidation,45 or influence of any adult.46

Force or intimidation in cases involving prosecutions for Rape and Acts of

Lasciviousness is defined as "power, violence or constraint exerted upon or against a
person."47 In People v. Maceda,48 the Court explained the standards for evaluating the
force or intimidation employed in rape, which equally applies to Acts of
Lasciviousness49 as well as violation of Section 5 (b), Article III of RA 7610:50
[I]t is not necessary that the force and intimidation employed in accomplishing it 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. The intimidation must be judged in the light of the
victim's perception and judgment at the time of the commission of the crime,
and not by any hard and fast rule.51 (Emphasis and underscoring supplied)
The allegation that Fianza committed lascivious conduct by forcing AAA to masturbate
his penis was sufficient to apprise him of the nature of the criminal act with which he
was charged to enable him to prepare his defense. Contrary to his protestations, the
Informations sufficiently alleged the second element of sexual abuse, albeit not
employing the exact language of the law, i.e., that the lewd acts being complained of
were performed with a child exploited in prostitution or subjected to other sexual abuse.

Notably, Fianza failed to refute AAA's claim that she was compelled to do as he
instructed because he threatened to humiliate her and her family.52 In Amployo v.
People,53 a case involving a similar prosecution for lascivious conduct committed on an
eight-year-old minor, the Court held that intimidation need not necessarily be irresistible,
especially in the case of young girls, thus:chanRoblesvirtualLawlibrary
[I]ntimidation 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.54 (Emphasis supplied)
It is not hard to imagine 11-year-old AAA being intimidated and cowed into silence and
submission by her neighbor, a full grown adult male old enough to be her parent,55 with
threat of humiliation, should she not give in to his dastardly desires. She is still a child
not capable of fully understanding or knowing the import of her actions. Verily, 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. Hence, the Court accords a high degree of respect to the assessment of the
trial court which is in the best position to observe the declarations and demeanor of the
witnesses, and evaluate their credibility, even more so when the same is affirmed by the
CA,56 as in this case.

Accordingly, the Court finds the prosecution to have sufficiently established Fianza's guilt
beyond reasonable doubt for Acts of Lasciviousness under Article 336 of the RPC in
relation to Section 5 (b), Article III of RA 7610. Applying the Indeterminate Sentence
Law, and absent any mitigating or aggravating circumstances, he is hereby sentenced to
suffer the penalty of imprisonment for an indeterminate period of twelve (12) years and
one (1) day of reclusion temporal in its minimum period, as minimum, to fifteen (15)
years, six (6) months and twenty (20) days of reclusion temporal in its medium period,
as maximum.57 However, in line with recent jurisprudence, the Court modifies the
awards of civil indemnity and moral damages, and hereby orders Fianza to pay the
amounts of P15,000.00 as fine, P20,000.00 as civil indemnity, and P15,000.00 as moral
damages, for each count, plus legal interest thereon at the rate of six percent (6%) per
annum from the finality of this judgment until full payment.58

WHEREFORE, the petition is DENIED. The Decision dated November 24, 2014 and the
Resolution dated May 29, 2015 of the Court of Appeals in CA-G.R. CR No. 35293 are
hereby SET ASIDE and a new one is entered finding petitioner Christopher Fianza
a.k.a. "Topel" (Fianza) GUILTY beyond reasonable doubt of two (2) counts of Acts of
Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5 (b),
Article III of Republic Act No. 7610. Fianza is sentenced to suffer the penalty of
imprisonment of twelve (12) years and one (1) day of reclusion temporal in its minimum
period, as minimum, to fifteen (15) years, six (6) months, and twenty (20) days
of reclusion temporal in its medium period, as maximum, and is ordered to pay AAA the
amounts of P15,000.00 as fine, P20,000.00 as civil indemnity, and P15,000.00 as moral
damages, for each count, plus legal interest at the rate of six percent (6%) per annum
from the finality of this judgment until full payment.

SO ORDERED.

G.R. No. 164733 September 21, 2007

MICHAEL JOHN Z. MALTO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CORONA, J.:

Whereas, mankind owes to the child the best it has to give. (Final preambular clause of
the Declaration of the Rights of the Child)

This is a petition for review1 of the decision2 dated July 30, 2004 of the Court of Appeals
(CA) in CA-G.R. CR No. 25925 affirming with modification the decision3 of Branch 109 of
the Regional Trial Court of Pasay City in Criminal Case No. 00-0691 which found
petitioner Michael John Z. Malto guilty for violation of paragraph 3, Section 5(a), Article
III of RA 7610,4 as amended.

Petitioner was originally charged in an information which read:

The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of

VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED,
committed as follows:

That on or about and sometime during the month of November 1997 up to 1998, in
Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, Michael John. Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously induce and/or seduce his student at Assumption
College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse for
several times with him as in fact said accused had carnal knowledge.

Contrary to law.5

This was subsequently amended as follows:

The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of

VIOLATION OF SECTION 5(a), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED,
committed as follows:
That on or about and sometime during the month of November 1997 up to 1998, in
Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, Michael John. Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously take advantage and exert influence, relationship and
moral ascendancy and induce and/or seduce his student at Assumption College,
complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said accused has carnal
knowledge.

Contrary to law.6

Petitioner did not make a plea when arraigned; hence, the trial court entered for him a
plea of "not guilty." After the mandatory pre-trial, trial on the merits proceeded.

The prosecution established the following:

At the time of the incident, private complainant AAA was 17 years old.7 She was a
college student at the Assumption College in San Lorenzo Village, Makati City. Petitioner,
then 28, was her professor in her Philosophy II class in the first semester of the school
year 1997 to 1998.

On July 18, 1997, AAA was having lunch with her friends when petitioner joined their
group. He told them to address him simply as "Mike." He handed them his organizer and
asked them to list down their names and contact numbers.

On October 3, 1997, while AAA and her friends were discussing the movie Kama Sutra,
petitioner butted in and bragged that it was nothing compared to his collection of xxx-
rated films. To the shock of AAA’s group, he lectured on and demonstrated sexual acts
he had already experienced. He then invited the group to view his collection.

On October 10, 1997, petitioner reiterated his invitation to AAA and her friends to watch
his collection of pornographic films. Afraid of offending petitioner, AAA and two of her
friends went with him. They rode in his car and he brought them to the Anito Lodge on
Harrison St. in Pasay City. They checked in at a "calesa room." Petitioner was
disappointed when he found out there was neither a video cassette player (on which he
could play his video tapes) nor an x-rated show on the closed-circuit television. He
suggested that they just cuddle up together. AAA and her friends ignored him but he
pulled each of them towards him to lie with him in bed. They resisted until he relented.

AAA and her friends regretted having accepted petitioner’s invitation. For fear of
embarrassment in case their classmates got wind of what happened, they agreed to
keep things a secret. Meanwhile, petitioner apologized for his actuations.

Thereafter, petitioner started to show AAA amorous attention. He called her on the
phone and paged8 her romantic messages at least thrice a day. When semestral break
came, his calls and messages became more frequent. Their conversation always started
innocently but he had a way of veering the subject to sex. Young, naive and coming
from a broken family, AAA was soon overwhelmed by petitioner’s persistence and slowly
got attracted to him. He was the first person to court her. Soon, they had a "mutual
understanding" and became sweethearts.

When AAA secured her class card in Philosophy II at the start of the second semester,
petitioner told her that he gave her a final grade of "3." She protested, stating that her
mid-term grade was "1.2." He gave her a grade of "1.5" when she promised not to
disclose his intimate messages to her to anyone. He also cautioned her not to tell
anyone about their affair as it could jeopardize his job.

On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch with petitioner
outside the premises of the college. Since she was not feeling well at that time, he
asked her to lie down in the backseat of his car. She was surprised when he brought her
to Queensland Lodge9 on Harrison St. in Pasay City. Once inside the motel room, he
kissed her at the back and neck, touched her breasts and placed his hand inside her
blouse. She resisted his advances but he was too strong for her. He stopped only when
she got angry at him.

On November 26, 1997, petitioner asked AAA to come with him so that they could talk
in private. He again brought her to Queensland Lodge. As soon as they were inside the
room, he took off his shirt, lay down in bed and told her, "halika na, dito na tayo mag-
usap." She refused but he dragged her towards the bed, kissed her lips, neck and
breasts and unsnapped her brassiere. She struggled to stop him but he overpowered
her. He went on top of her, lowered her pants and touched her private part. He tried to
penetrate her but she pushed him away forcefully and she sat up in bed. He hugged her
tightly saying, "Sige na, AAA, pumayag ka na, I won’t hurt you." She refused and said,
"Mike, ayoko." He angrily stood up saying, "Fine, hindi na tayo mag-uusap. Don’t come
to the faculty room anymore. You know I need this and if you will not give in or give it
to me, let us end this." She replied, "Mike, hindi pa ako ready and it was you who said it
will be after my debut" on December 3, 1997. He insisted that there was no difference
between having sex then and after her debut. He told her, "kung hindi ko makukuha
ngayon, tapusin na natin ngayon." Pressured and afraid of his threat to end their
relationship, she hesitantly replied "Fine." On hearing this, he quickly undressed while
commenting "ibibigay mo rin pala, pinahirapan mo pa ako" and laughed. They had
sexual intercourse.

In July 1999, AAA ended her relationship with petitioner. She learned that he was either
intimately involved with or was sexually harassing his students in Assumption College
and in other colleges where he taught. In particular, he was dismissed from the De La
Salle University-Aguinaldo for having sexual relations with a student and sexually
harassing three other students. His employment was also terminated by Assumption
College for sexually harassing two of his students. It was then that AAA realized that she
was actually abused by petitioner. Depressed and distressed, she confided all that
happened between her and petitioner to her mother, BBB.

On learning what her daughter underwent in the hands of petitioner, BBB filed an
administrative complaint in Assumption College against him. She also lodged a complaint
in the Office of the City Prosecutor of Pasay City which led to the filing of Criminal Case
No. 00-0691.
In his defense, petitioner proffered denial and alibi. He claimed that the alleged
incidents on October 3, 1997 and October 10, 1997 did not happen. He spent October 3,
1997 with his colleagues Joseph Hipolito and AJ Lagaso while he was busy checking
papers and computing grades on October 10, 1997. The last time he saw AAA during
the first semester was when she submitted her final paper on October 18, 1997.

On November 19, 1997, between 10:30 a.m. and 1:00 p.m., he sorted out conflicts of
class schedules for the second semester at the Assumption College. On November 26,
1997, he was at St. Scholastica’s College (where he was also teaching) preparing a
faculty concert slated on December 12, 1997. At lunch time, he attended the birthday
treat of a colleague, Evelyn Bancoro.

On November 29, 1997, he attended AAA’s 18th birthday party. That was the last time
he saw her.

According to petitioner, AAA became his sweetheart when she was already 19 years old
and after he was dismissed from Assumption College. On December 27 and 28, 1998,
they spent time together, shared their worries, problems and dreams and kissed each
other. On January 3, 1999, he brought her to Queensland Lodge where they had sexual
intercourse for the first time. It was repeated for at least 20 times from January 1999
until they broke up in July 1999, some of which were done at either his or her house
when no one was around.

The trial court found the evidence for the prosecution sufficient to sustain petitioner’s
conviction. On March 7, 2001, it rendered a decision finding petitioner guilty.10 The
dispositive portion read:

In view of the foregoing, the Court finds the accused Michael John Malto y Zarsadias
guilty beyond reasonable doubt for violation of Article III, Section 5(a)[,] paragraph 3 of
RA 7610[,] as amended and hereby sentences him to reclusion temporal in its medium
period or an imprisonment of seventeen (17) years, four (4) months and one (1) day to
twenty (20) years and to pay civil indemnity in the amount of Php 75,000.00 and moral
and exemplary damages of Php 50,000.00 to minor complainant with subsidiary
imprisonment in case of insolvency.11

Petitioner questioned the trial court’s decision in the CA. In a decision dated July 30,
2004,12 the appellate court affirmed his conviction even if it found that his acts were not
covered by paragraph (a) but by paragraph (b) of Section 5, Article III of RA 7610. It
further observed that the trial court failed to fix the minimum term of indeterminate
sentence imposed on him. It also ruled that the trial court erred in awarding ₱75,000
civil indemnity in favor of AAA as it was proper only in a conviction for rape committed
under the circumstances under which the death penalty was authorized by law.13 Hence,
the CA modified the decision of the trial court as follows:

WHEREFORE, the appealed Decision of conviction is AFFIRMED, with

the MODIFICATION that (1) appellant MICHAEL JOHN MALTO y ZARSADIAS is hereby
sentenced to an indeterminate penalty of Eight (8) Years and One (1) Day of prision
mayor as minimum, to Seventeen (17) Years, Four (4) Months and One (1) Day
of reclusion temporal as maximum; and (2) the sum of ₱75,000.00 as civil indemnity
is DELETED.14

Hence, this petition.

Petitioner contends that the CA erred in sustaining his conviction although it found that
he did not rape AAA. For him, he should have been acquitted since there was no rape.
He also claims that he and AAA were sweethearts and their sexual intercourse was
consensual.

Petitioner is wrong.

The Offense Stated in the Information Was Wrongly Designated

In all criminal prosecutions, the accused is entitled to be informed of the nature and
cause of the accusation against him.15 Pursuant thereto, the complaint or information
against him should be sufficient in form and substance. A complaint or information is
sufficient if it states the name of the accused; the designation of the offense by the
statute; the acts or omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of the offense and the
place where the offense was committed.16

The complaint or information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense and specify its qualifying and
aggravating circumstances.17 If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.18 The acts or omissions
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment.19

The designation of the offense in the information against petitioner was changed from
"violation of Section 5(b), Article III" of RA 7610 to "violation of Section 5(a), Article III"
thereof. Paragraphs (a) and (b) of Section 5, Article III of RA 7610 provide:

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) Those who engage in or promote, facilitate or induce child prostitution which
include, but are not limited to, the following:
 1. Acting as a procurer of a child prostitute;

2. Inducing a person to be a client of a child prostitute by means of

written or oral advertisements or other similar means;

3. Taking advantage of influence or relationship to procure a child as a

prostitute;

4. Threatening or using violence towards a child to engage him as a

prostitute; or

5. Giving monetary consideration, goods or other pecuniary benefit to a

child with intent to engage such child in prostitution.

(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; and

xxx xxx x x x(emphasis supplied)

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or induces child prostitution;

2. the act is done through, but not limited to, the following means:

a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means of

written or oral advertisements or other similar means;

c. taking advantage of influence or relationship to procure a child as a

prostitute;

d. threatening or using violence towards a child to engage him as a

prostitute or

e. giving monetary consideration, goods or other pecuniary benefit to a

child with intent to engage such child in prostitution;

3. the child is exploited or intended to be exploited in prostitution and

 4. the child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) are:

1. the accused commits the act of sexual intercourse or lascivious conduct;

2. the 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.

Paragraph (a) essentially punishes acts pertaining to or connected with child

prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other
words, under paragraph (a), the child is abused primarily for profit.

On the other hand, 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
abuse. It covers not only a situation where a child is abused for profit but also one in
which a child, through coercion, intimidation or influence, engages in sexual intercourse
or lascivious conduct.20

The information against petitioner did not allege anything pertaining to or connected
with child prostitution. It did not aver that AAA was abused for profit. What it charged
was that petitioner had carnal knowledge or committed sexual intercourse and lascivious
conduct with AAA; AAA was induced and/or seduced by petitioner who was her
professor to indulge in sexual intercourse and lascivious conduct and AAA was a 17-year
old minor. These allegations support a charge for violation of paragraph (b), not
paragraph (a), of Section 5, Article III, RA 7610.

The Real Nature of the Offense is Determined by Facts Alleged in the

Information, Not By the Designation

The designation in the information of the specific statute violated is imperative to avoid
surprise on the accused and to afford him the opportunity to prepare his defense
accordingly. However, the failure to designate the offense by statute,21 or to mention
the specific provision penalizing the act,22 or an erroneous specification of the law
violated23 does not vitiate the information if the facts alleged clearly recite the facts
constituting the crime charged.24 What controls is not the title of the information or the
designation of the offense but the actual facts recited in the information.25 In other
words, it is the recital of facts of the commission of the offense, not the nomenclature of
the offense, that determines the crime being charged in the information.26

The facts stated in the amended information against petitioner correctly made out a
charge for violation of Section 5(b), Article III, RA 7610. Thus, even if the trial and
appellate courts followed the wrong designation of the offense, petitioner could be
convicted of the offense on the basis of the facts recited in the information and duly
proven during trial.
Petitioner violated Section 5(b), Article III of RA 7610, as amended

The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts
committed by the accused. The second element refers to the state or condition of the
offended party. The third element corresponds to the minority or age of the offended
party.

The first element was present in this case. Petitioner committed lascivious conduct
against and had sexual intercourse with AAA in the following instances: (1) on
November 19, 1997, when he kissed her at the back and neck, touched her breasts and
placed his hand inside her blouse to gratify his lust; (2) on November 26, 1997, when,
with lewd designs, he dragged her towards the bed of the motel room and forcibly
kissed her on the lips, neck and breasts and (3) when he exerted moral influence on her
and pressured her until she surrendered herself to him on November 26, 1997. His acts
were 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 RA 7610, particularly on child
abuse:

(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
public area of a person. (emphasis supplied)

The second element was likewise present here. The following pronouncement in People
v. Larin27 is significant:

A child is deemed exploited in prostitution or subjected to other sexual abuse,

when the child indulges in sexual intercourse or lascivious conduct (a) for
money, profit, or any other consideration; or (b) under the coercion or influence of
any adult, syndicate or group. (emphasis supplied)

On November 19, 1997, due to the influence of petitioner, AAA indulged in lascivious
acts with or allowed him to commit lascivious acts on her. This was repeated on
November 26, 1997 on which date AAA also indulged in sexual intercourse with
petitioner as a result of the latter’s influence and moral ascendancy. Thus, she was
deemed to be a "child subjected to other sexual abuse" as the concept is defined in the
opening paragraph of Section 5, Article III of RA 7610 and in Larin.
The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610
provides:

SECTION 3. Definition of Terms. –

(a) "Children" refers [to] 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; (emphasis supplied)

On November 19, 2007 and November 26, 2007, AAA was a child as she was below 18
years of age. She was therefore within the protective mantle of the law.

Since all three elements of the crime were present, the conviction of petitioner was
proper.

Violation of Section 5(b), Article III of RA 7610 and Rape are Separate and
Distinct Crimes

Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610,
not rape. The offense for which he was convicted is punished by a special law while
rape is a felony under the Revised Penal Code.28 They have different elements.29 The
two are separate and distinct crimes. Thus, petitioner can be held liable for violation of
Section 5(b), Article III of RA 7610 despite a finding that he did not commit rape.

Consent of the Child is Immaterial in Criminal Cases Involving Violation of

Section 5, Article III of RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have
sexual intercourse with him. They engaged in these acts out of mutual love and
affection. But may the "sweetheart theory" be invoked in cases of child prostitution and
other sexual abuse prosecuted under Section 5, Article III of RA 7610? No.

The sweetheart theory applies in acts of lasciviousness and rape, felonies committed
against or without the consent of the victim. It operates on the theory that the sexual
act was consensual. It requires proof that the accused and the victim were lovers and
that she consented to the sexual relations.30

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA
7610, the sweetheart defense is unacceptable. A child exploited in prostitution or
subjected to other sexual abuse cannot validly give consent to sexual intercourse with
another person.

The language of the law is clear: it seeks to punish

[t]hose who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.
Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5,
Article III of RA 7610. 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. It is a malum prohibitum, an evil that is proscribed.

A child cannot give consent to a contract under our civil laws.31 This is on the rationale
that she can easily be the victim of fraud as she is not capable of fully understanding or
knowing the nature or import of her actions. The State, as parens patriae, is under the
obligation to minimize the risk of harm to those who, because of their minority, are as
yet unable to take care of themselves fully.32 Those of tender years deserve its
protection.33

The harm which results from a child’s bad decision in a sexual encounter may be
infinitely more damaging to her than a bad business deal. Thus, the law should protect
her from the harmful consequences34 of her attempts at adult sexual behavior.35 For this
reason, a child should not be deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical intimacy under a law which seeks
to afford her special protection against abuse, exploitation and discrimination.
(Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted
by the law, to view her as fair game and vulnerable prey.) In other words, a child is
presumed by law to be incapable of giving rational consent to any lascivious act or
sexual intercourse.361âwphi1

This must be so if we are to be true to the constitutionally enshrined State policy to

promote the physical, moral, spiritual, intellectual and social well-being of the
youth.37 This is consistent with the declared policy of the State

[T]o provide special protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program
for prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.38 (emphasis supplied)

as well as to

intervene on behalf of the child when the parents, guardian, teacher or person
having care or custody of the child fails or is unable to protect the child against abuse,
exploitation, and discrimination or when such acts against the child are committed
by the said parent, guardian, teacher or person having care and custody of the
same.39 (emphasis supplied)

This is also in harmony with the foremost consideration of the child’s best interests in all
actions concerning him or her.

The best interest of children shall be the paramount consideration in all

actions concerning them, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities, and legislative bodies, consistent
with the principles of First Call for Children as enunciated in the United Nations
Convention on the Rights of the Child. Every effort shall be exerted to promote the
welfare of children and enhance their opportunities for a useful and happy
life.40 (emphasis supplied)

Petitioner May Enjoy the Benefits of the Indeterminate Sentence Law

The penalty prescribed for violation of the provisions of Section 5, Article III of RA 7610
is reclusion temporal in its medium period to reclusion perpetua. In the absence of any
mitigating or aggravating circumstance, the proper imposable penalty is reclusion
temporal in its maximum period, the medium of the penalty prescribed by the
law.41 Notwithstanding that RA 7610 is a special law, petitioner may enjoy the benefits
of the Indeterminate Sentence Law.42 Since the penalty provided in RA 7610 is taken
from the range of penalties in the Revised Penal Code, it is covered by the first clause of
Section 1 of the Indeterminate Sentence Law.43 Thus, he is entitled to a maximum term
which should be within the range of the proper imposable penalty of reclusion
temporal in its maximum period (ranging from 17 years, 4 months and 1 day to 20
years) and a minimum term to be taken within the range of the penalty next lower to
that prescribed by the law: prision mayor in its medium period to reclusion temporal in
its minimum period (ranging from 8 years and 1 day to 14 years and 8 months).

The Award of Damages Should Be Modified

The trial court awarded AAA ₱75,000 as civil indemnity, ₱50,000 as moral and
exemplary damages. The CA deleted the award for civil indemnity. It correctly reasoned
that the award was proper only in a conviction for rape committed under the
circumstances under which the death penalty is authorized by law. Consistent, however,
with the objective of RA 7610 to afford children special protection against abuse,
exploitation and discrimination and with the principle that every person who contrary to
law, willfully or negligently causes damage to another shall indemnify the latter for the
same,44 civil indemnity to the child is proper in a case involving violation of Section 5(b),
Article III of RA 7610. Every person criminally liable is civilly liable.45 The rule is that, in
crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of.46 Thus,
₱50,000 civil indemnity ex delicto shall be awarded in cases of violation of Section 5(b),
Article III of RA 7610.47

Moreover, the CA erred in affirming the grant of ₱50,000 as "moral and exemplary
damages." The rule is that, in every case, trial courts must specify the award of each
item of damages and make a finding thereon in the body of the decision.48 Thus, moral
damages and exemplary damages should be separate items of award.

AAA testified that she was "emotionally devastated" and "lost touch of her inner self" as
a result of what petitioner did to her. Because of the mental anxiety and wounded
feelings caused by petitioner to her, she had several sessions with the dean for student
affairs49 and the guidance counselor of Assumption College as well as with a psychiatrist.
This was corroborated by her mother and the dean of student affairs of Assumption
College. Thus, she is entitled to moral damages of ₱50,000. However, in the absence of
an aggravating circumstance, the grant of exemplary damages is unwarranted.50
Accordingly, the petition is hereby DENIED. Petitioner Michael John Z. Malto is hereby
found guilty of violating Section 5(b), Article III of RA 7610, as amended, for which he is
sentenced to 14 years and 8 months of reclusion temporal as minimum to 20 years
of reclusion temporal as maximum. He is further ordered to pay AAA ₱50,000 as civil
indemnity and ₱50,000 for moral damages.

Costs against petitioner.

SO ORDERED.

G.R. No. 214497

EDUARDO QUIMVEL y BRAGA,, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES,, Respondent.

DECISION

VELASCO, JR., J.:

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the May 29, 2014 Decision1 and September 15, 2014 Resolution2 of the Court
of Appeals (CA) in CA-G.R. CR No. 35509.3 The challenged rulings sustained the
petitioner's conviction4 of the crime of Acts of Lasciviousness in relation to Sec. 5(b ),
Article III of Republic Act No. (RA) 7610.5

The Information reads:6

AMENDED INFORMATION

The Undersigned Assistant City Prosecutor of Ligao City hereby accuses EDUARDO
QUIMVEL y BRAGA also known as EDWARD/EDUARDO QUIMUEL y BRAGA of the crime
of Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610, committed as
follows:

That on or about 8 o'clock in the evening of July 18, 2007 at Palapas, Ligao City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd and unchaste design, through force and intimidation, did then and
there, willfully, unlawfully and feloniously, insert his hand inside the panty of [AAA],7 a
minor of 7 years old and mash her vagina, against her will and consent, to her damage
and prejudice.
ACTS CONTRARY TO LAW.

The Facts

The facts of the case, as can be gleaned from the Decision of the CA, are as follows: 8

AAA, who was seven years old at the time of the incident, is the oldest among the
children of XXX and YYY. XXX worked as a household helper in Batangas while YYY was
a Barangay Tanod who derived income from selling vegetables. AAA and her siblings,
BBB and CCC, were then staying with YYY in Palapas, Ligao City.

On the other hand, Quimvel, at that time, was the caretaker of the ducks of AAA's
grandfather. He lived with AAA's grandparents whose house was just a few meters away
from YYY's house.

At around 8 o'clock in the evening of [July 18,] 2007, YYY went out of the house to buy
kerosene since there was no electricity. While YYY was away, Quimvel arrived bringing a
vegetable viand from AAA's grandfather. AAA requested Quimvel to stay with them as
she and her siblings were afraid. He agreed and accompanied them. AAA and her
siblings then went to sleep. However, she was awakened when she felt Quimuel's right
leg on top of her body. She likewise sensed Quimvel inserting his right hand inside her
panty. In a trice, she felt Quimvel caressing her private part. She removed his hand.

Quimvel was about to leave when YYY arrived. She asked him what he was doing in his
house. Quimvel replied that he was just accompanying the children. After he left, YYY
and his children went back to sleep.

On [July 29,] 2007, XXX arrived from Batangas. Later in the evening while XXX was lying
down with her children, she asked them what they were doing while she was away. BBB
told her that Quimvel touched her Ate. When XXX asked AAA what Quimvel did to her,
she recounted that Quimvel laid down beside her and touched her vagina.

Upon hearing this, XXX and YYY went to the Office of the Barangay Tanod and
thereafter to the police station to report the incident. Afterwards, they brought AAA to a
doctor for medical examination.

As expected, Quimvel denied the imputation hurled against him. He maintained that he
brought the ducks of AAA' s grandmother to the river at 7 o'clock in the morning,
fetched it and brought it back at AAA's grandmother's place at 4 o'clock in the afternoon
of [July 18,] 2007. After that, he rested. He said that he never went to AAA's house that
evening. When YYY confronted and accused him of touching AAA, he was totally
surprised. Even if he denied committing the crime, he was still detained at
the Barangay Hall. He was then brought to the police station for interrogation.
Eventually, he was allowed to go home. He did not return to the house of AAA's
grandmother to avoid any untoward incidents.
 Ruling of the Trial Court

Lending credence to AAA' s straightforward and categorical testimony, the Regional Trial
Court (RTC), Branch 11 in Ligao City, Albay, on January 23, 2013, rendered its
Judgment9 finding petitioner guilty beyond reasonable doubt of the crime charged. The
dispositive portion of the judgment reads: 10

WHEREFORE, in the light of the foregoing, judgment is hereby rendered:

1. Finding the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/ EDUARDO

QUIMUEL Y BRAGA, GUILTY beyond reasonable doubt of the crime of Acts of
Lasciviousness in relation to Section 5 (b), Article III of R.A. 7610 and thereby
sentenced him to suffer the penalty of imprisonment from FOURTEEN (14) YEARS,
EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal in its medium period as
minimum to FIFTEEN (15) YEARS, SIX (6) MONTHS and NINETEEN (19) DAYS of
Reclusion Temporal in its medium period as maximum; and

2. ORDERING the accused, EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/ EDUARDO

QUIMUEL Y BRAGA, to pay the victim the amount of ₱30,000.00 as moral damages and
to pay a fine in the amount of ₱30,000.00.

In the service of his sentence, accused EDUARDO QUIMVEL Y BRAGA a.k.a. EDWARD/
EDUARDO QUIMVEL Y BRAGA shall be credited with the period of his preventive
detention pursuant to Article 29 of the Revised Penal Code.

No costs.

SO ORDERED.

Ruling of the Appellate Court

Thereafter, petitioner lodged an appeal with the CA but to no avail. For on May 29,
2014, the CA rendered its assailed Decision affirming, with modification, the Judgment
of the trial court. The dispositive portion of the Decision provides: 11

WHEREFORE, the Decision dated 23 January 2013 of the Regional Trial Court, Fifth
Judicial Region, Ligao City Branch 11, in Criminal Case No. 5530, is hereby MODIFIED in
that accused-appellant EDUARDO QUIMVEL y BRAGA also known as EDUARDO/
EDWARD QUIMVEL y BRAGA is ORDERED to pay the victim, AAA moral damages,
exemplary damages and fine in the amount of ₱15,000.00 each as well as ₱20,000.00 as
civil indemnity. All damages shall earn interest at the rate of six percent (6%) per
annum from the date of finality of this judgment.

SO ORDERED.
 The Issues

Aggrieved, Quimvel elevated his case to this Court and raised the following issues for
resolution:

I.

The CA erred in affirming the decision of the trial court as the prosecution was not able
to prove that he is guilty of the crime charged beyond reasonable doubt.

II.

Assuming without admitting that he is guilty hereof, he may be convicted only of acts of
lasciviousness under Art. 336 of the Revised Penal Code (RPC) and not in relation to
Sec. 5(b) of RA 7610.

The Court's Ruling

We affirm the CA's Decision finding petitioner guilty beyond reasonable doubt of the
crime of Acts of Lasciviousness as penalized under Sec. 5 (b) of RA 7610.

The Information charged the crime

of Acts of Lasciviousness under Sec.
5(b) of RA 7610

Petitioner contends that, granting without admitting that he is guilty of Acts of

Lasciviousness, he should only be held liable for the crime as penalized under the RPC
and not under RA 7610. According to him, to be held liable under the latter law, it is
necessary that the victim is involved in or subjected to prostitution or other sexual
abuse, and that the failure to allege such element constituted a violation of his
constitutional right to be informed of the nature and the cause of accusation against
him. 12

His argument fails to persuade.

i. The acts constituting the offense must

be alleged in the Information

It is fundamental that, in criminal prosecutions, every element constituting the offense

must be alleged in the Information before an accused can be convicted of the crime
charged. This is to apprise the accused of the nature of the accusation against him,
which is part and parcel of the rights accorded to an accused enshrined in Article III,
Section 14(2) of the 1987 Constitution. 13 Sections 6, Rule 110 of the Rules of Court, in
turn, pertinently provides:

Section 6. Sufficiency of complaint or information.-A complaint or information is

sufficient if it states the name of the accused, the designation of the offense by the
statute, the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the commission of the
offense, and the place wherein the offense was committed. (emphasis added)

Jurisprudence has already set the standard on how the requirement is to be satisfied.
Case law dictates that the allegations in the Information must be in such form as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged and enable the court to know ' the proper judgment. The
Information must allege clearly and accurately the elements of the crime charged. The
facts and circumstances necessary to be included therein are determined by reference to
the definition and elements of the specific crimes. 14

The main purpose of requiring the elements of a crime to be set out in the Information
is to enable the accused to suitably prepare his defense because he is presumed to have
no independent knowledge of the facts that constitute the offense. The allegations of
facts constituting the offense charged are substantial matters and the right of an
accused to question his conviction based on facts not alleged in the information cannot
be waived. 15 As further explained in Andaya v. People: 16

No matter how conclusive and convincing the evidence of guilt may be, an accused
cannot be convicted of any offense unless it is charged in the information on which he is
tried or is necessarily included therein. To convict him of a ground not alleged while he
is concentrating his defense against the ground alleged would plainly be unfair and
underhanded. The rule is that a variance between the allegation in the
information and proof adduced during trial shall be fatal to the criminal case
if it is material and prejudicial to the accused so much so that it affects his
substantial rights. (emphasis added)

Indeed, the Court has consistently put more premium on the facts embodied in the
Information as constituting the offense rather than on the designation of the offense in
the caption. In fact, an investigating prosecutor is not required to be absolutely accurate
in designating the offense by its formal name in the law. What determines the real
nature and cause of the accusation against an accused is the actual recital of facts
stated in the Information or Complaint, not the caption or preamble thereof nor the
specification of the provision of law alleged to have been violated, being conclusions of
law. 17 It then behooves this Court to place the text of the Information under scrutiny.

ii. The elements of the offense penalized

under Sec. 5(b) of RA 7610 were
sufficiently alleged in the Information

In the case at bar, petitioner contends that the Information is deficient for failure to
allege all the elements necessary in committing Acts of Lasciviousness under Sec. 5(b)
of RA 9160.

His theory is that the Information only charges him of the crime as punished under Art.
336 of the RPC, which pertinently reads:
Art. 336. Acts of lasciviousness.-Any person who shall commit any act of lasciviousness
upon other persons of either sex, under any of the circumstances mentioned on the
preceding article, shall be punished by prision correccional.

Conviction thereunder requires that the prosecution establish 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: 18

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconsc10us;

c) By means of fraudulent machination or grave abuse of authority;

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; and

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

On the other hand, the prosecution endeavored to prove petitioner's guilt beyond
reasonable doubt for child abuse under Sec. 5(b) of RA 7610, which 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:

xxxx

(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)
years of age shall be reclusion temporal in its medium period; x x x (emphasis added)

Before an accused can be held criminally liable for lascivious conduct under Sec. 5(b) of
RA 7610, the requisites of Acts of Lasciviousness as penalized under Art. 336 of the RPC
earlier enumerated must be met in addition to the requisites for sexual abuse under Sec.
5(b) of RA 7610, which are as follows: 19
 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. That child, whether male or female, is below 18 years of age. 20

(emphasis
supplied)

Hypothetically admitting the elements of Art. 336 of the RPC, as well as the first and
third elements under RA 7610 -that a lascivious act was committed against AAA who at
that time was below twelve (12) years old - petitioner nevertheless contends that the
second additional element, requiring that the victim is a child "exploited in prostitution
or subjected to other sexual abuse, " is absent in this case.

The fault in petitioner's logic lies in his misapprehension of how the element that the
victim is "exploited in prostitution or subjected to other sexual abuse" should be alleged
in the Information.

Guilty of reiteration, the accusatory portion of the Information reads:

AMENDED INFORMATION

The Undersigned Assistant City Prosecutor of Ligao City hereby accuses EDUARDO
QUIMVEL y BRAGA also known as EDWARD/EDUARDO QUIMUEL y BRAGA of the
crime of Acts of Lasciviousness in relation to Section 5(b) of R.A. No.
7610, committed as follows:

That on or about 8 o'clock in the evening of July 18, 2007 at Palapas, Ligao City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd and unchaste design, through force and intimidation, did then
and there, willfully, unlawfully and feloniously, insert his hand inside the panty of [AAA],
21 a minor of 7 years old and mash her vagina, against her will and consent, to her
damage and prejudice.

ACTS CONTRARY TO LAW. 22

(emphasis added)

To the mind of the Court, the allegations are sufficient to classify the victim as one
"exploited in prostitution or subject to other sexual abuse." This is anchored on the very
definition of the phrase in Sec. 5 of RA 7610, which encompasses children who indulge
in sexual intercourse or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult, syndicate or group.23

Correlatively, Sec. 5(a) of RA 7610 punishes acts pertaining to or connected with child
prostitution wherein the child is abused primarily for profit. On the other hand,
paragraph (b) punishes sexual intercourse or lascivious conduct committed on a child
subjected to other sexual abuse. It covers not only a situation where a child is abused
for profit but also one in which a child, through coercion, intimidation or influence,
engages in sexual intercourse or lascivious conduct.24 Hence, the law punishes not only
child prostitution but also other forms of sexual abuse against children. This is even
made clearer by the deliberations of the Senate, as cited in the landmark ruling
of People v. Larin:25

Senator Angara. I refer to line 9, 'who for money or profit.' I would like to amend
this, Mr. President, to cover a situation where the minor may have been coerced or
intimidated into this lascivious conduct, not necessarily for money or profit, so that we
can cover those situations and not leave loophole in this section.

The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY OTHER
CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY ADULT,
SYNDICATE OR GROUP INDULGE, et cetera.

The President Pro Tempore. I see. That would mean also changing the subtitle of
Section 4. Will it no longer be child prostitution?

Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of
the child who is being misused for sexual purposes either for money or for
consideration. What I am trying to cover is the other consideration. Because, here, it is
limited only to the child being abused or misused for sexual purposes, only for
money or profit.

I am contending, Mr. President, that there may be situations where the child may
not have been used for profit or...

The President Pro Tempore. So, it is no longer prostitution. Because the essence of
prostitution is profit.

Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be
expanded. But, still, the President will agree that that is a form or manner of child
abuse.

The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly
restate the amendment?

ANGARA AMENDMENT

Senator Angara. The new section will read something like this, Mr. President: MINORS,
WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY OTHER
CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP INDULGE IN
SEXUAL INTERCOURSE, et cetera.

Senator Lina. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] Hearing none, the
amendment is approved.

How about the title, 'Child Prostitution,' shall we change that too?
Senator Angara. Yes, Mr. President, to cover the expanded scope.

Senator Angara. Yes, Mr. President.

The President Pro Tempore. Subject to rewording. Is there any objection? [Silence]
Hearing none, the amendment is approved.

Clear from the records of the deliberation is that the original wording of Sec. 5 of RA
7610 has been expanded so as to cover abuses that are not characterized by gain,
monetary or otherwise. In the case at bar, the abuse suffered by AAA squarely falls
under this expanded scope as there was no allegation of consideration or profit in
exchange for sexual favor. As stated in the Information, petitioner committed lascivious
conduct through the use of ''force" and "intimidation."

iii. "Force and intimidation" is

subsumed under "coercion and
influence "

The term "coercionandinfluence" as appearing in the law is broad enough to cover

''force and intimidation" as used in the Information. To be sure, Black's Law Dictionary
defines "coercion" as "compulsion; force; duress " 26 while "[undue] influence" is defined
as ''persuasion carried to the point of overpowering the will. " 27 On the other
hand, ''force" refers to "constraining power, compulsion; strength directed to an
end " 28 while jurisprudence defines "intimidation" as
"unlawfulcoercion; extortion; duress; putting in fear. " 29 As can be gleaned, the terms
are used almost synonymously. It is then of no moment that the terminologies
employed by RA 7 610 and by the Information are different. And to dispel any remaining
lingering doubt as to their interchangeability, the Court enunciated in Caballo v.
People30 that:

x x x sexual intercourse or lascivious conduct under the coercion or influence of any

adult exists when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended party's free will.
Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual
abuse involves the element of influence which manifests in a variety of forms. It is
defined as:

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.

To note, the term "influence" means the "improper use of power or trust in any
way that deprives a person of free will and substitutes another's
objective." Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields it." (emphasis
added)
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.

With the foregoing, the Court need not burden itself with nitpicking and splitting hairs by
making a distinction between these similar, if not identical, words employed, and make a
mountain out of a mole hill.

It is not necessary that the description of the crime, as worded in the penal provision
allegedly violated, be reproduced verbatim in the accusatory portion of the Information
before the accused can be convicted thereunder. Sec. 9, Rule 110 of the Rules of Court
is relevant on this point:

Section 9. Cause of the accusation. - The acts or omissions complained of as

constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment.

The Court has held in a catena of cases 31 that the rule is satisfied when the crime "is
described in intelligible terms with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged." Furthermore, "[t]he use of derivatives
or synonyms or allegations of basic facts constituting the offense charged is
sufficient " Hence, the exact phrase "exploited in prostitution or subjected to other
abuse" need not be mentioned in the Information. Even the words "coercion or
influence" need not specifically appear.

Thus, the Court, in Olivarez v. Court of Appeals,32 has similarly sustained the conviction
of therein petitioner Isidro Olivarez (Olivarez) for violating Sec. 5, RA 7610. The
Information indicting Olivarez of the offense read:

The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn
complaint filed by the private complainant, [AAA], hereby accuses ISIDRO OLIY AREZ of
the crime of VIOLATION OF RA 7610, committed as follows:

That on or about July 20, 1997, in the Municipality of San Pedro, Province of Laguna,
within the jurisdiction of this Honorable Court, said accused actuated by lewd design did
then and there wilfully, unlawfully and feloniously by means of force and
intimidation commit acts of lasciviousness on the person of one [AAA], by touching
her breasts and kissing her lips, against her will, to her damage and prejudice.

CONTRARY TO LAW. (emphasis added)

Conspicuously enough, the Information in Olivarez is couched in a similar fashion as the

Information in the extant case. The absence of the phrase "exploited in prostitution or
subject to other sexual abuse" or even the specific mention of "coercion" or
"influence" was never a bar for the Court to uphold the finding of guilt against an
accused for violation of RA 7610. Just as the Court held that it was enough for the
Information in Olivarez to have alleged that the offense was committed by means
of "force and intimidation," the Court must also rule that the Information in the case at
bench does not suffer from the alleged infirmity.

So too did the Court find no impediment in People v. Abadies,33 Malta v. People,[[34]]
People v. Ching, 35 People v. Bonaagua,36 and Caballo v. People37 to convict the accused
therein for violation of Sec. 5, RA 7610 notwithstanding the non-mention in the
Information of "coercion," "influence," or "exploited in prostitution or subject to other
abuse."

The offense charged can also be elucidated by consulting the designation of the offense
as appearing in the Information. The designation of the offense is a critical element
required under Sec. 6, Rule 110 of the Rules of Court for it assists in apprising the
accused of the offense being charged. Its inclusion in the Information is imperative to
avoid surprise on the accused and to afford him of the opportunity to prepare his
defense accordingly. 38 Its import is underscored in this case where the preamble states
that the crime charged is of "Acts of Lasciviousness in relation to Section 5(b) of R.A.
No. 7610."

In Malto v. People,39 therein accused Michael John Z. Malto (Malto) was charged for
violation of RA 7610 in the following wise:

The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO

of VIOLATION OF SECTION 5[b], ARTICLE III, REPUBLIC ACT 7610, AS
AMENDED, committed as follows:

That on or about and sometime during the month of November 1997 up to 1998, in
Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, Michael John. Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously take advantage and exert influence, relationship
and moral ascendancy and induce and/or seduce his student at Assumption College,
complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said accused has carnal
knowledge.

Contrary to law. (emphasis and words in brackets added)

Interestingly, the acts constitutive of the offense, as alleged in the Information, could
make out a case for violation of either Sec. 5(b) of RA 7610 or Rape under the
RPC.40 Nevertheless, the Court affirmed the finding that Malto is criminally liable for
violation of RA 7610, and not for Rape.

The Court is not unmindful of its pronouncements in People v.

Abello(Abello)41 and Cabila v. People (Cabila)42 that the second element must specifically
be alleged in the Information and thereafter proved.- However, these rulings cannot
support petitioner's prayer that he be convicted under Art. 336 of the RPC instead of
under Sec. 5(b) of RA 7610.
To begin with, the factual milieu of Abello significantly differs with that in the case at
bar. Our refusal to convict therein accused Heracleo Abello was premised on the the fact
that his victim cannot be considered as a "child" within the purview of RA 7610. 43 The
victim in Abello, was 21 years of age when the offense was committed. Although she
had polio, the prosecution failed to substantiate through evidence that the victim's
physical condition rendered her incapable of fully taking care of herself or of protecting
herself against sexual abuse. 44 Hence, Abello was only convicted of Acts of
Lasciviousness under Art. 336 of the RPC.

Cabila, on the other hand, is a stray division case that has seemingly been overturned
by the Court's recent en banc ruling in Dimakuta v. People (Dimakuta). 45 The latter case
attempted to punctuate the discussion on the issue at hand, but fell short as the
conviction therein for violation of Art. 336 of the RPC had already attained finality.
Instead, what the Court en bane was confronted with in Dimakuta, the bone of
contention that remained, was whether or not an accused is disqualified to apply for
probation even if such appeal resulted in the reduction of the non-probationable penalty
imposed to a probationable one. The Court, therefore, deems it more appropriate here
to categorically abandon our ruling in Cabila.

Neither can petitioner buttress his claim by citing the dissent in the 2005 case
of Olivarez v. CA46 wherein it was expounded thus:

The first element refers to the acts of lasciviousness that the accused performs on the
child. The second element refers to the special circumstance that the child (is) exploited
in prostitution or subjected to other sexual abuse. This special circumstance already
exists when the accused performs acts of lasciviousness on the child. In short, the acts
of lasciviousness that the accused performs on the child are separate and different from
the child's exploitation in prostitution or subjection to "other sexual abuse."

Under Article 336 of the RPC, the accused performs the acts of lasciviousness on a child
who is neither exploited in prostitution nor subjected to "other sexual abuse." In
contrast, under Section 5 of RA 7610, the accused performs the acts of lasciviousness
on a child who is either exploited in prostitution or subjected to "other sexual abuse."

Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are
committed on a child already either exploited in prostitution or subjected to "other
sexual abuse." Clearly, the acts of lasciviousness committed on the child are separate
and distinct from the other circumstance that the child is either exploited in prostitution
or subjected to "other sexual abuse." (emphasis supplied)

Contrary to the exposition, the very definition of "child abuse" under Sec.
3(b) of RA 7610 does not require that the victim suffer a separate and distinct
act of sexual abuse aside from the act complained of. For it refers to the
maltreatment, whether habitual or not, of the child. Thus, a violation of Sec.
5(b) of RA 7610 occurs even though the accused committed sexual abuse
against the child victim only once, even without a prior sexual affront.

iv. There need not be a third person subjecting the exploited child to other abuse
The intervention by a third person is not necessary to convict an accused under Sec. 5
of RA 7610. As regards paragraph (a), a child may engage in sexual intercourse or
lascivious conduct regardless of whether or not a "bugaw " is present. Although the
presence of an offeror or a pimp is the typical set up in prostitution rings, this does not
foreclose the possibility of a child voluntarily submitting himself or herself to another's
lewd design for consideration, monetary or otherwise, without third person intervention.
Needless to say, the child, would still be under the protection of the law, and the
offender, in such a situation, could still be held criminally liable for violation of Sec. 5(a)
of RA 7610.

The Senate deliberations made clear, though, that other forms of sexual abuse, not just
prostitution, are within the extended coverage of RA 7610. The offense is even
penalized under the same prov1s1on as prostitution-Sec. 5 of the law. Both offenses
must then be dealt with under the same parameters, in spite of the differences in their
elements. Thus, concomitant with the earlier postulation, just as the participation of a
third person is not necessary to commit the crime of prostitution, so too is the
circumstance unessential in charging one for other sexual abuse.

It is immaterial whether or not the accused himself employed the coercion or influence
to subdue the will of the child for the latter to submit to his sexual advances for him to
be convicted under paragraph (b). Sec. 5 of RA 7610 even provides that the offense can
be committed by "any adult, syndicate or group, " without qualification. 47 The clear
language of the special law, therefore, does not preclude the prosecution of lascivious
conduct performed by the same person who subdued the child through coercion or
influence. This is, in fact, the more common scenario of abuse that reaches this Court
and it would be an embarrassment for us to rule that such instances are outside the
ambit Sec. 5(b) of RA 7610.

It is as my esteemed colleagues Associate Justices Diosdado M. Peralta and Estela M.

Perlas-Bernabe reminded the Court. Ratio legis est anima. The reason of the law is the
soul of the law. In this case, the law would have miserably failed in fulfilling its lofty
purpose 48 of providing special protection to children from all forms of abuse if the
Court were to interpret its penal provisions so as to require the additional element of a
prior or contemporaneous abuse that is different from what is complained of, and if the
Court were to require that a third person act in concert with the accused.

The RTC and CA did not err in finding petitioner guilty beyond reasonable
doubt

Well-settled is the rule that, absent any clear showing of abuse, arbitrariness or
capriciousness committed by the lower court, its findings of facts, especially when
affirmed by the Court of Appeals, are binding and conclusive upon this Court.49 This is so
because the observance of the deportment and demeanor of witnesses are within the
exclusive domain of the trial courts. Thus, considering their unique vantage point, trial
courts are in the best position to assess and evaluate the credibility and truthfulness of
witnesses and their testimonies. 50
In the case at bar, the R TC held that the prosecution duly established petitioner's guilt
beyond reasonable doubt through AAA' s straightforward testimony. The trial court
observed that when AAA testified, she was able to steadily recount Quimvel's immodest
acts, as follows:

Q Okay. On the same date, where was your mother, if you know?

A During that time, my mother was in Batangas, she being a household helper.

Q Alright. How about your father, where was he on July 18, 2007, at more or less 8: 00
o'clock in the evening?

A He was on duty at Palapas, Ligao City.

Q Okay. What was your father's job?

A He was on duty, since he was a Barangay Tanod.

Q Okay. Now, on that date and time, where were you, if you recall?

A I was in our house. Q Who were with you inside your house?

A I was with my two (2) siblings.

Q Okay. Now, what happened while you and your siblings were there inside your house
on that date and time?

A Eduardo went to our house with a viand vegetable for us.

Q Okay. Who is this Eduardo that you are referring to?

A He is the helper of my grandfather.

Q Okay. If you know, why was he bringing you then a viand?

A He was sent by our Lolo to bring the viand for us.

Q Alright. When he brought the viand to you, what did you say, if any? A I told him to
accompany us in our house because we are afraid.

Q Okay. What did he say, if any, when you told him that?

A He told me, it's alright.

Q Okay. So, what did you do after he told you that?

A After that, I went to sleep.

Q How about your brother or sister, what did they do also?

A They too went to sleep.

Q And then what happened, if you recall?

A Since his leg was placed over my body. I was awaken[ed] because from that, he was
also inserting his hand inside my panty.

Q Alright. Now, could you tell us which leg was it that he placed on top of your body?

A His right leg(,) ma' am.

Q Okay. Now, you've mentioned that he inserted his hand inside your panty, do you
recall what you were wearing at that time?

A I was wearing shorts and panty.

Q Alright. How about on the upper portion of your body, what were you wearing then?

A I was wearing a blouse, like what I am wearing now. (Witness pointing to her blouse)

Q Alright. And you mentioned that he inserted his hand on your panty, which hand did
he use?

A His right hand.

Q Alright. And after inserting his hand inside your panty, what did he do with it?

A After inserting his hand inside my panty, he rubbed my vagina. (Witness is

demonstrating by rubbing her left hand with her right hand.)

Q Now, could you tell us for how long did Eduardo rubbed or caressed your vagina? (sic)

A Maybe it took for about five (5) minutes.

Q Do you know how long is a minute?

A I do not know(,) ma'am.

Q Now, if you are going to count one (1) to ten (10), each count would be equivalent to
one (1) second and if you have counted for ten (10), on what number would you reach
to approximate the time wherein Eduardo caressed your vagina?

A It could be thirty (30) minutes.

COURT
Maybe she did not understand it.

PROS. CRUZ

Q Alright. Now, he (sic) took a long time for the accused to caress your vagina, is that
what you are trying to tell this Honorable Court?

A Yes(,) ma'am.

Q And what did you do when he was caressing your vagina for that long?

A I removed his hand from inside my panty. 51

The foregoing testimonial account demonstrates that all the elements of the crime of
Acts of Lasciviousness under Sec. 5(b) of RA 7610, as earlier enumerated, are
present.1âwphi1

Let us not forget the circumstances of this case, not only was the offense committed
against a child under twelve (12) years of age, it was committed when the victim was
unconscious, fast asleep in the dead of the night. AAA, then a minor of seven (7) years,
was awoken by the weight of petitioner's leg on top of her and of his hand sliding inside
her undergarment. His hand proceeded to caress her womanhood, which harrowing
experience of a traumatic torment only came to a halt when she managed to prevent his
hand from further touching her private parts.

As regards the second additional element, it is settled that the child is deemed subjected
to other sexual abuse when the child engages in lascivious conduct under the coercion
or influence of any adult. 52 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. 53 The law does not require physical violence
on the person of the victim; moral coercion or ascendancy is sufficient. 54

The petitioner's proposition-that there is not even an iota of proof of force or

intimidation as AAA was asleep when the offense was committed and, hence, he cannot
be prosecuted under RA 7610-is bereft of merit. When the victim of the crime is a child
under twelve (12) years old, mere moral ascendancy will suffice.

Here, AAA was a child at the tender age of seven (7) when the offense was committed.
She was residing with her father in Palagas, Ligao City, Albay while her mother works as
a household helper in Batangas. Her father, however, is out of the house most of the
time, working two jobs as a vendor and barangay tanod. Petitioner, on the other hand,
was known to the victim and her siblings as the caretaker of their grandmother's ducks.
Thus, when petitioner brought some vegetable viand to the victim's house at the day
the crime was committed; he was requested by the children to stay with them because
they were afraid. AAA entrusted to petitioner her safety and that of her siblings, only to
be betrayed. In this situation, the Court finds that because of the relative seniority of
petitioner and the trust reposed in him, petitioner abused the full reliance of AAA and
misused his ascendancy over the victim. These circumstances can be equated with
"intimidation" or "influence" exerted by an adult, covered by Sec. 5(b) of RA 7610. Ergo,
the element of being subjected to sexual abuse is met.

That AAA is a child of tender years does not detract from the weight and credibility of
her testimony. On the contrary, even more credence is given to witnesses who were
able to candidly relay their testimony before the trial courts under such circumstance.
The child's willingness to undergo , the trouble and humiliation of a public trial is an
eloquent testament to the truth of her complaint. 55

In stark contrast, Quimvel' s defense-that he did not go to AAA' s house on the alleged
time of the incident as he was busy watching over the ducks of AAA's grandmother at
the latter's house56 -deserves scant consideration. Jurisprudence is replete of cases
holding that denial and alibi are weak defenses, which cannot prevail against positive
identification. 57 A categorical and consistent positive identification which is not
accompanied by ill motive on the part of the eyewitness prevails over mere denial. Such
denial, if not substantiated by clear and convincing evidence, is negative and self-
serving evidence undeserving of weight in law. It cannot be given a greater evidentiary
value over the testimony of credible witnesses who testify on affirmative matters. 58

For his alibi to prosper, it was incumbent upon petitioner to prove that he was
somewhere else when the offense was committed, and that he was so far away it would
have been impossible for him to be physically present at the place of the crime or at its
immediate vicinity at the time of the commission. 59 But in his version of the events,
petitioner failed to prove the element of physical impossibility since the house of AAA' s
grandmother, where he claimed to be at that time, is only 150 meters, more or less,
from AAA's house. His alibi, therefore, cannot be considered exculpatory.

Article 336 of the RPC was never repealed by RA 8353

Associate Justice Marvic M.V.F. Leonen (Justice Leonen) posits that Art. 336 of the RPC
has allegedly been rendered incomplete and ineffective by RA 8353, otherwise known as
the Anti-Rape law. The good justice brings our attention to Sec. 460 of the special law,
which clause expressly repealed Art. 335 of the RPC. And since the second element of
Acts of Lasciviousness under Art. 336 of the RPC is sourced from Art. 335 of the same
code,61 it is then Justice Leonen's theory that Acts of Lasciviousness ceased to be a
crime under the RPC following Art. 335's express repeal.

We respectfully disagree.

Sec. 4 of RA 8353 did not expressly repeal Article 336 of the RPC for if it were the intent
of Congress, it would have expressly done so.1âwphi1 Rather, the phrase in Sec. 4
states: "deemed amended, modified, or repealed accordingly" qualifies "Article 335 of
Act No. 3815, as amended, and all laws, acts, presidential decrees, executive orders,
administrative orders, rules and regulations inconsistent with or contrary to the
provisions of [RA 8353]."

As can be read, repeal is not the only fate that may befall statutory provisions that are
inconsistent with RA 8353. It may be that mere amendment or modification would
suffice to reconcile the inconsistencies resulting from the latter law's enactment. In this
case, Art. 335 of the RPC,62 which previously penalized rape through carnal knowledge,
has been replaced by Art. 266-A. 63 Thus, the reference by Art. 336 of the RPC to any of
the circumstances mentioned on the erstwhile preceding article on how the crime is
perpetrated should now refer to the circumstances covered by Art. 266-A as introduced
by the Anti-Rape Law.

We are inclined to abide by the Court's long-standing policy to disfavor repeals by

implication for laws are presumed to be passed with deliberation and full knowledge of
all laws existing on the subject. The failure to particularly mention the law allegedly
repealed indicates that the , intent was not to repeal the said law, unless an
irreconcilable inconsistency and repugnancy exists in the terms of the new and old
laws.64 Here, RA 8353 made no specific mention of any RPC provision other than Art.
335 as having been amended, modified, or repealed. And as demonstrated, the Anti
Rape Law, on the one hand, and Art. 336 of the RPC, on the other, are not
irreconcilable. The only construction that can be given to the phrase "preceding
article" is that Art. 336 of the RPC now refers to Art. 266-A in the place of the repealed
Art. 335. It is, therefore, erroneous to claim that Acts of Lasciviousness can no longer be
prosecuted under the RPC.

It is likewise incorrect to claim that Art. 336 had been rendered inoperative by the Anti-
Rape Law and argue in the same breath the applicability of Sec. 5(b) of RA 7610. The
latter provision reads:

Section 5. Child Prostitution and Other Sexual Abuse. - x x x

xxxx

(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) years of age shall be reclusion temporal in its medium period; x x x (emphasis
added)

If Art. 336 then ceased to be a penal provision in view of its alleged incompleteness,
then so too would Sec. 5(b) of RA 7610 be ineffective since it defines and punishes the
prohibited act by way of reference to the RPC provision.

The decriminalization of Acts of Lasciviousness under the RPC, as per Justice Leonen's
theory, would not sufficiently be supplanted by RA 7610 and RA 9262,65 otherwise
known as the Anti-Violence Against Women and their Children Law (Anti-VAWC Law).
Under RA 7610, only minors can be considered victims of the enumerated forms of
abuses therein. Meanwhile, the Anti-VA WC law limits the victims of sexual abuses
covered by the RA to a wife, former wife, or any women with whom the offender has
had a dating or sexual relationship, or against her child. 66 Clearly, these laws do not
provide ample protection against sexual offenders who do not discriminate in selecting
their victims. One does not have to be a child before he or she can be victimized by acts
of lasciviousness. Nor does one have to be a woman with an existing or prior
relationship with the offender to fall prey. Anyone can be a victim of another's lewd
design. And if the Court will subscribe to Justice Leonen's position, it will render a large
portion of our demographics (i.e. adult females who had no prior relationship to the
offender, and adult males) vulnerable to sexual abuses.

The RTC and the CA imposed the proper prison term

Anent the proper penalty to be imposed, Sec. 5 of RA 7610 provides that the penalty for
lascivious conduct, when the victim is under twelve (12) years of age, shall be reclusion
temporal in its medium period, which ranges from 14 years, 8 months and 1 day to 17
years and 4 months.67

Meanwhile, Sec. 1 of Act No. 4103,68 otherwise known as the Indeterminate Sentence
Law (ISL), provides that if the offense is ostensibly punished under a special law, the
minimum and maximum prison term of the indeterminate sentence shall not be beyond
what the special law prescribed. 69 Be that as it may, the Court had clarified in the
landmark ruling of People v. Simon 70 that the situation is different where although the
offense is defined in a special law, the penalty therefor is taken from the technical
nomenclature in the RPC. Under such circumstance, the legal effects under the system
of penalties native to the Code would also necessarily apply to the special law.

Thus, in People v. Santos (Santos),71 which similarly involved charges for Acts of
Lasciviousness under Sec. 5(b) of RA 7610, the Court applied the ISL and adjusted the
prison term meted to the accused-appellant therein.

In the absence of mitigating or aggravating circumstances, the Court held that the
maximum term of the sentence to be imposed shall be taken from the medium period
of reclusion temporal in its medium period, which ranges from fifteen (15) years, six (6)
months and twenty-one (21) days to sixteen (16) years, five (5) months and nine (9)
days. On the other hand the minimum term shall be taken from the penalty next lower
to reclusion temporal medium,that is reclusion temporal minimum, which ranges from
twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.

From the foregoing, it becomes clear that the prison term meted to petitioner (i.e.
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its
medium period as minimum to fifteen (15) years, six (6) months and nineteen (19) days
of reclusion temporal in its medium period) must be modified to be in consonance with
the Court's ruling in Santos. Accordingly, the minimum prison term shall be reduced to
twelve (12) years and one (1) day, while the maximum term shall be adjusted to fifteen
(15) years, six (6) months and twenty-one (21) days.

WHEREFORE, the instant petition is hereby DENIED. The Court of Appeals Decision in
CA-G.R. CR No. 35509 finding petitioner Eduardo Quimvel y Braga also known as
Eduardo/Edward Quimuel y Braga guilty beyond reasonable doubt of acts of
lasciviousness is hereby AFFIRMED with MODIFICATION as follows:
WHEREFORE, the Decision dated 23 January 2013 of the Regional Trial Court, Fifth
Judicial Region, Ligao City Branch 11, in Criminal Case No. 5530, is hereby MODIFIED in
that accused-appellant EDUARDO QUIMVEL y BRAGA also known as EDUARDO/
EDWARD QUIMUEL y BRAGA is SENTENCED to suffer the indeterminate imprisonment of
twelve (12) years and one (1) day of reclusion temporal in its minimum period as
minimum to fifteen (15) years. six (6) months. and twenty-one(21) days of reclusion
temporal in its medium period as maximum. He is further ORDERED to pay the victim,
AAA, moral damages, exemplary damages and fine in the amount of P15,000.00 each as
well as P20,000.00 as civil indemnity. All damages shall earn interest at the rate of six
percent (6%) per annum from the date of finality of this judgment.

SO ORDERED.

G.R. No. 216671, October 03, 2016

JERWIN DORADO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

This is a Petition for Review on Certiorari seeking to reverse and set aside the August 8,
2014 Decision1 and the January 29, 2015 Resolution2 of the Court of Appeals (CA) in CA-
G.R. CR No. 33581, which affirmed the July 5, 2010 Decision3 of the Regional Trial
Court, Taguig City, Branch 163 (RTC), in Criminal Case No. 127784, finding accused
Jerwin Dorado (Dorado) guilty of the crime of Frustrated Murder.

The Antecedents

Dorado, Julius Ramos (Ramos), Jeffrey Confessor (Confessor) and Jayson Cabiaso
(Cabiaso) were charged with the crime of frustrated murder, defined under Article 248
in relation to Article 6 of the Revised Penal Code (RPC) committed against Ronald
Bonion (Ronald) before the RTC. They were also charged with violation of Section 10(a)
of Republic Act (R.A.) No. 7610, or the Special Protection of Children Against Abuse,
Exploitation and Discrimination Act, committed against Raniel Parino (Raniel). These
cases were docketed, as Criminal Case Nos. 127784-85. The respective Informations
read as follows:

chanRoblesvirtualLawlibrary

Criminal Case No. 127784

xxxx

That on or about the 15th day of March 2004, in the Municipality of Taguig, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, in conspiracy with one another and with Jerwin Dorado y Felipe @ Ewing who
is a 16 year old minor, and with two (2) unidentified companions whose true identities
and present whereabouts are still unknown, with intent to kill by means of the qualifying
circumstances of treachery and evident premeditation, aggravated by the circumstances
of nighttime and with the use of an improvised shotgun (sumpak), a deadly weapon and
unlicensed firearm, did then and there wilfully, unlawfully and feloniously attack, assault
and shoot with said deadly weapon, one Ronald Bonion y Bozar, thus performing all the
acts of execution which would have produced the crime of murder as a consequence,
but nevertheless, did not produce it by reason of causes independent of the will of the
accused, that is due to the timely and able medical assistance rendered to said victim
which prevented his death.

Contrary to law.4chanrobleslaw

Criminal Case No. 127785

xxxx

That on or about the 15th day of March 2004, in the Municipality of Taguig, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, in conspiracy with one another and with Jeffrey Confessor, Jayson Cabiaso,
Jerwin Dorado y Felipe @ Ewing who is a 16 year old minor, and with two (2)
unidentified companions whose true identities and present whereabouts are still
unknown, did then and there wilfully, unlawfully and feloniously commit acts of cruelty
upon the person of complainant Raniel Parino, a 15 year old minor by then and there
hurling stones at the latter, which act is prejudicial to the normal growth and
development of said child.

Contrary to law.5chanroblesvirtuallawlibrary

On November 9, 2004, Dorado and his co-accused were arraigned and they all pleaded
"not guilty" to the charges. Thereafter, the trial ensued.

Evidence of the Prosecution

The prosecution presented the victims, Ronald, Ronald's brother, Robert Bonion
(Robert), Raniel Parino (Raniel) and Dr. Ronaldo Artes (Dr. Artes), as its witnesses. Their
combined testimonies tended to establish the following:

chanRoblesvirtualLawlibraryOn April 15, 2004, at around 11:00 o'clock in the evening,

Ronald was talking to his friends Raniel, Delon Busar, Annan Luna, Jerome Amergo and
a certain Erwin (Ronald's group) along A. Reyes Street, Lower Bicutan, Taguig. At that
very time, Dorado, carrying a sumpak, and his friends, Confessor and Cabiaso (Dorado's
group), arrived and threw stones and bottles at Ronald's group.

Ronald's group scampered for shelter toward the talipapa and hid inside to avoid being
hit by the stones and bottles. When Ronald thought that Dorado's group was no longer-
in the vicinity, they came out of hiding. Dorado's group, however, was out there waiting
for them. When they finally surfaced, Dorado's group resumed throwing stones at
Ronald's group. During the commotion, Dorado fired his sumpak and hit Ronald between
the eyes. Ronald fell unconscious for about ten (10) minutes while Dorado's group ran
away. Thereafter, Ronald was brought to the Rizal Medical Center by Raniel and Delon
Busan. He sustained the following injuries:

chanRoblesvirtualLawlibrary
Xxx Ruptured Globe, OU; S/P Excision of prolapsed Uvea + Repair of Corneal & Scleral
laceration, OD; S/P Enucleation & Evacuation of Foreign body's + Repair of Lower lid
margin laceration, OS xxx.6chanroblesvirtuallawlibrary

Ronald was operated on his forehead and was confined for a month at the Rizal Medical
Center. As a result of the shooting incident, Ronald lost his left eye while his right eye
could only see some light. Dr. Artes, the operating surgeon, testified that without
medical intervention, Ronald could have died.

Evidence of the Defense

The defense presented the accused Dorado and Ramos; Gloria Confessor and Jessie
Confessor, the mother and brother of accused Confessor; Mark Matuguina; Jeffrey
Quijano; Aurin Reyes, and Ofelia Ramos (Ofelia) as its witnesses, who collectively
narrated the following:

chanRoblesvirtualLawlibraryOn April 15, 2004, between 8:00 o'clock and 11:00 o'clock in
the evening, Dorado was at home watching television with his siblings and his mother.
Suddenly, the barangay tanods arrived and blamed him for the shooting of Ronald.
Dorado denied any participation in the incident and did not go with the tanods.
No sumpak was taken from his house. He also denied that he was a gang member and
that he went into hiding.

The witnesses for Ramos, Confessor and Cabiaso testified that they were not present in
the crime scene when Ronald was shot.

Ofelia, on the other hand, testified that on April 15, 2004, between 10:00 and 10:30
o'clock in the evening, she was on her way to see her friend when she noticed five
persons running in the opposite direction. Four of them entered an alley, while one
stayed and shot the face of another teenager. She added that she would be able to
recognize the assailant, but it was not Dorado.

The RTC Ruling

On July 5, 2010, the RTC rendered its decision. In Criminal Case No. 127784, the trial
court found Dorado guilty beyond reasonable doubt of the crime of frustrated murder;
while in Criminal Case No. 127785, accused Dorado, Ramos, Confessor and Cabiaso
were all acquitted as the crime was not proven beyond reasonable doubt. It noted that
their participation in the crime was limited to the throwing of stones and bottles and
there was no indication that they Singled out Ronald as their target. The RTC also
acquitted all the accused for the charge of violation of R.A. No. 7610 because the
prosecution failed to establish Ronald's minority.
In finding Dorado guilty of frustrated murder, as defined under Article 248, in relation to
Article 6, paragraph 2, of the RPC, the RTC gave credence to the testimonies of the
prosecution witnesses that it was Dorado who shot Ronald with a sumpak. The trial
court considered the qualifying circumstance of evident premeditation because of the
following: Dorado's group had an ongoing feud with Ronald's group; when the assault
began, Dorado was already holding a sumpak; after Ronald fled, Dorado waited intently
for an opportunity to shoot him; and when Ronald came out, Dorado shot him on the
face. The RTC, nevertheless, appreciated the privileged mitigating circumstance of
minority in Dorado's favor as he was still a minor at the time of the incident. It,
however, stated that Dorado was not entitled to a suspension of sentence because he
was above twenty-one (21) years old at the time of the pronouncement of guilt. Thus, it
disposed the case in this wise:

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WHEREFORE, taking all the foregoing into consideration, it is hereby adjudged that:

chanRoblesvirtualLawlibrary

1. In Criminal Case No. 127784, CICL Jerwin Dorado y Felipe is hereby found
GUILTY beyond reasonable doubt of the crime of Frustrated Murder, defined and
penalized under Article 248, in relation to Article 6, 2nd paragraph, 2nd phrase of
the Revised Penal Code and, taking into consideration the privileged mitigating
circumstance of minority, is sentenced to suffer the penalty of six (6) months
and one (1) day of prision correctional, as minimum, to eight (8) years of prision
mayor, as maximum, with all the effects thereof as provided" by law. He is
further ordered to pay the victim Php50,000.00 as civil indemnity; Php50,000.00
by way of moral damages; and to pay the costs, at the legal rate of interest from
the time of the filing of the Information until fully paid. Accused Julius Ramos y
Labanero, Jeffrey Confessor and Jayson Cabiaso are
ACQUITTED on ground of reasonable doubt.

2. In Criminal Case No. 127785, CICL Jerwin Dorado y Felipe, accused Julius Ramos
y Labanero, Jeffrey Confessor and Jayson Cabiaso are ACQUITTED on ground of
reasonable doubt. No costs.

SO ORDERED.7chanroblesvirtuallawlibrary

Aggrieved, Dorado elevated an appeal before the CA.

The CA Ruling

In its assailed decision, dated August 8, 2014, the CA affirmed the RTC decision, finding
that Dorado committed the crime of frustrated murder because he had the intent to kill
Ronald when he fired his sumpak hitting the portion between the two eyes of the victim.
It noted that Ronald would have died were it not for the timely medical attention. The
appellate court also agreed with the RTC that Dorado's act of waiting for Ronald to
come out of the talipapa, where the latter was hiding, indicated evident premeditation.
The CA did not give credence to Dorado's defense of alibi because his house was merely
one block away from the talipapa. It opined that it was not physically impossible for him
to be at the crime scene at the time in question.

Dorado moved for reconsideration but his motion was denied by the CA in its assailed
resolution, dated January 29, 2015.

Hence, this petition.

SOLE ISSUE

WHETHER THE COURT OF APPEALS GRAVELY ERRED IN

AFFIRMING THE CONVICTION OF THE PETITIONER FOR
THE CRIME CHARGED.8

Dorado argues that his defenses of alibi and denial should be fully appreciated by the
Court as there was enough evidence to support them; that he was at his home at the
time of the incident; that defense witness Ofelia testified that he was not the one who
shot Ronald; and that the barangay officials did not find the sumpak in his possession.

In its Comment,9 the Office of the Solicitor General (OSG) countered that Dorado had
the intent to kill when he fired the sumpak and hit Ronald between the eyes; that the
felony would have caused the death of the victim, were it not for the timely medical
intervention; and that Dorado's defenses of denial and alibi could not overcome the
positive identification by the prosecution witnesses.

In his Reply,10 Dorado reiterated that his defense was supported by Ofelia's testimony
and that the CA committed a misapprehension of facts when it did not consider his
defenses.

The Court's Ruling

The Court finds merit in the petition.

Dorado was a minor at the

time of the commission of
the crime

A perusal of the records will readily show that Dorado was a sixteen (16) year old minor
at the time of the commission of the crime on March 15, 2004. The Informations filed
against him consistently stated his minority.11 For said reason, he must benefit from the
provisions of R.A. No. 9344, or the Juvenile Justice and Welfare Act of 2006, as
amended. Even though the said law was enacted on April 28, 2006, the same must still
be retroactively applied for the benefit of Dorado pursuant to the well-entrenched
principle in criminal law — favorabilia sunt amplianda adiosa restrigenda (penal laws
which are favorable to the accused are given retroactive effect).12chanrobleslaw
Curiously, neither the RTC nor the CA paid much attention to Dorado's minority and how
it affected his criminal responsibility. Thus, the Court deems it proper to lay down the
salient provisions of R.A. No. 9344 regarding the prosecution of a Child In Conflict with
the Law (CICL).13chanrobleslaw

One of the significant features of R.A. No. 9344 is the increase of the minimum age of
criminal responsibility, to wjt:

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SEC. 6. Minimum Age of Criminal Responsibility. — A child fifteen (15) years of age or
under at the time of the commission of the offense shall be exempt from criminal
liability. However, the child shall be subjected to an intervention program pursuant to
Section 20 of this Act.

A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary
of his/her birthdate.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be
exempt from criminal liability and be subjected to an intervention program, unless
he/she has acted with discernment, in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from
civil liability, which shall be enforced in accordance with existing laws.14

In sum, Section 6 of R.A. No. 9344 provides that the following minors shall be exempt
from criminal liability:

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1. Those below fifteen (15) years of age at the time of the commission of the
crime; and ,

2. Those above fifteen (15) years but below eighteen (18) years of age who
acted without discernment.

Thus, if a child falls under the above-cited ages, he or she shall be released and shall be
subjected to an intervention program as may be determined by a local social welfare
and development officer, pursuant to Section 20 of the said law.

Consequently, under R.A. No. 9344, only a child above fifteen (15) years but below
eighteen (18) years of age who acted with discernment shall not be exempted from
criminal responsibility.15 Nevertheless, the said child does not immediately proceed to
trial. Instead, he or she may undergo a diversion, which refers to an alternative, child-
appropriate process of determining the responsibility and treatment of the CICL without
resorting to formal court proceedings. If the diversion is unsuccessful or if the other
grounds provided by law16 are present, then the CICL shall undergo the appropriate
preliminary investigation of his or her criminal case, and trial before the courts may
proceed.

Once the CICL is found guilty of the offense charged, the court shall not immediately
execute its judgment; rather, it shall place the CICL under suspended sentence. Notably,
the suspension shall still be applied even if the juvenile is already eighteen (18) years of
age or more at the time of the pronouncement of his or her guilt. During the
suspension, the court shall impose the appropriate disposition measures as provided in
the Supreme Court Rule on Juveniles in Conflict with the Law. If the disposition
measures are successful, then the court shall discharge the CICL. Conversely, if
unsuccessful, then the court has the following options: (1) to discharge the child, (2) to
order execution of sentence, or (3) to extend the suspended sentence for a certain
specified period or until the child reaches the maximum age of twenty-one (21)
years.17chanrobleslaw

In other words, aside from increasing the minimum age of criminal responsibility, R.A.
No. 9344 also provides for alternative measures to address the criminal tendencies of a
minor. The law endeavors that a minor should be given several opportunities to mend
his or her ways without resorting to detention and incarceration. A judgment for
conviction shall only be executed if all the alternative measures prove to be ineffective.
Indeed, the emphatic policies of R.A. No. 9344 emulate the right of every child alleged,
accused of, adjudged, or recognized, as having infringed the penal law to be treated in a
manner consistent with the promotion of the child's sense of dignity and worth, taking
into account the child's age and desirability of promoting his or her
reintegration.18chanrobleslaw

The Prosecution did not

determine the discernment
of Dorado at the time of
the commission of the crime

To recapitulate, R.A. No. 9344 provides that only those minors above fifteen (15) years
but below eighteen (18) years of age who acted with discernment shall not be exempted
from criminal responsibility. During the deliberations for Senate Bill No. 1402, the
following discussions transpired:

chanRoblesvirtualLawlibrary
Senator Pangilinan: xxx there is no criminal responsibility below 18 and above 15,
provided that it can be shown that the individual did not act with discernment.

The President: Can we have it again?

Senator Pimentel: Yes, Mr. President.

The President: Beyond 15 up to below...

Senator Pangilinan: Up to below 18, yes, Mr. President.

The President: Is there an exemption from criminal liability?

Senator Pangilinan: Provided that the individual did not act with discernment, Mr.
President.

The President: So we are actually raising the age to 18?

Senator Pangilinan: Yes, Mr. President. However, if he is above 15 and below 18 and he
committed a criminal offense and it is shown that he acted with discernment,
then he is criminally liable.

The President: So that there is no presumption that if he committed a crime

when he is 15 and above, that he has acted with discernment.

Senator Pangilinan: There is no presumption, Mr. President. It has to be shown that

discernment was in fact]..

Senator Pimentel: Which means, Mr. President, in actual law practice, that the
prosecutor is under obligation to establish by competent evidence that this accused who
is above 15 but below 18 acted with discernment as a separate circumstance.

Senator Pangilinan: That is correct.

The President: All right.19 [Emphases supplied]

Based on the above-cited discussion, when a minor above fifteen (15) but below
eighteen (18) years old is charged with a crime, it cannot be presumed that he or she
acted with discernment. During the trial, the prosecution must specifically prove as a
separate circumstance that the CICL committed the alleged crime with discernment.

Notably, R.A. Np. 9344 was enacted while Dorado's trial was pending before the RTC.
Consequently, Resolution No. 03-2006, dated July 11, 2006, of the Juvenile Justice
Welfare Council (JJWC)20 must apply in the present case. It established the guidelines
for the implementation of the transitory provisions of R.A. No. 9344 and it stated that
one of the duties of the prosecution during the trial regarding the CICL was as follows:

chanRoblesvirtualLawlibrary

4. For above 15 but below 18 years old at the time of the commission of the
alleged offense, with pending case but released on bail or on recognizance or
under detention

• Trial may proceed for the prosecution to prove discernment.

JJWC Resolution No. 03-2006 is in accordance with Section 6 of R.A. No. 9344 because
only those minors above fifteen (15) but below eighteen (18) years old who acted with
discernment may be subjected to criminal prosecution. Hence, in the present case, the
Court must decide whether the prosecution made a determination of discernment on the
part of Dorado during the trial.

"The discernment that constitutes an exception to the exemption from criminal liability
of a minor x x x who commits an act prohibited by law, is his mental capacity to
understand the difference between right and wrong, and such capacity may be known
and should be determined by taking into consideration all the facts and circumstances
accorded by the records in each case, the very appearance, the very attitude, the very
comportment and behavior of said minor, not only before and during the commission of
the act, but also after and even during the trial."21chanrobleslaw

"The basic reason behind the exempting circumstance is complete absence of

intelligence, freedom of action of the offender which is an essential element of a felony
either by dolus or by culpa. Intelligence is the power necessary to determine the
morality of human acts to distinguish a licit from an illicit act. On the other hand,
discernment is the mental capacity to understand the difference between right and
wrong."22 As earlier stated, the "prosecution is burdened to prove that the accused
acted with discernment by evidence of physical appearance, attitude or deportment not
only before and during the commission of the act, but also after and during the trial.
The surrounding circumstances must demonstrate that the minor knew what he was
doing and that it was wrong. Such circumstance includes the gruesome nature of the
crime and the minor's cunning and shrewdness."23 In an earlier case, it was written:

chanRoblesvirtualLawlibrary
For a minor at such an age to be criminally liable, the prosecution is burdened to prove
beyond reasonable doubt, by direct or circumstantial evidence, that he acted with
discernment, meaning that he knew what he was doing and that it was wrong. Such
circumstantial evidence may include the utterances of the minor; his overt acts before,
during and after the commission of the crime relative thereto; the nature of the weapon
used in the commission of the crime; his attempt to silence a witness; his disposal of
evidence or his hiding the corpus delicti.24

After a judicious study of the records, the Court finds that the prosecution did not make
an effort to prove that Dorado, then a sixteen (16)-year old minor, acted with
discernment at the time of the commission of the crime. The RTC decision simply stated
that a privileged mitigating circumstance of minority in favor of Dorado must be
appreciated as it was proven that he was a minor at the time of the incident. Glaringly,
there was no discussion at all on whether Dorado acted with discernment when he
committed the crime imputed against him.

Discernment cannot be presumed even if Dorado intended to do away with Ronald.

Discernment is different from intent. The distinction was elaborated in Guevarra v.
Almodovar.25cralawred Thus:

chanRoblesvirtualLawlibrary
Going through the written arguments of the parties, the surfacing of a corollary
controversy with respect to the first issue raised is evident, that is, whether the term
"discernment," as used in Article 12(3) of the Revised Penal Code (RPC) is synonymous
with "intent." It is the position of the petitioner that "discernment" connotes "intent" (p.
96, Rollo), invoking the unreported case of People vs. Nieto, G.R. No. 11965, 30 April
1958. In that case We held that the allegation of "with intent to kill..." amply meets the
requirement that discernment should be alleged when the accused is a minor between 9
and 15 years old. Petitioner completes his syllogism in saying that:

chanRoblesvirtualLawlibrary
"If discernment is the equivalent of 'with intent', then the allegation in the information
that the accused acted with discernment and willfully unlawfully, and feloniously,
operate or cause to be fired in a reckless and imprudent manner an air rifle .22 caliber'
is an inherent contradiction tantamount to failure of the information to allege a cause of
action or constitute a legal excuse or exception." (Memorandum for Petitioner, p. 97,
Rollo)

If petitioner's argument is correct, then no minor between the ages of 9 and 15 may be
convicted of a quasi-offense under Article 265 of the,RPC.

On the contrary, the Solicitor General insists that discernment and intent are two
different concepts. We agree with the Solicitor General's view; the two terms
should not be confused.

The word "intent" has been defined as:ChanRoblesVirtualawlibrary

"(a) design; a determination to do a certain things; an aim the purpose of the mind,
including such knowledge as is essential to such intent; . . .; the design resolve, or
determination with which a person acts." (46 CJS Intent, p. 1103.)
It is this intent which comprises the third element of dolo as a means of committing a
felony, freedom and intelligence being the other two. On the other hand, We have
defined the term "discernment," as used in Article 12(3) of the RPC, in the old case
of People vs. Doquena, 68 Phil. 580(1939), in this wise:ChanRoblesVirtualawlibrary
"The discernment that constitutes an exception to the exemption from criminal liability
of a minor under fifteen years of age but over nine, who commits an act prohibited by
law, is his mental capacity to understand the difference between right and wrong ..."
(italics Ours) p. 583
From the foregoing, it is clear that the terms "intent" and "discernment" convey two
distinct thoughts. While both are products of the mental processes within a person, the
former refers to the desire of one's act while the latter relate to the moral significance
that person ascribes to the said act. Hence, a person may not intend to shoot another
but may be aware of the consequences of his negligent act which may cause injury to
the same person in .negligently handling an air rifle. It is not correct, therefore, to
argue, as petitioner does, that since a minor above nine years of age but below fifteen
acted with discernment, then he intended such act to be done. He may negligently
shoot his friend, thus, did not intend to shoot him, and at the same time recognize the
undesirable result of his negligence.

In further outlining the distinction between the words "intent" and "discernment," it is
worthy to note the basic reason behind the enactment of the exempting circumstances
embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of
action, or intent, or on the absence of negligence on the part of the accused. In
expounding on intelligence as the second element of dolus, Albert has stated:

chanRoblesvirtualLawlibrary
"The second element of dolus is intelligence; without this power, necessary to determine
the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and
because . . . the infant (has) no intelligence, the law exempts (him) from criminal
liability.26" (Emphasis Ours)

Considering that there was no determination of discernment by the trial court, the Court
cannot rule with certainty that Dorado was criminally responsible. As earlier stated,
there can be no presumption of discernment on the part of the CICL. In the absence of
such determination, it should be presumed that the CICL acted without discernment.
This is in accordance with Section 3 of R.A. No. 9344, to wit:

chanRoblesvirtualLawlibrary
Section 3. Liberal Construction of this Act. — In case of doubt, the interpretation of any
of the provisions of this Act, including its implementing rules and regulations (IRRs),
shall be construed liberally in favor of the child in conflict with the law.

Accordingly, Dorado is deemed exempted from criminal liability. Nevertheless, he is not

excused from the civil liability that arose from the act.27 Thus, the Court is tasked to
determine the crime committed and the civil liability that results from it.

Only Frustrated Homicide

was committed as Evident
Premeditation was not
duly proven

The crime of murder is committed when there is an unlawful killing of any person, which
is not parricide or infanticide, and any of the qualifying circumstances under Article 248
of the RPC exists. On the other hand, a felony is in its frustrated stage when the
offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.28chanrobleslaw

The prosecution witnesses positively identified Dorado as the person who shot Ronald
between the eyes with a sumpak. The crime was not consummated as Ronald survived
because of the medical assistance provided to him after he was immediately brought to
the hospital by his friends. Dr. Artes testified that without the timely medical
intervention, the shooting of Ronald could have led to his death. Accordingly, the CA and
the RTC properly ruled that the crime committed was at its frustrated stage.

The Court is of the view, however, that the prosecution was unable to establish the
element of evident premeditation to qualify the crime to frustrated murder. For evident
premeditation to be appreciated, the following must be proven beyond reasonable
doubt: (1) the time when the accused determined to commit the crime; (2) an act
manifestly indicating that the accused clung to his determination; and (3) sufficient
lapse of time between such determination and execution to allow him to reflect upon the
circumstances of his act.29 For this aggravating circumstance to be considered, it is
indispensable to show how and when the plan to kill was hatched or how much time had
elapsed before it was carried out.30chanrobleslaw

In this case, evident premeditation was not established because, first, the prosecution
evidence only referred to the matters that happened during the incident, and not to the
preparations undertaken by Dorado beforehand to kill Ronald. There was no evidence on
record which would indicate how and when Dorado hatched his plan to kill Ronald. The
mere fact that Dorado was seen with a sumpak at the beginning of the . altercation
does not unequivocally establish that he earlier devised a deliberate plot to murder
Ronald. In order to be considered an aggravation of the offense, the circumstance must
not merely be "premeditation" but must be "evident premeditation."31chanrobleslaw

Second, the prosecution failed to show a sufficient lapse of time between such
determination and execution to allow Dorado to reflect upon the circumstances of his
act. Raniel simply testified that:

chanRoblesvirtualLawlibrary
Q: Jerwin Dorado only? Did he had (sic) companions?
A: Also Jeffrey Confessor, Jayson Cabiaso, and I don't know the other who came,
ma'am.

Q: Can you estimate how many they were?

A: About seven (7) up, ma'am.

Q: When they came, what did you do?

A: We ran because they were armed with sumpak ma'am.

Q: Who was armed with a sumpak?

A: Jerwin Dorado, (witness pointing to accused Jerwin Dorado)

Q: You said you ran, what did you do after you ran?
A: We hid, ma'am.

Q: Where did you hide?

A: We hide (sic) at the back of the talipapa, ma'am.

Q: After you hid, what happened?

A: When we came out, stones were hurled to us and they fired the sumpak to
Ronald.32 [Emphasis supplied]

As can be gleaned above, the prosecution witness did not testify on how long they hid
at the back of the talipapa or how long Dorado's group waited for them to come out. As
the lapse of time between the determination until the execution of the unlawful deed
was unclear, it cannot be established that Dorado had sufficient time to reflect on his
actions.

Lastly, Dorado did not have a cool thought and reflection when he shot Ronald. The RTC
observed that there was an ongoing feud between Dorado's group and Ronald's
group.33 Certainly, Dorado would not have a calm and reflective mind - from the time
Ronald's group hid inside the talipapa market until they moved out of hiding - as he was
obscured by the heat or anger of the moment. The essence of evident premeditation is
that the execution of the criminal act is preceded by cool thought and reflection upon
the resolution to carry out the criminal intent within a space of time sufficient to arrive
at a calm judgment.34chanrobleslaw

The OSG itself, in its Brief for Plaintiff-Appellee (With recommendation for reduction of
penalty)35 filed before the CA, submitted that "the shooting of Ronald was not attended
by evident premeditation.36 For said reason, the crime committed was only frustrated
homicide.

Civil Liabilities

Pursuant to the recent case of People v. Jugueta,37 the crime of frustrated homicide
entails the following awards of damages: P30,000.00 as civil indemnity and P30,000.00
as moral damages. In addition, the damages awarded shall earn legal interest at the
rate of 6% per annum from date of finality of the judgment until fully paid.

WHEREFORE, the petition is GRANTED. The judgment of conviction of Jerwin Dorado

is hereby REVERSED and SET ASIDE by reason of the exempting circumstance of
minority. He is hereby referred to the local social welfare and development officer of the
locality for the appropriate intervention program.

He is also ordered to pay the private complainant, Ronald B onion, civil indemnity in the
amount of P30,000.00 and moral damages in the amount of P30,000.00.,

The amounts of damages awarded shall have an interest at the rate of 6% per annum
from the date of finality of judgment until fully paid.

Let copies of this decision be furnished the two houses of Congress for their information
and guidance in future legislation regarding children in conflict with the laws.

SO ORDERED.chanRoblesvirtualLawlibrary
 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.

DECISION

TIJAM, J.:

Assailed in these consolidated petitions for review1 under Rule 45 of the Rules of Court
are the July 22, 2010 Decision2 and March 29, 2011 Resolution3 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00576- MIN, which set aside the June 17, 2008 Decision4 of
the Regional Trial Court (RTC) of Surigao City, Branch 30, in Criminal Case No. 7363,
finding Noel Go Caoili (Caoili) alias "Boy Tagalog" guilty of the crime of Rape by Sexual
Assault under paragraph 2 of Article 266-A of the Revised Penal Code (RPC), as
amended by Republic Act (R.A.) No. 8353,5 and remanded the case to the RTC for
further proceedings consistent with the CA's opinion.

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 Order9 confirming Caoili 's detention at the
Municipal Station of the Bureau of Jail Management and Penology after his arrest10 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 statement13 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

1. Contusion, 5 inches in width, distal 3rd, lateral aspect, left Thigh.

2. Contusion, 2 cms in width, distal 3rd, lateral aspect, left Forearm
3. (+) tenderness, left parietal area, head
4. (+)tenderness, over the upper periumbilical area of abdomen
5. 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 position16

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 Decision20 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 Order22 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 11927 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 Resolution28 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 issues30 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 havecarnal 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 ofsexual 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 assault35 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 RTC39 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. 761064 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. 761066 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:

xxxx

(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

Q Now, was there any unusual incident that happened at around 7:00 o'clock in the
evening of October 23, 2005?

A Yes, sir.

Q What happened on October 23, 2005 at around 7:00 o'clock in the evening?

A First, he kissed my lips, 2nd, he touched and mashed my breast and his
4th finger touched my private part.
Court

Q 4th finger of what hand?

A Left, your Honor.

xxxx

Q Who has done this to you?

A Noel Go Caoili.

Pros. Silvosa

Q If that Noel Go Caoili is present in the courtroom, can you identify him?

A Yes, sir.

Court

Q What is your relationship with Noel Caoili?

A My father.

xxxx
Pros. Silvosa

Q [AAA], you said that your father touched your vagina and inserted his, the 4th finger
of his left hand, for how many minutes, if you could still recall, when he inserted... I
withdraw the question, your Honor... What specifically did he do with his 4th finger
in your vagina?

A He inserted it in my vagina, sir.

Q While the finger was already inside your vagina, what did he do with his finger?

A He inserted it and pulled it, he inserted and pulled it inside my vagina.

Q Can you still recall or how many or for how long did he made [sic] the push and
pull movement of his fingers inside you vagina?

A Thirty 30 minutes, sir.

Q Now, what did you feel while the finger of your father was inserted in your vagina?

A Pain, sir.68 (Emphasis ours)

AAA likewise confirmed on cross examination69 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 regulations70 of R.A. No. 7610:

(g) "Sexual abuse" includes the employment, use, persuasion, inducement, enticement
orcoercion of a child to engage in, or assist another person to engage in, sexual
intercourse orlascivious 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 toabuse, 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
rape86 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.

G.R. No. 195224, June 15, 2016

VIRGINIA JABALDE Y JAMANDRON, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

REYES, J.:

Before the Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of
Court assailing the Decision2 dated August 12, 2010 and the Resolution3 dated January
4, 2011 of the Court of Appeals (CA) in CA-G.R. CR No. 00424, which affirmed with
modification the Judgment4 promulgated on May 31, 2006 of the Regional Trial Court
(RTC) of Bayawan City, Negros Oriental, Branch 63, in Criminal Case No. 210, finding
Virginia Jabalde y Jamandron (Jabalde) guilty beyond reasonable doubt for violation of
Section 10(a), Article VI, of Republic Act (R.A) No. 7610, otherwise known as the
"Special Protection of Children Against Abuse, Exploitation, Discrimination Act."

The Antecedent Facts

The CA narrated the facts as follows:

chanRoblesvirtualLawlibraryJabalde pleaded "not guilty" in a criminal information dated

October 14, 2002, for violation of Section 10(a), Article VI, of R.A. No. 7610, before the
RTC of Dumaguete City, Branch 31,5 which reads:ChanRoblesVirtualawlibrary
That on December 13, 2000 at 9:00 o'clock in the morning, more or less, in
Barangay Cawitan, Santa Catalina, Negros Oriental, and within the
jurisdiction of the Honorable Court, [Jabalde], with cruelty and with intent to
abuse, maltreat and injure one LIN J. BITOON, 8 years of age, did then and
there willfully, unlawfully and feloniously slap and strike said Lin J. Bitoon,
hitting said Lin J. Bitoon on the latter's nape; and immediately thereafter[,]
[c]hoke the said offended party, causing the latter to sustain the following
injuries: Abrasions: Two (2), linear 1 cm in length at the base of the right
mandibular area; One (1), linear 1 inch at the right lateral neck; Two (2),
linear 1 cm in length at the anterior neck; and Four (4), minute circular at the
left lateral neck, which acts of sa[i]d accused caused the said offended
part[y] not only physical but also emotional harm prejudicial to his
development.

CONTRARY to the aforesaid.6chanroblesvirtuallawlibrary

The witnesses presented by the prosecution were: Lin J. Bito-on (Lin), the minor victim;
Dr. Rosita Muñoz (Dr. Muñoz), the physician who examined Lin; Ray Ann Samson (Ray
Ann), the classmate of Lin who witnessed the incident; and Aileen Bito-on (Aileen), the
mother of Lin.7chanrobleslaw

Lin testified that in the year 2000, he was a Grade 1 pupil of Cawitan Elementary
School. At around 9:00 a.m. of December 13, 2000, he was playing "langit lupa" during
recess with Ray Ann, Marco, Nova and another classmate. During the course of their
game, he touched the shoulder of Nova, Jabalde's daughter, causing the latter to fall
down and wounding her head. He then helped Nova to stand while one of his
classmates called Jabalde. Afraid of what happened, he ran towards a dilapidated
building, which was near the place of the incident. Soon thereafter, Jabalde arrived and
slapped him on his neck and choked him. Lin was able to get out of her hold when he
removed her hands from his neck. He immediately ran towards their house some 500
meters away from the school. He told his mother Aileen about the incident. Thereafter,
he was brought to Sta. Catalina Hospital for treatment and a medical certificate was
then issued to him.8chanrobleslaw

Dr. Muñoz testified that she was the physician who issued the medical certificate to Lin
on December 13, 2000 for the physical examination conducted upon the latter. Dr.
Muñoz stated that Lin sustained abrasions: two (2) linear abrasions 1 cm in length at the
base of the right mandibular area; one (1) linear abrasion 1 inch in length at the right
lateral neck; two (2) linear abrasions 1 cm in length at the back of the neck; and four
(4) minute circular abrasions at the left lateral neck. According to her, the abrasions
could have been caused by a hard object but mildly inflicted and that these linear
abrasions were signs of fingernail marks. Moreover, the abrasions were greenish in color
signifying that they were still fresh. She did not notice other injuries on the body of Lin
except those on his neck.9chanrobleslaw

Ray Ann, the classmate and playmate of Lin, testified that she knows Jabalde because
she was a teacher at Cawitan Elementary School. At about 9:00 a.m. of December 13,
2000, she was playing "langit lupa" with Lin, Nova, Ryan and Rhea. Nova, who was
standing on top of an unstable stone fell on the ground and thereafter hit her head on
the stone. Then, somebody called Jabalde, Nova's mother. When Jabalde came to see
her daughter, she struck Lin on his neck then squeezed it. Lin cried and was able to free
himself and ran towards their house. Jabalde then shouted, "Better that you are able to
free yourself because if not I should have killed you."10 Ray Ann saw Lin again after their
class dismissal at 11:00 a.m. when she went to their house. Lin did not return to school
again because he was afraid of Jabalde. During cross examination, Ray Ann testified
that Lin did not run into the dilapidated building after the incident and that she was near
them when Jabalde struck Lin.11chanrobleslaw
Aileen testified that Lin is her son who was born on September 4, 1993, and at the time
of the incident, he was still 7 years old. That at about 10:00 a.m. of December 13, 2000,
Lin came home crying and trembling. Lin told her that he was strangled by Jabalde, who
happens to be Aileen's aunt and Lin's grandmother. Lin was running back and forth
crying but Aileen noticed his neck with scratches. Thereafter, she went to see his
teacher-in-charge whom she asked for details of the incident. While in the school
campus, she did not see Jabalde. She also testified that they went to Dr. Muñoz for the
examination of her son's injuries. Afterwards, they went home. Her son no longer
returned to the school because of fear but they let him pass on that school year. During
cross-examination, she testified that Jabalde's house is just adjacent to their house in
Cawitan, Sta. Catalina. Aileen also filed two cases against her for stealing and physical
injuries in the year 2002 in Sta. Catalina. After she filed two cases, she then filed the
instant complaint in the Provincial Prosecution's Office in Dumaguete City. She said it
took her until 2002 to file the present charges against Jabalde because she was still
pregnant during the time of the incident and that her husband was still assigned in
Surigao. She admitted that when she was still a child, she already feared Jabalde. She
also initiated the filing of the present case because she heard that if she will not file a
case against Jabalde, the latter instead will file a case against them.12chanrobleslaw

The defense, on the other hand, presented Jabalde herself She testified that she is a
school teacher at Cawitan Elementary School for 18 years. Lin is her grandson and that
his mother Aileen is her niece. She remembered that it was about 10:00 a.m. of
December 13, 2000, she was teaching Mathematics when some children went to her
classroom and shouted "Mam Jabalde, Ma'm Jabalde, Nova's head was punctured
(nabuslot)".13 Thinking that her daughter was dead, her vision got blurred and she
fainted. When she returned into consciousness, she sat on her chair in front of the
board for about 5 to 10 minutes. The children then came again and shouted that her
daughter's head got punctured. She ran towards her daughter's classroom while at the
same time, looking for a gathering of people in the hope of finding her daughter. But,
before reaching the place of the incident, she saw her grandson Lin crying. She asked
him the whereabouts of Nova but he just kept on jumping and so she held him still. Lin
said, "Lola[,] forgive me, forgive me"14 and immediately ran. Jabalde proceeded to her
daughter's room and saw the latter seated on the desk. Thereafter, she brought Nova to
her own classroom and applied first aid. Then she resumed teaching. She believed that
there was a motive in filing the instant complaint which has something to do with a
family grudge because of inheritance.15chanrobleslaw

Another defense witness Rhealuz Pedrona, playmate of Nova and Lin, testified that Nova
got injured while they were playing "langit lupa" during their recess on December 13,
2000. She went to Jabalde to inform her that Nova's head was punctured. Jabalde
immediately ran to the place of incident. She, however, did not see Jabalde slap or
choke Lin.16chanrobleslaw

In its Judgment17 promulgated on May 31, 2006, the RTC found Jabalde guilty beyond
reasonable doubt for violation of Section 10(a), Article VI, of R.A. No. 7610. The
dispositive portion of the judgment reads:ChanRoblesVirtualawlibrary
WHEREFORE, the prosecution having proved the guilt of [Jabalde] beyond reasonable
doubt of violation of paragraph (a), Section 10, Article VI of R.A. 7610, as amended,
[Jabalde] is Convicted. Appreciating in her favor the mitigating circumstance of passion
and obluscation, and applying the provisions of the indeterminate sentence law,
[Jabalde] is hereby sentenced to an indeterminate penalty of imprisonment ranging from
six (6) months and one (1) day of prision correccional in its minimum period, as
minimum to six (6) years and one (1) day of prision mayor in its minimum period, as
maximum

The bond posted for her temporary liberty is hereby ordered release.

SO ORDERED.18chanroblesvirtuallawlibrary
Naturally dissatisfied with the trial court's decision, Jabalde appealed to the CA.

Ruling of the CA

On August 12, 2010, the CA dismissed Jabalde's appeal and affirmed the RTC decision
with modification.19 The dispositive portion of the decision
reads:ChanRoblesVirtualawlibrary
WHEREFORE, the 31 May 2006 Decision, of the [RTC], Branch 63, Bayawan City,
Negros Oriental, is AFFIRMED with MODIFICATION that [Jabalde] is hereby
sentenced to suffer the penalty of four (4) years, nine (9) months and eleven (11)
days of prision correccional, as minimum, to six (6) years, eight (8) months
and one (1) day of prision mayor, as maximum.

SO ORDERED.20chanroblesvirtuallawlibrary
Jabalde filed a motion for reconsideration but it was denied by the CA on January 4,
2011.21
The Issues

1. Whether or not acts complained of are covered by the Revised Penal Code (RPC)
or R.A. No. 7610.

2. Whether or not under the facts established, the lower court erred in appreciating
the acts of Jabalde as constitutive of violation of Section 10(a), Article VI of R.A.
No. 7610.

Ruling of the Court

The petition is meritorious.

Jabalde posits that in her case, the act of inflicting injuries, however minute they were,
is punishable under the RPC particularly Article 266(1)22 which defines slight physical
injuries; hence, she should be punished under the RPC and not under Section 10(a),
Article VI of R.A. No. 7610.23chanrobleslaw

The Office of the Solicitor General (OSG) pointed out in its Comment24 filed on May 24,
2011 that since the issue was just raised for the first time on appeal by Jabalde, this is
already barred by estoppel citing the cases of People v. Francisco25cralawred and People
v. Lazaro, Jr.26chanrobleslaw

The cases cited by the OSG do not apply in this case. In Francisco, the appellant
assailed the order of the trial court for failing to ascertain the voluntariness of his plea of
guilt for the records show neither proof nor a transcript of the proceedings that the
appellant indeed voluntarily made a guilty plea and that he fully understood its import.
The appellant also maintained that he was not given the opportunity to present evidence
and that the case was submitted for decision immediately after the prosecution filed its
offer of evidence. In Lazaro, the appellant raised the buy-bust team's alleged non-
compliance with Section 21, Article II of R.A. No. 9165. In both cases, this Court held
that issues raised for the first time on appeal are barred by estoppel.

However, the reliance on the foregoing cases is misplaced due to different factual
antecedents. Here, Jabalde postulates that the acts complained of do not fall within the
definition of R.A. No. 7610 and therefore, she should not be convicted on the basis of
the said law, to wit:ChanRoblesVirtualawlibrary
[Jabalde] postulates that other acts of child abuse falling under Section 10 (a), Art. II,
R.A. 7610 is limited to acts not punishable under the [RPC]. As the law is being defined
in this section:

chanRoblesvirtualLawlibrary"Any person who shall commit any other acts of child abuse,
cruelty or exploitation or be responsible for other conditions prejudicial to the child's
development including those covered by Article 59 of Presidential Decree No. 603, as
amended, but not covered by the [RPC], as amended, shall suffer the penalty of prision
mayor in its maximum period[."]

Needless to say, acts which are covered under the [RPC] will be dealt with under the
provisions of the [RPC] and definitely, out of the context of R.A. 7610, particularly
Section 10 (a). In the case of [Jabalde], the act of inflicting injuries, however minute
they were, is punishable under the [RPC] particularly Article 266 (1) which defines slight
physical injuries. The act of [Jabalde] in slapping, striking and choking [Lin], causing
abrasions on the different parts of his neck is absolutely covered within the realm of
Article 266 (1). When the offender has inflicted physical injuries which shall incapacitate
the offended party for labor from one to nine days, or shall require medical attendance
during the same period, shall be punished with arresto menor.27 (Citations omitted)
Here, Jabalde questions the applicability of R.A. No. 7610 on the factual circumstances
of the case and is correct in claiming that the instant petition raises pure question of
law28 and not question of fact29 as being argued by the OSG. In Cucueco v. CA,30 the
Court discussed the distinction between questions of law and questions of fact, to
wit:ChanRoblesVirtualawlibrary
The distinction between questions of law and questions of fact has long been settled.
There is a "question of law" when the doubt or difference arises as to what the law is on
certain state of facts, and which does not call for an examination of the probative value
of the evidence presented by the parties-litigants. On the other hand, there is a
"question of fact" when the doubt or controversy arises as to the truth or falsity of the
alleged facts. Simply put, when there is no dispute as to fact, the question of whether or
not the conclusion drawn therefrom is correct, is a question of law.
Simple as it may seem, determining the true nature and extent of the distinction is
sometimes complicated. In a case involving a "question of law," the resolution of
the issue must rest solely on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact. If the query requires a re-evaluation of the
credibility of witnesses, or the existence or relevance of surrounding circumstances and
their relation to each other, the issue in that query is factual.

x x x The test of whether a question is one of law or of fact is not the appellation given
to such question by the party raising the same; rather, it is whether the appellate court
can determine the issue raised without reviewing or evaluating the evidence, in which
case, it is a question of law; otherwise, it is a question of fact.31 (Citations omitted and
emphasis ours)
"The Court has consistently ruled that a question of law exists when there is a doubt or
controversy as to what the law is on a certain state of facts. On the other hand, there is
a question of fact when the doubt or difference arises as to the truth or the alleged
falsehood of the alleged facts. For a question to be one of law, it must involve no
examination of the probative value of the evidence presented by the litigants or any of
them."32chanrobleslaw

In the case on hand, Jabalde neither questions the veracity or the falsehood of the
alleged facts nor the sufficiency of the evidence, but the appreciation of R.A. No. 7610
on the factual circumstances of the case. Jabalde is simply correct in raising the
question of law in the instant petition.

Now, on the substantive issue of the applicability of R.A. No. 7610 in the case at bar,
the Court agrees with the contention of Jabalde in her Reply to OSG's Comment33 that
the acts complained of do not fall within the definition of the said law, to
wit:ChanRoblesVirtualawlibrary
The [OSG] in his comment is correct in saying that the issues that could be raised in a
petition for review are purely questions of law. Guided by this principle, [Jabalde] comes
to this Court to raise a question of law. [Jabalde] has been arguing when she availed of
his right to appeal that the acts of the [OSG] does not fall within the definition of R.A.
7610 and should not be convicted on the basis of the said law. This is not a new matter
that [Jabalde] raised.34chanroblesvirtuallawlibrary
The law under which Jabalde was charged, tried and found guilty of violating is Section
10(a), Article VI, of R.A. No. 7610, which states:ChanRoblesVirtualawlibrary
SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development.

(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or to be responsible for other conditions prejudicial to the child's
development including those covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer
the penalty of prision mayor in its minimum period. (Emphasis ours)
Child abuse, the crime charged, is defined by Section 3(b) of R.A. No. 7610, as
follows:ChanRoblesVirtualawlibrary
SEC. 3. Definition of terms. -

xxxx

(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child which
includes any of the following:

chanRoblesvirtualLawlibrary
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth
and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or death.
In the recent case of Bongalon v. People,35 the Court expounded the definition of "child
abuse" being referred to in R.A. No. 7610. In that case, therein petitioner was similarly
charged, tried, and convicted by the lower courts with violation of Section 10(a), Article
VI of R.A. No. 7610. The Court held that only when the laying of hands is shown beyond
reasonable doubt to be intended by the accused to debase, degrade or demean the
intrinsic worth and dignity of the child as a human being should it be punished as child
abuse, otherwise, it is punished under the RPC, to wit:ChanRoblesVirtualawlibrary
Although we affirm the factual findings of fact by the RTC and the CA to the effect that
the petitioner struck Jayson at the back with his hand and slapped Jayson on the face,
we disagree with their holding that his acts constituted child abuse within the purview of
the above-quoted provisions. The records did not establish beyond reasonable
doubt that his laying of hands on Jayson had been intended to debase the
"intrinsic worth and dignity" of Jayson as a human being, or that he had
thereby intended to humiliate or embarrass Jayson. The records showed the
laying of hands on Jayson to have been done at the spur of the moment and
in anger, indicative of his being then overwhelmed by his fatherly concern for the
personal safety of his own minor daughters who had just suffered harm at the hands of
Jayson and Roldan. With the loss of his self-control, he lacked that specific
intent to debase, degrade or demean the intrinsic worth and dignity of a child
as a human being that was so essential in the crime of child abuse.36 (Emphasis
ours and italics in the original)
Jabalde was accused of slapping and striking Lin, hitting the latter on his nape, and
immediately thereafter, choking the said offended party causing the latter to sustain
injuries.37 However, the records of the case do not show that Jabalde intended to
debase, degrade or demean the intrinsic worth and dignity of Lin as a human being.

Black's Law Dictionary defined debasement as "the act of reducing the value, quality, or
purity of something."38 Degradation, on the other hand, is "a lessening of a person's or
thing's character or quality."39 Webster's Third New International Dictionary defined
demean as "to lower in status, condition, reputation, or character."40chanrobleslaw
The laying of the hands on Lin was an offshoot of Jabalde's emotional outrage after
being informed that her daughter's head was punctured, and whom she thought was
already dead. In fact, her vision got blurred and she fainted. When she returned into
consciousness, she sat on her chair in front of the board for about five to ten
minutes.41 Moreover, the testimony of the examining physician, Dr. Muñoz, belied the
accusation that Jabalde, with cruelty and with intent, abused, maltreated and injured
Lin, to wit:ChanRoblesVirtualawlibrary
[T]he abrasions could have been caused by a hard object but mildly inflicted. She also
testified that the linear abrasions were signs of fingernail marks. She did not notice
other injuries on the body of the victim except those on his neck. Moreover, the
abrasions were greenish in color, signifying that they were still fresh.42 (Emphasis ours)
It would be unforeseeable that Jabalde acted with cruelty when prosecution's witness
herself testified that the abrasions suffered by Lin were just "mildly inflicted." If Jabalde
indeed intended to abuse, maltreat and injure Lin, she would have easily hurt the 7-
year-old boy with heavy blows.

As a mother, the death of her child, who has the blood of her blood, and the flesh of her
flesh, is the most excruciating idea that a mother could entertain. The spontaneity of the
acts of Jabalde against Lin is just a product of the instinctive reaction of a mother to
rescue her own child from harm and danger as manifested only by mild abrasions,
scratches, or scrapes suffered by Lin, thus, negating any intention on inflicting physical
injuries. Having lost the strength of her mind, she lacked that specific intent to debase,
degrade or demean the intrinsic worth and dignity of a child as a human being that was
so essential in the crime of child abuse. In fine, the essential element of intent was not
established with the prescribed degree of proof required for a successful prosecution
under Section 10(a), Article VI of R.A. No. 7610.

What crime, then, did Jabalde commit?

Jabalde is liable for slight physical injuries under Article 266(2) of the RPC, to
wit:ChanRoblesVirtualawlibrary
ART. 266. Slight physical injuries and maltreatment - The crime of slight physical injuries
shall be punished:

chanRoblesvirtualLawlibraryx x x x

2. By arresto menor or a fine not exceeding 20 pesos and censure when the offender
has caused physical injuries which do not prevent the offended party from engaging in
his habitual work nor require medical assistance.

xxxx
As found out by Dr. Muñoz, Lin only sustained abrasions namely: two linear abrasions of
1 cm in length at the base of the right mandibular area; one linear abrasion of 1 inch in
length at the right lateral neck; two linear abrasions of 1 cm in length at the back of the
neck; and four minute circular abrasions at the left lateral neck.43 When there is no
evidence of actual incapacity of the offended parly for labor or of the required medical
attendance; or when there is no proof as to the period of the offended party's incapacity
for labor or of the required medical attendance, the offense is only slight physical
injuries.44chanrobleslaw

Although it is found out, as discussed hereinabove, that Jabalde lacked the intent to
debase, degrade or demean the intrinsic worth and dignity of the child as a human
being as required under Section 10(a), Article VI of R.A. No. 7610, her acts of laying
hands against Lin showed the essential element of intent which is a prerequisite in all
crimes punishable under the RPC.

The case of Villareal v. People45 is instructing. In that case, the Court discussed that the
RPC belongs to the classical school of thought. The criminal liability is thus based on the
free will and moral blame of the actor. The identity of mens rea - defined as a guilty
mind, a guilty or wrongful purpose or criminal intent - is the predominant consideration.
In order for an intentional felony to exist, it is necessary that the act be committed by
means of "dolo" or "malice".46chanrobleslaw

The Court further explained that the term "dolo" or "malice" is a complex idea involving
the elements of freedom, intelligence, and intent. The element of intent is described as
the state of mind accompanying an act, especially a forbidden act. It refers to the
purpose of the mind and the resolve with which a person proceeds. On the other hand,
the term "felonious" means, inter alia, malicious, villainous, and/or proceeding from an
evil heart or purpose. With these elements taken together, the requirement of intent in
intentional felony must refer to malicious intent, which is a vicious and malevolent state
of mind accompanying a forbidden act.47
In order to be found guilty of the felonious acts under Articles 262 to 266 of the [RPC],
the employment of physical injuries must be coupled with dolus malus. As an act that
is mala in se, the existence of malicious intent is fundamental, since injury arises from
the mental state of the wrongdoer — iniuria ex affectu facientis consistat. If there is no
criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in
case of physical injuries under the [RPC], there must be a specific animus iniuriandi or
malicious intention to do wrong against the physical integrity or well-being of a person,
so as to incapacitate and deprive the victim of certain bodily functions. Without proof
beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting
physical injuries per se merely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty
unless his intentions are.48chanroblesvirtuallawlibrary
In the case at bar, the positive testimonies of the minor victim Lin that Jabalde slapped
him on his neck and choked him,49 and that of Ray Ann that she saw Jabalde struck Lin
on his neck, squeezed it and then shouted, "Better that you are able to free yourself
because if not I should have killed you,"50 deserve more credit than Jabalde's own
statement that she merely held Lin still because the latter kept on jumping.51 The laying
of the hands and the utterance of words threatening the life of Lin established the fact
that Jabalde, indeed, intended to cause or inflict physical injuries on, much less kill, Lin.

The penalty for slight physical injuries is arresto menor, which ranges from one (1) day
to thirty (30) days of imprisonment.52 In imposing the correct penalty, however, the
Court has to consider the mitigating circumstance of passion or obfuscation under Article
13(6). of the RPC,53 because Jabalde lost his reason and self-control, thereby
diminishing the exercise of his will power.54 There is passional obfuscation when the
crime was committed due to an uncontrollable burst of passion provoked by prior unjust
or improper acts, or due to a legitimate stimulus so powerful as to overcome
reason.55 For passion and obfuscation to be considered a mitigating circumstance, it
must be shown that: (1) an unlawful act sufficient to produce passion and obfuscation
was committed by the intended victim; (2) the crime was committed within a reasonable
length of time from the commission of the unlawful act that produced the obfuscation in
the accused's mind; and (3) the passion and obfuscation arose from lawful sentiments
and not from a spirit of lawlessness or revenge.56 With her having acted under the belief
that Lin had killed her daughter, Jabalde is entitled to the mitigating circumstance of
passion and obfuscation.

Arresto menor is prescribed in its minimum period (i.e. one [1] day to ten [10] days)
when only mitigating circumstance is present in the case.57 Accordingly, with the
Indeterminate Sentence Law being inapplicable due to the penalty imposed not
exceeding one year,58 Jabalde shall suffer a penalty of one (1) day to ten (10) days
of arresto menor.

WHEREFORE, the Decision dated August 12, 2010 and Resolution dated January 4,
2011 of the Court of Appeals in CA-G.R. CR No. 00424 are SET ASIDE; and a new
judgment is ENTERED (a) finding petitioner Virginia Jabalde y
Jamandron GUILTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL
INJURIES under paragraph 2, Article 266, of the Revised Penal Code, and (b)
sentencing her to suffer the penalty of one (1) day to ten (10) days of arresto menor.

SO ORDERED.chanRoblesvirtualLawlibrary

G.R. No. 202838 September 17, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
JULITO GERANDOY, Accused-Appellant.

DECISION

"Childhood should be carefree, playing in the sun: not living a nightmare in the darkness
of the soul."

-Dave Pelzer, A Child Called "It"

PEREZ, J.:

This is an appeal filed by herein accused Julito Gerandoy (Gerandoy) from the
Decision1 of the Court of Appeals, modifying the decision or conviction rendered by the
Regional Trial Court of Surigao City and finding the accused guilty of two counts of Acts
of Lasciviousness in relation to Section 5(b) of Republic Act No. 7610 or "Special
Protection of Children Against Abuse, Exploitation and Discrimination Act."

The Facts

Before the Regional Trial Court of Surigao City, Gerandoy was charged with two counts
of the crime of rape under Article 266-A, paragraph 1 in relation to Article 266-B of the
Revised Penal Code.

Criminal Case No. 6624

That on or about the 16th day or December, 2001 in the City or Surigao, Philippines and
within the jurisdiction of this Honorable Court, the above named-accused, by means of
foreel,I threats, violence, and intimidation and with the use of deadly weapon and then
and there willfully, unlawfully and feloniously have sexual intercourse with AAA,2 a 13
year old girl, I his] own daughter without the consent and against the will of the latter,
to her damage and prejudice of in such sum as may be allowed by law.

Contrary to law Article 266-A paragraph 1 in relation to Article 266-B of the Revised
Penal Code, with the qualifying circumstance of relationship, the victim being the
daughter of the accused and aggravating circumstance of use of deadly weapon.3

Criminal Case No. 6625

That on or about the 7th day of December, 2001 in the City or Surigao, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, by means of
force[,] threats, violence, and intimidation and then and there willfully, unlawfully and
feloniously have sexual intercourse with AAA, a 13 year old girl, !his] own daughter
without the consent and against the will of the latter, to her damage and prejudice of in
such sum as may be allowed by law.

Contrary to law Article 266-A paragraph 1 in relation to Article 266-B of the Revised
Penal Code, with the qualifying circumstance of relationship, the victim being the
daughter of the accused.4

When arraigned on 17 February 2004, he pleaded not guilty to the offenses charged.5

Version of the Prosecution

The victim, AAA, then 13-years-old at the time of the commission of rape, narrated that
her father, accused Gerandoy, raped her on two (2) occasions on 7 and 16 December
2001 . She recalled that the first rape was committed on or about 12:00 a.m. of 7
December 2001 at their house. She narrated that while she was sleeping with her
brothers and sisters in one of the two rooms inside their house, she was awakened
when Gerandoy entered the room and hugged her. The accused then forced her to lie
down despite her resistance. She tried to stand up but the accused held her waist. He
then kissed her cheeks and tore her dress with a knife. She kept on resisting the assault
of the accused but the latter told her that he would kill them all if she would not consent
to his advances. AAA told him that she was her daughter and his acts were sinful. The
accused stabbed and boxed her stomach. She lost her consciousness. After she became
conscious, she was already undressed and noticed that her vagina was bleeding while
the accused was lying beside her. She cried and went away to the farm and reported
the incident to the elder sister6 of her mother, CCC (Aunt CCC).7

The second incident of rape happened on 16 December 2001 at around 11 :00 p.m. AAA
recalled that she was sleeping in a room she shared with her brothers and sisters when
awakened by Gerandoy. Gerandoy then touched her face and told her that he will rape
her again. She pleaded him to stop but her father continued to touch her body. AAA
resisted but her father held her arms and forced her to lie down. She kept on resisting
but Gerandoy held a knife at her waist and warned that he could easily stab her. He
slapped her and warned further that he would kill all members of their family including
himself if she would keep on resisting. Gerandoy told her not to resist anymore as her
two older sisters have already been molested by him. She was then undressed and
Gerandoy mounted her. He touched and sucked her nipple and kissed her lips. After
that, AAA went again to her aunt and told her what happened.8 During trial, AAA
clarified that she reported the first incident or rape to her aunt one month after it
happened. She reported the second incident three months after. She explained that the
delay was due to her fear that her father would make real his warning and continuing
threats that he would kill them all. When asked why she rep01icd the incidents to her
aunt instead of her mother, she answered that she did tel 1 her mother about what
happened but the she was told to keep quiet about them because it was embarrassing.
She reported the incident to the police on 2003 and was medically examined9 on 3
September 2003.

The prosecution likewise presented Dr. Josephine Del Carmen (Dr. Del Carmen), the
medico-legal expert who examined AAA on 3 September 2003. In lieu of her testimony
in open court, the prosecution and defense stipulated on the genuineness and due
execution as well as the authenticity of her findings.

Aside from the testimony of AAA and stipulation of facts relating to the medical
examination on the victim, the prosecution likewise offered as evidence the Certificate of
Live Birth of the victim to prove that she was a minor when the two incidents of rape
were committed and the medical certificate10 issued by Dr. Del Carmen.

Version of the Defense

On 30 September 2004, AAA executed an Affidavit of Desistance11 that she was no

longer pursuing her case against her father. However, the court issued an order on 30
August 2005 ordering the continuance of the case to determine the voluntariness of the
execution of the affidavit.12

Aside from the affidavit, the defense presented its first witness BBB, the mother of the
victim and wife of the accused. She denied that her daughter AAA was raped on 7
December 2001 as the victim was not in their house when the alleged incident
happened. BBB, controverting the earlier statement of AAA, said that she was in their
house on 7 December 2001 and was feeding her infant child during that time.13
Likewise, she denied that AAA was raped on 16 December 200 I. BBB testified that AAA
left their house at around 8:00 p.m. to attend a Christmas party with her friends. AAA
did not return and stayed in her Aunt CCC's house. BBB further said that it was unlikely
that the accused would be able to rape AAA as he was in the farm on that date and time
and arrived home at 7:00 a.m. the day after. Upon learning that AAA did not return
home, the accused scolded and beat her with a broom. As a result, AAA went away and
since then stayed in her aunt's house. She also identified the affidavit of desistance of
AAA. She said that her daughter told her that the charges of rape against Gerandoy
were not true.14

On her cross-examination, BBB denied that she was working as a house helper when the
alleged incidents of rape happened. She gave conflicting answers on how many children
she has and the year when AAA was born.15

On 26 September 2007, AAA was again called to the witness stand to testify on the
voluntariness of the affidavit of desistance she executed on 30 September 2004.16

On her cross-examination, she testified that pity for her father prompted her desistance.
She expressed her apprehension that nobody would take care of her other siblings if the
case against her father would push through. She confirmed that her Aunt CCC convinced
her to file a rape case against her father. When asked by the court to confirm her
reason why she was desisting, she again answered that she pitied her father.17

Finally, the defense presented the accused as its last witness. In his direct examination,
he denied the charges of rape filed against him as he was not present in their house at
the time the alleged incidents happened. He testified that from 15 December 2011, he
was in the farm harvesting coconuts for copra and only arrived at their house in the
evening of 19 December 2001. He learned that his daughter AAA was not there. He was
told by BBB that AAA did not return home since 15 December 2001 afler attending a
party with her boyfriend. He later confronted AAA about this but AAA answered back.
Mad about AAA's response, he beat his daughter with a broom. After that, she ran away
to her Aunt CCC's house. He mentioned that CCC and her husband held grudges against
him as he did not allow them to join in the harvesting of coconuts.18

In his cross-examination, only few questions were asked by the prosecution. Gerandoy
confirmed that he was in the farm from 15-19 December 2001 and did not go home to
sleep in their house. He also stated that he became angry with AAA about what her
daughter did on 15 December 2001.19

Upon resting their case, the defense offered the affidavit or desistance of AAA as
documentary evidence.

The Ruling of the Trial Court

The trial court on 13 February 2009 found Gerandoy guilty beyond reasonable doubt for
each count of rape and imposed upon him the penalty of reclusion perpetua with all the
accessory penalties and civil indemnities.20 The dispositive portion reads:
WHEREFORE, for Criminal Cases Nos. 6624 and 6625, the Court hereby finds the
accused JULITO GERANDOY, GUILTY beyond reasonable doubt as principal for the two
counts of rape committed respectively on December 7, 2001 and December 16, 2001, as
may be defined and penalized under Article 266-A and 266-B of the Revised Penal Code
in relation to Republic Act No. 9346.

This Court hereby sentences accused. JULITO GERANDOY FOR EACH COlJNT OF RAPE
to suffer the penalty of RECLUSION PERPETUA together with all the accessory penalties
provided for by law; to indemnify the victim AAA the amount of SEVENTY FIVE
THOUSAND (₱75,000.00) PESOS; another sum of SEVENTY FIVE THOUSAND
(₱75,000.00) PESOS as moral damages; and to pay the costs.

In the service or his sentence accused shall be credited with the full period or his
preventive imprisonment pursuant to Article 29 or the Revised Penal Code as amended
by Republic Act No. 6127.

Let commitment order [BE ISSUED] for the transfer of the accused from the City Jail
BJMP, Silop, Surigao City to the Bureau of Corrections, Muntinlupa, pursuant to Circular
4-92 of the Supreme Court of the Philippines dated April 20, 1992 regarding the transfer
of National Prisoners to the Bureau of Corrections in Muntinlupa City.21

In its ruling, the trial court found credible the first testimony given by AAA being
spontaneous and worthy of credibility. It did not give weight to the affidavit of
desistance as it was based on pity. Similarly, the court set aside the argument of the
accused that it was impossible for the victim to be sexually abused inside a small room.
Jurisprudential rulings have been consistent that rape need not be committed in isolated
places.

The Ruling of the Court of Appeals

On 29 November 2011, the appellate court modified the ruling of the trial court. The
dispositive portion reads:

IN LIGHT OF ALL THE FOREGOING, the Court hereby MODIFIES the assailed Decision
dated February 13, 2009 of the Regional Trial Comi, Branch 29, Surigao City in Criminal
Case Nols]. 6624 and 6625. The Accused-Appellant Julito Gerandoy is found GUILTY of
two counts of Acts of Lasciviousness in relation with Section 5(b) of Republic Act No.
7610 or Child Prostitution and Other Sexual Abuse and is hereby sentenced to suffer the
penalty of reclusion perpetua. He is likewise ordered to pay a fine of P 15,000.00 and to
indemnify AAA ₱20,000.00 as civil indemnity, ₱15,000.00 as moral damages, and
₱15,000.00 as exemplary damages for each count, plus legal interest on all damages
awarded at the rate of six percent (6%) from the date of finality of this decision until
fully paid.22

It ruled that the two counts of rape have not been sufficiently established by the
prosecution with moral certainty but nevertheless still found the accused liable for acts
of lasciviousness in relation with Section 5 (b) of Republic Act No. 7610. It found
credible the testimony of AAA that the accused hugged, kissed her lips and nipples,
caressed her body and touched her breasts. The appellate court dismissed the argument
that it is highly unlikely that the victim would be sexually abused in a small room
surrounded by her own siblings.

Our Ruling

After a careful review of the evidence, we affirm with modification the ruling of the
Court of Appeals.

Primarily, accused relies on arguments initially raised in his Supplemental Brief filed
before the Court of Appeals. The accused reiterates denial of the commission of the
crime, relying on the affidavit of dcsistance. The accused assigns as error that the
appellate court did not give credit to the affidavit since it truthfully narrated his non-
liability, and pointed to revenge as the reason for the filing of the charges. Further, it
emphasizes the inconsistencies made by AAA during her testimony thus eroding her
credibility. Finally, in his last effort to discredit the victim, the accused asserts that the
filing of the case after the lapse of two years from the commission of the alleged crime
indicates ill-motive on the part of the victim.

We find no merit in the appeal.

Article 266-A of the Revised Penal Code as amended by Republic Act No. 8353 describes
how 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;

d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present. (Emphasis
ours).

Rape is qualified if the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim.23

Upon review, we find the positive and credible testimony of AAA sufficient to convict the
accused of the crime of rape.

The pertinent portion of her testimony is quoted as follows:

Q: After that when he hugged you what happened next?

A: He forced me to lie down.

Q: Then did you lie down?

A: I resisted, sir.

Q: When you resisted what happened next?

A: I tried to stand up but he held me.

Q: Then what did he do next after he held you?

A: He was still holding me.

Q: In what part of your body was held by him'?

A: My waist, sir.

Q: Then after he held your waist what did he do next'?

A: He kissed me.

Q: What part of your body was kissed by him?

A: At my [check].

Q: Only at your [check]?

A: Yes, sir.

Q: After he kissed you in your [check], what happened next?

A: He forced me to lie down, sir.

Q: Then he was able to let you lie down?

A: Yes, sir.

Q: After that what happened next?

A: He tried to undress me but I resisted.

Q: What happened next after that?

A: He tore my dress.

Q: What did he use in tearing your dress?

A: Knife, sir.

Q: After tearing your dress what happened next?

A: He told me that if Twill not consent he will kill us all.

Q: In your understanding what was your consent – what was to be your consent about?

A: That I cannot permit him to touch me.

xxxx

Q: Then what happened next after that?

A: I kept on resisting, sir.

Q: And after you have been resisting, what happened next?

A: Then he told me again if I will not consent.

Q: What was your reply?

A: I told him that "I will not consent because you arc my father and I am your daughter
and it is against the law of God.

Q: Then what did he do when you said those statements?

A: I kept on crying and told him that I will not consent.

Q: After that -after you were crying what happened next?

A: I kept on crying and the knife was kept on pointing at my waist and kept on telling
me to give in and if I will not give in he will kill me.

Q: What happened next?

A: He stabbed because I keep on resisting.

Q: Were you wounded when he stabbed you?

A: Yes, sir, only a small wound.

Q: After stabbing you and inflicted you with a small wound, what happened next?

A: I kept on crying and he kept on telling me that I will give in to him and I kept on
pleading to him that I am his daughter and then he boxed my stomach.
Q: After boxing you, what happened next?

A: I lost my consciousness.

Q: And after you regain your consciousness what happened?

A: I was already undressed, I have no underwear. I have no more short pants.

Q: But did you notice in yourself after you regain your consciousness?

A: When I regained my consciousness he was at my side and I noticed that there were
blood on my vagina, sir.24 (Emphasis ours).

It is evident from the testimony of AAA that all the clements of rape were established.
The prosecution was able to prove that on 7 December 2001, the accused Gerandoy
entered the room where AAA was sleeping with her siblings and through the use of
force, threat, intimidation and deadly weapon, succeeded in having carnal knowledge
with the victim against her will.

The appellate court lowered the crime from rape to acts or lasciviousness upon finding
that the testimony of the victim was incomplete to constitute all the elements of rape. It
concluded that:

AAA's testimony that her vagina was bloodied when she woke up. absent even of a
testimony that she felt pain in the said area due to lacerations of her genitals, can be
construed and interpreted to mean various other things, some of which arc inconsistent
with rape. A bloodied vagina could not only mean forceful penetration but it could also
be a result of a menstrual discharge, among others. Thus the stark absence in the
testimony of AAA that she felt pain in her genitalia or even d octor or medical
practitioner, who examined AAA immediately after the incident, that there were fresh
lacerations in her vagina, which was caused by insertion of the penis in the vagina or
even a conclusion that a blunt object entered the same, is constitutive of an obvious
failure to positively establish that the crime of rape was committed on December 7,
2001.25

We do not agree.

Despite the absence in AAA's testimony that there was actual carnal knowledge
considering that she Jost consciousness before that, circumstances indicate that the
bloodied vagina was a result of insertion or the accused's penis to the vagina of the
victim.

Direct evidence is not the only means of proving rape beyond reasonable doubt.26 Even
without direct evidence, the accused may be convicted on the basis of circumstantial
evidence, provided the proven circumstances constitute an unbroken chain leading to
one fair reasonable conclusion pointing to the accused, to the exclusion of all others, as
the guilty person.27
To prove conviction based on circumstantial evidence, there was more than one
circumstance; the facts from which the inferences were derived were proved; and the
combination of all the circumstances was such as to produce a conviction beyond
reasonable doubt. What was essential was that the unbroken chain of the established
circumstances led to no other logical conclusion except the appellant's guilt.28

In People v. Lupac,29 the Court convicted the accused of the crime or rape even in the
absence of direct testimonial evidence from the victim that the accused had an actual
carnal knowledge of her. It rejected the argument of the accused that the victim, being
then asleep and unconscious, could not reliably attest to his supposed deed. The Court
found the accused guilty or raping the victim while the latter was sleeping and
unconscious based on the following circumstances:

x x x (a) when AAA went to take her afternoon nap, the only person inside the house
with her was Lupac; (h) about an hour into her sleep, she woke up to find herself
already stripped naked as to expose her private parts; (c) she immediately felt her body
aching and her vaginal region hurting upon her regaining consciousness; (d) all doors
and windows were locked from within the house, with only her and the brief.-clad Lupac
inside the house; (e) he exhibited a remorserul demeanor in unilaterally seeking her
forgiveness (Pasensiya ka na AAA), even spontaneously explaining that he did not really
intend to do "that" to her, showing his realization or the gravity or the crime he had just
committed against her; (/) her spontaneous, unhesitating and immediate denunciation
or the rape to Tita Terry and her mother (hindot being the term she used); and (g) the
medico-legal findings about her congested vestibule within the lahiu minora, deep fresh
bleeding laceration at 9 o'clock position in the hymen, and abraded and U-shaped
posterior fourchette proved the recency or infliction of her vaginal injuries.30

Similarly, we find the accused guilty of the crime of rape based on the following
unbroken circumstances. First, the accused entered the room where AAA was sleeping
and forced her to lie down. Second, AAA resisted but the accused continued to kiss her.
Third, the accused succeeded in undressing her by tearing her clothes with a knife
despite her resistance. Fourth, he pointed his knife in her waist and threatened to kill
her. Fifih, due to AAA' s continued resistance, he stabbed and boxed her stomach
causing AAA to lose consciousness. Sixth, upon regaining her consciousness, AAA was
already undressed and her vagina was already bleeding while the accused was lying at
her side.

Clearly, conviction is proper. Combining in an unbroken chain the proven circumstances,

there can be no other logical conclusion than that AAA was raped by appellant.

On the other hand, we agree with the appellate court that there was only an act of
lasciviousness on 16 December 2001.

On that day, a similar fate befell AAA at around 11 :00 p.m. when the accused sexually
abused the victim. We find credible AAA 's testimony that the accused entered the small
room where the victim was sleeping and pawed her body. The accused threatened to kill
all the members of their family in case of resistance and even told the victim not to
resist as he had already molested her other siblings. Thereafter, the accused undressed
AAA a nd forced her to lie down. He then mounted himself on top of AAA, touched and
sucked her nipple and kissed her on her lips.31

Lascivious conduct is defined as 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.32

The elements of sexual abuse33 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.34

It is deemed that a child is sexually abused under Section 5(b) of Republic Act No. 7610,
when he or she is subjected to other 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.35

In Roallos v. People,36 the Court found Roallos guilty of acts of lasciviousness in relation
to Sec. 5(b) of Republic Act No. 7610, when he placed his right hand on the victim's
right shoulder, slid his hand towards the victim's both breasts and mashed them and
kissed the victim's right cheek.

Likewise in Garingarao v. People, the Court found Garingarao guilty of acts of

lasciviousness when he, under the pretext of examining the victim as a hospital's nurse,
lifted the latter's bra and touched her lell breast. He further pressed the stethoscope to
her stomach, touched her two nipples and slid his finger inside the victim's private part.

In this case, the prosecution established that Gerandoy again entered the room where
AAA was sleeping and performed lascivious acts against her. Despite AAA 's objection,
Gerandoy touched parts of her body. He continued his sexual advances by undressing
AAA and forced her to lie down. He kissed AAA's lips, mounted himself on top of her and
touched and sucked AAA's nipple.

The accused also tried to raise doubt on the victim's credibility due to the presence of
other people inside the small room when the lascivious acts were committed. He
advances his theory that there is no way that the victim's siblings, who were sleeping on
the same room, would fail to notice that the accused entered the room, boxed,
threatened and stabbed the victim and be successful in raping and performing lascivious
acts against her.

We arc unconvinced.
As repeatedly held by this Court, "Lust is no respecter of time and place."37 Neither the
crampness of the room, nor the presence of other people therein, nor the high risk of
being caught, has been held sufficient and effective obstacle to deter the commission of
rape.38 In the case of People v. Alarcon,39 the accused argued that rape could not have
committed when the victim's siblings were by her side was dismissed by the court.
Isolation is not a determinative factor to rule on whether a rape was committed or not
and there is no rule that a woman can only be raped in seclusion.40 It ca be committed,
discreetly or indiscreetly, even in a room full of family members sleeping side by side. It
has been ruled that rape is not rendered impossible simply because the siblings of the
victim who were with her in that small room were not awakened during its
commission.41

Also, if rape can be committed inside a small room with occupants sleeping side by side,
it is likewise not impossible for the accused to commit acts of lasciviousness or other
sexual abuses against the victim in a similar setting even if her siblings were sleeping
with her.

The accused also attributes error on the part of the Court of Appeals when it failed to
consider the affidavit of desistance as evidence of his non-liability. He finds fault in the
appellate court's failure to consider the contents of the affidavit of desistance his theory
being that the affidavit was executed not only out of pity but for other reasons
mentioned in the affidavit.

An affidavit of desistancc is generally looked upon with disfavor by Courts. In so many

cases, retractions arc generally unreliable and considered as an afterthought.42 As held
in People v. Junio:43

x x x The unreliable character of this document is shown by the fact that it is quite
incredible that after going through the process or having the [appellant] arrested by the
police, positively identifying him as the person who raped her, enduring the humiliation
or 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.44

Upon this principle, we find that the courts below correctly favored AAA's testimony in
open court over the affidavit of desistance. The statement that it was executed out of
pity for her father is only an additional reason why the desistancc would not suffice to
acquit accused. It cannot affect the conclusion that he raped and sexually abused his
daughter.

We also dismiss the argument that the delay in filing the complaint indicates the
innocence of the accused. Likewise without merit is the accused's contention that the
victim was only persuaded by her aunt to file a case as an act of revenge.

At the outset, we recognize that the filing of complaint for rape and sexual abuse
against one's own parent is a difficult act. Indeed, it is not really the publicity of trial
that traumatizes. The nightmare that was the act is for life.
Delay of two years on the part of AAA in filing a case docs not necessarily result to a
doubt in her credibility. It must be emphasized that victims of rape and sexual abuse,
especially minors, react differently to the same set of circumstances. The workings of a
human mind placed under emotional stress arc unpredictable; people react differently.
Some may have a passive or reactive response or settle into inscnsibility.45

Further, the delay on the part of the victim in relating her ordeal from her own father
was understandable. He is her parent and her confusion and fear are logical under the
circumstances. It was established during trial that aside from the use of a knife to
enfeeble her resistance, the accused likewise threatened to kill her and all the members
of their family including himself if she would keep fighting off the horror. To make the
matters worse, her own mother even expressed sympathy for the husband over the
child. Her mother's expression that it was embarrassing to relate her sad plight
aggravated the fear already sowed inside the minor victim. The delay in filing a case,
clearly, was expalined.46

Penalties and Civil Indemnities

Criminal Case No. 6624

The penalty prescribed under Section 5(b) of Republic Act No. 7610 is reclusion
temporal in its medium period to reclusion perpetua. However, the penalty provided
under this Act 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 rcvoked.47

We likewise impose the payment of the following amounts or ₱20,000.00 as civil

indemnity, ₱15,000.00 as moral damages, ₱15,000.00 as exemplary damages and
₱15,000.00 as fine with six percent (6%) interest from finality of judgment until fully
paid.48

Criminal Case No. 6625

The penalty prescribed for qualified rape is death. Under Article 266-B, death penalty
shall also be imposed if the crime of rape is committed by a parent against his child
under eighteen (18) years of age. However, in view of Republic Act No. 9346, the
penalty of reclusion perpetua without the eligibility of parole49 shall be imposed in lieu of
the imposition of death penalty.50

Following the new jurisprudential ruling of People v. Gambao51 on damages, we increase

the amounts of indemnity and damages to be imposed as follows: ₱100,000.00 as civil
indemnity; ₱100,000.00 as moral damages; and ₱100,000.00 as exemplary
damages.52 In addition, we impose six percent ( 6%) interest from finality of judgment
until fully paid.53

WHEREFORE, the appeal is DENIED. The 29 November 2011 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 00709 modifying the judgment of conviction dated 13
February 2009 of the Regional Trial Court, Branch 29 of Surigao City is hereby
AFFIRMED with the following MODIFICATIONS:

I. In Criminal Case No. 6624:

(a) Finding the accused-appellant guilty of acts of lasciviousness in

relation to Section 5(b), Article III of Republic Act No. 7610;

(b) Sentencing the accused-appellant to suffer the penalty of reclusion

perpetua; and

(c) Ordering the accused-appellant to pay AAA the following amounts of

₱20,000.00 as civil indemnity, ₱15,000.00 as moral damages, ₱15,000.00
as exemplary damages and ₱15,000.00 as fine with six percent (6%)
interest from finality ofjudgment until fully paid.

II. In Criminal Case No. 6625:

(a) Finding the accused-appellant guilty of qualified rape in violation of

Art. 266-A paragraph l in relation to Article 266-B of the Revised Penal
Code;

(b) Sentencing the accused-appellant to suffer the penalty of reclusion

perpetua without the eligibility of parole; and

(c) Ordering the accused-appellant to pay AAA the following amounts of

₱100,000.00 as civil indemnity, ₱100,000.00 as moral damages,
₱100,000.00 as exemplary damages with six percent (6%) interest from
finality of judgment until fully paid.

SO ORDERED.