Criminal Law Handwritten Digest

THIRD DIVISION
G.R. No. 128089 February 13, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DOMINADOR VELASCO alias "ADOR," accused-appellant.
VITUG, J.:
An inglorious case of marital altercation eventually led to the unanticipated death of an alleged
unfaithful spouse. Was it an impassioned shame that spurred the victim to take her own life, or was it
because of a belief of his wife's infidelity that might have moved the accused to perpetrate the
condemnable deed?
The accused was indicted for parricide under Article 246 of the Revised Penal Code in an
information that read:
"That on or about October 27, 1990, in the Municipality of Sto. Tomas, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then
and there willfully, unlawfully and feloniously and with evident premeditation, that is having
conceived and deliberated to kill his wife, Prescilla B. Velasco, with whom he was united in
lawful wedlock, armed with a wood and attack, assault, clubbed his wife repeatedly, and with
treachery by employing means, manner and form in the execution thereof, which tended
directly and specially to insure its commission without danger to the person of said accused,
the result of which attack was that the said Prescilla B. Velasco received several mortal
wounds in her body which directly caused her death." 1
Assisted by counsel de parte, the accused pled "not guilty" at his arraignment.
Accused Dominador Velasco and victim Priscila Velasco were married way back on 24 July
1976.2 The union begot seven children. 1âwphi1.nêt
In the morning of 27 October 1990, between 10 o'clock and 11 o'clock, Noel Basco, the then
incumbent barangay captain of Ambitacay, Santo Tomas, La Union, was occupied with planting
watermelon in his farm when Ped Velasco, a brother of the accused, came by and mentioned an on-
going quarrel between the accused and the victim.
In the afternoon of the same day, Crisanto Boado, a thirteen-year old country lad, was on his way to
a nearby store in Patac, Sto. Tomas, La Union, to buy a bag of sugar when from a distance of ninety
to one hundred meters, he saw the accused, armed with a piece of wood of about 2 feet in length
and 3 inches in diameter, aggressively pursuing the victim who was just about two-and-a-half meters
away from him. The scene was plain enough for Crisanto to see being way up at the top of the hill
overlooking the clashing couple. Crisanto, however, could not tell whether the accused was finally
able to catch up with the victim because the two eventually reached a place covered by tall grasses
that obscured his view. Crisanto did hear the accused shouting at the top of his voice. "I will kill you
now, I will kill you now" while the victim was desperately calling for help.
Later that afternoon, Priscilla Velasco was found dead. Rumors quickly spread that she had killed
herself by drinking poison. Dr. David Villanueva, Jr., the physician detailed at the Rural Health Unit
(RHU), Sto. Tomas, La Union, examined the remains of the victim and prepared the certificate of
death stating that the deceased had died of poisoning. He confessed, however, that he did not
perform an autopsy on the cadaver and that he had come up with his conclusion only after noticing a
small amount of brownish fluid oozing from the victim's mouth with the characteristic smell of
insecticide. Although he did not notice any injury or external manifestation of abrasion or hematoma,
Dr. Villanueva admitted, in any case, that his findings were inconclusive.
With the nagging doubt as to what really could have caused his daughter's death, as well as
particularly aware that the accused had often maltreated his wife, Veronica Basco decided to have
the body undergo an autopsy. Dr. Arturo Llavore, the medico-legal officer of the National Bureau of
Investigation (NBI), Regional Office, responded favorably to the request and the body was exhumed
following the issuance of a permit therefor from the Department of Health.
The autopsy, conducted on 16 November 1990, revealed that the victim had suffered from abrasions
on the right side of the face, including the jaw; hematoma on the back portion of the head at the left
posterior portion; hematoma on the skull; contusions on the left side of the back portion of the body
and on the back portion of the left upper extremities; contused abrasion on the arm and forearm; and
contusion on the right forearm. Dr. Llavore concluded that the victim died of shock, secondary to
multiple traumatic injuries, and opined that the wounds could have likely been caused by physical
contact with a hard object like a piece of wood or wooden club. Samples of the victim's brain, heart,
kidney, spleen, lungs, liver, and pancreas were taken to the Medico Legal Laboratory in Manila for
histopathological and toxicological examinations. Dr. Nieto M. Salvador, a medical specialist of the
NBI, conducted the histopathological examination and arrived at the finding that the victim had died
of congestion and edema of the visceral organs. Toxicology Report No. T-90-3324 3 prepared by NBI
Forensic Biologist II, Dr. Beverly A. Vidanez, indicated that no trace of poisonous substances was
detected in the body of the victim.
The accused disclaimed responsibility for his wife's death. He recalled that on 27 October 1990, at or
about 7 o'clock in the morning, he was on his way to work when he was abruptly taken by utter
shock. From a distance of about seventy to eighty meters, he saw his wife having sexual intercourse
with a certain Mariano Erquiza, both starkly naked, at the edge of a tobacco seedlings area. He
stood motionless as he watched the adulterous interlude. After satisfying their carnal desires, the
paramour put on his clothes and began descending towards the east. It was then when the accused
started to chase him that lasted for two hours. Unsuccessful, and deciding to instead go home, he
came across his brother Romeo Velasco and recounted to him what had happened. He stayed in the
house of Romeo, with the latter's wife to keep him company, until 4 o'clock in the afternoon when he
unexpectedly heard people shouting. The accused and his brother rushed out only to learn of his
wife's unexpected demise.
The defense presented, next and last, witness Elpidio Eisma who testified that on 27 October 1990,
about 3 o’clock in the afternoon, while he was about to unwind the rope attached to his carabao, he
heard somebody yell from the hilltop. He hurriedly proceeded to the place, there he saw Rosita
Eisma and another neighbor massaging the victim's Rosita told him that the victim had poisoned
herself.
From the web of circumstantial evidence, the Regional Trial Court, Branch 32, of Agoo, La Union,
rendered a judgment of conviction; it held:
'WHEREFORE, in view of all the foregoing considerations, this Honorable Court hereby finds
the accused DOMINADOR VELASCO alias "ADOR" GUILTY beyond reasonable doubt for
the crime of Parricide contrary to Article 246 of the Revised Penal Code. The accused is
hereby sentenced to suffer the penalty of RECLUSION PERPETUA, indemnify the heirs of
the victim in the amount of P50,000.00 and to pay the cost of the proceedings." 4
Elevating the case to this Court, the accused ascribed to the court a quo a sole assigned error; viz:
"THE TRIAL COURT ERRED IN DISREGARDING THE EVIDENCE SUPPORTING THE

FACT THAT THE VICTIM COMMITTED SUICIDE BY POISONING HERSELF AND WAS
NOT KILLED BY THE ACCUSED."5
Accused-appellant denied having pounced upon the victim, claiming that he never left his brother's
house from 10 o'clock in the morning up until 4 o'clock in the afternoon of the fateful day, and
suggesting that the victim might have opted to take her own life because of the scandal and shame
she had put herself into.
But not a trace of poison was detected in any part of the victim's body. Even Dr. Villanueva
acknowledged the inconclusiveness of his cursory finding that the victim must have taken her own
life, his opinion being based mainly on the speculation in the neighborhood that the victim drunk
some poisonous substance. He might have actually smelled insecticide in the victim's mouth the day
she died; however, he himself conceded that it could have been possible that the substance was just
poured through the victim's mouth soon after she breathed her last. Suicide, in any event, was finally
ruled out following the results of the histopathological and toxicological examinations on the body of
the victim conducted by NBI experts. The body itself had borne witness to the deadly torment it went
through which exposed several abrasions and contusions that would completely negate the suicide
theory.6
It should bear to underscore that the individual qualifications of the medico legal officer and forensic
biologist, the expert witnesses presented, remained unassailed.
Interestingly, the defense failed to place at the witness stand the brother or the sister-in-law of the
accused who could have corroborated his alibi, a fatal omission if, indeed, his claim should deserve
any weight. No undue bias or ill motive had been attributed to the prosecution witnesses that would
have impelled them to falsely testify against the accused and to implicate him in so despicable a
deed as parricide. The paucity of such an evidence hardly could support any proposition other than
that the witnesses had testified on untarnished truth. 7
Innately, there appears to be great incredulity in the version of the accused. How could a husband
merely stand still and endure the illicit sexual congress between his wife and her supposed
paramour from beginning to end? How could he just go after his wife's lover when the latter is
through with his lovemaking and only after he would have put on his clothes and started to flee? This
kind of attitude defies human nature. So, also, it would seem unlikely that the wife and her alleged
lover would completely undress themselves and consummate the demands of their flesh in an open
field and in broad daylight. Truly, there is no real test of truth in the testimony of a witness except to
gauge it consonantly with human knowledge, observation, and experience. There should be wisdom
in the statement that whatever is repugnant to these teachings belongs to the miraculous and must
thereby be held outside normal judicial cognizance. 8
The bundle of circumstantial evidence has sufficiently established the malefactor, destroyed the
presumption of innocence, and fulfilled the standard of moral certainty to sustain a conviction. Even
in the absence of direct evidence linking an accused to the crime, circumstantial evidence can
suffice to convict when (a) there is more than one circumstance; (b) the facts from which the
inferences can be derived are proven; and (c) the combination of all the circumstances is such as to
produce finding of guilt beyond reasonable doubt. 9
The prosecution successfully came up with several pieces of evidence; to wit: (1) Barangay captain
Noel Basco was advised by Ped Velasco, a brother of the accused, of the squabble between the
accused and the victim in the early morning of 27 October 1990; (2) Crisanto Boado, while out on an
errand in the afternoon of that day, saw the accused chasing the victim, holding a piece of wood in
his hand and yelling that he was going to kill the victim; (3) the victim was found dead later that same
afternoon; (4) the autopsy report revealed abrasions and contusions all over the victim's body; (5)
the toxicological examinations of the specimens from the victim's visceral organs yielded negative
indications of volatile, non-volatile, or metallic poisons, including insecticides; and (6) the accused
was not without propensity in maltreating his wife. He himself thusly testified:
"PROSECUTOR HIPOL:
May we just request that the Exhibits be brought out so that we can confront him with
his signature.
"Q Mr. Witness, before the recess you were saying that you were not summoned to a
confrontation with your wife before Barangay Captain Junior Lachica. You also denied that
you never physically maltreated your wife. Of course, you were here when your very own
father-in-law testified that he has personal knowledge of the fact and you maltreated your
wife. Can you tell us any reason why he testified against you?
"A I do not know of any reason sir.
"Q By the way, are you very familiar with the signature of your late wife Priscilla?
"A I remember now that it is true that I have also maltreated my wife but there is a valid
reason for doing that so.
"Q What is that valid reason?
"A Because of my reputation being dismerged (sic).
"Q That was before the incident subject matter of this case occurred?
"A People in our place has been spreading the rumor regarding the unfaithfulness of my
wife but I was only merely suspecting that it was on that particular day that I caught her in
flagranti delicto.
"Q The incident subject matter of this case occurred on October 27, 1990, can you recall
that?
"A Yes, sir.

"Q When was that occasion admittedly to led your hands to your wife in relation to
October 27, 1990?
"A That was long before October 27.
"Q Could that have been in September 1983?
"A I am not very sure of that date.
"Q Anyway, was there more than one occasion when you actually maltreated your wife?
"A Yes, sir.
"Q About how many times?
"A I can no longer recall sir.
"Q And during those occasions, did you have the same reason for maltreating your wife
or there were some other reason?
"A Only for that particular reason.
"Q That you have heard rumors to the effect that your wife is unfaithful to you?
"A Yes, sir.
"Q Had you actually confronted your wife about that matter?
"A Yes, sir.
"Q And what was her comment?
"A She did not want to reveal the truth.
"Q And when she did not reveal the truth, you then maltreated her?
"A Yes, sir.
"Q Up to the extent that your wife even filed a case before the Barangay Captain in
Patac?
"A Yes, sir.
"Q And you were even summoned by the Barangay Captain to appear before him to
confront with your wife?
"A Yes, sir.
"Q And before the Barangay Captain, you even promised not to repeat and not to
maltreat your wife again?
"A Yes, sir."10
The chain of events, perhaps insignificant when taken separately and independently, could,
nevertheless, produce the effect of conviction beyond reasonable doubt when considered
cumulatively. Verily, a judgment of conviction based on circumstantial evidence can be upheld if the
circumstances established would lead to a fair and reasonable conclusion pointing to the accused, to
the exclusion of all others, as being the author of the crime. 11
Bearing the penalty of reclusion perpetua to death, the crime of parricide is committed when: (1) a
person is killed; (2) the deceased is killed by the accused; and (3) the deceased is the father,
mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other
descendant, or the legitimate spouse of the accused. 12 The key element in parricide is the
relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the
relationship between the accused and the deceased would be the marriage certificate. 13 The
testimony of the accused of being married to the victim, in itself, may also be taken as an admission
against penal interest.14
There being neither aggravating nor mitigating circumstance shown, the lower of the two indivisible
penalties was correctly imposed by the trial court. The civil indemnity of P50,000.00 awarded to the
heirs of the victim was likewise proper.15
WHEREFORE, the judgment of the trial court appealed from is AFFIRMED. Cost against accused-
appellant.
SO ORDERED.
Melo, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.
Footnotes
1
Rollo, p. 5.
2
Exhibit K, Folder of Exhibits.
3
Exh. G-2, Folder of Exhibits.
4
Rollo, pp. 51-52.
5
Rollo, p. 103.
6
People vs. Nepomuceno, Jr., 298 SCRA 450; People vs. Malabago, 265 SCRA 198; People
vs. Cloud, 265 SCRA 472.
7
People vs. Dela Pena, 232 SCRA 72.
8
See People vs. Escalante, 238 SCRA 554.
9
People vs. Estrellanes, Jr., 239 SCRA 235.
10
TSN, 02 August 1993, pp. 7-9.
11
People vs. Genobia, 234 SCRA 699; People vs. Parel, 261 SCRA 720.
12
Article 246, Revised Penal Code; People vs. Malabago, 265 SCRA 198.
13
Exhibit K, supra; see People vs. Malabago, 265 SCRA 198.
14
See People vs. Malabago, 265 SCRA 198; TSN p. 326 July 1993.
People vs. Malabago, 265 SCRA 198; People vs. Lacson, G.R. No.132512, 15 December
15
1999.
Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 178198 December 10, 2008
PEOPLE OF THE PHILIPPINES, appellee,

vs.
EVELYN BOHOL y TALAOGAN a.k.a. EVELYN BOHOL, a.k.a. EVELYN BOHOL DAVIS, a.k.a.
DIANITA BOHOL DAVIS, appellant.
DECISION
NACHURA, J.:
This is an appeal interposed by appellant Evelyn Bohol seeking the reversal of the Court of Appeals
(CA) Decision1 dated December 28, 2006 which in turn affirmed with modification the Regional Trial
Court2 (RTC) Decision3 dated November 25, 2004.
The facts of the case follow:
The victim, Steven Alston Davis (Steven), a 31-year old British national, was the Chief Technology
Officer of JC Software, a local subsidiary of Hong Kong based corporation JADECOOL
Entertainment. Together with his business associate and long-time friend Michael Thomas Dunn
(Michael), a Canadian citizen, Steven resided at a two-storey apartment unit at No. 5958 Firmina
Street, Barangay Poblacion, Makati City.4
Steven married appellant Evelyn Bohol in Hong Kong sometime in March 1997, when the latter was
only 17 years old. Together with their two minor children, Steven and the appellant shared a house
at No. 1823 Fifth Street, Villasol Subdivision in Angeles City, Pampanga. Steven spent his weekdays
in the Makati apartment, and stayed with his family in Angeles City during weekends. 5
On July 17, 2002, Steven and Michael worked until around ten o’clock in the evening at the principal
office of JC Software in Makati. At about 10:45 p.m., they headed to their rented apartment. Steven
proceeded to his room, did some computer work, then went to sleep. At about 11:30 p.m., Michael
went to the airport to fetch his girlfriend Jennifer Castillo (Jennifer), who was then arriving from Hong
Kong. Michael and Jennifer returned to the apartment at one o’clock in the morning of July 18, 2002.
They went to bed a short moment thereafter. 6
At around two o’clock in the morning, Jennifer told Michael that a person seemed to be moving and
flashing a light outside their room. Suspecting that the person outside the room was Steven, and that
the latter was just trying to play a practical joke on them, Michael inquired "What are you doing
tonight?" Instead of Steven answering back, three men with drawn handguns suddenly entered their
room. These three individuals were later positively identified during the trial to be Arnold Adoray
(Arnold), Alexander Dagami (Alexander), and accused-turned-state-witness Robin Butas (Robin).
Arnold, whose gun was aimed at Michael, asked, "Ito ba? Ito ba?" Alexander thereafter grabbed
Jennifer by the hand and locked her inside Michael’s bathroom. After taking Michael’s keys, wallet,
and cellular phone, the three men proceeded to Steven’s room. 7 Upon seeing the then sleeping
Steven, Arnold fired four consecutive shots upon the former, hitting the latter at the back. The three
men then hurriedly left the house.8 After he was sure that Arnold, Alexander and Robin were no
longer inside the apartment, Michael immediately went to Steven’s room. There, Michael saw the
lifeless body of Steven. After checking Steven’s pulse, Michael administered cardiopulmonary
resuscitation (CPR) on the former’s chest but he no longer made any response. 9 Thereafter,
Philippine National Police (PNP) personnel arrived at the scene of the crime; then an ambulance
took Steven’s body to the Makati Medical Center where he was pronounced dead on arrival. 10
Michael made numerous attempts to reach the appellant by phone immediately after the incident,
but his efforts were all in vain. Finally, he was able to contact her through her mobile phone at
around six o’clock in the morning; the former immediately informed the latter of the killing of her
husband. When Michael met Evelyn at ten o’clock in the morning, he readily observed that appellant
showed no signs of sadness or mourning despite the violent death of her husband. 11
After the autopsy of the cadaver in the afternoon of July 18, 2002, the National Bureau of
Investigation (NBI) Medico-Legal officer found that Steven sustained four gunshot wounds at the
upper left portion of his back, including four bullet holes at the back of his upper left arm, just below
the shoulder.12
Arnold and Alexander were thus charged with murder on August 16, 2002. 13 Trial thereafter ensued.
The information was later amended14 charging the appellant, together with Robin, with the crime of
murder, in conspiracy with Arnold and Alexander. The accusatory portion of the information reads:
That on or about the 18th day of July, 2002, in the City of Makati, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with an automatic
pistol and revolver, conspiring and confederating together, and all of them mutually helping
and aiding one another, with intent to kill, and by means of treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot
one STEVEN ALSTON DAVIS, on the different parts of his body, thereby inflicting upon the
latter serious and mortal gunshot wound which directly caused his death.
CONTRARY TO LAW.15
Considering that at the time the appellant was arrested, the trial of the case, in which Arnold and
Alexander were eventually convicted,16 was almost complete, a separate trial for the appellant was
held. Upon arraignment, the appellant pleaded "Not guilty." 17 To ensure impartiality, the presiding
judge inhibited himself, and the case of the appellant was re-raffled to Branch 141.
It appears that Robin was discharged as a state witness.18 Robin contended that the appellant was
responsible for inducing/persuading him, Arnold, and Alexander to perpetrate the killing of Steven.
He further stated that the appellant and Arnold (as in fact admitted to him by the appellant) were
having a love affair, as he would oftentimes see them caress and kiss each other in the living room
of their house in Angeles City. Robin also testified that, at about eleven o’clock in the evening of July
17, 2002, appellant roused him from sleep and required him to join them. 19 Robin then rode a white
car together with Arnold, Alexander and the appellant, who acted as the guide in proceeding towards
Steven’s apartment. Upon reaching Steven’s place, appellant gave Arnold the keys of the house,
and forthwith ordered the group to alight from the car. Upon gaining entry, the three performed all
the acts of execution. Riding the same car, Arnold, Alexander, Robin and Evelyn returned to Angeles
City. Even as they were traveling, Evelyn warned them never to tell anybody about the incident.
Robin, however, divulged the violent incident to his wife Gina Bohol Butas (Gina), Evelyn’s sister. In
essence, the material points of Robin’s testimony were wholly corroborated by Gina. According to
Gina, the appellant admitted that she was in love with Arnold. She added that the appellant confided
to her the plan to kill Steven in order for the appellant and Arnold to freely stay together. 20
By way of defense, appellant theorized that it was physically impossible for her to have a direct and
material participation in the killing of Steven as she was absent from the scene of the crime, and she
lacked the ill motive to orchestrate the murder of her husband. She also contended that she was at
home with her children at the time of the commission of the felony. 21
On November 25, 2004, the RTC rendered a Decision 22 finding the appellant guilty beyond
reasonable doubt of murder, qualified by treachery, and sentenced her to suffer the penalty of
reclusion perpetua. The court also made her liable to pay civil indemnity in the amount
of P50,000.00.
The court found sufficient evidence to establish conspiracy to kill Steven. It likewise held that
treachery was adequately proven, thus, establishing the crime of murder. It, however, refused to
recognize the aggravating circumstance of evident premeditation because of insufficiency of
evidence. It is undisputed that the appellant was married to Steven; however, the trial court
concluded that she could not be held liable for parricide in view of the nullity of their marriage, for
having been contracted at the time when appellant was only 17 years old. 23
This decision was affirmed by the CA in its Decision dated December 28, 2006, with an added award
of P50,000.00 representing moral damages due the heirs of Steven. 24
In her final attempt to seek the reversal of her conviction, appellant comes before this Court, raising
the following as lone error:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE

FACT THAT HER GUILT FOR THE CRIME OF MURDER WAS NOT PROVEN BEYOND
REASONABLE DOUBT.25
Appellant bewails the fact that the trial and the appellate courts accorded great weight to the
testimony of Robin. She posits that having turned state witness, Robin was motivated to testify solely
by his desire to be exculpated from liability. 26 Appellant adds that her motive to kill Steven was not
established at all.27 She further avers that her conviction should not have been based on Robin’s
testimony, or on the weakness of the evidence for the defense. 28 Lastly, appellant insists that in no
way could she be convicted of murder for lack of sufficient evidence to prove the qualifying
circumstance of treachery.29
After a careful review of the records and evidence presented, we find no cogent reason to reverse
the decision of the RTC, as affirmed by the CA. Nevertheless, we deem it proper to discuss the
issues raised by the appellant.
First, whether Robin’s testimony is credible. As this Court has consistently said, where the
culpability or innocence of an accused would hinge on the issue of the credibility of witnesses, the
findings of fact of the CA affirming those of the trial court, duly supported by sufficient and convincing
evidence, must be accorded the highest respect, even finality, by this Court, and are not to be
disturbed on appeal.30 The only exception is when certain facts of substance and value have been
overlooked which, if considered, might affect the result of the case. 31
Moreover, as enunciated in People v. Bocalan,32 the simple fact that Robin was originally charged
with the appellant as a co-conspirator but was later discharged as a state witness and was no longer
prosecuted for the crime charged does not render his testimony incredible or lessen its probative
weight. Otherwise stated, the barefaced fact that Robin was charged as a co-conspirator in the
commission of the crime before he was discharged as a state witness does not disqualify him as a
witness or discredit his testimony.33 While his testimony should be taken with caution, there is no
reason why it cannot be given credence, it appearing that the same was corroborated by the
testimony of his wife who happens to be appellant’s sister. Besides, appellant offered no evidence to
show that Robin was actuated by an ill or devious motive to testify against her.
Appellant’s claim that Robin testified against her only because he was motivated by his desire to be
exculpated from his liability as a co-conspirator is likewise bereft of merit. Considering his close
relationship with the appellant, the latter being his sister-in-law, there was no other reason for Robin
to have testified against the appellant except his desire to tell the truth. This was bolstered by the
fact that appellant’s own sister corroborated Robin’s testimony. More importantly, Robin’s testimony
was corroborated by physical evidence, namely, the autopsy report that Steven sustained four
gunshot wounds at the upper left portion of his back, including four bullet holes at the back of his
upper left arm, just below the shoulder,34 which was thus consistent with his testimony that upon
seeing Steven who was then asleep, Arnold fired four consecutive shots upon the former, hitting him
at the back.35
Second, whether appellant was correctly convicted of murder. Murder is committed by any person
who, not falling within the provisions of Article 24636 of the Revised Penal Code (RPC), kills another,
if the killing is committed with treachery.37 There is treachery when the offender commits any of the
crimes against persons, employing means, methods or forms which tend directly and specially to
ensure its execution, without risk to himself arising from the defense which the offended party might
make.38 Hence, for treachery to be appreciated, two conditions must be met, to wit: (1) the
employment of means, methods or manner of execution that would ensure the offender’s safety from
any defense or retaliatory act on the part of the offended party; and (2) the offender’s deliberate or
conscious choice of means, method or manner of execution. 39
The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting
victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission
without risk to himself.40
The circumstances obtaining in the instant case show that treachery attended the killing of the
victim. It is undisputed that the killing occurred at around two o’clock in the morning, an hour when
generally people are asleep. The witnesses are also one in saying that upon entering Steven’s room,
the assailants immediately shot the former and caused the latter’s death. Both the testimonial and
the physical sets of evidence also show that Steven was shot from behind. Evidently, the victim was
caught unaware, totally defenseless against the armed invaders. 41
While it is true that appellant did not directly participate in shooting Steven, nevertheless, evidence
clearly shows that she was part of the conspiracy to commit the crime. There is conspiracy when two
or more persons come to an agreement concerning the commission of a felony and decide to
commit it.42 It must be proved with the same quantum of evidence as the crime itself. However, direct
proof is not required, as conspiracy may be proved by circumstantial evidence. It may be established
through the collective acts of the accused before, during and after the commission of a felony that all
the accused aimed at the same object, one performing one part and the other performing another for
the attainment of the same objective; and that their acts, though apparently independent, were in
fact concerted and cooperative, indicating closeness of personal association, concerted action and
concurrence of sentiments.43
In the present case, the CA correctly outlined the circumstances showing the appellant’s
participation, viz.:
First, Evelyn [appellant herein] provided for the effective and compelling inducement for
Arnold to carry into effect the killing of Steven. Second, Evelyn personally summoned and
"recruited" Robin to come along with them for possible backup or perhaps as "additional
ammunition" in case of resistance or retaliation on the part of their target. Third, it is apparent
that the three men were not aware of Steven’s location, and thus Evelyn acted as the guide
who directed the group towards the residence of Steven at Makati. And fourth, Evelyn
provided the group with the keys in order for them to enter the apartment with ease and
unnoticed.44
Indubitably, conspiracy was established.
Appellant seeks refuge in the defense of alibi which we have consistently regarded as the much
abused sanctuary of felons and which is considered as an argument with a bad reputation. It is, to
say the least, the weakest defense which must be taken with caution being easily fabricated. 45 Such
defense cannot prevail over the positive identification of appellant as one of the conspirators in killing
Steven. Though she did not participate in the actual shooting of Steven, it was sufficiently
established that she traveled from Angeles City to Makati City, together with the assailants; she
waited for the assailants inside the car; and she traveled back to Angeles City, again with her co-
conspirators, after the commission of the felony. Furthermore, appellant failed to establish that it was
physically impossible for her to have been at the scene of the crime at the time of its commission.
Angeles City is only a few kilometers away from Makati and only a few hours of travel by land. This
is coupled by the fact that when Michael was trying to reach her through her mobile and residence
phones, she was not available until six o’clock in the morning, which was only about four hours after
the incident. Clearly, it was possible for her to be at the place where the felony was committed.
Besides, as earlier discussed, considering the appellant’s participation as a co-conspirator, her
absence from the place of commission does not negate her culpability.
We would like to clarify at this point that although admittedly, appellant was the wife of the victim,
she could not be convicted of parricide as provided in Article 246 of the RPC. Records show that
appellant’s relationship with the victim was not alleged in the information. 46 Hence, she can be
convicted only of murder.
Under Article 248 of the RPC, the penalty imposed for the crime of murder is reclusion perpetua to
death. There being no aggravating or mitigating circumstance, the penalty imposed on appellant is
reclusion perpetua. The prison term imposed by the trial court and as affirmed by the CA is,
therefore, correct.
Lastly, whether the damages awarded to the heirs of Steven are proper. We affirm the award of civil
indemnity and moral damages but we deem it proper to order the payment of an additional amount
of P25,000.00 as exemplary damages.
Civil indemnity is mandatory and granted to the heirs of the victim even without need of proof other
than the commission of the crime. The amount of P50,000.00 awarded by the trial and appellate
courts is in line with prevailing jurisprudence.47
As to moral damages, the same is mandatory in cases of murder and homicide, without need of
allegation and proof other than the death of the victim. 48 The amount of P50,000.00 was, therefore,
correctly awarded.
In addition, exemplary damages should be awarded to the heirs of the victim, since the qualifying
circumstance of treachery was proven by the prosecution. 49 When a crime is committed with an
aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary
damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to
serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. 50
WHEREFORE, we AFFIRM the December 28, 2006 Decision of the Court of Appeals in CA-G.R.
CR-HC No. 00551 finding appellant Evelyn Bohol y Talaogan guilty beyond reasonable doubt of
murder, with the MODIFICATION that the victim’s heirs are also entitled to the award of exemplary
damages of P25,000.00.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA

Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
REYNATO S. PUNO
Chief Justice
Footnotes
Penned by Associate Justice Rosmari D. Carandang, with Associate Justices Renato C.

1
Dacudao and Estela M. Perlas-Bernabe, concurring; rollo, pp. 2-24.
2
Branch 141, Makati City.
3
Penned by Judge Manuel D. Victorio; CA rollo, pp. 30-47.
4
Rollo, p. 6.
5
Id.
6
Id. at 6-7.
7
Id. at 7-8.
8
Id. at 11.
9
Id. at 8.
10
Id. at 9.
11
Id.
12
Records, Vol. III, pp. 39-40.
13
Records, Vol. I, pp. 1-2.
14
Id. at 117-118.
15
Id. at 117.
16
Embodied in a Decision dated April 27, 2004; id. at 343-347.
17
Rollo, p. 5.
18
Id. at 3.
19
By "them" the appellant meant she, Alexander and Arnold.
20
Rollo, pp. 9-12.
21
Id. at 12-13.
22
CA rollo, pp. 30-47.
23
Id. at 42-47.
24
Rollo, p. 23.
25
Id. at 55.
26
Id. at 55-56.
27
Id. at 56-57.
28
Id. at 56-58.
29
30
Siccuan v. People, G.R. No. 133709, April 28, 2005, 457 SCRA 458, 463-464.
31
People v. Bensig, 437 Phil. 748, 756 (2002); People v. Chavez, 343 Phil. 758, 768 (1997).
32
457 Phil. 472, 482 (2003).
33
People v. Bocalan, supra; see People v. Ferrer, 325 Phil. 269, 286 (1996).
34
Records, Vol. III, pp. 39-40.
35
Rollo, p. 11.
36
Art. 246. Parricide. – Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be
guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.
37
Article 248 of the Revised Penal Code provides:
Art. 248. Murder. – Any person who, not falling within the provisions of Article 246,
shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua to death, if committed with any of the following attendant circumstances:
1. With treachery x x x.
People v. Garin, G.R. No. 139069, June 17, 2004, 432 SCRA 394, 409; People v. Agudez,
38
G.R. Nos. 138386-87, May 20, 2004, 428 SCRA 692, 707.
People v. Garin, supra; People v. Agudez, supra; see People v. Barcenal, G.R. No.
39
175925, August 17, 2007, 530 SCRA 706, 725.
40
Supra note 38.
The Court has held in the following cases that treachery attended the commission of the
41
crime when the victim was attacked while he was asleep:
(1) People v. Cajumocan, G.R. No. 155023, May 28, 2004, 430 SCRA 311;
(2) People v. Demate, 465 Phil. 127 (2004).
(3) People v. Bernal, 437 Phil. 11 (2002).
42
People v. Barcenal, supra note 39, at 726; People v. Agudez, supra note 38, at 706.
43
People v. Agudez, supra note 38, at 706, citing People v. Caballero, 448 Phil. 514 (2003).
44
Rollo, pp. 18-19.
45
People v. Flores, 466 Phil. 683, 692 (2004).
46
See People v. Jumawan, 202 Phil. 294, 309 (1982).
People v. Ducabo, G.R. No. 175594, September 28, 2007, 534 SCRA 458, 476; People v.
47
Rodas, G.R. No. 175881, August 28, 2007, 531 SCRA 554, 572; People v. Garin, supra note
38, at 413.
48
People v. Ducabo, supra, at 477; People v. Rodas, supra, at 573.
People v. Ducabo, supra note 47, at 477; People v. Rodas, supra note 47, at 573; People
49
v. Barcenal, supra note 39, at 727.
50
People v. Barcenal, supra note 39, at 727-728.
FIRST DIVISION
G.R. No. 116200-02 June 21, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PO3 ELEUTERIO TAN, PO3 LEONILO MARANGA, PO3 ALEXANDER PACIOLES, PO1 PAULO
DE LA PEÑA, PNP, NAVAL, BILIRAN, accused-appellants .
YNARES-SANTIAGO, J.:
Four policemen were charged with murder and two counts of attempted murder for the killing of
Ramon Gabitan and the wounding of Judith Cerilles and Edward Villaflor
The facts as condensed from the records are as follows:
At around 10:30 pm on May 12, 1991, PT Officer Second Class Ramon Gabitan, CAFGU member
Andres Lapot, and one Danilo Dumdum, all belonging to the Philippine Coast Guard, together with
the Chiefmate and other crew members of M/V Dang Delima, a foreign vessel, were drinking beer at
the Twin’s Disco Pub in Naval, Leyte (now in Biliran province). The group danced with some of the
waitresses of the disco house. One of them, Froilan Acorda, a crew member of the M/V Dang
Delima, danced most of the time with waitress Rosie Catigbe, an alleged girlfriend of accused-
appellant PO3 Eleuterio Tan, who was also in the said disco house with two companions. After
dancing, Rosie Catigbe sat beside Acorda, and the latter rested his hand on the thigh of the former.
Later, Gabitan’s group left the disco house together with five waitresses, among whom were Rosie
Catigbe and Jovith Cerilles.1 They were to proceed back to the foreign vessel M/V Dang Delima
which was anchored a few miles away from the shores of Naval, Leyte by riding the pumpboat
owned by Lapot. As they were leaving the disco house, accused-appellant Tan approached them
and talked to two of the waitresses who were walking behind the group. The two waitresses turned
back and did not join the group anymore after they were told by Tan that they will be brought to the
foreign vessel. Thereafter, Tan confronted Froilan Acorda and introduced himself as a police officer.
Froilan asked for his badge. Tan instead took out his .38 caliber gun. Froilan hit Tan with a karate
blow and the gun fell to the ground. Disarmed, Tan rode his bicycle and left.
Gabitan’s group, together with the three remaining waitresses, Jovith Cerilles, Ina Corpin and Rosie
Catigbe, boarded the pumpboat. As they were about to leave the pier, a fire truck arrived. Tan was
on top of the water tank. Accused-appellant PO3 Leonilo Maranga jumped off as the truck stopped
and positioned himself in front. Accused-appellant PO3 Alexander Pacioles was behind the wheel of
the truck. Accused-appellant SPO1 Paulo dela Peña also jumped off the rear of the truck. Armed
with M-16 rifles, one of the accused-appellants allegedly fired two warning shots to stop the
pumpboat. But as the small vessel moved on, accused-appellants opened fire at the moving
pumpboat. Gabitan was hit by a bullet and fell overboard, 2 as the pumpboat sped away. His dead
body was recovered the following day in the ocean by fishermen. Jovith Cerilles sustained five
wounds while Edward Villaflor, who was also on board the pumpboat, was hit in the right leg. The
latter two were brought to different hospitals and survived their wounds.
All the accused-appellants were subsequently charged with murder and two counts of attempted
murder before the Regional Trial Court of Biliran, which were respectively docketed as Criminal
Cases Nos. 1530, 1531 and 1532. However, upon motion of the prosecution, this Court ordered a
change of venue and the cases were transferred to the RTC of Tacloban City. 3 The cases were re-
raffled and docketed anew as Criminal Cases Nos. 92-07-343, 92-09-477 and 92-09-478. The
Informations read:
Criminal Case No. 92-09-3434
That on or about May 12, 1991 at around 10:30 o’clock in the evening in the Municipality of
Naval, Province of Biliran and within the jurisdiction of this Honorable Court above-named
accused conspiring, confederating and mutually helping each other with evident
premeditation and treachery and with intent to kill did then and there wilfully, unlawfully and
feloniously fire, shoot, and discharge their M16 "Armalite" rifles at Ramon Gabitan who was
at that precise time riding in a pumpboat catching the latter by surprise hitting him in his
chest which caused his instantaneous and untimely death.
CONTRARY TO LAW. (Italics supplied)
That on or about May 12, 1991 at around 10:30 o’clock in the evening in the Municipality of
Naval, Province of Biliran and within the jurisdiction of this Honorable Court above-named
accused conspiring, confederating and mutually helping each other with evident
premeditation and with intent to kill did then and there wilfully, unlawfully and feloniously fire,
shoot and discharge their M16 "armalite" rifles at Judith Cerilles who was at that precise time
riding in a pumpboat catching the latter by surprise hitting and wounding the victim at her left
shoulder which required immediate medical assistance resulting to (sic) the damage and
prejudice of the victim.
That on or about May 12, 1991 at around 10:30 in the evening in the Municipality of Naval,
Province of Biliran and within the jurisdiction of this Honorable Court above-named accused
conspiring, confederating and mutually helping each other with evident premeditation and
treachery and with intent to kill did then and there wilfully, unlawfully and feloniously fire,
shoot and discharge their M16 "armalite" rifles at Edward Villaflor who was at that precise
time riding in a pumpboat catching the latter by surprise hitting and wounding the victim in his
right thigh which required immediate medical assistance resulting to (sic) the damage and
prejudice of the victim.
After arraignment, where they all pleaded not guilty, accused-appellants were tried and thereafter
convicted as charged. The dispositive portion of the trial court’s decision reads:
WHEREFORE, finding accused Eleuterio Tan, Leonilo Maranga, Alexander Pacioles and
Paulo dela Peña guilty beyond reasonable doubt as principals of the crime of Murder
qualified by treachery in Criminal Case No. 92-07-343 for the killing of Ramon Gabitan,
defined and penalized under Article 248 of the Revised Penal Code with the aggravating
circumstance of evident premeditation on the part of accused Eleuterio Tan only without any
mitigating circumstance to offset the same, sentences accused Eleuterio Tan to Reclusion
Perpetua.
The aggravating circumstance of evident premeditation not being applicable on the part of
the three other accused, the Court hereby sentences accused Leonilo Maranga, Paulo dela
Peña and Alexander Pacioles to an Indeterminate Penalty of from Ten (10) Years and One
(1) Day of Prision Mayor as minimum to Seventeen (17) Years and Four (4) Months
of Reclusion Temporal as maximum. Accused Eleuterio Tan, Leonilo Maranga, Paulo dela
Peña and Alexander Pacioles are hereby condemned to jointly indemnify the heirs of Ramon
Gabitan the sum of Two Hundred Thousand (P200,000.00) Pesos without subsidiary
imprisonment in case of insolvency.
The bond put up by accused Eleuterio Tan for his temporary liberty is hereby cancelled, and
he should be incarcerated immediately.
Finding accused Eleuterio Tan, Leonilo Maranga, Paulo dela Peña and Alexander Pacioles
guilty beyond reasonable doubt as principals in Criminal Case No. 92-09-477 for Attempted
Murder, defined and penalized under Article 248 in relation to Article 51 of the Revised Penal
Code with the aggravating circumstance of evident premeditation on the part of accused
Eleuterio Tan only without any mitigating circumstance to offset the same, and applying
Indeterminate Sentence Law, sentences accused Eleuterio Tan to an imprisonment of from
Two (2) Years, Ten (10) Months and Twenty-one (21) Days of Prision Correccional as
minimum to Eight (8) Years, and Twenty-one (21) Days of Prision Mayor as maximum.
The aggravating circumstance of evident premeditation being not applicable to the other
three accused, the Court hereby sentences accused Leonilo Maranga, Paulo dela Peña and
Alexander Pacioles to an Indeterminate Penalty of from One (1) Year, Seven (7) Months and
Eleven (11) Days of Arresto Mayor as minimum to Six (6) Years, One (1) Month and Eleven
(11) Days of Prision Correccional as maximum.
Accused Eleuterio Tan, Leonilo Maranga, Paulo dela Peña and Alexander Pacioles are
hereby condemned to jointly indemnify the offended party Juvith Cerelles the sum of Twenty
Thousand (P20,000.00) Pesos, without subsidiary imprisonment in case of insolvency.
Finding accused Eleuterio Tan, Leonilo Maranga, Paulo dela Peña and Alexander Pacioles
guilty beyond reasonable doubt as principal in Criminal Case No. 92-09-478 for Attempted
Murder, defined and penalized under Article 248 in relation to Article 51 of the Revised Penal
Code with the aggravating circumstance of evident premeditation on the part of accused
Eleuterio Tan only without any mitigating circumstance to offset the same, and applying
Indeterminate Sentence Law, sentences accused Eleuterio Tan to a imprisonment of from
Two (2) Years, Ten (10) Months and Twenty-one (21) Days of Prision Correccional as
minimum to Eight (8) Years, and Twenty-one (21) Days of Prision Mayor as maximum.
The aggravating circumstance of evident premeditation being not applicable to the other
three accused, the Court hereby sentences accused Leonilo Maranga, Paulo dela Peña and
Alexander Pacioles to an Indeterminate Penalty of from One (1) Year, Seven (7) Months and
Eleven (11) Days of Prision Correccional as maximum.
Accused Eleuterio Tan, Leonilo Maranga, Paulo dela Peña and Alexander Pacioles are
hereby condemned to jointly indemnify the offended party Eduard Villaflor the sum of Twenty
Thousand (P20,000.00) Pesos, without subsidiary imprisonment in case of insolvency.
SO ORDERED."7
Dissatisfied with the trial court’s decision, accused-appellants interposed an appeal to this Court,
basically imputing errors in the trial court’s factual findings. After a careful review of the evidence on
record, the Court finds that the appeal deserves no merit.
The prosecution maintained that accused-appellants suddenly fired upon the victims without
warning. On the other hand, the defense argues that Gabitan’s group was the first to fire shots
against them after accused-appellants responded to a report of an alleged bicycle theft. The appeal
raises the primary issue of credibility of witness upon which the resolution of all the other issues
raised depends.
Andres Lapot, owner of the pumpboat, was an eyewitness to the events as they transpired, viz.:
Q. Immediately upon arrival of the fire truck of Naval, Leyte, what happened?
A. We were immediately strapped.
Q. What do you mean by immediately strapped?
A. When the fire truck arrived they immediately opened fire at us.
Q. Who were the persons who were opened fire by the accused?
A. All of us.
Q. Where?
A. Naval pier.
x x x x x x x x x
Q. Who were the four accused?
A. Pat. Eleuterio Tan, Leonilio Maranga, Alexander Pacioles and Paulo de la Peña.
Q. Pat. Eleuterio Tan in relation to that fire truck of Naval, Leyte, where was he situated
when he opened fire?
A. On top of the fire truck.
Q. On what particular place on top of the fire truck?
A. On top of the water tank.
Q. What was his position when you were fired?

A. He was in a prone position.
Q. And what firearm did Eleuterio Tan use?
A. M-16 armalite rifle.
Q. What about Pat Leonilo Maranga, in relation to the fire truck where was he?
A. Infront of the fire truck.
Q. What particular place in front of the fire truck?
A. End of the front of the fire truck.
Q. When the accused fired where was this Leonilo Maranga?
A. Already on the ground but in front the fire truck.
Q. What was his distance to the front of the fire truck when he opened fire?
A. Very close.
Q. What was the position of Leonilo Maranga when he opened fire?
A. He was standing.
Q. Will you please demonstrate how he opened fire?
A. This way.
(Witness stands up as if pointing the firearm at the banca.)
Q. What was the weapon used if you know?
A. M-16 rifle.
Q. Where was Alexander Pacioles in relation to the fire truck?
A. He was at the driver’s seat.
Q. What about SPO1 Paulo de la Peña, in relation to the fire truck, where was he?
A. At the rear of the fire truck.
Q. At the time when he opened fire, what was his position?
A. He was at the rear of the fire truck pointing his firearm at us.
Q. What firearm?

A. M-16 rifle.
Q. From what place where Eleuterio Tan opened fire, to the pumpboat, what was the
distance?
A. 10 to 15 meters.8
With the sudden burst of gunfire, Gabitan was hit with a bullet which produced two wounds, the
entrance and the exit wounds. These were fatal wounds, having hit his lungs, a vital organ. 9 The
wounds caused severe hemorrhage that led to his death.
The testimony of Andres Lapot was corroborated by one of the other victims, Juvith Cerilles, who
was also on board the pumpboat:
Q. What was that incident about?
A. The firetruck suddenly arrived and while the firetruck was still running, I looked at the
firetruck.
Q. How far was the firetruck ran, if you can estimate?
A. It was running fast.
Q. Where did it stop?
A. It stopped at the pier.
Q. How did it stop?
x x x x x x x x x
A. It stopped and only two jumped.
PROS. TUGONON:
Q. You said there were two jumped?
A. Yes, sir.
Q. How were you able to recognize them when that was in the evening of May 12, 1991?
A. There was an electric light.
Q. How far did the firetruck stop in relation to the electric light?
A. Very near.
Q. From what part of the firetruck did these two jump?
A. One jumped from the rear, the other one from the front.
Q. Those who jumped from the rear, if you will see them again, were you able to
recognize?
ATTY. AVILA:
Only one.
WITNESS:
A. Yes, sir.
PROS. TUGONON:
Q. Will you please look around from the gallery if the one jumped from the rear is
present? We request you to go down from the witness stand and tap the shoulder of the
witness.
A. Witness goes down from the witness stand and goes to the place where the accused
are seated and taps the person who, when asked about his name, he answered that he is
Paulo dela Peña.
Q. The other one who jumped from the front of the firetruck, were you able to recognize
him?
A. Yes, sir.
Q. Will you please look around and please go down from the witness stand and tap his
shoulder?
A. Witness goes down from the witness stand and taps the shoulder of Leonilo Maranga.
Q. Do you know who was the driver of the firetruck?
A. I can recognize his face.
Q. If he is here, please tap his shoulder.
A. Witness goes down from the witness stand and taps the shoulder of PO3 Alexander
Pacioles who is present in Court.
x x x x x x x x x
Q. Do you know where Eleuterio Tan was at the time when the firetruck arrived?
A. Yes, sir.
Q. Where was Eleuterio Tan?
A. He was on top of the firetruck.

Q. What was his position on top of the firetruck?
A. He was in a prone position.
Q. When the two persons whom you just tapped on the shoulder, one from the rear and
one from the front, what happened immediately after that?
A. They shot at us with the use of the firearms.
Q. What about Eleuterio Tan, what did he do when you said he was on top of the
firetruck?
A. He also fired.
Q. And when you said he fired, towards what direction or towards who did they fire?
A. At us on the pumpboat.
Q. What about the one who was at the driver’s wheel, what did he do?
A. He also fired shots. Witness extends her right hand forward.
Q. Towards you and your companions at the pumpboat?
ATTY. AVILA:
Leading.
PROS. TUGONON:
Q. Towards what direction was that fire?
A. At us and seamen.10
With nowhere to escape and no place to hide, Cerilles and Villaflor were also hit by bullets fired by
accused-appellants. Cerilles sustained five wounds which, as per medical examination, were
described as gunshot wounds because of the presence of splinters, i.e., metal objects or pieces of
wood embedded in the skin.11 Her wounds were however, non-fatal. Moreover, it was found that the
victim was situated at a lower level than the assailants because of the direction of the
wounds,12 which confirms the theory that accused-appellants were on a higher elevation than the
victims. With respect to Villaflor, the examining physician found that he sustained abrasions on the
right leg which were likewise caused by bullets. His wounds are merely considered superficial since
they hit only the epidermis of his skin.13
The defense invokes the justifying circumstance of lawful performance of duty. 14 For this
circumstance to be rightfully appreciated, two requisites must concur:
(1) that the accused acted in the performance of a duty or in the lawful exercise of a right or
office;
(2) that the injury caused or the offense committed be the necessary consequence of the
due performance of duty or the lawful exercise of such right or office. 15
Accused-appellants contend that they were only responding to a citizen’s complaint for theft of
bicycle. It was alleged that those who took the complainant’s bicycle were with the group of Gabitan.
When accused-appellant Tan allegedly called for help from his fellow police officers, his co-
appellants boarded the fire truck and directly went to the pier which was about 3-5 minutes walking
distance away. At the pier, they saw a pumpboat which was about to leave the shore. According to
the defense, someone on board the pumpboat fired a shot at them which impelled them to return
fire.
This version is improbable in the light of the evidence on record and is contrary to the defense of
lawful performance of duty. First, contrary to his assertion, accused-appellant Tan was positively
identified by prosecution witnesses drinking beer inside the disco house prior to the incident. 16 At
least three witnesses testified that he was not wearing a uniform, but maong pants, 17 white T-shirt
and slippers.18 If it were true that he was on patrol, he should not be inside the disco house drinking
and he should be in the prescribed police uniform. The duty to patrol means that the officer is not on
undercover police work, wherein he may not wear the proper police uniform because of the nature of
the police operation. To conduct patrol work necessitates the physical presence of the officer in the
street or in public places where he will be immediately recognized through his uniform as a police
officer. Hence, accused-appellant could not have been on patrol duty, especially since he was seen
drinking beer inside an entertainment house.
Second, it is strange that a fire truck was used by accused-appellants in the pursuit of the alleged
thieves. Assuming for the sake of argument that accused-appellants were responding to a call, they
would not position themselves on top of the water tank of the truck where they would be prone to
any attack from the suspects. Assuming further that there was a complaint for theft, the usual
procedure should have been to search for the suspects, and if they are located, to apprehend them
employing the least force as may be necessary to effect a lawful arrest without warrant. Under Rule
113 of the Rules of Court then in force:
Sec. 2. x x x. No violence or unnecessary force shall be used in making an arrest, and the
person arrested shall not be subject to any greater re straint than is necessary for his
detention.
Although the employment of high powered firearms, which in this case were M-16 rifles, does not
necessarily connote unnecessary force, the police had no reason to fire their weapons
indiscriminately at a group of persons on board a moving boat. The Rules of Court mandates that
the police officer or any person conducting arrest must identify himself as such and state his
intention to arrest when there is no danger to himself or it would not prejudice the arrest. 19 Further,
the rules of engagement, of which every police officer must be thoroughly knowledgeable and for
which he must always exercise the highest caution, does not require that he should immediately
draw or fire his weapon if the person asked or to be accosted does not heed his call. Pursuit without
danger should be his next move and not vengeance for personal feelings or a damaged pride. Police
work requires nothing more than the lawful apprehension of suspects since the completion of the
process pertains to other government officers or agencies. The victims in this case and all those on
the pumpboat were not under any obligation to surrender since they were not prisoners who had
escaped from detention, nor were they identified suspects. Not even the presumption of regularity in
the performance of duty20 can be resorted to by appellants, nor does it find application in this case
because they were no longer performing a duty when they immediately fired their weapons.
Third, the evidence does not support the contention that it was Gabitan who was the first to shoot.
There were no powder burns on Gabitan’s hands to indicate that he fired a gun. Rather, when his
dead body was recovered and brought to the Naval Police Station, his .38 caliber gun was still
tucked in his waist.21
Fourth, when Acorda asked for accused-appellant Tan’s badge, the latter instead drew his gun.
Whenever a police officer introduces himself as such, he must show his police identification card or
badge. Persons who deal with the police need not even ask for the officer’s identification papers
because the officer should have taken the initiative outright. His service firearm is not an
identification card. The best and immediate evidence of police identity is the badge, the ID and the
proper uniform. It is a basic norm of police work, particularly when approaching a stranger with
whom he has no prior contact, not just to introduce himself properly but also to present his police
badge and ID.
Finally, the party who invokes a justifying circumstance has the burden of proof. Failure on their part
to discharge that burden justifies their conviction because of their admission of having authored the
criminal act. This is the essence of a justifying circumstance which applies not only to self-defense
cases but equally to the defense of performance of duty. For this reason, the Rules of Court allows
the reversal of proceedings by requiring the party who invokes a lawful defense to present evidence
ahead of the prosecution.22
Accused-appellants’ defense cannot be given credence because the uncovered vessel was riddled
with no less than 33 bullets holes,23 in addition to those which hit the three victims. This could not
have been self-defense, but plain and simple revenge for the trivial reason that accused-appellant
Tan’s girlfriend danced with and allowed her thigh to be touched by another man. Moreover, the
defense of performance of duty, as an affirmative allegation, should be demonstrated with
convincing credibility.24 Accused-appellants version is lacking in truth, aside from being a mere
afterthought and contrary to human nature. The physical evidence in this case runs counter to the
testimonial evidence, in which case the former prevails. 25 Physical evidence is a mute but eloquent
manifestation of truth, and it ranks high in the hierarchy of our trustworthy evidence. 26 Being situated
on a higher level than the pumpboat, the life of accused-appellants cannot be said to have been in
immediate peril. As such, their judgment of firing at an "escaping" pumpboat was highly unjustifiable.
The mere fact that their verbal warning or warning shots were not heeded was no justification to
spray bullets on those persons on board. Accused-appellants should have known, as they ought to
have known, that there were unarmed waitresses on board the pumpboat.
As mentioned earlier, the ultimate question, where the factual version of the prosecution and the
defense contradict each other as in this case, is one of credibility of witness. Such issue is best left
to the trial court because of its unique opportunity of having observed that elusive and
incommunicable evidence of the witness’ deportment on the stand while testifying, an opportunity
denied to the appellate courts,27 which usually relies on the cold pages of the silent records. In this
case, it was not convincingly shown that the court a quo had overlooked or disregarded significant
facts and circumstances which when considered would have affected the outcome of the case 28 or
would justify a departure from the assessments and findings of the court below. The foregoing
disquisition clearly demonstrates that the trial court’s findings of facts are binding on this Court
although not necessarily with respect to its conclusion drawn from such facts.
Assuming that accused-appellants first fired warning shots into the air to stop the pumpboat or that
those on board suddenly fired at them, neither of these justified accused-appellants to spray the
moving pumpboat with live bullets hitting it at least 33 times. There is nothing in the records which
shows that accused-appellant were positive that those on board the pumpboat were the alleged
thieves. The mere fact that a pumpboat is moving cannot justify their acts of firing upon the vessel
even if they may have presumed that the persons on board were fleeing from the police. The
pumpboat was found moving away from the shore because its passengers were bound for the
foreign vessel docked kilometers away from the shore.
There is treachery if the attack was so sudden and unexpected that the deceased had no time to
prepare for his defense.29 When Lapot, Gabitan, Villaflor, Cerilles, the two other waitresses and the
rest of the group were already in the pumpboat, they were suddenly fired upon by accused-
appellants. Placed in that dangerous situation, their only means of escape was to be far from the
reach of the bullets. The remaining immediate option was to move the pumpboat as fast as they can
towards the sea. Those on board had no time to prepare for any defense or even to seek cover.
Under these circumstances, the suddenness and severity of the attack constituted treachery. 30 It
could not be reasonably said that the victims should have expected accused-appellant Tan to chase
them after the latter left them outside the disco house. Moreover, from the point of view of accused-
appellants – one of whom was standing on top of the firetruck while another was at the rear of the
truck – they were in a more advantageous position considering that the fire truck was on a higher
level than the pumpboat. The pumpboat had no hard covering from which Gabitan’s group could
hide and protect themselves from the burst of gunfire. Not even the sea would be a good shelter for
the bullets can easily penetrate the water.
For evident premeditation to be appreciated, the following elements must be proved as conclusively
as the crime itself, i.e., by proof beyond reasonable doubt: 31
(1) The time when the accused decided to commit crime;
(2) An overt act manifestly indicating that he has clung to his determination;
(3) Sufficient lapse of time between decision and execution to allow the accused to reflect
upon the consequences of his act.32
The essence of premeditation is that the execution of the act was preceded by cool thought and
reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive
at a calm judgment.33 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. Premeditation must be based
on external acts which must be notorious, manifest, and evident 34 – not merely suspecting –
indicating deliberate planning. In this case, there was no proof, direct or circumstantial, offered by
the prosecution to show when accused-appellant Tan and his co-accused meditated and reflected
upon their decision to kill the victim and the intervening time that elapsed before his plan was carried
out. Between the time when accused-appellant Tan confronted Acorda and the time of the shooting
of the pumpboat, there was only one continuing act during which there was no possible time of
reflection. There was a lapse of at most only twenty minutes from the time of the confrontation
outside the disco house up to the ambush at the pier, a period not enough for cool mind to set in.
Evident premeditation cannot be presumed from the external acts alone. Mere suppositions or
presumptions, no matter how truthful, cannot produce the effect of aggravating the liability of the
accused.35
Though no evident premeditation was proven, conspiracy can be clearly inferred from the acts of
accused-appellants. There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and the execution of the felony is decided upon. 36 It is not
necessary that there be direct proof that the co-conspirators had any prior agreement and decision
to commit the crime, it being sufficient that the malefactors shall have acted in concert pursuant to
the same objective.37 Conspiracy arises on the very instant the plotters agree, expressly or impliedly,
to commit the felony and forthwith decide to pursue it. So that whenever conspiracy is proven the act
of one is the act of all.38 When the fire truck arrived at the pier and stopped near the lamp post,
accused-appellants immediately proceeded to their respective positions at different locations of the
truck with their firearms pointed towards the pumpboat. When their alleged call to stop the pumpboat
went unheeded, they just suddenly fired at the persons on the moving pumpboat. Firing
simultaneously their high-powered weapons and directing it towards the vessel indicate nothing
more but a clear case of concerted action designed to accomplish the same purpose.
Murder is committed when a person kills another and the killing is attended by any modifying
circumstance such as evident premeditation and treachery. 39 The circumstance of treachery alleged
in the Information qualified the killing of Gabitan to murder.1âwphi1.nêt
However, the Informations in the two attempted murder cases failed to allege the essential elements
necessary to convict accused-appellants of the said crimes. In particular, there was nothing in the
latter two Informations from which it may be concluded that accused-appellants commenced the
commission of the felony directly or by overt acts and did not perform all the acts of execution which
should have produced the felony by reason of some cause or accident other than their own
spontaneous desistance.40 Without these allegations, the elements necessary to constitute the felony
of attempted murder cannot be said to have been properly alleged, and accused-appellants cannot
be convicted of a crime with which they were not charged. Otherwise, to convict them of attempted
murder, when the same is not the crime charged in the Information, would be to violate their
constitutional and statutory right41 to criminal due process, and in particular, their right to be informed
of the nature and cause of the accusation against them. 42 It must be remembered that it is not the
designation of the offense in the Information described by the prosecution that governs, rather it is
the allegations in the Information that must be considered in determining what crime is charged. 43 All
that the Informations alleged was that accused-appellants fired and discharged their M-16 rifles
against the moving pumpboat, hitting and wounding the injured complainants, who required medical
attention. Clearly, these bare allegations are not enough to sustain a charge for attempted murder.
At most, based on the allegations in the Information in Criminal Case Nos. 92-09-477 (1531) and 92-
09-478 (1532), accused-appellants can be convicted only of physical injuries -- a lesser felony
absorbed in the crime of attempted murder. At any rate, the Rules sanction a conviction for a crime
which is necessarily included in the crime charged, so long as the former is proven. 44
Cerilles and Villaflor suffered superficial wounds, but despite accused-appellants’ manifest intent to
kill, it cannot bring forth a conviction for attempted murder because of the insufficient allegation in
the information to warrant conviction for such crime. The next issue to determine is the character of
the physical injuries they sustained. According to the physician who examined the victims, the five
wounds sustained by Cerilles on the different parts of her body were non-fatal. 45 Her wounds, barring
any complications, may heal in seven to eight days. With respect to Villaflor, the abrasions he
sustained may heal in 2 to 3 weeks’ time. In fact, Villaflor did not even return to the doctor for further
medical attention, first aid treatment being enough. 46 Injuries which require medical attention for a
period of at least 10 but not more than 30 days is classified as less serious, falling under Article 265
of the Revised Penal Code.
On the assumption that a doubt exists as to the legal propriety of the allegations in said two
Informations – whether it is attempted murder or physical injuries – such doubt should be resolved
by convicting the accused only of physical injuries instead of attempted or frustrated murder or
homicide,47 if the evidence warrants such conviction.
No aggravating circumstance can be considered against accused-appellants for the death of

Gabitan. Although treachery is also a generic aggravating circumstance, it can no longer be
considered again since it already qualified the killing to murder. The Information in Criminal Case
No. 92-09-477, which involved the wounding of Cerilles, contained no allegation of treachery. It
cannot therefore be considered even if it was proven during trial. On the other hand, the proof of
treachery and its allegation in the Information in Criminal Case No. 92-09-478 may be appreciated
against accused-appellants. As for the aggravating circumstance of evident premeditation, though it
was alleged in the Information, the prosecution failed to establish it with the required quantum of
proof as discussed above; hence the same cannot be appreciated.
At the time of the commission of the crime in 1991, the penalty imposed for murder was reclusion
temporal maximum to death. The higher penalty of reclusion perpetua to death, prescribed by R.A.
7659 which took effect after the commission of the crime in this case, cannot be given retroactive
effect because it is unfavorable to accused-appellants. 48 Under Article 64 of the Revised Penal Code,
when the penalty prescribed is composed of three periods and there is neither mitigating nor
aggravating circumstance, the penalty shall be imposed in its medium period, 49 which is reclusion
perpetua.50 No indeterminate sentence can be imposed on accused-appellants because of the
proscription of its applicability in cases where the penalty imposed is reclusion perpetua.51
As for the other two cases, the crimes committed are less serious physical injuries and slight
physical injury. The penalties for these are prescribed in Article 265 and 266 of the Revised Penal
Code, the relevant portions of which read:
Art. 265. Less serious physical injuries. — Any person who shall inflict upon another physical
injuries not described in the preceding articles, but which shall incapacitate the offended
party for labor for ten days or more, or shall require medical assistance for the same period,
shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor.
Whenever less serious physical injuries shall have been inflicted with the manifest intent to
kill or offend the injured person, or under circumstances adding ignominy to the offense in
addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed.
Art. 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. (emphasis supplied).
The injuries sustained by Villaflor will heal in 2 to 3 weeks. However, considering that the intent to kill
was manifest because of the sporadic burst of high-powered firearms, the crime of less serious
physical injury is qualified, in which case the imposition of the additional penalty of fine as provided
in the second paragraph of Article 265 is warranted.
On the other hand, the crime of slight physical injuries, committed against Cerilles, is penalized
by arresto menor.
The Indeterminate Sentence Law likewise does not apply in these two cases since said law excludes
from its coverage cases where the penalty imposed does not exceed one year. 52
The trial court held accused-appellants solidarily liable to the heirs of Gabitan for P200,000.00, and
another P20,000.00 each to Juvith Cerilles and Edward Villaflor as indemnity. In murder, the civil
indemnity has been fixed by jurisprudence at P50,000.00. 53 The grant of civil indemnity in murder
requires no proof other than the fact of death as a result of the crime and proof of appellants’
responsibility therefor.54 On the other hand, the separate award of moral damages is justified
because of the physical suffering and mental anguish brought about by the felonious acts, and is
thus recoverable in criminal offenses resulting in physical injuries or death. 55 The amount of moral
damages is also fixed at P50,000.00 for murder.56 For the less serious physical injuries, moral
damages of P10,000.00 shall be sufficient. Exemplary damages can be granted only in cases where
there is an aggravating circumstance. 57
WHEREFORE, the decision of the trial court is AFFIRMED subject to the

following MODIFICATIONS:
(1) Accused-appellants are found guilty of MURDER in Criminal Case No. 92-09-343 and
each is sentenced to suffer the penalty of reclusion perpetua.
(2) Accused-appellants are found guilty of LESS SERIOUS PHYSICAL INJURIES in Criminal
Case No. 92-09-478 and each is sentenced to suffer imprisonment of six (6) months
of arresto mayor maximum, AND pay a fine of P500.00 each.
(3) Accused-appellants are found guilty of SLIGHT PHYSICAL INJURIES in Criminal Case
No. 92-09-477 and each is sentenced to suffer imprisonment of thirty (30) days of arresto
menor.
(4) All penalties shall be served successively.
(5) Accused-appellants are ordered to solidarily pay:
A. To the heirs of Gabitan, the reduced amount of P50,000.00 as civil indemnity
and P50,000.00 as moral damages;
b. To Villaflor, moral damages of P10,000.00 in addition to the civil indemnity of

P20,000.00 awarded by the trial court; and
c. To Ceriles, moral damages of P10,000.00 in addition to the civil indemnity of

P20,000.00 awarded by the trial court; and
d. Exemplary damages in the amount of P10,000.00 each to Villaflor and Cerilles.
No subsidiary imprisonment shall be imposed in case of insolvency.
(6) Costs de oficio.
SO ORDERED.
Davide, Jr., C.J. Puno, Kapunan, Pardo, JJ., concur.
Footnote
1
Sometimes spelled "Judith Ceriles" in some parts of the records.
2
TSN, September 22, 1992, p. 16.
3
Supreme Court Resolution dated June 4, 1992 in Adm. Matter No. 92-4-150-0 – Re:
Request for Transfer of Venue of Criminal Cases Nos. 1530, 1531 and 1532, RTC Records,
p. 154.
4
RTC Records, p. 126.
5
Ibid., p. 128.
6
Ibid., p. 130.
RTC, Branch 6, Tacloban City; Decision dated March 7, 1994, penned by Judge Getulio M.
7
Francisco.
8
TSN, September 21, 1992, pp. 13-15.
9
10
TSN, January 28, 1993, pp. 22-25.
11
TSN, Dr. Mila Lisa Matigca, November 17, 1992, pp. 6, 9, 13.
12
Ibid., p. 10.
13
TSN, Dr. Nida Barja Cabtic, November 16, 1992, pp. 9-10.
14
Revised Penal Code, as amended, Article 11. The following do not incur any criminal
liability:
x x x x x x x x x
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right
or office.
15
Frias, Jr. v. People, 215 Phil. 1 (1984). See also People v. Oanis, 74 Phil. 257 (1943).
16
17
TSN, January 28, 1993, p. 30; TSN, September 24, 1994, pp. 2, 12.
18
See Rules of Court, Rule 113, Sec. 8. Method of arrest by officer without warrant. — When
19
making an arrest without a warrant, the officer shall inform the person to be arrested of his
authority and the cause of the arrest, unless the person to be arrested is then engaged in the
commission of an offense or is pursued immediately after its commission or after an escape,
or flees or forcibly resists before the officer has opportunity so to inform him, or when the
giving of such information will imperil the arrest.
Sec. 9. Method of arrest by private person. — A private person when making an arrest shall
inform the person to be arrested of the intention to arrest him and cause of the arrest, unless
the person to be arrested is then engaged in the commission of an offense, or is pursued
immediately after its commission or after an escape, or flees or forcibly resists before the
person making the arrest has opportunity so to inform him, or when the giving of such
information will imperil the arrest.
20
Rules of Court, Rule 131, Section 3.
21
2000 Rules on Criminal Procedure, Rule 119, SEC. 11 (formerly Section 3, Rule 119 of the
22
1989 Rules). Order of trial. – The trial shall proceed in the following order:
(e) When the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be modified.
23
24
People v. Tan, 73 SCRA 288 (1976).
25
People v. Vasquez, 280 SCRA 160 (1997).
26
People v. Uycoque, 246 SCRA 769 (1995.
People v. Mahinay, 302 SCRA 455 (1999) citing People v. Tan, Jr., 264 SCRA 425 (1996).
27
See also People v. Navarro, G.R. No. 132696, February 12, 2001.
28
People v. Dio, 44 SCAD 559; People v. Matrimonio, 215 SCRA 613 (1992).
29
People v. Perez, G.R. No. 134756, February 13, 2001.
30
People v. Base, G.R. No. 109773, March 30, 2000.
31
People v. Derilo, 338 Phil. 350 (1997); People v. De Guia, 177 SCRA 112 (1989).
People v. Jose, G.R. No. 130666, January 31, 2000 cited in People v. Herida, G.R. No.
32
127158, March 5, 2001.
33
People v. Ariola, 100 SCRA 523 (1980).
34
People v. Narit, 197 SCRA 334 (1991).
35
U.S. v. Perdon, 4 Phil. 141 (1904).
36
See Article 8, Revised Penal Code.
37
People v. Sazon, 189 SCRA 713 (1990).
38
People v. Ordoño, G.R. No. 132154, June 29, 2000.
Revised Penal Code, Article 248. Murder. — Any person who, not falling within the
39
provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished
by reclusion temporal in its maximum period to death, if committed with any of the following
attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men,
or employing means to weaken the defense or of means or persons to insure or
afford impunity.
x x x x x x x x x (Prior to the effectivity of the Death Penalty Law).
Revised Penal Code, Article 6. Consummated, frustrated, and attempted felonies. —

40
Consummated felonies as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated 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.
There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than this own spontaneous desistance. (emphasis
supplied)
Constitution, Article III, Sec. 14 (1) No person shall be held to answer for a criminal offense
41
without due process of law.
(2) In all criminal prosecutions, the accused shall x x x enjoy the right x x x to be informed of
the nature and cause of the accusation against him x x x.;
2000 Rules on Criminal Procedure, RULE 115, SECTION 1. Rights of accused at trial. – In
all criminal prosecutions, the accused shall be entitled to the following rights:
x x x (b) To be informed of the nature and cause of the accusation against him.
People v. Valdesancho, G.R. Nos. 137051-52, May 30, 2001 citing People v. Cruz, 259
42
SCRA 109 (1996). See also People v. Tresballes, G.R. No. 126118, September 21, 1999.
What controls is description not designation of the crime. - People v. Reanzares, G.R. No.
43
130656, June 29, 2000 citing Socrates v. Sandiganbayan, 253 SCRA 773 (1996); People v.
Maravilla, 165 SCRA 392 (1988).
44
2000 Rules on Criminal Procedure, Rule 120, 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; See also People v. Pambid, G.R. No. 124453, March 15, 2000 citing
People v. Manalili, 294 SCRA 220 (1998).
45
TSN, November 17, 1992, pp. 7-8.
46
TSN, November 16, 1992, pp. 9-10.
47
People v. Francisco, G.R. No. 130490, June 19, 2000.
48
People v. Langres, 316 SCRA 769 (1999).
Art. 64. Rules for the application of penalties which contain three periods. — In cases in
49
which the penalties prescribed by law contain three periods, whether it be a single divisible
penalty or composed of three different penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the court shall observe for the
application of the penalty the following rules, according to whether there are or are not
mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances, they shall
impose the penalty prescribed by law in its medium period. (emphasis supplied).
50
People v. Gailo, 316 SCRA 733 (1999).
People v. Lampaza, 319 SCRA 112 (1999). The Indeterminate Sentence Law (ISL)
51
provides that it is not applicable where the penalty imposed is "life imprisonment", which is
construed to cover "reclusion perpetua" for purpose of said law. See also People v. Fabro,
239 SCRA 146 (1994) where the Court did not apply the Indeterminate Sentence Law
because the penalty imposed is reclusion perpetua.
52
Sps. Bacar v. Judge de Guzman, Jr., 338 Phil. 41 (1997).
53
Calim v. Court of Appeals, G.R. No. 140065, February 13, 2001.
54
People v. De Leon, G.R. No. 129057, January 22, 2001.
People v. Monte, G.R. No. 125332, March 2, 2000; People v. Ereño, February 22, 2000
55
cited in People v. Molina, G.R. Nos. 134777-78, July 24, 2000; People v. Bantillo, G.R. No.
117949, October 23, 2000.
56
People v. Dela Cruz, G.R. No. 128362, January 16, 2001.
57
People v. Bergante, 286 SCRA 629 (1998); People v. Reyes, 287 SCRA 229 (1998).

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 179035 April 16, 2008

THE PEOPLE OF THE PHILIPPINES, appellee,
vs.
JESUS PAYCANA, JR., appellant.
DECISION
TINGA, J.:
Appellant Jesus Paycana Jr. was charged1 with the complex crime of parricide with unintentional
abortion before the Regional Trial Court (RTC) of Iriga City, Branch 37. Appellant pleaded not guilty
during the arraignment.2 Pre-trial ensued, in which appellant admitted that the victim Lilybeth
Balandra-Paycana (Lilybeth) is his legitimate wife. 3
Appellant sought to exculpate himself from the crime by setting up self-defense, claiming that it was
his wife who attacked him first. In view of the nature of self-defense, it necessarily follows that
appellant admits having killed his seven (7)-month pregnant wife, and in the process put to death
their unborn child.
The prosecution presented Tito Balandra (Tito), the father of the victim; Angelina Paycana
(Angelina), appellant’s eldest daughter who personally witnessed the whole gruesome incident;
Barangay Tanod Juan Parañal, Jr.; Dr. Stephen Beltran, who conducted the autopsy; and Santiago
Magistrado, Jr., the embalmer who removed the fetus from the deceased’s body.
The evidence for the prosecution established that on 26 November 2002, at around 6:30 in the
morning, appellant, who worked as a butcher, came home from the slaughter house carrying his
tools of trade, a knife, a bolo, and a sharpener.4 His wife was preparing their children for school and
was waiting for him to come home from his work. For reasons known to him alone, appellant
stabbed his wife 14 times.5 Tito, whose house is at back of appellant’s house, heard his daughter
shouting for help. When he arrived, he saw his daughter lying prostrate near the door and her feet
were trembling. But seeing appellant, who was armed, he stepped back. Angelina told Tito by the
window that appellant had held her mother’s neck and stabbed her. 6
Appellant claimed that he wrested the weapon from Lilybeth after she stabbed him first. According to
him, they had an altercation on the evening of 25 November 2002 because he saw a man coming
out from the side of their house and when he confronted his wife about the man, she did not answer.
On the following morning, he told her that they should live separately. As appellant got his things and
was on his way out of the door, Lilybeth stabbed him. But he succeeded in wresting the knife from
Lilybeth. And he stabbed her. He added that he was not aware of the number of times he stabbed
his wife because he was then dizzy and lots of blood was coming out of his wound. 7
The trial court found appellant guilty in a decision dated 14 April 2005. 8 The case was automatically
appealed to the Court of Appeals pursuant to Rule 122 Section 3(d) of the Rules of Criminal
Procedure.9 The appellate court denied appellant’s appeal in a decision dated 30 May
2007.10 Appellant filed a notice of appeal dated 14 June 2007 before the Court of Appeals. 11
The Court is not convinced by appellant’s assertion that the trial court erred in not appreciating the
justifying circumstance of self-defense in his favor.
Self-defense, being essentially a factual matter, is best addressed by the trial court. 12 In the absence
of any showing that the trial court failed to appreciate facts or circumstances of weight and
substance that would have altered its conclusion, the court below, having seen and heard the
witnesses during the trial, is in a better position to evaluate their testimonies. No compelling reason,
therefore, exists for this Court to disturb the trial court’s finding that appellant did not act in self-
defense.
Appellant failed to discharge the burden to prove self-defense. An accused who interposes self-
defense admits the commission of the act complained of. The burden to establish self-defense is on
the accused who must show by strong, clear and convincing evidence that the killing is justified and
that, therefore, no criminal liability has attached. The first paragraph of Article 11 of the Revised
Penal Code13 requires, in a plea of self-defense, (1) an unlawful aggression on the part of the victim,
(2) a reasonable necessity of the means employed by the accused to prevent or repel it, and (3) the
lack of sufficient provocation on the part of the person defending himself. 14
Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense.

Without it, there can be no self-defense, whether complete or incomplete, that can validly be
invoked.15 Appellant’s claim of self-defense was belied by the eyewitness testimony of his own
daughter Angelina, which was corroborated by the testimony of his father-in-law Tito and the medical
findings. Angelina’s testimony was very clear on how her father strangled and stabbed her mother
just as she was about to greet him upon arriving home. She begged her father to stop, and even
tried to grab her father’s hand but to no avail.16 Tito ran to appellant’s house as he heard his
daughter Lilybeth’s screaming for help, and he saw her lying prostate near the door with her feet
trembling. He moved back as he saw appellant armed with a weapon. Angelina told him by the
window that appellant had held her mother’s neck and stabbed her. 17
Moreover, Dr. Rey Tanchuling, a defense witness who attended to appellant’s wound, testified on
cross-examination that the injuries suffered by appellant were possibly self-inflicted considering that
they were mere superficial wounds.18
In any event, self-defense on the part of appellant is further negated by the physical evidence in the
case. Specifically, the number of wounds, fourteen (14) in all, indicates that appellant's act was no
longer an act of self-defense but a determined effort to kill his victim. 19 The victim died of multiple
organ failure secondary to multiple stab wounds.20
The Court agrees with the trial court’s observation, thus:
Angelina who is 15 years old will not testify against her father were it not for the fact that she
personally saw her father to be the aggressor and stab her mother. Telling her grandfather
immediately after the incident that accused stabbed her mother is part of the res
gestae hence, admissible as evidence. Between the testimony of Angelica who positively
identified accused to have initiated the stabbing and continuously stabbed her mother and on
the other hand, the testimony of accused that he killed the victim in self-defense, the
testimony of the former prevails. 21
The RTC, as affirmed by the Court of Appeals, properly convicted appellant of the complex crime of
parricide with unintentional abortion in the killing of his seven (7)-month pregnant wife.
Bearing the penalty of reclusion perpetua to death, the crime of parricide22 is committed when: (1) a
person is killed; (2) the deceased is killed by the accused; and (3) the deceased is the father,
mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other
descendant, or the legitimate spouse of the accused. The key element in parricide is the relationship
of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship
between the accused and the deceased would be the marriage certificate. The testimony of the
accused of being married to the victim, in itself, may also be taken as an admission against penal
interest.23
As distinguished from infanticide, 24 the elements of unintentional abortion25 are as follows: (1) that
there is a pregnant woman; (2) that violence is used upon such pregnant woman without intending
an abortion; (3) that the violence is intentionally exerted; and (4) that as a result of the violence the
fetus dies, either in the womb or after having been expelled therefrom. In the crime of infanticide, it is
necessary that the child be born alive and be viable, that is, capable of independent
existence.26 However, even if the child who was expelled prematurely and deliberately were alive at
birth, the offense is abortion due to the fact that a fetus with an intrauterine life of 6 months is not
viable.27 In the present case, the unborn fetus was also killed when the appellant stabbed Lilybeth
several times.
The case before us is governed by the first clause of Article 48 28 because by a single act, that of
stabbing his wife, appellant committed the grave felony of parricide as well as the less grave felony
of unintentional abortion. A complex crime is committed when a single act constitutes two or more
grave or less grave felonies.
Under the aforecited article, when a single act constitutes two or more grave or less grave felonies
the penalty for the most serious crime shall be imposed, the same to be applied in its maximum
period irrespective of the presence of modifying circumstances. Applying the aforesaid provision of
law, the maximum penalty for the most serious crime (parricide) is death. However, the Court of
Appeals properly commuted the penalty of death imposed on the appellant to reclusion perpetua,
pursuant to Republic Act No. 9346.29
Civil indemnity in the amount of P50,000.00 (consistent with prevailing jurisprudence) is

automatically granted to the offended party, or his/her heirs in case of the former’s death, without
need of further evidence other than the fact of the commission of any of the aforementioned crimes
(murder, homicide, parricide and rape). Moral and exemplary damages may be separately granted in
addition to indemnity. Moral damages can be awarded only upon sufficient proof that the
complainant is entitled thereto in accordance with Art. 2217 of the Civil Code, while exemplary
damages can be awarded if the crime is committed with one or more aggravating circumstances
duly proved. The amounts thereof shall be at the discretion of the courts. 30 Hence, the civil indemnity
of P50,000.00 awarded by the trial court to the heirs of Lilybeth is in order. They are also entitled to
moral damages in the amount of P50,000.00 as awarded by the trial court.31
In addition to the civil liability and moral damages, the trial court correctly made appellant account
for P25,000.00 as exemplary damages on account of relationship, a qualifying circumstance, which
was alleged and proved, in the crime of parricide. 32
WHEREFORE, the appeal is DISMISSED. The Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

ARTURO D. BRION
Associate Justice
ATTESTATION
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it
is hereby certified that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1
CA rollo, p. 12. The accusatory portion of the information reads:
That on or about the 26th day of November, 2002, at about 6:30 in the morning at
Sitio Sogod, Sto. Domingo, Nabua, Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, while armed with a kitchen
knife and with intent to kill, did then and there willfully, unlawfully and feloniously
attack, assault and stab Lilybeth Balandra-Paycana, his legitimate wife, for several
times, the latter being seven (7) months pregnant, fatally hitting the different parts of
her body, causing her immediate death and abortion, to the damage and prejudice of
the decease(d)’s deserving heir.
CONTRARY TO LAW.
2
Record, p. 35.
3
Id. at 43-44. See also id. at 117, Certificate of Marriage.
4
TSN, 21 January 2004, p. 6.
5
TSN, 10 June 2004, p.5.
6
7
TSN, 8 November 2004, pp. 5-9.
8
CA rollo, pp.20-27. As penned by Judge Alfredo Agawa, the dispositive portion reads as
follows:
WHEREFORE, in view of all the foregoing, the Court finds accused Jesus Paycana,
Jr. y Audal guilty beyond reasonable doubt for the complex crime(s) of Parricide with
Unintentional Abortion and he is sentenced to suffer the maximum penalty of DEATH
and to indemnify the heirs of Lilybeth Balandra-Paycana in the amount
of P50,000.00, moral damages of P50,000.00 and P25,000.00 as exemplary
damages.
SO ORDERED.
As amended by A.M. No. 00-5-03-SC (Re: Amendments to the Revised Rules of Criminal
9
Procedure to Govern Death Penalty Cases), to wit: x x x
Rule 122 Sec. 3. How appeal taken.— x x x x (d) No notice of appeal is necessary in

cases where the Regional Trial Court imposed the death penalty. The Court of
Appeals shall automatically review the judgment as provided in Section 10 of
this Rule. x x x
Sec. 10. Transmission of records in case of death penalty. — In all cases where the
death penalty is imposed by the trial court, the records shall be forwarded to the
Court of Appeals for automatic review and judgment within twenty days but not
earlier than fifteen days from the promulgation of the judgment or notice of denial of a
motion for new trial or reconsideration. The transcript shall also be forwarded within
ten days after the filing thereof by the stenographic reporter.
Rollo, pp. 2-10. Penned by Associate Justice Bienvenido Reyes, and concurred by
10
Associate Justices Aurora Santiago Lagman and Apolinario Bruselas, Jr. The dispositive
portion reads as follows:
WHEREFORE, all premises considered, the decision appealed from is hereby

AFFIRMED with a MODIFICATION in that, instead of death, the accused-appellant is
sentenced to suffer the penalty of reclusion perpetua.
SO ORDERED.
CA rollo, pp. 109-110. The notice of appeal was filed pursuant to A.M. No. 00-5-03-SC (Re:
11
Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases),
to wit: x x x x
Sec. 13. Certification or appeal of case to the Supreme Court.—(a) Whenever the

Court of Appeals finds that the penalty of death should be imposed, the court shall
render judgment but refrain from making an entry of judgment and forthwith certify
the case and elevate its entire record to the Supreme Court for review.
(b) Where the judgment also imposes a lesser penalty for offenses committed on the
same occasion or which arose out of the same occurrence that gave rise to the more
severe offense for which the penalty of death is imposed, and the accused appeals,
the appeal shall be included in the case certified for review to, the Supreme Court.
(c) In cases where the Court of Appeals imposes reclusion perpetua, life

imprisonment or a lesser penalty, it shall render and enter judgment imposing such
penalty. The judgment may be appealed to the Supreme Court by notice of
appeal filed with the Court of Appeals.
12
People v. Maceda, G.R. No. 91106, 27 May 1991, 197 SCRA 499, 510.
13
Art. 11. Justifying circumstances.- The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
14
People v. Rosaria Ignacio, G.R. No. 107801, 26 March 1997, 270 SCRA 445, 450.
15
Id. at 451. See People v. Jotoy, 222 SCRA 801; People v. Sazon, 189 SCRA 700.
16
TSN, 10 June 2004, pp. 4-11.
17
18
TSN, 1 September 2004, pp. 9-10.
19
Cabuslay v. People, G.R. No. 129875, 30 September 2005, 471 SCRA 241, 262-263.
20
Records, p. 120.
21
CA rollo, p. 26.
22
Art 246. Parricide.—Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be
guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.
People v. Dominador Velasco, 404 Phil. 369, 379 (2001). Citing People v. Malabago, G.R.
23
No. 115686, 2 December 1996, 265 SCRA 198. See Note 3.
Art. 255. Infanticide.—The penalty provided for parricide in Article 246 and for murder in
24
Article 248 shall be imposed upon any person who shall kill any child less than three days
of age.
If any crime penalized in this article be committed by the mother of the child for the
purpose of concealing her dishonor, she shall suffer the penalty of prision mayor in
its medium and maximum periods, and if said crime be committed for the same
purpose by the maternal grandparents or either of them, the penalty shall
be reclusion remporal.
Art. 257. Unintentional abortion. —The penalty of prision correctional in its minimum and
25
medium periods shall be imposed upon any person who shall cause an abortion by violence,
but unintentionally.
26
U.S. v. Vedra, 12 Phil. 96 (1909).
Regalado, Florenz, Criminal Law Conspectus, p. 460. Citing People v. Detablan, CA, 40

27
O.G. No. 9, p. 30.
28
Art. 48. Penalty for complex crimes.—When a single act constitutes two or more grave
or less grave felonies, or when an offense is a necessary means of committing the other,
the penalty for the most serious crime shall be imposed, the same to be applied in its
maximum period.
29
SEC. 2. In lieu of the death penalty, the following shall be imposed:
(a) the penalty of reclusion perpetua, when the law violated makes use of the
nomenclature of the penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not make use of the
nomenclature of the penalties of the Revised Penal Code.
Pursuant to the same law, appellant shall not be eligible for parole under Act No.
4103, otherwise known as the Indeterminate Sentence Law.
People v. SPO1 Jose Bangcado and PO3 Cesar Banisa, G.R. No. 132330, 28 November
30
2000, 346 SCRA 189, 210.
People v. PO3 Armando Dalag y Custodio, G.R. No. 129895, 30 April 2003, 402 SCRA
31
254, 278. Citing People v. Velasco, supra.
People v. Domingo Arnante y Dacpano, G. R. No. 148724, 15 October 2002, 391 SCRA
32
155, 161.
The Lawphil Project - Arellano Law Foundation

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170723 March 3, 2008
GLORIA PILAR S. AGUIRRE, petitioner,

vs.
SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-OLONDRIZ,
PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, respondents.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the Rules of Court, as amended, petitioner
Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision 2 and 5
December 2005 Resolution,3 both of the Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria
Pilar S. Aguirre v. Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido
Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does."
The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the
Department of Justice (DOJ) when the latter issued the twin resolutions dated 11 February
20044 and 12 November 2004,5 respectively, which in turn affirmed the 8 January 2003
Resolution6 of the Office of the City Prosecutor (OCP) of Quezon City.
The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the
criminal complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by
Private Individuals and Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal
Code, in relation to Republic Act No. 7610, otherwise known as "Child Abuse, Exploitation and
Discrimination Act," for insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B.
Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep),
Dr. Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and
child abuse.
The antecedents of the present petition are:
Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa, a child caring agency run
by the Good Shepherd Sisters and licensed by the Department of Social Work and Development
(DSWD). Sometime in 1978, respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre
(Lourdes Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent
Olondriz, came to know Larry, who was then just over a year old. The Aguirres would have Larry
spend a few days at their home and then return him to the orphanage thereafter. In June 1980,
Larry, then two years and nine months of age, formally became the ward of respondent Pedro
Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal
Guardianship executed in their favor by Sister Mary Concepta Bellosillo, Superior of the Heart of
Mary Villa. On 19 June 1986, the Aguirre spouses' guardianship of Larry was legalized when the
Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians
over the person and property of Larry.
As Larry was growing up, the Aguirre spouses and their children noticed that his developmental
milestones were remarkably delayed. His cognitive and physical growth did not appear normal in
that "at age 3 to 4 years, Larry could only crawl on his tummy like a frog x x x;" 8 he did not utter his
first word until he was three years of age; did not speak in sentences until his sixth year; and only
learned to stand up and walk after he turned five years old. At age six, the Aguirre spouses first
enrolled Larry at the Colegio de San Agustin, Dasmariñas Village, but the child experienced
significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for
neurological and psychological evaluations. The psychological evaluation 9 done on Larry revealed
the latter to be suffering from a mild mental deficiency. 10 Consequent thereto, the Aguirre spouses
transferred Larry to St. John Ma. Vianney, an educational institution for special children.
In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the
intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on
the intended patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in
order to confirm and validate whether or not the former could validly give his consent to the medical
procedure on account of his mental deficiency.
In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a
psychiatrist, for evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual
made the following recommendation:
[T]he responsibility of decision making may be given to his parent or guardian. 11
the full text of which reads –
PSYCHIATRY REPORT
21 January 2002
GENERAL DATA
LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie
Vianney], was referred for psychiatric evaluation to determine competency to give consent
for vasectomy.
CLINICAL SUMMARY
Larry was adopted at age 3 from an orphanage and prenatal history is not known to the
adoptive family except that abortion was attempted. Developmental milestones were noted to
be delayed. He started to walk and speak in single word at around age 5. He was enrolled in
Colegio de San Agustin at age 6 where he showed significant learning difficulties that he had
to repeat 1st and 4th grades. A consult was done in 1989 when he was 11 years old.
Neurological findings and EEG results were not normal and he was given Tecretol and
Encephabol by his neurologist. Psychological evaluation revealed mild to moderate mental
retardation, special education training was advised and thus, he was transferred to St. John
Marie Vianney. He finished his elementary and secondary education in the said school. He
was later enrolled in a vocational course at Don Bosco which he was unable to continue.
There has been no reported behavioral problems in school and he gets along relatively well
with his teachers and some of his classmates.
Larry grew up with a very supportive adoptive family. He is the youngest in the family of four
sisters. Currently, his adoptive parents are already old and have medical problem and thus,
they could no longer monitor and take care of him like before. His adoptive mother has
Bipolar Mood Disorder and used to physically maltreat him. A year ago, he had an episode
of dizziness, vomiting and headaches after he was hit by his adoptive mother. Consult was
done in Makati Medical Center and several tests were done, results of which were consistent
with his developmental problem. There was no evidence of acute insults. The family
subsequently decided that he should stay with one of his sisters to avoid similar incident and
the possibility that he would retaliate although he has never hurt anybody. There has been
no episode of violent outburst or aggressive behavior. He would often keep to himself when
sad, angry or frustrated.
He is currently employed in the company of his sister and given assignment to do some
photocopying, usually in the mornings. He enjoys playing billiards and basketball with his
nephews and, he spends most of his leisure time watching TV and listening to music. He
could perform activities of daily living without assistance except that he still needs
supervision in taking a bath. He cannot prepare his own meal and never allowed to go out
and run errands alone. He does not have friends and it is only his adoptive family whom he
has significant relationships. He claims that he once had a girlfriend when he was in high
school who was more like a best friend to him. He never had sexual relations. He has
learned to smoke and drink alcohol few years ago through his cousins and the drivers. There
is no history of abuse of alcohol or any prohibited substances.
MEDICAL STATUS EXAMINATION
The applicant was appropriately dressed. He was cooperative and he had intermittent eye
contact. Speech was spontaneous, soft, and relevant. He responded to questions in single
words or simple sentences. He was anxious specially at the start of the interview, with full
affect appropriate to mood and thought content. There was no apparent thought or
perceptual disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time,
place and person. He has intact remote and recent memory. He could do simple calculation.
He could write his name and read simple words. His human figure was comparable to a 7-8
year old. He demonstrated fair judgment and poor insight. He had fair impulse control.
PSYCHOLOGICAL TESTS
Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000
(Dr. Ma. Teresa Gustilo-Villaosor) consistently revealed mild to moderate mental deficiency.
SIGNIFICANT LABORATORY EXAMS RESULTS
CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia.
No localized mass lesion in the brain.
MRI done on 10 January 2001 showed bilateral parietal x x x volume loss,
encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal or neonatal
infarcts. Ex-vacuo dilatation of the atria of lateral ventricles associated thinned posterior half
of the corpus callosum.
ASSESSMENT AND RECOMMENDATION
Axis I None
Axis II Mental Retardation, mild to moderate type
Axis III None
Axis IV None at present
Axis V Current GAF = 50-60
Larry's mental deficiency could be associated with possible perinatal insults, which is
consistent with the neuroimaging findings. Mental retardation associated with neurological
problems usually has poorer prognosis. Larry is very much dependent on his family for his
needs, adaptive functioning, direction and in making major life decisions. At his capacity, he
may never understand the nature, the foreseeable risks and benefits, and consequences of
the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of
decision making may be given to his parent or guardian.
Marissa B. Pascual, M.D.

Psychiatrist12
Considering the above recommendation, respondent Pedro Aguirre's written consent was deemed
sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002,
respondent Dr. Agatep performed a bilateral vasectomy on Larry.
On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest child, instituted a
criminal complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both
in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr.
Pascual and several John/Jane Does before the Office of the City Prosecutor of Quezon City.
The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the following allegations:
2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in urology
and psychiatry respectively; while respondent Pedro B. Aguirre is my father; Michelina S.
Aguirre-Olondriz is my sister, and the victim Laureano "Larry" Aguirre xxx is my common law
brother. JOHN and JANE DOES were the persons who, acting upon the apparent
instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B. Aguirre, actually
scouted, prospected, facilitated, solicited and/or procured the medical services of
respondents Dra. Pascual and Dr. Agatep vis-à-vis the intended mutilation via bilateral
vasectomy of my common law brother Larry Aguirre subject hereof.
xxxx
4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters
was furnished a copy of respondent Dra. Pascual's Psychiatry Report dated 21 January
2004 by the "DSWD," in which my common law brother "Larry" was falsely and maliciously
declared incompetent and incapable of purportedly giving his own consent to the
MUTILATION VIA BILATERAL VASECTOMY intended to be performed on him by all the
respondents.
xxxx
6. Based on the foregoing charade and false pretenses invariably committed by all of the
respondents in conspiracy with each other, on 31 January 2002, my common law brother
Larry Aguirre, although of legal age but conspiratorially caused to be declared by
respondents to be "mentally deficient" and incompetent to give consent to his BILATERAL
VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally
placed thereafter under surgery for MUTILATION VIA "BILATERAL VASECTOMY" x x x,
EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor
personal consent of Larry Aguirre himself.
In addition to the above, the complaint included therein an allegation that –
v. x x x without a PRIOR medical examination, professional interview of nor verification and

consultation with my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly,
fraudulently and with obvious intent to defame and malign her reputation and honor, and
worse, that of our Sabido family, falsely concluded and diagnosed, via her falsified
Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly suffers from
"BIPOLAR MOOD DISORDER" x x x.
To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro Aguirre,
Olondriz, Dr. Agatep and Dr. Pascual submitted their respective Counter-Affidavits.
In her defense,14 respondent Olondriz denied that she "prospected, scouted, facilitated, solicited
and/or procured any false statement, mutilated or abused" her common-law brother, Larry Aguirre.
Further, she countered that:
3. x x x While I am aware and admit that Larry went through a vasectomy procedure, there is
nothing in the Complaint which explains how the vasectomy amounts to a mutilation.
xxxx
5. In any case, as I did not perform the vasectomy, I can state with complete confidence that
I did not participate in any way in the alleged mutilation.
6. Neither did I procure or solicit the services of the physician who performed the vasectomy,
Dr. Juvido Agatep x x x. It was my father, Pedro Aguirre, Larry's guardian, who obtained his
services. I merely acted upon his instructions and accompanied my brother to the physician,
respondents Dra. Marissa B. Pascual x x x.
xxxx
10. Neither does the Complaint explain in what manner the Complainant is authorized or has
any standing to declare that Larry's consent was not obtained. Complainant is not the
guardian or relative of Larry. While she argues that Larry's consent should have been
obtained the Complaint does not dispute the psychiatrist's findings about Larry's inability to
give consent.
xxxx
13. x x x the Complaint does not even state what alleged participation was falsified or the
portion of the psychiatric report that allegedly states that someone participated when in fact
that person did not so participate.
xxxx
15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x.
xxxx
17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or incompetent
to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry) by
both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the belief that my father continues to
be the legal guardian of Larry. I know of no one else who asserts to be his legal guardian x x
x.15
Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his
complicity in the crime of mutilation as charged and asserts that:
5. In any case, as I did not perform the vasectomy, I can state with complete confidence that
I did not participate in any way in the alleged mutilation. 16
Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to
mutilation, as the latter's reproductive organ is still completely intact. 17 In any case, respondent Pedro
Aguirre explains that the procedure performed is reversible through another procedure called
Vasovasostomy, to wit:
8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I

can also state with confidence that the procedure enables men who have undergone a
vasectomy to sire a child. Hence, no permanent damage was caused by the procedure.
Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit:
14. x x x I did not make it appear that any person participated in any act or proceeding when
that person did not in fact participate x x x.
xxxx
16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at
her report independently, using her own professional judgment x x x.
xxxx
31. What I cannot understand about Petita's Complaint is how Larry is argued to be legally a
child under the definition of one law but nonetheless and simultaneously argued to be
capacitated to give his consent as fully as an adult. 18
Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to
himself and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court,
Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal
guardians, consequently, parental authority over Larry is vested in him. But assuming for the sake of
argument that Larry does have the capacity to make the decision concerning his vasectomy,
respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute
the subject criminal complaint, for only Larry would have the right to do so.
Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of
facts stated in the Complaint. Adopting the allegations of his co-respondents insofar as they were
material to the charges against him, he vehemently denied failing to inform Larry of the intended
procedure. In his counter-statement of facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained

what vasectomy is and the consequences thereof; but finding signs of mental deficiency, x x
x I advised his relatives and his nurse who accompanied him to have Larry examined by a
psychiatrist who could properly determine whether or not Larry x x x can really give his
consent, thus I required them to secure first a psychiatric evaluation and clearance prior to
the contemplated procedure.
(c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr.
Marissa Pascual x x x. In her said report, Dr. Pascual found Larry to suffer from "mental
retardation, mild to moderate type" and further stated that "at his capacity, he may never
understand the nature, the foreseeable risks and benefits and consequences of the
procedure (vasectomy) x x x, thus the responsibility of decision making may be given to his
parent or guardian x x x."
(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that
he was the legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry
x x x.
(e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and
diligence.19
In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that
subject complaint should be dismissed for the following reasons:
1. The complainant has no legal personality to file this case. As mentioned above, she is only
a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one
of the herein respondents x x x.
2. x x x [t]he allegations in the complaint clearly centers on the condition of complainant's
mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of
participation of herein respondent. x x x
xxxx
(b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly
gives reference to co-respondent, Dr. Marissa Pascual's Psychiatry Report, dated January
21, 2002, in relation with her field of profession, an expert opinion. I do not have any
participation in the preparation of said report, x x x neither did I utilized (sic) the same in any
proceedings to the damage to another. x x x I also deny using a falsified document x x x.
(c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched
in vasectomy is not considered an organ in the context of law and medicine, it is quite remote
from the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of
said law. It merely avers that Laureano "Larry" Aguirre is a child, and alleges his father,
Pedro Aguirre, has parental authority over him x x x.20
Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed
to her. She stands by the contents of the assailed Psychiatric Report, justifying it thus:
x x x My opinion of Larry Aguirre's mental status was based on my own personal

observations, his responses during my interview of him, the results of the two (2)
psychological tests conducted by clinical psychologists, the results of laboratory tests,
including a CT Scan and MRI, and his personal and family history which I obtained from his
sister, Michelina Aguirre-Olondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my

opinion of Mrs. Aguirre's mental status, x x x. Rather, it is part of the patient's personal and
family history as conveyed to me by Mrs. Aguirre-Olondriz.
6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a

charge for falsification. A contrary opinion by another expert only means that the experts
differ, and does not necessarily reflect on the truth or falsity of either opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x.
8. I had no participation in the surgery performed on Larry Aguirre except to render an

opinion on his capacity to give informed consent to the vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that complainants are not the
proper persons to subscribe to the same as they are not the offended party, peace officer or
other public officer charged with the enforcement of the law violated x x x. 21
The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to
the crime of falsification. He held that –
[T]he claim of the complainant that the Psychiatric Report was falsified, because consent
was not given by Larry Aguirre to the vasectomy and/or he was not consulted on said
operation does not constitute falsification. It would have been different if it was stated in the
report that consent was obtained from Larry Aguirre or that it was written therein that he was
consulted on the vasectomy, because that would mean that it was made to appear in the
report that Larry Aguirre participated in the act or proceeding by giving his consent or was
consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry
would have been an untruthful statement. But that is not the case. Precisely (sic) the report
was made to determine whether Larry Aguirre could give his consent to his intended
vasectomy. Be that as it may, the matter of Larry's consent having obtained or not may nor
be an issue after all, because complainant's (sic) herself alleged that Larry's mental condition
is that of a child, who can not give consent. Based on the foregoing consideration, no
falsification can be established under the circumstances. 22
Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had
Bipolar Mood Disorder cannot be considered falsification since –
The report did not state that Lourdes Aguirre was in fact personally interviewed by
respondent Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood
Disorder. The report merely quoted other sources of information with respect to the condition
of Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was physically
abusing Larry Aguirre was also not of Dra. Pascual personal knowledge. But the fact that
Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not
mean that she committed falsification in the process. Her sources may be wrong and may
affect the veracity of her report, but for as long as she has not alleged therein that she
personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot
be charged of falsification. Therefore, it goes without saying that if the author of the report is
not guilty, then with more reason the other respondents are not liable. 23
Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did
not amount to the crime of mutilation as defined and penalized under Article 262 of the Revised
Penal Code, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his
reproductive organ, which is still very much part of his physical self." He ratiocinated that:
While the operation renders him the inability (sic) to procreate, the operation is reversible
and therefore, cannot be the permanent damage contemplated under Article 262 of the
Revised Penal Code.24
The Assistant City Prosecutor, 25 in a Resolution26 dated 8 January 2003, found no probable cause to
hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of
falsification and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised
Penal Code, in relation to Republic Act No. 7610. Accordingly, the Assistant City Prosecutor
recommended the dismissal of petitioner Gloria Aguirre's complaint for insufficiency of evidence. The
dispositive portion of the resolution reads:
WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency

of evidence.27
On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of
the DOJ by means of a Petition for Review.28
In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuño, for the Secretary
of the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that:
Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000,
the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing
of any reversible error in the questioned resolution or finds the same to be patently without
merit.
We carefully examined the petition and its attachments and found no error that would justify
a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on
the matter.29
Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with finality by the DOJ in
another Resolution dated 12 November 2004.
Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition
for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended.
On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria
Aguirre's recourse for lack of merit.
The fallo of the assailed decision reads:
WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE
and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions dated
February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466
are hereby AFFIRMED.30
Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was denied by the appellate
court in a Resolution dated 5 December 2005.
Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the
following arguments:
I.
THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS

OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH
RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON
RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A
FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X;
AND
xxxx
II.
WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE

ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE
RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF
SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31
The foregoing issues notwithstanding, the more proper issue for this Court's consideration is, given
the facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit
grave abuse of discretion amounting to lack or excess of jurisdiction when the latter affirmed the
public prosecutor's finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr.
Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification and mutilation in
relation to Republic Act No. 7610.
In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction, the Court of Appeals explained that:
Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy

operation, and the chances of restoring fertility with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not
constitute mutilation even if intentionally and purposely done to prevent him from siring a
child.
xxxx
Sterilization is to be distinguished from castration: in the latter act the reproductive capacity
is permanently removed or damaged.32
It then concluded that:
The matter of legal liability, other than criminal, which private respondents may have incurred
for the alleged absence of a valid consent to the vasectomy performed on Larry, is certainly
beyond the province of this certiorari petition. Out task is confined to the issue of whether or
not the Secretary of Justice and the Office of the City Prosecutor of Quezon City committed
grave abuse of discretion in their determining the existence or absence of probable cause for
filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of
the Revised Penal Code.33
Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to
appreciate several important facts: 1) that bilateral vasectomy conducted on petitioner's brother,
Larry Aguirre, was admitted34; 2) that the procedure caused the perpetual destruction of Larry's
reproductive organs of generation or conception; 35 3) that the bilateral vasectomy was intentional and
deliberate to deprive Larry forever of his reproductive organ and his capacity to procreate; and 4)
that respondents, "in conspiracy with one another, made not only one but two (2) untruthful
statements, and not mere inaccuracies when they made it appear in the psychiatry report" 36 that a)
Larry's consent was obtained or at the very least that the latter was informed of the intended
vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically,
however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro
Aguirre, has guardianship over the person of Larry. She only insists that respondents should have
obtained Larry's consent prior to the conduct of the bilateral vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that "the
conduct of preliminary investigation to determine the existence of probable cause for the purpose of
filing (an) information is the function of the public prosecutor." 37 More importantly, "the element[s] of
castration or mutilation of an organ necessary for generation is completely absent as he was not
deprived of any organ necessary for reproduction, much less the destruction of such organ." 38
Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz
assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has
not shown any injury to her person or asserted any relationship with Larry other than being his
"common law sister"; further, that she cannot prosecute the present case, as she has not been
authorized by law to file said complaint, not being the offended party, a peace officer or a public
officer charged with the enforcement of the law. Accordingly, respondents Pedro Aguirre and
Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be
charged with, prosecuted for and ultimately convicted of: 1) "mutilation x x x since the bilateral
vasectomy conducted on Larry does not involve castration or amputation of an organ necessary for
reproduction as the twin elements of the crime of mutilation x x x are absent" 39; and 2) "falsification x
x x since the acts allegedly constituting falsification involve matters of medical opinion and not
matters of fact,"40 and that petitioner Gloria Aguirre failed to prove damage to herself or to any other
person.
Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates
that vasectomy is merely the "excision of the vas deferens, the duct in testis which transport
semen"41; that it is the penis and the testis that make up the male reproductive organ and not the vas
deferens; and additionally argues that for the crime of mutilation to be accomplished, Article 262 of
the Revised Penal Code necessitates that there be intentional total or partial deprivation of some
essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not being
organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to
mutilation.
Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he
never took part in disclosing any information, data or facts as contained in the contentious
Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her
independent exercise of professional judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to
be incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and
persons who interacted with him." 42 And supposing that said report is flawed, it is, at most, an
erroneous medical diagnosis.
The petition has no merit.
Probable cause has been defined as the existence of such facts and circumstances as would excite
belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. 43 The term does not mean
"actual and positive cause" nor does it import absolute certainty. 44 It is merely based on opinion and
reasonable belief;45 that is, the belief that the act or omission complained of constitutes the offense
charged. A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.46
The executive department of the government is accountable for the prosecution of crimes, its
principal obligation being the faithful execution of the laws of the land. A necessary component of the
power to execute the laws is the right to prosecute their violators, 47 the responsibility of which is
thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant
the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of
his office, a public prosecutor is under no compulsion to file a particular criminal information where
he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at
hand points to a different conclusion.
Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of
whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors
which are best appreciated by (public) prosecutors. 48 And this Court has consistently adhered to the
policy of non-interference in the conduct of preliminary investigations, and to leave to the
investigating prosecutor sufficient latitude of discretion in the determination of what constitutes
sufficient evidence as will establish probable cause for the filing of an information against the
supposed offender.49
But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It
is entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged
in him by law. This, however, does not render his act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to
excess of jurisdiction.50
Prescinding from the above, the court's duty in an appropriate case, therefore, is confined to a
determination of whether the assailed executive determination of probable cause was done without
or in excess of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the
extraordinary writ of certiorari, so as to justify the reversal of the finding of whether or not there exists
probable cause to file an information, the one seeking the writ must be able to establish that the
investigating prosecutor exercised his power in an arbitrary and despotic manner by reason of
passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a
unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of
discretion is not enough.51 Excess of jurisdiction signifies that he had jurisdiction over the case but
has transcended the same or acted without authority. 52
Applying the foregoing disquisition to the present petition, the reasons of the Assistant City
Prosecutor in dismissing the criminal complaints for falsification and mutilation, as affirmed by the
DOJ, is determinative of whether or not he committed grave abuse of discretion amounting to lack or
excess of jurisdiction.
In ruling the way he did – that no probable cause for falsification and mutilation exists - the Assistant
City Prosecutor deliberated on the factual and legal milieu of the case. He found that there was no
sufficient evidence to establish a prima facie case for the crimes complained of as defined and
punished under Articles 172, paragraph 2, and 262 of the Revised Penal Code in relation to
Republic Act No. 7610, respectively. Concerning the crime of falsification of a private document, the
Assistant City Prosecutor reasoned that the circumstances attendant to the case did not amount to
the crime complained of, that is, the lack of consent by Larry Aguirre before he was vasectomized; or
the fact that the latter was not consulted. The lack of the two preceding attendant facts do not in any
way amount to falsification, absent the contention that it was made to appear in the assailed report
that said consent was obtained. That would have been an untruthful statement. Neither does the fact
that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood Disorder by the same token
amount to falsification because said report does not put forward that such finding arose after an
examination of the concerned patient. Apropos the charge of mutilation, he reasoned that though the
vasectomy rendered Larry unable to procreate, it was not the permanent damage contemplated
under the pertinent provision of the penal code.
We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
DOJ and the Assistant City Prosecutor was not shown in the present case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual are
charged with violating Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act
No. 7610. Article 172, paragraph 2 of the Revised Penal Code, defines the crime of falsification of a
private document, viz –
Art. 172. Falsification by private individuals and use of falsified documents. – The
penalty of prision correccional in its medium and maximum periods and a fine of not more
than 5,000 pesos shall be imposed upon:
xxxx
2. Any person who, to the damage of a third party, or with the intent to cause such damage,
shall in any private document commit any of the acts of falsification enumerated in the next
preceding article.
Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring
with one another in keeping Larry "in the dark about the foregoing (vasectomy) as the same was
concealed from him by the respondents x x x,"53 as well as for falsely concluding and diagnosing
Lourdes Aguirre to be suffering from Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts constitutive of
falsification, that is –
Art. 171. x x x shall falsify a document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature, or rubric;
2. Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate;
3. Attributing to persons who have participated in an act or proceeding statements

other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document which changes its

meaning;
7. Issuing in an authenticated form a document purporting to be a copy of an original

document when no such original exists, or including in such copy a statement
contrary to, or different from, that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance thereof in a protocol,

registry, or official book.
vis-à-vis the much criticized Psychiatric Report, shows that the acts complained of do not in any
manner, by whatever stretch of the imagination, fall under any of the eight (8) enumerated acts
constituting the offense of falsification.
In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we
discuss the elements of the crime of falsification of private document under the Revised Penal Code,
a crime which all the respondents have been accused of perpetrating. The elements of said crime
under paragraph 2 of Article 172 of our penal code are as follows: 1) that the offender committed any
acts of falsification, except those in par. 7, enumerated in Article 171; 2) that the falsification was
committed in any private document; and 3) that the falsification caused damage to a third party or at
least the falsification was committed with intent to cause such damage. Under Article 171, paragraph
2, a person may commit falsification of a private document by causing it to appear in a document
that a person or persons participated in an act or proceeding, when such person or persons did not
in fact so participate in the act or proceeding. On the other hand, falsification under par. 3 of the
same article is perpetrated by a person or persons who, participating in an act or proceeding, made
statements in that act or proceeding and the offender, in making a document, attributed to such
person or persons statements other than those in fact made by such person or persons. And the
crime defined under paragraph 4 thereof is committed when 1) the offender makes in a document
statements in a narration of facts; 2) he has a legal obligation to disclose the truth of the facts
narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of
truth in the narration of facts was made with the wrongful intent of injuring a third person.
Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr.
Pascual, and the rest acting in conspiracy with her, to have committed the crime of falsification under
par. 3 and 4 of Article 171 of the Revised Penal Code, it is essential that that there be prima
facie evidence to show that she had caused it to appear that Larry gave his consent to be
vasectomized or at the very least, that the proposed medical procedure was explained to Larry. But
in the assailed report, no such thing was done. Lest it be forgotten, the reason for having Larry
psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with
impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr.
Pascual to explain to him what the import of the medical procedure was. Further, that Larry's
consent to be vasectomized was not obtained by the psychiatrist was of no moment, because
nowhere is it stated in said report that such assent was obtained. At any rate, petitioner Gloria
Aguirre contradicts her very own allegations when she persists in the contention that Larry has the
mental age of a child; hence, he was legally incapable of validly consenting to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of
Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the
Assistant City Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her
report does not mean that she committed falsification in the process. Her sources may be
wrong and may affect the veracity of her report, but for as long as she has not alleged
therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be
true, she cannot be charged of falsification. Therefore, it goes without saying that if the
author of the report is not guilty, then with more reason the other respondents are not liable. 54
As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as –
Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion perpetua shall be

imposed upon any person who shall intentionally mutilate another by depriving him, either
totally or partially, of some essential organ for reproduction.
Any other intentional mutilation shall be punished by prision mayor in its medium and
maximum periods.
A straightforward scrutiny of the above provision shows that the elements 55 of mutilation under the
first paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is,
mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and
deliberately, that is, to deprive the offended party of some essential organ for reproduction.
According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as
defined and penalized above, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry
of his reproductive organ, which is still very much part of his physical self." Petitioner Gloria Aguirre,
however, would want this Court to make a ruling that bilateral vasectomy constitutes the crime of
mutilation.
This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our
penal code.
A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in which this Court had the
occasion to shed light on the implication of the term mutilation. Therein we said that:
The sole point which it is desirable to discuss is whether or not the crime committed is that
defined and penalized by article 414 of the Penal Code. The English translation of this article
reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging
from reclusion temporal to reclusion perpetua." The Spanish text, which should govern, uses
the word "castrare," inadequately translated into English as "castrate." The word "capar,"
which is synonymous of "castrar," is defined in the Royal Academic Dictionary as the
destruction of the organs of generation or conception. Clearly it is the intention of the law to
punish any person who shall intentionally deprived another of any organ necessary for
reproduction. An applicable construction is that of Viada in the following language:
"At the head of these crimes, according to their order of gravity, is the mutilation known by
the name of 'castration' which consists of the amputation of whatever organ is necessary for
generation. The law could not fail to punish with the utmost severity such a crime, which,
although not destroying life, deprives a person of the means to transmit it. But bear in mind
that according to this article in order for 'castration' to exist, it is indispensable that the
'castration' be made purposely. The law does not look only to the result but also to the
intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of
the organs of generation, the act, although voluntary, not being intentional to that end, it
would not come under the provisions of this article, but under No. 2 of article 431." (Viada,
Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p. 525.)
Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of
reproduction? We answer in the negative.
In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens,
through which the sperm (cells) are transported from the testicle to the urethra where they combine
with the seminal fluid to form the ejaculant, is divided and the cut ends merely tied. 57 That part, which
is cut, that is, the vas deferens, is merely a passageway that is part of the duct system of the male
reproductive organs. The vas deferens is not an organ, i.e., a highly organized unit of structure,
having a defined function in a multicellular organism and consisting of a range of tissues. 58 Be that as
it may, even assuming arguendo that the tubular passage can be considered an organ, the cutting of
the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple
reason that it does not entail the taking away of a part or portion of the male reproductive system.
The cut ends, after they have been tied, are then dropped back into the incision. 59
Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not
deprive him, "either totally or partially, of some essential organ for reproduction." Notably, the
ordinary usage of the term "mutilation" is the deprivation of a limb or essential part (of the
body),60 with the operative expression being "deprivation." In the same manner, the word "castration"
is defined as the removal of the testies or ovaries. 61 Such being the case in this present petition, the
bilateral vasectomy done on Larry could not have amounted to the crime of mutilation as defined and
punished under Article 262, paragraph 1, of the Revised Penal Code. And no criminal culpability
could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less
the other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor
and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ
of certiorari is unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Court's general policy of non-interference in the
conduct of preliminary investigations. As it has been oft said, the Supreme Court cannot order the
prosecution of a person against whom the prosecutor does not find sufficient evidence to support at
least a prima facie case.62 The courts try and absolve or convict the accused but, as a rule, have no
part in the initial decision to prosecute him.63 The possible exception to this rule is where there is an
unmistakable showing of a grave abuse of discretion amounting to lack or excess of jurisdiction that
will justify judicial intrusion into the precincts of the executive. But that is not the case herein.
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed
21 July 2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R.
SP No. 88370 are hereby AFFIRMED. Costs against petitioner Gloria Aguirre.
SO ORDERED.
Ynares-Santiago, Chairperson, Austria-Martinez, Corona*, Reyes, JJ., concur.
Footnotes
* Justice Renato C. Corona was designated to sit as additional member replacing Justice
Antonio Eduardo B. Nachura per Raffle dated 10 December 2007.
1
Rollo, pp. 39-89.
2
Penned by Court of Appeals Associate Justice Martin S. Villarama, Jr. with Associate
Justices Rosmari D. Carandang and Lucenito N. Tagle, concurring; Annex "A" of the Petition;
id. at 90-108.
3
Annex "A-1"; id. at 110.
4
Id. at 157.
5
Id. at 159.
6
Annex "B" of the Petition; id. at 161-163.
7
Originally named as Jose Miguel Garcia.
8
Report of Neuropsychological Evaluation conducted by Lourdes K. Ledesma, Ph.D.; rollo,
pp. 299-304.
9
Conducted by Dr. Ma. Teresa Gustilo-Villasor, a clinical psychologist. Id. at 294-298.
10
Id.
11
Id. at 232.
12
Id. at 230-232.
13
Id. at 212-224.
14
Id. at 275-278.
15
Id.
16
Id. at 287.
17
Id.
18
Id. at 288-291.
19
Id. at 314-316.
20
Id. at 309-312.
21
Id. at 279-281.
22
Id. at 162.
23
Id.
24
Id.
25
Gibson T. Araula, Jr.
26
Rollo, pp. 161-163.
27
Id. at 163.
28
Id. at 164-206.
29
Id. at 157.
30
Id. at 107.
31
Id. at 51-54.
32
Id. at 105-106.
33
Id. at 107.
34
Id. at 53.
35
Id.
36
Id.
37
Id. at 659.
38
Id. at 660.
39
Id. at 764-765.
40
Id. at 765.
41
Id. at 863.
42
Id. at 733.
43
R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 394.
44
Id.
45
Id.
46
Webb v. Hon. De Leon, 317 Phil. 758, 789 (1995).
47
R.R. Paredes v. Calilung, supra note 43 at 394.
48
Webb v. Hon. De Leon, supra note 46 at 800.
49
Andres v. Cuevas, G.R. No. 150869, 9 June 2005, 460 SCRA 38, 52.
50
D.M. Consuji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996).
51
R.R. Paredes v. Calilung, supra note 43 at 397.
Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, 16 February 2005, 451 SCRA 533,

52
549.
53
Rollo, pp. 235-243.
54
Id. at 208.
55
Reyes, The Revised Penal Code, Book Two (13th ed.), p. 457.
56
36 Phil. 840, 840-841 (1917).
57
Solis, Legal Medicine (1987 ed.), p. 623.
58
Clugston, Dictionary of Science (1998 ed.), p. 558.
59
Schwartz, Shires, Spencer, Storer, Principle of Surgery, Vol. Two (4th ed.), pp. 1729-1730.
60
Webster's Third New International Dictionary (1993 ed.), p. 1493.
61
Id. at 349.
62
Sanchez v. Demetriou, G.R. Nos. 111771-77, 9 November 1993, 227 SCRA 627, 643.
63
Id.
PERALTA, J.:
This is an appeal from the Decision[1] of the Court of Appeals (CA) dated
August 17, 2015 in CA-G.R. CR-HC No. 06679, which affirmed the Joint
Decision[2] dated February 10, 2014 of the Regional Trial Court (RTC) of
San Carlos City in Criminal Case Nos. SCC-6210 and SCC-6211, finding
accused-appellant Salvador Tulagan (Tulagan) guilty beyond reasonable
doubt of the crimes of sexual assault and statutory rape as defined and
penalized under Article 266-A, paragraphs 2 and 1(d) of the Revised Penal
Code (RPC), respectively, in relation to Article 266-B.
In Criminal Case No. SCC-6210, Tulagan was charged as follows:
That sometime in the month of September 2011, at x x x, and within the
jurisdiction of this Honorable Court, the above-named accused, by means
of force, intimidation and with abuse of superior strength forcibly laid
complainant AAA,[3] a 9-year-old minor in a cemented pavement, and did
then and there, willfully, unlawfully and feloniously inserted his finger into
the vagina of the said AAA, against her will and consent.
Contrary to Article 266-A, par. 2 of the Revised Penal Code in relation to
R.A. 7610.
In Criminal Case No. SCC-6211, Tulagan was charged as follows:
That on or about October 8, 2011 at x x x, and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force,
intimidation and with abuse of superior strength, did then and there,
willfully, unlawfully and feloniously have sexual intercourse with
complainant AAA, a 9-year-old minor against her will and consent to the
damage and prejudice of said AAA, against her will and consent.
Contrary to Article 266-A, par. 1(d) of the Revised Penal Code in relation to
R.A. 7610.
Upon arraignment, Tulagan pleaded not guilty to the crimes charged.
During the trial, BBB, aunt of the victim AAA, testified that around 10:30
a.m. of October 17, 2011, she noticed a man looking at AAA outside their
house. When AAA asked her permission to go to the bathroom located
outside their house, the man suddenly went near AAA. Out of suspicion,
BBB walked to approach AAA. As BBB came close to AAA, the man left
suddenly. After AAA returned from the bathroom, BBB asked what the man
was doing to her. AAA did not reply. She then told AAA to get inside the
house. She asked AAA to move her panties down, and examined her
genitalia. She noticed that her genitalia was swollen. AAA then confessed to
her about the wrong done to her by appellant whom AAA referred to as
Badong or Salvador Tulagan. AAA cried hard and embraced BBB tightly.
AAA asked BBB for her help and even told her that she wanted Badong to
be put in jail.
AAA, nine (9) years old, testified that sometime in September 2011 while
she was peeling corn with her cousin who lived adjacent to her
grandmother's house, Tulagan approached her, spread her legs, and
inserted his finger into her private part. She said that it was painful, but
Tulagan just pretended as if he was just looking for something and went
home.
AAA, likewise, testified that at around 11:00 a.m. of October 8, 2011, while
she was playing with her cousin in front of Tulagan's house, he brought her
to his house and told her to keep quiet. He told her to lie down on the floor,
and removed her short pants and panties. He also undressed himself,
kissed AAA's cheeks, and inserted his penis into her vagina. She claimed
that it was painful and that she cried because Tulagan held her hands and
pinned them with his. She did not tell anyone about the incident, until her
aunt examined her private part.
Upon genital examination by Dr. Brenda Tumacder on AAA, she found a
healed laceration at 6 o'clock position in AAA's hymen, and a dilated or
enlarged vaginal opening. She said that it is not normal for a 9-year-old
child to have a dilated vaginal opening and laceration in the hymen.
For the defense, Tulagan claimed that he did not know AAA well, but
admitted that he lived barely five (5) meters away from AAA's
grandmother's house where she lived. He added that the whole month of
September 2011, from 8:00 a.m. to 1:00 p.m., he was gathering dried
banana leaves to sell then take a rest after 1:00 p.m. at their terrace, while
his mother cut the banana leaves he gathered at the back of their kitchen.
He said that he never went to AAA's house and that he had not seen AAA
during the entire month of September 2011. Tulagan, likewise, claimed that
before the alleged incidents occurred, his mother had a misunderstanding
with AAA's grandmother, who later on started spreading rumors that he
raped her granddaughter.
After trial, the RTC found that the prosecution successfully discharged the
burden of proof in two offenses of rape against AAA. It held that all the
elements of sexual assault and statutory rape was duly established. The trial
court relied on the credible and positive declaration of the victim as against
the alibi and denial of Tulagan. The dispositive portion of the Decision
reads:
WHEREFORE, premises considered, the Court finds the accused GUILTY
beyond reasonable doubt [of] the crime of rape defined and penalized
under Article 266-A, paragraph 1 (d), in relation to R.A. 7610 in Criminal
Case No. SCC-6211 and is hereby sentenced to suffer the penalty
of reclusion perpetua and to indemnify the victim in the amount of fifty
thousand (Php50,000.00) pesos; moral damages in the amount of fifty
thousand (Php 50,000.00) pesos, and to pay the cost of the suit. Likewise,
this Court finds the accused GUILTY beyond reasonable doubt in Criminal
Case No. SCC-6210 for the crime of rape defined and penalized under
Article 266-A, paragraph 2 and he is hereby sentenced to suffer an
indeterminate penalty of six (6) years of prision correccional, as minimum,
to twelve (12) years of prision mayor, as maximum, and to indemnify the
victim in the amount of thirty thousand (Php30,000.00) pesos; and moral
damages in the amount of twenty thousand (Php20,000.00) pesos, and to
pay the cost of suit.
SO ORDERED.[4]
Upon appeal, the CA affirmed with modification Tulagan's conviction of
sexual assault and statutory rape. The dispositive portion of the Decision
reads:
ACCORDINGLY, the Decision dated February 10, 2014 is AFFIRMED,
subject to the following MODIFICATIONS:
1. In Criminal Case No. SCC-6210 (Rape by Sexual Assault), appellant is
sentenced to an indeterminate penalty of 12 years of reclusion temporal, as
minimum, to 15 years of reclusion temporal, as maximum. The award of
moral damages is increased to P30,000.00; and P30,000.00 as exemplary
damages, are likewise granted.
2. In Criminal Case No. SCC-6211 (Statutory Rape), the awards of civil
indemnity and moral damages are increased to P100,000.00 each.
Exemplary damages in the amount of P100,000.00, too, are granted.
3. All damages awarded are subject to legal interest at the rate of 6% [per
annum] from the date of finality of this judgment until fully paid.
SO ORDERED.[5]
Aggrieved, Tulagan invoked the same arguments he raised before the CA in
assailing his conviction. He alleged that the appellate court erred in giving
weight and credence to the inconsistent testimony of AAA, and in
sustaining his conviction despite the prosecution's failure to prove his guilt
beyond reasonable doubt. To support his appeal, he argued that the
testimony of AAA was fraught with inconsistencies and lapses which
affected her credibility.
Our Ruling
The instant appeal has no merit. However, a modification of the
nomenclature of the crime, the penalty imposed, and the damages awarded
in Criminal Case No. SCC-6210 for sexual assault, and a reduction of the
damages awarded in Criminal Case No. SCC-6211 for statutory rape, are in
order.
Factual findings of the trial court carry great weight and respect due to the
unique opportunity afforded them to observe the witnesses when placed on
the stand. Consequently, appellate courts will not overturn the factual
findings of the trial court in the absence of facts or circumstances of weight
and substance that would affect the result of the case.[6] Said rule finds an
even more stringent application where the said findings are sustained by
the CA, as in the instant case:
Time and again, we have held that when it comes to the issue of credibility
of the victim or the prosecution witnesses, the findings of the trial courts
carry great weight and respect and, generally, the appellate courts will not
overturn the said findings unless the trial court overlooked, misunderstood
or misapplied some facts or circumstances of weight and substance which
will alter the assailed decision or affect the result of the case. This is so
because trial courts are in the best position to ascertain and measure the
sincerity and spontaneity of witnesses through their actual observation of
the witnesses' manner of testifying, their demeanor and behavior in court.
Trial judges enjoy the advantage of observing the witness' deportment and
manner of testifying, her "furtive glance, blush of conscious shame,
hesitation, flippant or sneering tone, calmness, sigh, or the scant or full
realization of an oath" - all of which are useful aids for an accurate
determination of a witness' honesty and sincerity. Trial judges, therefore,
can better determine if such witnesses are telling the truth, being in the
ideal position to weigh conflicting testimonies. Again, unless certain facts of
substance and value were overlooked which, if considered, might affect the
result of the case, its assessment must be respected, for it had the
opportunity to observe the conduct and demeanor of the witnesses while
testifying and detect if they were lying. The rule finds an even more
stringent application where the said findings are sustained by the Court of
Appeals.[7]
Here, in Criminal Case No. SCC-6210 for sexual assault, both the RTC and
the CA found AAA's testimony to be credible, straightforward and
unwavering when she testified that Tulagan forcibly inserted his finger in
her vagina. In Criminal Case No. SCC-6211 for statutory rape, both the RTC
and the CA also found that the elements thereof were present, to wit: (1)
accused had carnal knowledge of the victim, and (2) said act was
accomplished when the offended party is under twelve (12) years of age.
Indubitably, the courts a quo found that the prosecution was able to prove
beyond reasonable doubt Tulagan's guilt for the crime of rape. We find no
reason to deviate from said findings and conclusions of the courts a quo.
Jurisprudence tells us that a witness' testimony containing inconsistencies
or discrepancies does not, by such fact alone, diminish the credibility of
such testimony. In fact, the variance in minor details has the net effect of
bolstering instead of diminishing the witness' credibility because they
discount the possibility of a rehearsed testimony. Instead, what remains
paramount is the witness' consistency in relating the principal elements of
the crime and the positive and categorical identification of the accused as
the perpetrator of the same.[8]
As correctly held by the CA, the fact that some of the details testified to by
AAA did not appear in her Sinumpaang Salaysay does not mean that the
sexual assault did not happen. AAA was still able to narrate all the details of
the sexual assault she suffered in Tulagan's hands. AAA's account of her
ordeal being straightforward and candid and corroborated by the medical
findings of the examining physician, as well as her positive identification of
Tulagan as the perpetrator of the crime, are, thus, sufficient to support a
conviction of rape.
As for Tulagan's imputation of ill motive on the part of AAA's grandmother,
absent any concrete supporting evidence, said allegation will not convince
us that the trial court's assessment of the credibility of the victim and her
supporting witness was tainted with arbitrariness or blindness to a fact of
consequence. We reiterate the principle that no young girl, such as AAA,
would concoct a sordid tale, on her own or through the influence of her
grandmother as per Tulagan's intimation, undergo an invasive medical
examination then subject herself to the stigma and embarrassment of a
public trial, if her motive was other than a fervent desire to seek justice.
In People v. Garcia,[9] we held:
Testimonies of child-victims are normally given full weight and credit, since
when a girl, particularly if she is a minor, says that she has been raped, she
says in effect all that is necessary to show that rape has in fact been
committed. When the offended party is of tender age and immature, courts
are inclined to give credit to her account of what transpired, considering
not only her relative vulnerability but also the shame to which she would be
exposed if the matter to which she testified is not true. Youth and
immaturity are generally badges of truth and sincerity. A young girl's
revelation that she had been raped, coupled with her voluntary submission
to medical examination and willingness to undergo public trial where she
could be compelled to give out the details of an assault on her dignity,
cannot be so easily dismissed as mere concoction.[10]
We also reject Tulagan's defense of denial. Being a negative defense, the
defense of denial, if not substantiated by clear and convincing evidence, as
in the instant case, deserves no weight in law and cannot be given greater
evidentiary value than the testimony of credible witnesses, like AAA, who
testified on affirmative matters. Since AAA testified in a categorical and
consistent manner without any ill motive, her positive identification of
Tulagan as the sexual offender must prevail over his defenses of denial and
alibi.
Here, the courts a quo did not give credence to Tulagan's alibi considering
that his house was only 50 meters away from AAA's house, thus, he failed to
establish that it was physically impossible for him to be at the locus
criminis when the rape incidents took place. "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. There must be a
demonstration that they were so far away and could not have been
physically present at the crime scene and its immediate vicinity when the
crime was committed. In this regard, Tulagan failed to prove that there was
physical impossibility for him to be at the crime scene when the rape was
committed.[11] Thus, his alibi must fail.
Further, although the rape incidents in the instant case were not
immediately reported to the police, such delay does not affect the
truthfulness of the charge in the absence of other circumstances that show
the same to be mere concoction or impelled by some ill motive.[12]
For the guidance of the Bench and the Bar, We take this opportunity to
reconcile the provisions on Acts of Lasciviousness, Rape and Sexual Assault
under the Revised Penal Code (RPC), as amended by Republic Act (R.A.)
No. 8353 vis-a-vis Sexual Intercourse and Lascivious Conduct under
Section 5(b) of R.A. No. 7610, to fortify the earlier decisions of the Court
and doctrines laid down on similar issues, and to clarify the nomenclature
and the imposable penalties of said crimes, and damages in line with
existing jurisprudence.[13]
Prior to the effectivity of R.A. No. 8353 or The Anti-Rape Law of 1997 on
October 22, 1997, acts constituting sexual assault under paragraph 2,
[14]
Article 266-A of the RPC, were punished as acts of lasciviousness under
Article No. 336[15] of the RPC or Act No. 3815 which took effect on
December 8, 1930. For an accused to be convicted of acts of lasciviousness,
the confluence of the following essential elements must be proven: (1) that
the offender commits any act of lasciviousness or lewdness; and (2) that it
is done under any of the following circumstances: (a) by using force or
intimidation; (b) when the offended woman is deprived of reason or
otherwise unconscious; or (c) when the offended party is under twelve (12)
years of age.[16] In Amployo v. People,[17] We expounded on the broad
definition of the term "lewd":
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. What is or what is
not lewd conduct, by its very nature, cannot be pigeonholed into
a precise definition. As early as US. v. Gomez, we had already lamented
that
It would be somewhat difficult to lay down any rule specifically establishing
just what conduct makes one amenable to the provisions of article 439 of
the Penal Code. What constitutes lewd or lascivious conduct must be
determined from the circumstances of each case. It may be quite easy to
determine in a particular case that certain acts are lewd and lascivious, and
it may be extremely difficult in another case to say just where the line of
demarcation lies between such conduct and the amorous advances of an
ardent lover.[18]
When R.A. No. 7610 or The Special Protection of Children Against Abuse,
Exploitation and Discrimination Act took effect on June 17, 1992 and its
Implementing Rules and Regulation was promulgated in October 1993, the
term "lascivious conduct" was given a specific definition. The Rules and
Regulations on the Reporting and Investigation of Child Abuse
Cases states that "lascivious conduct means the intentional touching, either
directly or through clothing, of the genitalia, anus, groin, breast, inner
thigh, or buttocks, or the introduction of any object into the genitalia, anus
or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition of the
genitals or pubic area of a person."
Upon the effectivity of R.A. No. 8353, specific forms of acts of
lasciviousness were no longer punished under Article 336 of the RPC, but
were transferred as a separate crime of "sexual assault" under paragraph 2,
Article 266-A of the RPC. Committed by "inserting penis into another
person's mouth or anal orifice, or any instrument or object, into the genital
or anal orifice of another person" against the victim's will, "sexual assault"
has also been called "gender-free rape" or "object rape." However, the term
"rape by sexual assault" is a misnomer, as it goes against the traditional
concept of rape, which is carnal knowledge of a woman without her consent
or against her will. In contrast to sexual assault which is a broader term
that includes acts that gratify sexual desire (such as cunnilingus, felatio,
sodomy or even rape), the classic rape is particular and its commission
involves only the reproductive organs of a woman and a man. Compared to
sexual assault, rape is severely penalized because it may lead to unwanted
procreation; or to paraphrase the words of the legislators, it will put an
outsider into the woman who would bear a child, or to the family, if she is
married.[19] The dichotomy between rape and sexual assault can be gathered
from the deliberation of the House of Representatives on the Bill entitled
"An Act To Amend Article 335 of the Revised Penal Code, as amended, and
Defining and Penalizing the Crime of Sexual Assault":
INTERPELLATION OF MR. [ERASMO B.] DAMASING:
xxxx
Pointing out his other concerns on the measure, specifically regarding the
proposed amendment to the Revised Penal Code making rape gender-free,
Mr. Damasing asked how carnal knowledge could be committed in case the
sexual act involved persons of the same sex or involves unconventional
sexual acts.
Mr. [Sergio A. F.] Apostol replied that the Bill is divided into two
classifications: rape and sexual assault. The Committee, he explained,
defines rape as carnal knowledge by a person with the opposite sex, while
sexual assault is defined as gender-free, meaning it is immaterial whether
the person committing the sexual act is a man or a woman or of the same
sex as the victim.
Subsequently, Mr. Damasing adverted to Section 1 which seeks to amend
Article 335 of the Revised Penal Code as amended by RA No. 7659, which is
amended in the Bill as follows: "Rape is committed by having carnal
knowledge of a person of the opposite sex under the following
circumstances." He then inquired whether it is the Committee's intent to
make rape gender-free, either by a man against a woman, by a woman
against a man, by man against a man, or by a woman against a woman. He
then pointed out that the Committee's proposed amendment is vague as
presented in the Bill, unlike the Senate version which specifically defines in
what instances the crime of rape can be committed by a man or by the
opposite sex.
Mr. Apostol replied that under the Bill "carnal knowledge" presupposes
that the offender is of the opposite sex as the victim. If they are of the same
sex, as what Mr. Damasing has specifically illustrated, such act cannot be
considered rape - it is sexual assault.
Mr. Damasing, at this point, explained that the Committee's definition of
carnal knowledge should be specific since the phrase "be a person of the
opposite sex" connotes that carnal knowledge can be committed by a
person, who can be either a man or a woman and hence not necessarily of
the opposite sex but may be of the same sex.
Mr. Apostol pointed out that the measure explicitly used the phrase “carnal
knowledge of a person of the opposite sex" to define that the abuser and the
victim are of the opposite sex; a man cannot commit rape against another
man or a woman against another woman. He pointed out that the Senate
version uses the phrase carnal knowledge with a woman".
While he acknowledged Mr. Apostol's points, Mr. Damasing reiterated that
the specific provisions need to be clarified further to avoid confusion, since,
earlier in the interpellation Mr. Apostol admitted that being gender-free,
rape can be committed under four situations or by persons of the same sex.
Whereupon, Mr. Damasing read the specific provisions of the Senate
version of the measure.
In his rejoinder, Mr. Apostol reiterated his previous contention that the Bill
has provided for specific and distinct definitions regarding rape and sexual
assault to differentiate that rape cannot be totally gender-free as it must be
committed by a person against someone of the opposite sex.
With regard to Mr. Damasing's query on criminal sexual acts involving
persons of the same sex, Mr. Apostol replied that Section 2, Article 266(b)
of the measure on sexual assault applies to this particular provision.
Mr. Damasing, at this point, inquired on the particular page where Section
2 is located.
SUSPENSION OF SESSION
xxxx
INTERPELLATION OF MR. DAMASING
(Continuation)
Upon resumption of session, Mr. Apostol further expounded on Sections 1
and 2 of the bill and differentiated rape from sexual assault. Mr. Apostol
pointed out that the main difference between the aforementioned sections
is that carnal knowledge or rape, under Section 1, is always with the
opposite sex. Under Section 2, on sexual assault, he explained that such
assault may be on the genitalia, the mouth, or the anus; it can be done by a
man against a woman, a man against a man, a woman against a woman or a
woman against a man.[20]
Concededly, R.A. No. 8353 defined specific acts constituting acts of
lasciviousness as a. distinct crime of "sexual assault," and increased the
penalty thereof from prision correccional to prision mayor. But it was
never the intention of the legislature to redefine the traditional concept of
rape. The Congress merely upgraded the same from a "crime against
chastity" (a private crime) to a "crime against persons" (a public crime) as a
matter of policy and public interest in order to allow prosecution of such
cases even without the complaint of the offended party, and to prevent
extinguishment of criminal liability in such cases through express pardon
by the offended party. Thus, other forms of acts of lasciviousness or
lascivious conduct committed against a child, such as touching of other
delicate parts other than the private organ or kissing a young girl with
malice, are still punished as acts of lasciviousness under Article 336 of the
RPC in relation to R.A. No. 7610 or lascivious conduct under Section 5 of
R.A. No. 7610.
Records of committee and plenary deliberations of the House of
Representative and of the deliberations of the Senate, as well as the records
of bicameral conference committee meetings, further reveal no legislative
intent for R.A. No. 8353 to supersede Section 5(b) of R.A. No. 7610. The
only contentious provisions during the bicameral conference committee
meetings to reconcile the bills of the Senate and House of Representatives
which led to the enactment of R.A. No. 8353, deal with the nature of and
distinction between rape by carnal knowledge and rape by sexual assault;
the threshold age to be considered in statutory rape [whether Twelve (12) or
Fourteen (14)], the provisions on marital rape and effect of pardon, and the
presumptions of vitiation or lack of consent in rape cases. While R.A. No.
8353 contains a generic repealing and amendatory clause, the records of
the deliberation of the legislature are silent with respect to sexual
intercourse or lascivious conduct against children under R.A. No. 7610,
particularly those who are 12 years old or below 18, or above 18 but are
unable to fully take care or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition.
In instances where the lascivious conduct committed against a child victim
is covered by the definition under R.A. No. 7610, and the act is likewise
covered by sexual assault under paragraph 2,[21] Article 266-A of the RPC,
the offender should be held liable for violation of Section 5(b), Article III of
R.A. No. 7610. The ruling in Dimakuta v. People[22] is instructive:
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into
another person's mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person if the victim did not consent either
it was done through force, threat or intimidation; or when the victim is
deprived of reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a form of rape.
However, in instances where the lascivious conduct is covered by the
definition under R.A. No 7610, where the penalty is reclusion
temporal medium, and the 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. No. 7610, where the law provides for the higher penalty
of reclusion temporal medium, if the offended party is a child victim. But if
the victim is at least eighteen (18) years of age, the offender should be liable
under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the
victim is at least eighteen (18) years and she is unable to fully take care of
herself or protect 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 for sexual abuse under R.A.
No. 7610.[23]
There could be no other conclusion, a child is presumed by law to be
incapable of giving rational consent to any lascivious act, taking into
account the constitutionally enshrined State policy to promote the physical,
moral, spiritual, intellectual and social well-being of the youth, as well as, in
harmony with the foremost consideration of the child's best interests in all
actions concerning him or her. This is equally consistent with the declared
policy of the State to provide special protection to children from all forms of
abuse, neglect, cruelty, exploitation and discrimination, and other
conditions prejudicial to their development; 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. Besides, if it was the intention of the framers of the law to
make child offenders liable only of Article 266-A of the RPC, which
provides for a lower penalty than R.A. No. 7610, the law could have
expressly made such statements.[24]
Meanwhile, if acts of lasciviousness or lascivious conduct are committed
with a child who is 12 years old or less than 18 years old, the ruling
in Dimakuta[25] is also on point:
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to
other sexual abuse when he or she indulges in lascivious conduct under the
coercion or influence of any adult. This statutory provision must be
distinguished from Acts of Lasciviousness under Articles 336 and 339 of the
RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the
following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious;
or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.
Article 339 of the RPC likewise punishes acts of lasciviousness committed
with the consent of the offended party if done by the same persons and
under the same circumstances mentioned in Articles 337 and 338 of the
RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen
years of age by any person in public authority, priest, home-servant,
domestic, guardian, teacher, or any person who, in any capacity, shall be
entrusted with the education or custody of the woman; or
2. if committed by means of deceit against a woman who is single or a
widow of good reputation, over twelve but under eighteen years of
age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of
age and under eighteen (18) years of age, the accused shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim
is a virgin and consents to the lascivious acts through abuse of
confidence or when the victim is single or a widow of good
reputation and consents to the lascivious acts through deceit, or;
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not
covered by lascivious conduct as defined in R.A. No. 7610. In case the acts
of lasciviousness [are] covered by lascivious conduct under R.A. No. 7610
and it is done through coercion or influence, which establishes absence or
lack of consent, then Art. 336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on
the part of the victim to the lascivious conduct, which was done through the
employment of coercion or influence. The offender may likewise be liable
for sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18)
years and she is unable to fully take care of herself or protect herself from
abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition.[26]
In People v. Caoili,[27] We prescribed 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.[28]
Based on the Caoili[29] guidelines, it is only when the victim of the lascivious
conduct is 18 years old and above that such crime would be designated as
"Acts of Lasciviousness under Article 336 of the RPC" with the imposable
penalty of prision correccional.
Considering the development of the crime of sexual assault from a mere
"crime against chastity" in the form of acts of lasciviousness to a "crime
against persons" akin to rape, as well as the rulings
in Dimakuta and Caoili. We hold that if the acts constituting sexual assault
are committed against a victim under 12 years of age or is demented, the
nomenclature of the offense should now be "Sexual Assault under
paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No.
7610" and no longer "Acts of Lasciviousness under Article 336 of the RPC in
relation to Section 5(b) of R.A. No. 7610," because sexual assault as a form
of acts of lasciviousness is no longer covered by Article 336 but by Article
266-A(2) of the RPC, as amended by R.A. No. 8353. Nevertheless, the
imposable penalty is still reclusion temporal in its medium period, and
not prision mayor.
Whereas if the victim is 12 years old and under 18 years old, or 18 years old
and above under special circumstances, the nomenclature of the crime
should be "Lascivious Conduct under Section 5(b) of R.A. No. 7610" with
the imposable penalty of reclusion temporal in its medium period
to reclusion perpetua,[30] but it should not make any reference to the
provisions of the RPC. It is only when the victim of the sexual assault is 18
years old and above, and not demented, that the crime should be called as
"Sexual Assault under paragraph 2, Article 266-A of the RPC" with the
imposable penalty of prision mayor.
Sexual intercourse with a victim who is under 12 years old or is
demented is statutory rape
Under Section 5(b) of R.A. No. 7610, the proper penalty when sexual
intercourse is committed with a victim who is under 12 years of age or is
demented is reclusion perpetua, pursuant to paragraph 1(d),[31]Article 266-
A in relation to Article 266-B of the RPC, as amended by R.A. No. 8353,
[32]
which in turn amended Article 335[33] of the RPC. Thus:
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 [sic] 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.[34]
In Quimvel v. People,[35] it was opined[36] that the two provisos under
Section 5(b) of R.A. No. 7610 will apply only if the victim is under 12 years
of age, but not to those 12 years old and below 18, for the following reason:
"while the first clause of Section 5(b), Article III of R.A. 7610 is silent with
respect to the age of the victim, Section 3, Article I thereof defines
"children" as those 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. Notably, two provisos succeeding the first clause of
Section 5(b) explicitly state a qualification that when the victim of
lascivious conduct is under 12 years of age, the perpetrator shall be (1)
prosecuted under Article 336 of the RPC, and (2) the penalty shall
be reclusion temporal in its medium period. It is a basic rule in
statutory construction that the office of the proviso qualifies or
modifies only the phrase immediately preceding it or restrains of
limits the generality of the clause that it immediately follows. A
proviso is to be construed with reference to the immediately
preceding part of the provisions, to which it is attached, and not
to the statute itself or the other sections thereof.[37] Accordingly,
this case falls under the qualifying provisos of Section 5(b), Article III of
R.A. 7610 because the allegations in the information make out a case for
acts of lasciviousness, as defined under Article 336 of the RPC, and the
victim is under 12 years of age x x x."[38]
In view of the foregoing rule in statutory construction, it was
proposed[39] in Quimvel that the penalty for acts of lasciviousness
committed against a child should depend on his/her age: if the victim is
under 12 years of age, the penalty is reclusion temporal in its medium
period, and if the victim is 12 years old and below 18, or 18 or older under
special circumstances under Section 3(a)[40] of R.A. No. 7610, the penalty
is reclusion temporal in its medium period to reclusion perpetua.
Applying by analogy the foregoing discussion in Quimvel to the act of
sexual intercourse with a child exploited in prostitution or subject to other
sexual abuse, We rule that when the offended party is under 12 years of age
or is demented, only the first proviso of Section 5(b), Article III of R.A. No.
7610 will apply, to wit: "when the victim is under twelve (12) years of age,
the perpetrators shall be prosecuted under Article 335, paragraph 3, for
rape x x x." The penalty for statutory rape under Article 335 is reclusion
perpetua, which is. still the same as in the current rape law, i.e., paragraph
1(d), Article 266-A in relation to Article 266-B of the RPC, as amended by
R.A. No. 8353, except in cases where the victim is below 7 years of age
where the imposable penalty is death.[41]
Note that the second proviso of Section 5(b) of R.A. No. 7610 will not apply
because it clearly has nothing to do with sexual intercourse, and it only
deals with "lascivious conduct when the victim is under 12 years of age."
While the terms "lascivious conduct" and "sexual intercourse" are included
in the definition of "sexual abuse" under Section 2(g)[42] of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases, note
that the definition of "lascivious conduct"[43] does not include sexual
intercourse. Be it stressed that the purpose of indicating the phrase "under
twelve (12) years of age" is to provide for statutory lascivious conduct or
statutory rape, whereby evidence of force, threat or intimidation is
immaterial because the offended party, who is under 12 years old or is
demented, is presumed incapable of giving rational consent.
Malto ruling clarified
An important distinction between violation of Section 5(b) of R.A. No. 7610
and rape under the RPC was explained in Malto v. People[44] We ruled
in Malto[45] that one may be held liable for violation of Sec. 5(b), Article III
of R.A. No. 7610 despite a finding that the person did not commit rape,
because rape is a felony under the RPC, while sexual abuse against a child is
punished by a special law. Said crimes are separate and distinct, and they
have different elements. Unlike in rape, however, consent is immaterial in
cases involving violation of Sec. 5, Art. III of R.A. No. 7610. The mere fact of
having sexual intercourse or committing lascivious conduct with a child
who is exploited in prostitution or subjected to sexual abuse constitutes the
offense.
In Malto,[46] where the accused professor indulged several times in sexual
intercourse with the 17-year-old private complainant, We also stressed that
since a child cannot give consent to a contract under our civil laws because
she can easily be a victim of fraud as she is not capable of full
understanding or knowing the nature or import of her actions, 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. In sum, a child is
presumed by law to be incapable of giving rational consent to any lascivious
conduct or sexual intercourse.
We take exception, however, to the sweeping conclusions in Malto (1) that
"a child is presumed by law to be incapable of giving rational consent to any
lascivious conduct or sexual intercourse" and (2) that "consent of the child
is immaterial in criminal cases involving violation of Section 5, Article III of
RA 7610" because they would virtually eradicate the concepts of statutory
rape and statutory acts of lasciviousness, and trample upon the express
provision of the said law.
Recall that in statutory rape, the only subject of inquiry is whether the
woman is below 12 years old or is demented and whether carnal knowledge
took place; whereas force, intimidation and physical evidence of injury are
not relevant considerations. With respect to acts of lasciviousness, R.A. No.
8353 modified Article 336 of the RPC by retaining the circumstance that
the offended party is under 12 years old in order for acts of lasciviousness to
be considered as statutory and by adding the circumstance that the
offended party is demented, thereby rendering the evidence of force or
intimidation immaterial.[47] This is because the law presumes that the
victim who is under 12 years old or is demented does not and cannot have a
will of her own on account of her tender years or dementia; thus, a child's
or a demented person's consent is immaterial because of her presumed
incapacity to discern good from evil.[48]
However, considering the definition under Section 3(a) of R.A. No. 7610 of
the term "children" which 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, We find that the
opinion in Malto, that a child is presumed by law to be incapable of giving
rational consent, unduly extends the concept of statutory rape or acts of
lasciviousness to those victims who are within the range of 12 to 17 years
old, and even those 18 years old and above under special circumstances
who are still considered as "children" under Section 3(a) of R.A. No. 7610.
While Malto is correct that consent is immaterial in cases under R.A. No.
7610 where the offended party is below 12 years of age, We clarify that
consent of the child is material and may even be a defense in criminal cases
involving violation of Section 5, Article III of R.A. No. 7610 when the
offended party is 12 years old or below 18, or above 18 under special
circumstances. Such consent may be implied from the failure to prove that
the said victim engaged in sexual intercourse either "due to money, profit
or any other consideration or due to the coercion or influence of any adult,
syndicate or group."
It bears emphasis that violation of the first clause of Section 5(b), Article III
of R.A. No. 7610 on sexual intercourse with a child exploited in prostitution
or subject to other sexual abuse, is separate and distinct from statutory rape
under paragraph 1(d), Article 266-A of the RPC. Aside from being
dissimilar in the sense that the former is an offense under special law, while
the latter is a felony under the RPC, they also have different elements.
[49]
Nevertheless, sexual intercourse with a victim who is under 12 years of
age or is demented is always statutory rape, as Section 5(b) of R.A. No. 7610
expressly states that the perpetrator will be prosecuted under Article 335,
paragraph 3 of the RPC [now paragraph 1(d), Article 266-A of the RPC as
amended by R.A. No. 8353].
Even if the girl who is below twelve (12) years old or is demented consents
to the sexual intercourse, it is always a crime of statutory rape under the
RPC, and the offender should no longer be held liable under R.A. No. 7610.
For example, a nine (9)-year-old girl was sold by a pimp to a customer, the
crime committed by the latter if he commits sexual intercourse with the girl
is still statutory rape, because even if the girl consented or is demented, the
law presumes that she is incapable of giving a rational consent. The same
reason holds true with respect to acts of lasciviousness or lascivious
conduct when the offended party is less than 12 years old or is demented.
Even if such party consents to the lascivious conduct, the crime is always
statutory acts of lasciviousness. The offender will be prosecuted under
Article 336[50] of the RPC, but the penalty is provided for under Section 5(b)
of R.A. No. 7610. Therefore, there is no conflict between rape and acts of
lasciviousness under the RPC, and sexual intercourse and lascivious
conduct under R.A. No. 7610.
Meanwhile, if sexual intercourse is committed with a child under 12 years
of age, who is deemed to be "exploited in prostitution and other sexual
abuse," then those who engage in or promote, facilitate or induce child
prostitution under Section 5(a)[51] of R.A. No. 7610 shall be liable as
principal by force or inducement under Article 17[52] of the RPC in the crime
of statutory rape under Article 266-A(1) of the RPC; whereas those who
derive profit or advantage therefrom under Section 5(c) [53] of R.A. No. 7610
shall be liable as principal by indispensable cooperation under Article 17 of
the RPC. Bearing in mind the policy of R.A. No. 7610 of providing for
stronger deterrence and special protection against child abuse and
exploitation, the following shall be the nomenclature of the said statutory
crimes and the imposable penalties for principals by force or inducement or
by indispensable cooperation:
1. Acts of Lasciviousness under Article 336 of the RPC, in relation to

Section 5(a) or (c), as the case may be, of R.A. No. 7610, with the
imposable penalty of reclusion temporal in its medium period
to reclusion perpetua;
2. Rape under Article 266-A(1) of the RPC, in relation to Article 17 of the

RPC and Section 5(a) or (c), as the case may be, of R.A. No. 7610 with
the imposable penalty of reclusion perpetua, pursuant to Article 266-
B of the RPC, except when the victim is below 7 years old, in which
case the crime is considered as Qualified Rape, for which the death
penalty shall be imposed; and
3. Sexual Assault under Article 266-A(2) of the RPC, in relation to

Section 5(a) or (c), as the case may be, of R.A. No. 7610 with the
imposable penalty of reclusion temporal in its medium period
to reclusion perpetua.
If the victim who is 12 years old or less than 18 and is deemed to be a child
"exploited in prostitution and other sexual abuse" because she agreed to
indulge in sexual intercourse "for money, profit or any other consideration
or due to coercion or influence of any adult, syndicate or group," then the
crime could not be rape under the RPC, because this no longer falls under
the concept of statutory rape, and there was consent. That is why the
offender will now be penalized under Section 5(b), R.A. No. 7610, and not
under Article 335[54] of the RPC [now Article 266-A]. But if the said victim
does not give her consent to sexual intercourse in the sense that the sexual
intercourse was committed through force, threat or intimidation, the crime
is rape under paragraph 1, Article 266-A of the RPC. However, if the same
victim gave her consent to the sexual intercourse, and no money, profit,
consideration, coercion or influence is involved, then there is no crime
committed, except in those cases where "force, threat or intimidation" as an
element of rape is substituted by "moral ascendancy or moral
authority,"[55] like in the cases of incestuous rape, and unless it is punished
under the RPC as qualified seduction under Article 337[56] or simple
seduction under Article 338.[57]
Rulings in Tubillo, Abay and Pangilinan clarified
At this point, it is not amiss to state that the rulings in People v. Tubillo,
[58]
People v. Abay[59] and People v. Pangilinan[60] should be clarified,
because there is no need to examine whether the focus of the prosecution's
evidence is "coercion and influence" or "force and intimidation" for the
purpose of determining which between R.A. No. 7610 or the RPC should
the accused be prosecuted under in cases of acts of lasciviousness or rape
where the offended party is 12 years of age or below 18.
To recap, We explained in Abay[61] that under Section 5 (b), Article III of
R.A. No. 7610 in relation to R.A. No. 8353, if the victim of sexual abuse is
below 12 years of age, the offender should not be prosecuted for sexual
abuse but for statutory rape under paragraph 1(d), Article 266-A of the
RPC, and penalized with reclusion perpetua. On the other hand, if the
victim is 12 years or older, the offender should be charged with either
sexual abuse under Section 5(b) of R.A. No. 7610 or rape under Article 266-
A (except paragraph 1 [d]) of the RPC. However, the offender cannot be
accused of both crimes for the same act because his right against double
jeopardy might be prejudiced. Besides, rape cannot be complexed with a
violation of Section 5(b) of R.A. No. 7610, because under Section 48 of the
RPC (on complex crimes), a felony under the RPC (such as rape) cannot be
complexed with an offense penalized by a special law.
Considering that the victim in Abay was more than 12 years old when the
crime was committed against her, and the Information against appellant
stated that the child was 13 years old at the time of the incident, We held
that appellant may be prosecuted either for violation of Section 5(b) of R.A.
No. 7610 or rape under Article 266-A (except paragraph 1[d]) of the RPC.
We observed that while the Information may have alleged the elements of
both crimes, the prosecution's evidence only established that appellant
sexually violated the person of the child through force and intimidation by
threatening her with a bladed instrument and forcing her to submit to his
bestial designs. Hence, appellant was found guilty of rape under paragraph
1(a), Article 266-A of the RPC.
In Pangilinan, where We were faced with the same dilemma because all the
elements of paragraph 1, Article 266-A of the RPC and Section 5(b) of R.A.
No. 7610 were present, it was ruled that the accused can be charged with
either rape or child abuse and be convicted therefor. However, We observed
that rape was established, since the prosecution's evidence proved that the
accused had carnal knowledge of the victim through force and intimidation
by threatening her with a samurai. Citing the discussion in Abay, We ruled
as follows:
As in the present case, appellant can indeed be charged with either Rape or
Child Abuse and be convicted therefor. The prosecution's evidence
established that appellant had carnal knowledge of AAA through force and
intimidation by threatening her with a samurai. Thus, rape was established.
Considering that in the resolution of the Assistant Provincial Prosecutor, he
resolved the filing of rape under Article 266-A of the Revised Penal Code for
which appellant was convicted by both the RTC and the CA, therefore, we
merely affirm the conviction.[62]
In the recent case of Tubillo where We noted that the Information would
show that the case involves both the elements of paragraph 1, Article 266-A
of the RPC and Section 5(b) of R.A. No. 7610, We likewise examined the
evidence of the prosecution, whether it focused on the specific force or
intimidation employed by the offender or on the broader concept of
coercion or influence to have carnal knowledge with the victim. In ruling
that appellant should be convicted of rape under paragraph 1(a), Article
266-A of the RPC instead of violation of Section 5(b) of R.A. No. 7610, We
explained:
Here, the evidence of the prosecution unequivocally focused on the force or
intimidation employed by Tubillo against HGE under Article 266- A(1)(a)
of the RPC. The prosecution presented the testimony of HGE who narrated
that Tubillo unlawfully entered the house where she was sleeping by
breaking the padlock. Once inside, he forced himself upon her, pointed a
knife at her neck, and inserted his penis in her vagina. She could not resist
the sexual attack against her because Tubillo poked a bladed weapon at her
neck. Verily, Tubillo employed brash force or intimidation to carry out his
dastardly deeds.[63]
With this decision, We now clarify the principles laid down in Abay,
Pangilinan and Tubillo to the effect that there is a need to examine the
evidence of the prosecution to determine whether the person accused of
rape should be prosecuted under the RPC or R.A. No. 7610 when the
offended party is 12 years old or below 18.
First, if sexual intercourse is committed with an offended party who is a
child less than 12 years old or is demented, whether or not exploited in
prostitution, it is always a crime of statutory rape; more so when the child is
below 7 years old, in which case the crime is always qualified rape.
Second, when the offended party is 12 years old or below 18 and the charge
against the accused is carnal knowledge through "force, threat or
intimidation," then he will be prosecuted for rape under Article 266-A(1)(a)
of the RPC. In contrast, in case of sexual intercourse with a child who is 12
years old or below 18 and who is deemed "exploited in prostitution or other
sexual abuse," the crime could not be rape under the RPC, because this no
longer falls under the concept of statutory rape, and the victim indulged in
sexual intercourse either "for money, profit or any other consideration or
due to coercion or influence of any adult, syndicate or group," which
deemed the child as one "exploited in prostitution or other sexual abuse."
To avoid further confusion, We dissect the phrase "children exploited in
prostitution" as an element of violation of Section 5(b) of R.A. No. 7610. As
can be gathered from the text of Section 5 of R.A. No. 7610 and having in
mind that the term "lascivious conduct"[64] has a clear definition which does
not include "sexual intercourse," the phrase "children exploited in
prostitution" contemplates four (4) scenarios: (a) a child, whether male or
female, who for money, profit or any other consideration, indulges in
lascivious conduct; (b) a female child, who for money, profit or any other
consideration, indulges in sexual intercourse; (c) a child, whether male or
female, who due to the coercion or influence of any adult, syndicate or
group, indulges in lascivious conduct; and (d) a female, due to the coercion
or influence of any adult, syndicate or group, indulge in sexual intercourse.
The term "other sexual abuse," on the other hand, is construed in relation
to the definitions of "child abuse" under Section 3, Article I of R.A. No. 7610
and "sexual abuse" under Section 2(g) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases.[65] In the former
provision, "child abuse" refers to the maltreatment, whether habitual or
not, of the child which includes sexual abuse, among other matters. In the
latter provision, "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.
In Quimvel, it was held that the term "coercion or influence" is broad
enough to cover or even synonymous with the term "force or intimidation."
Nonetheless, it should be emphasized that "coercion or influence" is used in
Section 5[66] of R.A. No. 7610 to qualify or refer to the means through which
"any adult, syndicate or group" compels a child to indulge in sexual
intercourse. On the other hand, the use of "money, profit or any other
consideration" is the other mode by which a child indulges in sexual
intercourse, without the participation of "any adult, syndicate or group." In
other words, "coercion or influence" of a child to indulge in sexual
intercourse is clearly exerted NOT by the offender whose liability is based
on Section 5(b)[67] of R.A. No. 7610 for committing sexual act with a child
exploited in prostitution or other sexual abuse. Rather, the "coercion or
influence" is exerted upon the child by "any adult, syndicate, or group"
whose liability is found under Section 5(a)[68] for engaging in, promoting,
facilitating or inducing child prostitution, whereby the sexual intercourse is
the necessary consequence of the prostitution.
For a clearer view, a comparison of the elements of rape under the RPC and
sexual intercourse with a child under Section 5(b) of R.A. No. 7610 where
the offended party is between 12 years old and below 18, is in order.
Rape under Article 266-A(1)
Section 5(1) of R.A. No. 7610
(a,b,c) under the RPC
1. Offender is a man; 1. Offender is a man;
2. Indulges in sexual intercourse
with a female child exploited in
prostitution or other sexual abuse,
2. Carnal knowledge of a woman;
who is 12 years old or below 18 or
above 18 under special
circumstances;
3. Through force, threat or
intimidation; when the offended 3. Coercion or influence of any
party is deprived of reason or adult, syndicate or group is
otherwise unconscious; and by employed against the child to
means of fraudulent machination become a prostitute
or grave abuse of authority
As can be gleaned above, "force, threat or intimidation" is the element of

rape under the RPC, while "due to coercion or influence of any adult,
syndicate or group" is the operative phrase for a child to be deemed
"exploited in prostitution or other sexual abuse," which is the element of
sexual abuse under Section 5(b) of R.A. No. 7610. The "coercion or
influence" is not the reason why the child submitted herself to sexual
intercourse, but it was utilized in order for the child to become a prostitute.
Considering that the child has become a prostitute, the sexual intercourse
becomes voluntary and consensual because that is the logical consequence
of prostitution as defined under Article 202 of the RPC, as amended by R.A.
No. 10158 where the definition of "prostitute" was retained by the new law:
[69]
Article 202. Prostitutes; Penalty. - For the purposes of this article, women

who, for money or profit, habitually indulge in sexual intercourse or
lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall
be punished by arresto menor or a fine not exceeding 200 pesos, and in
case of recidivism, by arresto mayor in its medium period to prision
correccional in its minimum period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court.
Therefore, there could be no instance that an Information may charge the
same accused with the crime of rape where "force, threat or intimidation" is
the element of the crime under the RPC, and at the same time violation of
Section 5(b) of R.A. No. 7610 where the victim indulged in sexual
intercourse because she is exploited in prostitution either "for money,
profit or any other consideration or due to coercion or influence of any
adult, syndicate or group" — the phrase which qualifies a child to be
deemed "exploited in prostitution or other sexual abuse" as an element of
violation of Section 5(b) of R.A. No. 7610.
Third, if the charge against the accused where the victim is 12 years old or
below 18 is sexual assault under paragraph 2, Article 266-A of the RPC,
then it may happen that the elements thereof are the same as that of
lascivious conduct under Section 5(b) of R.A. No. 7610, because the term
"lascivious conduct" includes introduction of any object into the genitalia,
anus or mouth of any person.[70] In this regard, We held in Dimakuta that
in instances where a "lascivious conduct" committed against a child is
covered by R.A. No. 7610 and the act is likewise covered by sexual assault
under paragraph 2, Article 266-A of the RPC [punishable by prision
mayor], the offender should be held liable for violation of Section 5(b) of
R.A. No. 7610 [punishable by reclusion temporal medium], consistent with
the declared policy of the State to provide special protection to children
from all forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development. But when the
offended party is below 12 years of age or is demented, the accused should
be prosecuted and penalized under paragraph 2, Article 266-A of the RPC
in relation to Section 5(b) of R.A. No. 7610, because the crime of sexual
assault is considered statutory, whereby the evidence of force or
intimidation is immaterial.
Assuming that the elements of both violations of Section 5(b) of R.A. No.
7610 and of Article 266-A, paragraph 1(a) of the RPC are mistakenly alleged
in the same Information – e.g., carnal knowledge or sexual intercourse was
due to "force or intimidation" with the added phrase of "due to coercion or
influence," one of the elements of Section 5(b) of R.A. No. 7610; or in many
instances wrongfully designate the crime in the Information as violation of
"Article 266-A, paragraph 1(a) in relation to Section 5(b) of R.A. No. 7610,"
although this may be a ground for quashal of the Information under Section
3(f)[71] of Rule 117 of the Rules of Court and proven during the trial in a case
where the victim who is 12 years old or under 18 did not consent to the
sexual intercourse, the accused should still be prosecuted pursuant to the
RPC, as amended by R.A. No. 8353, which is the more recent and special
penal legislation that is not only consistent, but also strengthens the
policies of R.A. No. 7610. Indeed, while R.A. No. 7610 is a special law
specifically enacted to provide special protection to children from all forms
of abuse, neglect, cruelty, exploitation and discrimination and other
conditions prejudicial to their development, We hold that it is contrary to
the legislative intent of the same law if the lesser penalty (reclusion
temporal medium to reclusion perpetua) under Section 5(b) thereof would
be imposed against the perpetrator of sexual intercourse with a child 12
years of age or below 18.
Article 266-A, paragraph 1(a) in relation to Article 266-B of the RPC, as
amended by R.A. No. 8353, is not only the more recent law, but also deals
more particularly with all rape cases, hence, its short title "The Anti-Rape
Law of 1997." R.A. No. 8353 upholds the policies and principles of R.A. No.
7610, and provides a "stronger deterrence and special protection against
child abuse," as it imposes a more severe penalty of reclusion
perpetua under Article 266-B of the RPC, or even the death penalty if the
victim is (1) under 18 years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or common-law spouse of the parent of the victim; or (2) when
the victim is a child below 7 years old.
It is basic in statutory construction that in case of irreconcilable conflict
between two laws, the later enactment must prevail, being the more recent
expression of legislative will.[72] Indeed, statutes must be so construed and
harmonized with other statutes as to form a uniform system of
jurisprudence, and if several laws cannot be harmonized, the earlier statute
must yield to the later enactment, because the later law is the latest
expression of the legislative will.[73] Hence, Article 266-B of the RPC must
prevail over Section 5(b) of R.A. No. 7610.
In sum, the following are the applicable laws and penalty for the crimes of
acts of lasciviousness or lascivious conduct and rape by carnal knowledge or
sexual assault, depending on the age of the victim, in view of the provisions
of paragraphs 1 and 2 of Article 266-A and Article 336 of the RPC, as
amended by R.A. No. 8353, and Section 5(b) of R.A. No. 7610:
Designation of the Crime & Imposable Penalty
Age of Victim: 12 years old or

Under 12 years old below 18, or 18 18 years old and
Crime or demented under special above
Committed: circumstances[74]
Acts of
Lascivious
Lasciviousness
Acts of conduct[75] under
under Article 336
Lasciviousness Section 5(b) of R.A.
of the RPC in
committed against No. 7610: reclusion
relation to Section Not applicable
children exploited temporal in its
5(b) of R.A. No.
in prostitution or medium period
7610: reclusion
other sexual abuse to reclusion
temporal in its
perpetua
medium period
Sexual Assault Lascivious Conduct
under Article 266- under Section 5(b)
Sexual Assault
A(2) of the RPC in of R.A. No.
committed against
relation to Section 7610: reclusion
children exploited Not applicable
5(b) of R.A. No. temporal in its
in prostitution or
7610: reclusion medium period
other sexual abuse
temporal in its to reclusion
medium period perpetua
Rape under Article
Sexual
266-A(1) of the
Abuse[77] under
Sexual Intercourse RPC: reclusion
Section 5(b) of R.A.
committed against perpetua, except
No. 7610: reclusion
children exploited when the victim is Not applicable
temporal in its
in prostitution or below 7 years old
medium period
other sexual abuse in which case
to reclusion
death penalty shall
perpetua
be imposed[76]
Rape by carnal Rape under ArticleRape under Article Rape under
266-A(1) in
relation to Art.
266-B of the
RPC: reclusion 266-A(1) in relation Article 266-A(1)
perpetua, except to Art. 266-B of the of the
knowledge
when the victim is RPC: reclusion RPC: reclusion
below 7 years old perpetua perpetua
in which case
death penalty shall
be imposed
Sexual Assault Lascivious Conduct
under Article 266- under Section 5(b)
Sexual Assault
A(2) of the RPC in of R.A. No.
under Article
Rape by Sexual relation to Section 7610: reclusion
266-A(2) of the
Assault 5(b) of R.A. No. temporal in its
RPC: prision
7610: reclusion medium period
mayor
temporal in its to reclusion
medium period perpetua
For the crime of acts of lasciviousness or lascivious conduct, the

nomenclature of the crime and the imposable penalty are based on the
guidelines laid down in Caoili. For the crimes of rape by carnal knowledge
and sexual assault under the RPC, as well as sexual intercourse committed
against children under R.A. No. 7610, the designation of the crime and the
imposable penalty are based on the discussions in Dimakuta,
[78]
Quimvel[79] and Caoili, in line with the policy of R.A. No. 7610 to provide
stronger deterrence and special protection to children from all forms of
abuse, neglect, cruelty, exploitation, discrimination, and other conditions
prejudicial to their development. It is not amiss to stress that the failure to
designate the offense by statute, or to mention the specific provision
penalizing the act, or an erroneous specification of the law violated, does
not vitiate the information if the facts alleged clearly recite the facts
constituting the crime charged, for what controls is not the title of the
information or the designation of the offense, but the actual facts recited in
the information.[80] Nevertheless, 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. [81]
Justice Caguioa asks us to abandon our rulings in Dimakuta,
Quimvel and Caoili, and to consider anew the viewpoint in his Separate
Dissenting Opinion in Quimvel that the provisions of R.A. No. 7610 should
be understood in its proper context, i.e., that it only applies in the specific
and limited instances where the victim is a child "subjected to prostitution
or other sexual abuse." He asserts that if the intention of R.A. No. 7610 is to
penalize all sexual abuses against children under its provisions to the
exclusion of the RPC, it would have expressly stated so and would have
done away with the qualification that the child be "exploited in prostitution
or subjected to other sexual abuse." He points out that Section 5(b) of R.A.
No. 7610 is a provision of specific and limited application, and must be
applied as worded — a separate and distinct offense from the "common" or
ordinary acts of lasciviousness under Article 336 of the RPC. In support of
his argument that the main thrust of R.A. No. 7610 is the protection of
street children from exploitation, Justice Caguioa cites parts of the
sponsorship speech of Senators Santanina T. Rasul, Juan Ponce Enrile and
Jose D. Lina, Jr.
We find no compelling reason to abandon our ruling in Dimakuta,
Quimvel and Caoili.
In his Separate Concurring Opinion in Quimvel, the ponente aptly
explained that if and when there is an absurdity in the interpretation of the
provisions of the law, the proper recourse is to refer to the objectives or the
declaration of state policy and principles under Section 2 of R.A. No. 7610,
as well as Section 3(2), Article XV of the 1987 Constitution:
[R.A. No. 7610] Sec. 2. Declaration of State Policy and Principles. - It is
hereby declared to be the policy of the State to provide special
protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions
prejudicial to their development; 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. The State shall intervene on behalf of the child when the
parent, 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.
It shall be the policy of the State to protect and rehabilitate children gravely
threatened or endangered by circumstances which affect or will affect their
survival and normal development and over which they have no control.
The best interests 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 principle 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. [Emphasis added]
[Article XV 1987 Constitution] Section 3. The State shall defend:
xxxx
(2) The right of 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.[82]
Clearly, the objective of the law, more so the Constitution, is to provide a
special type of protection for children from all types of abuse. Hence, it can
be rightly inferred that the title used in Article III, Section 5, "Child
Prostitution and Other Sexual Abuse" does not mean that it is only
applicable to children used as prostitutes as the main offense and the other
sexual abuses as additional offenses, the absence of the former rendering
inapplicable the imposition of the penalty provided under R.A. No. 7610 on
the other sexual abuses committed by the offenders on the children
concerned.
Justice Caguioa asserts that Section 5(b), Article III of R.A. No. 7610 is
clear - it only punishes those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or subjected to
other sexual abuse. There is no ambiguity to speak of that which requires
statutory construction to ascertain the legislature's intent in enacting the
law.
We would have agreed with Justice Caguioa if not for Section 5 itself which
provides who are considered as "children exploited in prostitution and
other sexual abuse." Section 5 states that "[c]hildren, 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." Contrary to the view of Justice
Caguioa, Section 5(b), Article III of R.A. No. 7610 is not as clear as it
appears to be; thus, We painstakingly sifted through the records of the
Congressional deliberations to discover the legislative intent behind such
provision.
Justice Caguioa then asks: (1) if the legislature intended for Section 5(b),
R.A. No. 7610 to cover any and all types of sexual abuse committed against
children, then why would it bother adding language to the effect that the
provision applies to "children exploited in prostitution or subjected to other
sexual abuse?" and (2) why would it also put Section 5 under Article III of
the law, which is entitled "Child Prostitution and Other Sexual Abuse?"
We go back to the record of the Senate deliberation to explain the history
behind the phrase "child exploited in prostitution or subject to other sexual
abuse."
Section 5 originally covers Child Prostitution only, and this can still be
gleaned from Section 6 on Attempt To Commit Child Prostitution, despite
the fact that both Sections fall under Article III on Child Prostitution and
Other Sexual Abuse. Thus:
Section 6. Attempt To Commit Child Prostitution. - There is an
attempt to commit child prostitution under Section 5, paragraph (a) hereof
when any person who, not being a relative of a child, is found alone with the
said child inside the room or cubicle of a house, an inn, hotel, motel,
pension house, apartelle or other similar establishments, vessel, vehicle or
any other hidden or secluded area under circumstances which would lead a
reasonable person to believe that the child is about to be exploited in
prostitution and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b)
of Section 5 hereof when any person is receiving services from a child in a
sauna parlor or bath, massage clinic, health club and other similar
establishments. A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be imposed upon the
principals of the attempt to commit the crime of child prostitution under
this Act, or, in the proper case, under the Revised Penal Code.
Even Senator Lina, in his explanation of his vote, stated that Senate Bill
1209 also imposes the penalty of reclusion temporal in its medium period
to reclusion perpetua for those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution. [83] Senator Lina
mentioned nothing about the phrases "subject to other sexual abuse" or
"Other Sexual Abuse" under Section 5(b), Article III of R.A. No. 7610.
However, to cover a situation where the minor may have been coerced or
intimidated into lascivious conduct, not necessarily for money or profit,
Senator Eduardo Angara proposed the insertion of the phrase "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, under Section 5(b),
Article III of R.A. No. 7610.[84]
Further amendment of then Article III of R.A. No. 7610 on Child
Prostitution was also proposed by then President Pro Tempore Sotero
Laurel, to which Senator Angara agreed, in order to cover the "expanded
scope" of "child abuse." Thus, Article III was amended and entitled "Child
Prostitution and Other Sexual Abuse."[85] This is the proper context where
the element that a child be "exploited in prostitution and other sexual
abuse" or EPSOSA, came to be, and should be viewed.
We hold that it is under President Pro Tempore Laurel's amendment on
"expanded scope'' of "child abuse" under Section 5(b) and the definition of
"child abuse" under Section 3,[86] Article I of R.A. No. 7610 that should be
relied upon in construing the element of "exploited under prostitution and
other sexual abuse." In understanding the element of "exploited under
prostitution and other sexual abuse", We take into account two provisions
of R.A. No. 7610, namely: (1) Section 5, Article III, which states that
"[c]hildren, 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
exploited in prostitution and other sexual abuse"; and (2) Section 3, Article
I, which states that "child abuse" refers to the maltreatment, whether
habitual or not, of the child, which includes, sexual abuse.
To clarify, once and for all, the meaning of the element of "exploited in
prostitution" under Section 5(b), Article III of R.A. No. 7610, [87] We rule
that it contemplates 4 scenarios, namely: (a) a child, whether male or
female, who for money, profit or any other consideration, indulges in
lascivious conduct; (b) a child, whether male or female, who due to the
coercion or influence of any adult, syndicate or group, indulges in lascivious
conduct; (c) a female child, who for money, profit or any other
consideration, indulges in sexual intercourse; and (d) a female, due to the
coercion or influence of any adult, syndicate or group, indulges in sexual
intercourse.
Note, however, that the element of "exploited in prostitution" does not
cover a male child, who for money, profit or any other consideration, or due
to coercion or influence of any adult, syndicate, or group, indulges in sexual
intercourse. This is because at the time R.A. No. 7610 was enacted in 1992,
the prevailing law on rape was Article 335 of the RPC where rape can only
be committed by having carnal knowledge of a woman under specified
circumstances. Even under R.A. No. 8353 which took effect in 1997, the
concept of rape remains the same — it is committed by a man who shall
have carnal knowledge of a woman under specified circumstances. As can
be gathered from the Senate deliberation on Section 5(b), Article III of R.A.
No. 7610, it is only when the victim or the child who was abused is a male
that the offender would be prosecuted thereunder because the crime of rape
does not cover child abuse of males.[88]
The term "other sexual abuse," on the other hand, should be construed in
relation to the definitions of "child abuse" under Section 3,[89] Article I of
R.A. No. 7610 and "sexual abuse" under Section 2(g) [90] of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases.[91] In
the former provision, "child abuse" refers to the maltreatment,
whether habitual or not, of the child which includes sexual abuse, among
other matters. In the latter provision, "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. Thus, the term "other sexual abuse" is broad enough to include all
other acts of sexual abuse other than prostitution. Accordingly, a single act
of lascivious conduct is punished under Section 5(b), Article III, when the
victim is 12 years old and below 18, or 18 or older under special
circumstances. In contrast, when the victim is under 12 years old, the
proviso of Section 5(b) states that the perpetrator should be prosecuted
under Article 336 of the RPC for acts of lasciviousness, whereby the
lascivious conduct itself is the sole element of the said crime. This is
because in statutory acts of lasciviousness, as in statutory rape, the minor is
presumed incapable of giving consent; hence, the other circumstances
pertaining to rape — force, threat, intimidation, etc. — are immaterial.
Justice Caguioa also posits that the Senate deliberation on R.A. No. 7610 is
replete with similar disquisitions that all show the intent to make the law
applicable to cases involving child exploitation through prostitution, sexual
abuse, child trafficking, pornography and other types of abuses. He stresses
that the passage of the laws was the Senate's act of heeding the call of the
Court to afford protection to a special class of children, and not to cover any
and all crimes against children that are already covered by other penal laws,
such as the RPC and Presidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code. He concludes that it is erroneous for us
to rule that R.A. No. 7610 applies in each and every case where the victim
although he or she was not proved, much less, alleged to be a child
"exploited in prostitution or subjected to other sexual abuse." He invites us
to go back to the ruling in Abello that "since R.A. No. 7610 is a special law
referring to a particular class in society, the prosecution must show that the
victim truly belongs to this particular class to warrant the application of the
statute's provisions. Any doubt in this regard we must resolve in favor of
the accused."
Justice Estela M. Perlas-Bernabe also disagrees that R.A. No. 7610 would
be generally applicable to all cases of sexual abuse involving minors, except
those who are under 12 years of age. Justice Perlas-Bernabe concurs with
Justice Caguioa that Section 5(b), Article III of R.A. No. 7610 only applies
in instances where the child-victim is "exploited in prostitution or subject
to other sexual abuse" (EPSOSA). She asserts that her limited view, as
opposed to the ponencia's expansive view, is not only supported by several
textual indicators both in law and the deliberations, but also squares with
practical logic and reason. She also contends that R.A. No. 7610 was
enacted to protect those who, like the child-victim in People v. Ritter,
willingly engaged in sexual acts, not out of desire to satisfy their own sexual
gratification, but because of their "vulnerable pre-disposition as exploited
children. She submits that, as opposed to the RPC where sexual crimes are
largely predicated on the lack of consent, Section 5(b) fills in the gaps of the
RPC by introducing the EPSOSA element which effectively dispenses with
the need to prove the lack of consent at the time the act of sexual abuse is
committed. Thus, when it comes to a prosecution under Section 5(b),
consent at the time the sexual act is consummated is, unlike in the RPC, not
anymore a defense.
We are unconvinced that R.A. No. 7610 only protects a special class of
children, i.e., those who are "exploited in prostitution or subjected to other
sexual abuse," and does not cover all crimes against them that are already
punished by existing laws. It is hard to understand why the legislature
would enact a penal law on child abuse that would create an unreasonable
classification between those who are considered as "exploited in
prostitution and other sexual abuse" or EPSOSA and those who are not.
After all, the policy is to provide stronger deterrence and special protection
to children from all forms of abuse, neglect, cruelty, exploitation,
discrimination and other conditions prejudicial to their development.
In the extended explanation of his vote on Senate Bill No. 1209,[92] Senator
Lina emphasized that the bill complements the efforts the Senate has
initiated towards the implementation of a national comprehensive program
for the survival and development of Filipino children, in keeping with the
Constitutional mandate that "[t]he State shall defend the right of 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."[93] Senator Lina also stressed
that the bill supplies the inadequacies of the existing laws treating crimes
committed against children, namely, the RPC and the Child and Youth
Welfare Code, in the light of the present situation, i.e., current empirical
data on child abuse indicate that a stronger deterrence is imperative. [94]
In the same vein, Senator Rasul expressed in her Sponsorship Speech the
same view that R.A. No. 7610 intends to protect all children against all
forms of abuse and exploitation, thus:
There are still a lot of abuses and injustices done to our children who suffer
not only from strangers, but sadly, also in the hands of their parents and
relatives. We know for a fact that the present law on the matter, the Child
and Welfare Code (PD No. 603) has very little to offer to abuse children. We
are aware of the numerous cases not reported in media.
In the Filipino Family structure, a child is powerless; he or she is not
supposed to be heard and seen. Usually, it is the father or the mother who
has a say in family matters, and children, owing to their limited capability,
are not consulted in most families. Many children may be suffering from
emotional, physical and social abuses in their homes, but they cannot come
out in the open; besides, there is a very thin line separating discipline from
abuse. This becomes wider when the abuse becomes grave and severe.
Perhaps, more lamentable than the continuing child abuses and
exploitation is the seeming unimportance or the lack of interest in the way
we have dealt with the said problem in the country. No less than the
Supreme Court, in the recent case of People v. Ritter, held that we lack
criminal laws which will adequately protect street children from
exploitation of pedophiles. But as we know, we, at the Senate have not been
remiss in our bounden duty to sponsor bills which will ensure the
protection of street children from the tentacles of sexual exploitation. Mr.
President, now is the time to convert these bills into reality.
In our long quest for solutions to problems regarding children,
which problems are deeply rooted in poverty, I have felt this
grave need to sponsor a bill, together with Senators Lina and
Mercado, which would ensure the children's protection from all
forms of abuse and exploitation, to provide stiffer sanction for
their commission and carry out programs for prevention and
deterrence to aid crisis intervention in situations of child abuse
and exploitation.
Senate Bill No. 1209 translates into reality the provision of our 1987
Constitution on "THE FAMILY," and I quote:
Sec. 3. The State shall defend:
xxxx
(2) The right of 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.
This is a specific provision peculiar to the Philippines. No other
Constitution in the whole world contains this mandate. Keeping true to this
mandate, Mr. President, and the UN Convention on the Rights of the Child
which has been drafted in the largest global summit, of which we have
acceded, we should waste no time in passing this significant bill into law.
This is a commitment; thus, we should not thrive on mere promises. We,
the legislature of this country, must have that political will to transform this
promise into a vibrant reality.
Children's normal growth and development, considering their young minds
and fragile bodies, must not be stunted. We legislators must pave the way
for the sustained progress of our children. Let not a child's opportunity for
physical, spiritual, moral, social and intellectual well-being be stunted by
the creeping cruelty and insanity that sometimes plague the minds of the
adults in the society who, ironically, are the persons most expected to be
the guardians of their interest and welfare.[95]
Justice Caguioa further submits that Section 5(b) of R.A. No. 7610 cannot
be read in isolation in the way that Dimakuta, Quimvel and Caoili do, but
must be read in the whole context of R.A. No. 7610 which revolves around
(1) child prostitution, (2) other sexual abuse in relation to prostitution and
(3) the specific acts punished under R.A. No. 7610, namely, child trafficking
under Article IV, obscene publications and indecent shows under Article V,
and sanctions for establishments where these prohibited acts are promoted,
facilitated or conducted under Article VII. He adds that even an analysis of
the structure of R.A. No. 7610 demonstrates its intended application to the
said cases of child exploitation involving children "exploited in prostitution
or subjected to other sexual abuse." Citing the exchange between Senators
Pimentel and Lina during the second reading of Senate Bill No. 1209 with
respect to the provision on attempt to commit child prostitution, Justice
Caguioa likewise posits that a person can only be convicted of violation of
Article 336 in relation to Section 5(b), upon allegation and proof of the
unique circumstances of the children "exploited in prostitution or subjected
to other sexual abuse."
We disagree that the whole context in which Section 5(b) of R.A. No. 7610
must be read revolves only around child prostitution, other sexual abuse in
relation to prostitution, and the specific acts punished under R.A. No. 7610.
In fact, the provisos of Section 5(b) itself explicitly state that it must also be
read in light of the provisions of the RPC, thus: "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. "
When the first proviso of Section 5(b) states that "when the victim is under
12 years of age shall be prosecuted under the RPC," it only means that the
elements of rape under then Article 335, paragraph 3 of the RPC [now
Article 266-A, paragraph 1(d)], and of acts of lasciviousness under Article
336 of the RPC, have to be considered, alongside the element of the child
being "exploited in prostitution and or other sexual abuse," in determining
whether the perpetrator can be held liable under R.A. No. 7610. The second
proviso of Section 5(b), on the other hand, merely increased the penalty for
lascivious conduct when the victim is under 12 years of age, from prision
correccional to reclusion temporal in its medium period, in recognition of
the principle of statutory acts of lasciviousness, where the consent of the
minor is immaterial.
Significantly, what impels Us to reject Justice Caguioa's view that acts of
lasciviousness committed against children may be punished
under either Article 336 of the RPC [with prision correccional] or Acts of
Lasciviousness under Article 336 of the RPC, in relation to Section 5(b) of
R.A. No. 7610 [with reclusion temporal medium]/Lascivious Conduct
under Section 5(b) of R.A. No. 7610 [with reclusion temporal medium
to reclusion perpetua], is the provision under Section 10 of R.A. No. 7610.
As pointed out by the ponente in Quimvel, where the victim of acts of
lasciviousness is under 7 years old, Quimvel cannot be merely penalized
with prision correccional for acts of lasciviousness under Article 336 of the
RPC when the victim is a child because it is contrary to the letter and intent
of R.A. No. 7610 to provide for stronger deterrence and special protection
against child abuse, exploitation and discrimination. The legislative intent
is expressed under Section 10, Article VI of R.A. No. 7610 which, among
others, increased by one degree the penalty for certain crimes when the
victim is a child under 12 years of age, to wit:
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development. —
xxxx
For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No.
3815, as amended, for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age. The penalty
for the commission of acts punishable under Article 337, 339,
340 and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of lasciviousness
with consent of the offended party, corruption of minors, and
white slave trade, respectively, shall be one (1) degree higher
than that imposed by law when the victim is under twelve (12)
years of age.[96]
The ponente explained that to impose upon Quimvel an indeterminate
sentence computed from the penalty of prision correccional under Article
336 of the RPC would defeat the purpose of R.A. No. 7610 to provide for
stronger deterrence and special protection against child abuse, exploitation
and discrimination. First, the imposition of such penalty would erase the
substantial distinction between acts of lasciviousness under Article 336 and
acts of lasciviousness with consent of the offended party under Article 339,
[97]
which used to be punishable by arresto mayor, and now by prision
correccional pursuant to Section 10, Article VI of R.A. No. 7610. Second, it
would inordinately put on equal footing the acts of lasciviousness
committed against a child and the same crime committed against an adult,
because the imposable penalty for both would still be prision correccional,
save for the aggravating circumstance of minority that may be considered
against the perpetrator. Third, it would make acts of lasciviousness against
a child a probationable offense, pursuant to the Probation Law of 1976,
[98]
as amended by R.A. No. 10707.[99] Indeed, while the foregoing
implications are favorable to the accused, they are contrary to the State
policy and principles under R.A. No. 7610 and the Constitution on the
special protection to children.
Justice Caguioa also faults that a logical leap was committed when
the ponencia posited that the Section 10, Article VI, R.A. No. 7610
amendment of the penalties under Articles 337, 339, 340 and 341 of the
RPC, also affected Article 336 on acts of lasciviousness. He argues that
given the clear import of Section 10 to the effect that the legislature
expressly named the provisions it sought to amend through R.A. No. 7610,
amendment by implication cannot be insisted on.
We disagree. Articles 337 (Qualified Seduction), 339 (Acts of
Lasciviousness with the Consent of the Offended Party), 340 (Corruption of
Minor) and 341 (White Slave Trade) of the RPC, as well as Article 336 (Acts
of Lasciviousness) of the RPC, fall under Title Eleven of the RPC on Crimes
against Chastity. All these crimes can be committed against children. Given
the policy of R.A. No. 7610 to provide stronger deterrence and special
protection against child abuse, We see no reason why the penalty for acts of
lasciviousness committed against children should remain to be prision
correccional when Section 5(b), Article III of R.A. No. 7610 penalizes those
who commit lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse with a penalty of reclusion temporal in its
medium period when the victim is under 12 years of age.
Contrary to the view of Justice Caguioa, there is, likewise, no such thing as
a recurrent practice of relating the crime committed to R.A. No. 7610 in
order to increase the penalty, which violates the accused's constitutionally
protected right to due process of law. In the interpretation of penal statutes,
the rule is to subject it to careful scrutiny and to construe it with such
strictness as to safeguard the rights of the accused,[100] and at the same time
preserve the obvious intention of the legislature.[101] A strict construction of
penal statutes should also not be permitted to defeat the intent, policy and
purpose of the legislature, or the object of the law sought to be attained.
[102]
When confronted with apparently conflicting statutes, the courts should
endeavor to harmonize and reconcile them, instead of declaring the
outright invalidity of one against the other, because they are equally the
handiwork of the same legislature.[103] In this case, We are trying to
harmonize the applicability of the provisions of R.A. No. 7610 vis-a-vis
those of the RPC, as amended by R.A. No. 8353, in order to carry out the
legislative intent to provide stronger deterrence and special protection
against all forms of child abuse, exploitation and discrimination.
Pertinent parts of the deliberation in Senate Bill No. 1209 underscoring the
legislative intent to increase the penalties as a deterrent against all forms of
child abuse, including those covered by the RPC and the Child and Youth
Welfare Code, as well as to give special protection to all children, read:
Senator Lina. x x x
For the information and guidance of our Colleagues, the phrase "child
abuse" here is more descriptive than a definition that specifies the
particulars of the acts of child abuse. As can be gleaned from the bill, Mr.
President, there is a reference in Section 10 to the "Other Acts of Neglect,
Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the
Child's Development."
We refer, for example, to the Revised Penal Code. There are already acts
described and punished under the Revised Penal Code and the Child and
Youth Welfare Code. These are all enumerated already, Mr. President.
There are particular acts that are already being punished.
But we are providing stronger deterrence against child abuse and
exploitation by increasing the penalties when the victim is a child. That is
number one. We define a child as "one who is 15 years and below." [Later
amended to those below 18, including those above 18 under special
circumstances]
The President Pro Tempore. Would the Sponsor then say that
this bill repeals, by implication or as a consequence, the law he
just cited for the protection of the child as contained in that Code
just mentioned, since this provides for stronger deterrence
against child abuse and we have now a Code for the protection of
the child?
Senator Lina. We specified in the bill, Mr. President, increase in
penalties. That is one. But, of course, that is not everything
included in the bill. There are other aspects like making it easier
to prosecute these cases of pedophilia in our country. That is
another aspect of this bill.
The other aspects of the bill include the increase in the penalties
on acts committed against children; and by definition, children
are those below 15 years of age.
So, it is an amendment to the Child and Youth Welfare Code, Mr.
President. This is not an amendment by implication. We made
direct reference to the Articles in the Revised Penal Code and in
the Articles in the Child and Youth Welfare Code that are
amended because of the increase in the penalties.
The President Pro Tempore. Would Senator Lina think then that,
probably, it would be more advisable to specify the amendments and
amend the particular provision of the existing law rather than put up a
separate bill like this?
Senator Lina. We did, Mr. President. In Section 10, we made reference
to...
The President Pro Tempore. The Chair is not proposing any particular
amendment. This is just an inquiry for the purpose of making some
suggestions at this stage where we are now in the period of amendments.
Senator Lina. We deemed it proper to have a separate Act, Mr. President,
that will include all measures to provide stronger deterrence against child
abuse and exploitation. There are other aspects that are included
here other than increasing the penalties that are already
provided for in the Revised Penal Code and in the Child and
Youth Welfare Code when the victims are children.
Aside from the penalties, there are other measures that are
provided for in this Act. Therefore, to be more systematic about
it, instead of filing several bills, we thought of having a separate
Act that will address the problems of children below 15 years of
age. This is to emphasize the fact that this is a special sector in
our society that needs to be given special protection. So this bill is
now being presented for consideration by the Chamber.[104]
The aforequoted parts of the deliberation in Senate Bill No. 1209 likewise
negate the contention of Justice Perlas-Bernabe that "to suppose that R.A.
No. 7610 would generally cover acts already punished under the Revised
Penal Code (RPC) would defy the operational logic behind the introduction
of this special law." They also address the contention of Justice Caguioa
that the passage of the same law was the Senate's act of heeding the call of
the Court to afford protection to a special class of children, and not to cover
any and all crimes against children that are already covered by other penal
laws, like the RPC and P.D. No. 603.
As pointed out by Senator Lina, the other aspect of S.B. No. 1209, is to
increase penalties on acts committed against children; thus, direct
reference was made to the Articles in the RPC and in the Articles in the
Child and Youth Welfare Code that are amended because of the increase in
the penalties. The said legislative intent is consistent with the policy to
provide stronger deterrence and special protection of children against child
abuse, and is now embodied under Section 10, Article VI of R.A. No.
7610, viz.:
For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No.
3815, as amended, the Revised Penal Code, for the crimes of murder,
homicide, other intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is under twelve
(12) years of age. The penalty for the commission of acts punishable under
Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised
Penal Code, for the crimes of qualified seduction, acts of lasciviousness with
the consent of the offended party, corruption of minors, and white slave
trade, respectively, shall be one (1) degree higher than that imposed by law
when the victim is under twelve (12) years age.
Justice Perlas-Bernabe and Justice Caguioa are both correct that R.A. No.
7610 was enacted to fill the gaps in the law, as observed by the Court
in People v. Ritter. However, they may have overlooked that fact that the
Congressional deliberations and the express provisions of R.A. No. 7610 all
point to the intention and policy to systematically address the problems of
children below 15 years of age [later increased to below 18], which Senator
Lina emphasized as a special sector in our society that needs to be given
special protection.[105]
Justice Perlas-Bernabe also noted that a general view on the application of
R.A. No. 7610 would also lead to an unnerving incongruence between the
law's policy objective and certain penalties imposed thereunder. She
pointed out that under Article 335 of the RPC, prior to its amendment by
R.A. No. 8353, the crime of rape committed against a minor who is not
under 12 and below 18, is punished with the penalty of reclusion perpetua,
while under Section 5(b), Article III of R.A. No. 7610, the crime of sexual
abuse against a child EPSOSA is punished only with a lower penalty
of reclusion temporal in its medium period to reclusion perpetua. She
concluded that it would not make sense for the Congress to pass a
supposedly stronger law against child abuse if the same carries a lower
penalty for the same act of rape under the old RPC provision.
Justice Perlas-Bernabe's observation on incongruent penalties was
similarly noted by the ponente in his Separate Concurring Opinion
in Quimvel, albeit with respect to the penalties for acts of lasciviousness
committed against a child, but he added that the proper remedy therefor is
a corrective legislation:
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,[106] 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.
[107]
To support his theory that the provisions of R.A. No. 7610 are intended only
for those under the unique circumstances of the children being "exploited
in prostitution or subjected to other sexual abuse," Justice Caguioa quoted
pertinent portions of the Senate deliberation on the provision on attempt to
commit child prostitution," which concededly do not affect Article 336 of
the RPC on acts of lasciviousness. Senator Lina provided with a
background, not of the provision of Section 5(b), but of Section 6 of R.A.
No. 7610 on attempt to commit child prostitution, thus:
Senator Lina. xxx Mr. President, Article 336 of Act No. 3815 will remain
unaffected by this amendment we are introducing here. As a backgrounder,
the difficulty in the prosecution of so-called "pedophiles" can be traced to
this problem of having to catch the malefactor committing the sexual act on
the victim. And those in the law enforcement agencies and in the
prosecution service of the Government have found it difficult to prosecute.
Because if an old person, especially foreigner, is seen with a child with
whom he has no relation—blood or otherwise — and they are just seen in a
room and there is no way to enter the room and to see them in flagrante
delicto, then it will be very difficult for the prosecution to charge or to hale
to court these pedophiles.
So we are introducing into this bill, Mr. President, an act that is already
considered an attempt to commit child prostitution. This, in no way, affects
the Revised Penal Code provisions on acts of lasciviousness or qualified
seduction.[108]
Justice Caguioa's reliance on the foregoing statements of Senator Lina is
misplaced. While Senator Lina was referring to the specific provision on
attempt to commit child prostitution under Section 6, Article III of R.A. No.
7610, Senator Aquilino Pimentel Jr.'s questions were directed more on the
general effect of Senate Bill No. 1209 on the existing provisions of the RPC
on child sexual abuse, which elicited from Senator Lina the intent to
provide higher penalties for such crimes, to wit:
Senator Pimentel. I understand the Gentleman's opinion on that
particular point. But my question really is much broader. I am sorry that it
would seem as if I am trying to be very meticulous about this.
Senator Lina. It is all right.
Senator Pimentel. But the point is, there are existing laws that
cover the sexual abuse of children already, particularly female
children. What I am trying to say is, what effect will the
distinguished Gentleman's bill have on these existing laws,
particularly provisions of the Revised Penal Code. That is why I
tried to cite the case of rape—having sexual intercourse with a
child below 12 years of age, seduction instances, qualified
abduction, or acts of lasciviousness, involving minors; meaning
to say, female below 18 years of age. There are already existing
laws on this particular point.
Senator Lina. Mr. President, there will also be a difference in penalties
when the person or the victim is 12 years old or less. That is another effect.
So, there is a difference.
For example, in qualified seduction, the penalty present for all persons
between age of 13 to 17 is prision correccional; for acts of lasciviousness
under the proposal, similar acts will be prision mayor if the child is 12
years or less.
Under qualified seduction, the present penalty is prision correccional,
minimum and medium. Under the proposal, it will be prision
correccional maximum to prision mayor minimum, and so on and so forth.
Even in facts of lasciviousness, with consent of the offended party, there is
still a higher penalty. In corruption of minors, there will be a higher
penalty. When murder is committed, and the victim is under 12 years or
less, there will be a higher penalty from reclusion temporal to reclusion
perpetua. The penalty when the culprit is below 12 years or less will
be reclusion perpetua. The intention is really to provide a strong deterrence
sand special protection against child abuse and exploitation.
Senator Pimentel. So, the net effect of this amendment,
therefore, is to amend the provisions of the Revised Penal Code,
insofar as they relate to the victims who are females below the
age of 12.
Senator Lina. That will be the net effect, Mr. President.
Senator Pimentel. We probably just have to tighten up our provisions to
make that very explicit. Mr. President.
Senator Lina. Yes. During the period of individual amendments, Mr.
President, that can be well taken care of.[109]
Quoting the sponsorship speech of Senator Rasul and citing the case
of People v. Ritter,[110] Justice Caguioa asserts that the enactment of R.A.
No. 7610 was a response of the legislature to the observation of the Court
that there was a gap in the law because of the lack of criminal laws which
adequately protect street children from exploitation of pedophiles.
Justice Caguioa is partly correct. Section 5(b) of R.A. No. 7610 is separate
and distinct from common and ordinary acts of lasciviousness under Article
336 of the RPC. However, when the victim of such acts of lasciviousness is a
child, as defined by law, We hold that the penalty is that provided for under
Section 5(b) of R.A. No. 7610 - i.e., reclusion temporal medium in case the
victim is under 12 years old, and reclusion temporal medium to reclusion
perpetua when the victim is between 12 years old or under 18 years old or
above 18 under special circumstances - and not merely prision
correccional under Article 336 of the RPC. Our view is consistent with the
legislative intent to provide stronger deterrence against all forms of child
abuse, and the evil sought to be avoided by the enactment of R.A. No. 7610,
which was exhaustively discussed during the committee deliberations of the
House of Representatives:
HON. [PABLO] P. GARCIA: Thank you, Mr. Chairman. This problem is
also bogging me for quite some time because there has been so much cry
against this evil in our society. But, then until now, neither the courts nor
those in the medical world have come up with the exact definition of
pedophilia. I have two standard dictionaries—Webster and another one an
English dictionary, Random Dictionary and the term "pedophilia" is not
there. Although, we have read so much literature, articles about pedophilia
and it is commonly understood as we might say a special predilection for
children. "Pedo" coming from the Greek word "pedo." But whether this
would apply to children of either sex, say male or female is not also very
clear. It is a sexual desire for its very unusual out of the ordinary desire or
predilection for children. Now, in our country, this has gain[ed] notoriety
because of activities of foreigners in Pagsanjan and even in Cebu. But most
of the victims I have yet to hear of another victim than male. Of course,
satisfaction of sexual desire on female, young female, we have instances of
adults who are especially attracted to the young female children, say below
the ages of 12 or 15 if you can still classify these young female children. So
our first problem is whether pedophilia would apply only to male victims or
should it also apply to female victims?
I am trying to make this distinction because we have already a law in our
jurisdiction. I refer to the Revised Penal Code where sexual intercourse
with a child below 12 automatically becomes statutory rape whether with or
without consent. In other words, force or intimidation is not a necessary
element. If a person commits sexual intercourse with a child below 12, then
he automatically has committed statutory rape and the penalty is stiff. Now,
we have really to also think deeply about our accepted definition of sexual
intercourse. Sexual intercourse is committed against… or is committed by a
man and a woman. There is no sexual intercourse between persons of the
same sex. The sexual intercourse, as defined in the standard dictionaries
and also as has been defined by our courts is always committed between a
man and a woman. And so if we pass here a law, which would define
pedophilia and include any sexual contact between persons of different or
the same sexes, in other words, homosexual or heterosexual, then, we will
have to be overhauling our existing laws and jurisprudence on sexual
offenses.
For example, we have in our Revised Penal Code, qualified seduction, under
Article 337 of the Revised Penal Code, which provides that the seduction of
a virgin over 12 and under 18 committed by any person in public authority:
priest, house servant, domestic guardian, teacher, or person who in any
capacity shall be entrusted with the education or custody of the woman
seduced, shall be punished by etc. etc. Now, if we make a general definition
of pedophilia then shall that offender, who, under our present law, is guilty
of pedophilia? I understand that the consensus is to consider a woman or a
boy below 15 as a child and therefore a potential victim of pedophilia. And
so, what will happen to our laws and jurisprudence on seduction? The
Chairman earlier mentioned that possible we might just amend our existing
provisions on crimes against chastity, so as to make it stiffer, if the victim or
the offended party is a minor below a certain age, then there is also
seduction of a woman who is single or a widow of good reputation, over 12
but under 18. Seduction, as understood in law, is committed against a
woman, in other words, a man having sexual intercourse with a woman.
That is how the term is understood in our jurisprudence. So I believe Mr.
Chairman, that we should rather act with caution and circumspection on
this matter. Let us hear everybody because we are about to enact a law
which would have very drastic and transcendental effects on our existing
laws. In the first place, we are not yet very clear on what is pedophilia. We
have already existing laws, which would punish these offenses.
As a matter of fact, for the information of this Committee, in Cebu, I think
that it is the first conviction for an offense which would in our
understanding amounts to pedophilia. A fourteen-year old boy was the
victim of certain sexual acts committed by a German national. The fiscal
came up with an information for acts of lasciviousness under the Revised
Penal Code and that German national was convicted for the offense
charged. Now, the boy was kept in his rented house and subjected to sexual
practices very unusual, tantamount to perversion but under present laws,
these offenses such as... well, it's too, we might say, too obscene to describe,
cannot be categorized under our existing laws except acts of lasciviousness
because there is no sexual intercourse. Sexual intercourse in our
jurisdiction is as I have stated earlier, committed by a man and a woman.
And it is a sexual contact of the organ of the man with the organ of the
woman. But in the case of this German national, if there was any sexual
contact it was between persons of the same sex. So, he was convicted. He's a
detention prisoner and there is also deportation proceeding against him. In
fact, he has applied for voluntary deportation, but he is to serve a penalty
of prision correccional to prision mayor. So, that is the situation I would
say in which we find ourselves. I am loath to immediately act on this
agitation for a definition of a crime of pedophilia. There is no I think this
Committee should study further the laws in other countries. Whether there
is a distinct crime known as pedophilia and whether this can be committed
against a person of the same sex or of another sex, or whether this crime is
separate and distinct from the other crimes against honor or against
chastity in their respective jurisdictions. This is a social evil but it has to be
addressed with the tools we have at hand. If we have to forge another tool
or instrument to find to fight this evil, then I think we should make sure
that we are not doing violence for destroying the other existing tools we
have at hand. And maybe there is a need to sharpen the tools we have at
hand, rather than to make a new tool to fight this evil. Thank you very
much, Mr. Chairman.[111]
Moreover, contrary to the claim of Justice Caguioa, We note that the
Information charging Tulagan with rape by sexual assault in Criminal Case
No. SCC-6210 not only distinctly stated that the same is "Contrary to
Article 266-A, par. 2 of the Revised Penal Code in relation to R.A. 7610,"
but it also sufficiently alleged all the elements of violation of Section 5(b) of
R.A. No. 7610, in this wise:
Elements of Section 5(b) of Information in Criminal Case
R.A. No. 7610 No. SCC-6210
1. That sometime in the month of
September 2011 x x x, the above-
1. The accused commits the act of named accused [Tulagan] x x x did
sexual intercourse or lascivious then and there, willfully, unlawfully
conduct. and feloniously inserted his finger
into the vagina of said AAA, against
her will and consent.
2. The said act is performed with a 2. [T]he above-name accused, by
child exploited in prostitution or means of force, intimidation
other sexual abuse. Section 5 of R.A. and with abuse of superior
No. 7610 deems as "children
exploited in prostitution and other
sexual abuse" those children,
strength forcibly laid complainant
whether male or female, (1) who for
AAA, x x x in a cemented pavement,
money, profit or any other
and x x x inserted his finger into the
consideration or (2) due to
vagina of said AAA, against her will
the coercion or influence of any
and consent.
adult, syndicate or group, indulge in
sexual intercourse or lascivious
conduct.
3. The child, whether male or
3. AAA is a 9-year-old minor.
female, is below 18 years of age.
In Quimvel, We ruled that the Information in Olivarez v. Court of
Appeals[112] is conspicuously couched in a similar fashion as the Information
in the case against Quimvel. We explained that the absence of the phrase
"exploited in prostitution or subject to other sexual abuse" or even a
specific mention of "coercion" or "influence" was never a bar for us to
uphold the finding of guilt against an accused for violation of R.A. No. 7610.
Just as We held that it was enough for the Information in Olivarez to have
alleged that the offense was committed by means of ''force and
intimidation," We must also rule that the Information in the case at bench
does not suffer from the alleged infirmity.
We likewise held in Quimvel that 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
opportunity to prepare his defense accordingly. Its import is underscored in
this case where the preamble states that the crime charged is "Acts of
Lasciviousness in relation to Section 5(b) of R.A. No. 7610."
We held that for purposes of determining the proper charge, the term
"coercion or influence" as appearing in the law is broad enough to cover
"force and intimidation" as used in the Information; in fact, as these terms
are almost used synonymously, it is then "of no moment that the
terminologies employed by R.A. No. 7610 and by the Information are
different."[113] We also ruled that a child is considered one "exploited in
prostitution or subjected to other sexual abuse" when the child indulges in
sexual intercourse or lascivious conduct "under the coercion or influence of
any adult."[114] Thus, We rule that the above-quoted Information in Criminal
Case No. SCC-6210 sufficiently informs Tulagan of the nature and cause of
accusation against him, namely: rape by sexual assault under paragraph 2,
Article 266-A of the RPC in relation to R.A. No. 7610.
We also take this opportunity to address the position of Justice Caguioa and
Justice Perlas-Bernabe, which is based on dissenting
opinions[115] in Olivarez and Quimvel. Citing the Senate deliberations, the
dissenting opinions explained that the phrase "or any other consideration
or due to coercion or influence of any adult, syndicate or group," under
Section 5(b) of R.A. No. 7610, was added to merely cover situations where a
child is abused or misused for sexual purposes without any monetary gain
or profit. The dissenting opinions added that this was significant because
profit or monetary gain is essential in prostitution; thus, the lawmakers
intended that in case all other elements of prostitution are present, but the
monetary gain or profit is missing, the sexually abused and misused child
would still be afforded the same protection of the law as if he or she were in
the same situation as a child exploited in prostitution.[116]
We partly disagree with the foregoing view. The amendment introduced by
Senator Eduardo Angara not only covers cases wherein the child is misused
for sexual purposes not because of money or profit, and coercion or
intimidation, but likewise expanded the scope of Section 5 of R.A. No. 7610
to cover not just child prostitution but also "other sexual abuse" in the
broader context of child abuse," thus:
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 a loophole in this section.
This 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,
etcetera.
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 DUE TO THE
COERCION 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.
The President Pro Tempore. Is that not what we would call
probably "child abuse"?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Is that not defined on line 2, page 6?
Senator Angara. Yes, Mr. President. Child prostitution and other
sexual abuse.
The President Pro Tempore. Subject to rewording. Is there any
objection? [Silence] Hearing none, the amendment is approved. Any other
amendments?[117]
Indeed, the Angara amendment explains not just the rationale of the body
of Section 5(b) of R.A. No. 7610 to cover a loophole or situation where the
minor may have been coerced or intimidated to indulge in lascivious
conduct. The amendment of President Pro Tempore Laurel, however, also
affects the title of Article III, Section 5 of R.A. No. 7610, i.e., "Child
Prostitution and Other Sexual Abuse." It is settled that if a chapter and
section heading has been inserted merely for convenience or reference, and
not as integral part of the statute, it should not be allowed to control
interpretation.[118] To our mind, however, the amendment highlights the
intention to expand the scope of Section 5 to incorporate the broader
concept of "child abuse," which includes acts of lasciviousness under Article
336 of the RPC committed against "children," as defined under Section 3 of
R.A. No. 7610. Records of the Senate deliberation show that "child
prostitution" was originally defined as "minors, whether male or female,
who, for money or profit, indulge in sexual intercourse or lascivious
conduct are deemed children exploited in prostitution." [119] With the late
addition of the phrase "or subject to other sexual abuse," which connotes
"child abuse," and in line with the policy of R.A. No. 7610 to provide
stronger deterrence and special protection of children against child abuse,
We take it to mean that Section 5(b) also intends to cover those crimes of
child sexual abuse already punished under the RPC, and not just those
children exploited in prostitution or subjected to other sexual abuse, who
are coerced or intimidated to indulge in sexual intercourse or lascivious
conduct. This is the reason why We disagree with the view of Justice Perlas-
Bernabe that the first proviso under Section 5(b) — which provides that
"when the victim is under twelve (12) years of age, the perpetrators shall
be prosecuted under x x x the Revised Penal Code, for rape or lascivious
conduct, as the case may be" — is a textual indicator that R.A. No. 7610 has
a specific application only to children who are pre-disposed to "consent" to
a sexual act because they are "exploited in prostitution or subject to other
sexual abuse," thereby negating the ponente's theory of general
applicability.
In People v. Larin,[120] We held that 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. Under R.A. No. 7610, children are "persons below eighteen years
of age or those unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of their
age or mental disability or condition." Noting that the law covers not only a
situation in which a child is abused for profit, but also one in which a child,
through coercion or intimidation, engages in any lascivious conduct, We
ruled that Section 5(b) of R.A. No. 7610 penalizes not only child
prostitution, the essence of which is profit, but also other forms of sexual
abuse of children. We stressed that this is clear from the deliberations of
the Senate, and that the law does not confine its protective mantle only to
children under twelve (12) years of age.
In Amployo v. People,[121] citing Larin, We observed 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 engages in any lascivious conduct
through coercion or intimidation. As case law has it, 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.
In Olivarez vs. Court of Appeals,[122] We held that a child is deemed
subjected to other sexual abuse when the child indulges in lascivious
conduct under the coercion or influence of any adult. We found that the 16-
year old victim in that case was sexually abused because she was coerced or
intimidated by petitioner to indulge in a lascivious conduct. We stated that
it is inconsequential that the sexual abuse occurred only once because, as
expressly provided in Section 3(b) of R.A. 7610, the abuse may be habitual
or not. We also observed that Article III of R.A. 7610 is captioned as "Child
Prostitution and Other Sexual Abuse" because Congress really intended to
cover a situation where the minor may have been coerced or intimidated
into lascivious conduct, not necessarily for money or profit, hence, the law
covers not only child prostitution but also other forms of sexual abuse.
In Garingarao v. People,[123] We ruled that a child is deemed subject to
other sexual abuse when the child is the victim of lascivious conduct under
the coercion or influence of any adult. In lascivious conduct under the
coercion or influence of any adult, there must be some form of compulsion
equivalent to intimidation which subdues the free exercise of the offended
party's free will. We further ruled that it is inconsequential that sexual
abuse under R.A. No. 7610 occurred only once. Section 3(b) of R.A. No.
7610 provides that the abuse may be habitual or not. Hence, the fact that
the offense occurred only once is enough to hold an accused liable for acts
of lasciviousness under R.A. No. 7610.
In Quimvel,[124] We stressed that Section 5(a) of R.A. No. 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. 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. We also added
that the very definition of "child abuse" under Section 3(b) of R.A. No. 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 Section 5(b) of
R.A. No. 7610 occurs even though the accused committed sexual abuse
against the child victim only once, even without a prior sexual offense.
In Caoili,[125] We reiterated that R.A. No. 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." 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. 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.
Meanwhile, Justice Marvic Mario Victor F. Leonen partly agrees with
the ponencia that insertion of a finger into a minor's vagina deserves a
higher penalty than prision mayor under Article 266-A, paragraph 2 in
relation to Article 266-B of the RPC. However, he asserts that non
consensual insertion of a finger in another's genitals is rape by carnal
knowledge under Article 266-A, paragraph 1 of the RPC. He also reiterates
his view in People v. Quimvel that Article 336 of the RPC has already been
rendered ineffective with the passage of R.A. No. 8353.
We stand by our ruling in Caoili that the act of inserting a finger in
another's genitals cannot be considered rape by carnal knowledge, thus:
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.[126]
We also maintain the majority ruling in Quimvel that Sec. 4 of R.A. No.
8353 did not expressly repeal Article 336 of the RPC for if it were the intent
of Congress, it would have expressly done so. Apropos is the following
disquisition in Quimvel:
x x x 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,
which previously penalized rape through carnal knowledge, has been
replaced by Art. 266-A. 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. 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. x x x
xxxx
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, 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-VAWC 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. 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. [127]
To be sure, deliberation of Senate Bill No. 950 which became R.A. No. 8353
reveals the legislative intent not to repeal acts of lasciviousness under
Article 336 of the RPC as a crime against chastity, but only to reclassify rape
as a crime against persons, thus:
Senator Enrile: x x x As I indicated last week, I will support this bill but I
would like to clarify some points just to set the matters into the Record.
Mr. President, the first thing I would like to find out is the status of this bill
— whether this is going to be a statutory crime or a part of the crimes
defined in the Revised Penal Code.
There is a big difference between these two concepts, Mr. President,
because all of us who have studied law know in our course in Criminal Law
two of crimes: Crimes which we call malum prohibitum which are
statutory crimes and mala in se or crimes that would require intent. That is
why we always recite the principle that actus non facit reum, nisi mens sit
rea. Because in every crime defined in the Revised Penal Code, we required
what they call a mens rea, meaning intent to commit a crime in almost all
cases: attempted, frustrated and consummated.
Now, am I now to understand, Madam Sponsor, that this type of crime will
be taken out of the Revised Penal Code and shall be covered by a special law
making it a statutory crime rather than a crime that is committed with the
accompaniment of intent.
Senator Shahani: Mr. President, we will recall that this was the topic of
prolonged interpellations not only by Senator Enrile, but also by Senator
Sotto. In consultation with Senator Roco - we were not able to get in touch
with Senator Santiago — we felt that the purpose of this bill would be better
served if we limited the bill to amending Article 335 of the Revised Penal
Code, at the same time expanding the definition of rape, reclassifying the
same as a crime against persons, providing evidentiary requirements and
procedures for the effective prosecution of offenders, and institutionalizing
measures for the protection and rehabilitation of rape victims and for other
purposes. In other words, it stays within the Revised Penal Code, and rape
is associated with criminal intent.
Having said this, it means that there will be a new chapter. They are
proposing a new chapter to be known as Chapter III on rape, under Title 8
of the Revised Penal Code. There it remains as a crime against persons and
no longer as a crime against chastity, but the criminal intent is retained.
Senator Enrile. So, the distinction between rape as a crime,
although now converted from a crime against chastity to a crime
against persons, and seduction and act of lasciviousness would
be maintained. Am I correct in this, Mr. President?
Senator Shahani. That is correct, Mr. President.[128]
In light of the foregoing disquisition, We hold that Tulagan was aptly
prosecuted for sexual assault under paragraph 2, Article 266-A of the RPC
in Criminal Case. No. SCC-6210 because it was alleged and proven that
AAA was nine (9) years old at the time he inserted his finger into her
vagina. Instead of applying the penalty under Article 266-B of the RPC,
which is prision mayor, the proper penalty should be that provided in
Section 5(b), Article III of R.A. No. 7610, which is reclusion temporal in its
medium period. This is because AAA was below twelve (12) years of age at
the time of the commission of the offense, and that the act of inserting his
finger in AAA's private part undeniably amounted to "lascivious
conduct."[129] Hence, the proper nomenclature of the offense should be
Sexual Assault under paragraph 2, Article 266-A of the RPC, in relation to
Section 5(b), Article III of R.A. No. 7610.
Applying the Indeterminate Sentence Law, the maximum term of the
indeterminate penalty shall be that which could be properly imposed under
the law, which is fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal. On the other hand, the minimum term shall be
within the range of the penalty next lower in degree, which is reclusion
temporal in its minimum period, or twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months. Hence, Tulagan should be meted
the indeterminate sentence of twelve (12) years, ten (10) months and
twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15)
years, six (6) months and twenty (20) days of reclusion temporal, as
maximum.
In Criminal Case No. SCC-6211 for statutory rape, We affirm that Tulagan
should suffer the penalty of reclusion perpetua in accordance with
paragraph 1(d), Article 266-A in relation to Article 266-B of the RPC, as
amended by R.A. No. 8353.
Damages
For the sake of consistency and uniformity, We deem it proper to address
the award of damages in cases of Sexual Assault under paragraph 2, Article
266-A of the RPC in relation to Section 5(b) of R.A. No. 7610, and Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of
R.A. No. 7610. Considering that the imposable penalties for the said two
crimes are within the range of reclusion temporal, the award of civil
indemnity and moral damages should now be fixed in the amount of
P50,000.00 each. The said amount is based on People v. Jugueta[130] which
awards civil indemnity and moral damages in the amount of P50,000.00
each in cases of homicide where the imposable penalty is reclusion
temporal. In case exemplary damages are awarded due to the presence of
any aggravating circumstance, to set a public example, or to deter elders
who abuse and corrupt the youth, then an equal amount of P50,000.00
should likewise be awarded.
The said award of civil indemnity, moral damages and exemplary damages
should be distinguished from those awarded in cases of: (1) Acts of
Lasciviousness under Article 336 of the RPC where the imposable penalty
is prision correccional, the amount of civil indemnity and moral damages
should now be fixed at P20,000.00 while exemplary damages, if warranted,
should also be P20,000.00; (2) Sexual Assault under paragraph 2, Article
266-A of the RPC where the imposable penalty is prision mayor, the award
of civil indemnity and moral damages should be fixed at P30,000.00 each,
while the award of exemplary damages, if warranted, should also be
P30,000.00 pursuant to prevailing jurisprudence;[131] and (3) Lascivious
conduct under Section 5(b) of R.A. No. 7610, when the penalty of reclusion
perpetua is imposed, and the award of civil indemnity, moral damages and
exemplary damages is P75,000.00 each.
The justification for the award of civil indemnity, moral damages and
exemplary damages was discussed in People v. Combate,[132] as follows:
First, civil indemnity ex delicto is the indemnity authorized in our
criminal law for the offended party, in the amount authorized by the
prevailing judicial policy and apart from other proven actual damages,
which itself is equivalent to actual or compensatory damages in civil law.
This award stems from Article 100 of the RPC which states, "Every person
criminally liable for a felony is also civilly liable."
Civil liability ex delicto may come in the form of restitution, reparation, and
indemnification. Restitution is defined as the compensation for loss; it is
full or partial compensation paid by a criminal to a victim ordered as part of
a criminal sentence or as a condition for probation. Likewise, reparation
and indemnification are similarly defined as the compensation for an
injury, wrong, loss, or damage sustained. Clearly, all of these correspond to
actual or compensatory damages defined under the Civil Code.
xxxx
The second type of damages the Court awards are moral damages, which
are also compensatory in nature. Del Mundo v. Court of
Appeals expounded on the nature and purpose of moral damages, viz.:
Moral damages, upon the other hand, may be awarded to compensate
one for manifold injuries such as physical suffering, mental anguish,
serious anxiety, besmirched reputation, wounded feelings and social
humiliation. These damages must be understood to be in the concept of
grants, not punitive or corrective in nature, calculated to compensate the
claimant for the injury suffered. Although incapable of exactness and no
proof of pecuniary loss is necessary in order that moral damages may be
awarded, the amount of indemnity being left to the discretion of the court,
it is imperative, nevertheless, that (1) injury must have been suffered by the
claimant, and (2) such injury must have sprung from any of the cases
expressed in Article 2219 and Article 2220 of the Civil Code x x x.
Similarly, in American jurisprudence, moral damages are treated as
"compensatory damages awarded for mental pain and suffering or mental
anguish resulting from a wrong." They may also be considered and allowed
"for resulting pain and suffering, and for humiliation, indignity, and
vexation suffered by the plaintiff as result of his or her assailant's conduct,
as well as the factors of provocation, the reasonableness of the force used,
the attendant humiliating circumstances, the sex of the victim, [and]
mental distress."
The rationale for awarding moral damages has been explained
in Lambert v. Heirs of Rey Castillon: "[T]he award of moral damages is
aimed at a restoration, within the limits possible, of the spiritual status quo
ante; and therefore, it must be proportionate to the suffering inflicted."
Corollarily, moral damages under Article 2220 of the Civil Code also
does not fix the amount of damages that can be awarded. It is discretionary
upon the court, depending on the mental anguish or the suffering of the
private offended party. The amount of moral damages can, in relation to
civil indemnity, be adjusted so long as it does not exceed the award of civil
indemnity.
xxxx
Being corrective in nature, exemplary damages, therefore, can be
awarded, not only due to the presence of an aggravating circumstance, but
also where the circumstances of the case show the highly reprehensible or
outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article
2229, the main provision, lays down the very basis of the award. Thus,
in People v. Matrimonio, the Court imposed exemplary damages to deter
other fathers with perverse tendencies or aberrant sexual behavior from
sexually abusing their own daughters. Also, in People v. Cristobal, the
Court awarded exemplary damages on account of the moral corruption,
perversity and wickedness of the accused in sexually assaulting a pregnant
married woman. In People of the Philippines v. Cristino Cañada, People of
the Philippines v. Pepito Neverio and People of the Philippines v. Lorenzo
Layco, Sr., the Court awarded exemplary damages to set a public example,
to serve as deterrent to elders who abuse and corrupt the youth, and to
protect the latter from sexual abuse.[133]
In summary, the award of civil indemnity, moral damages and exemplary
damages in Acts of Lasciviousness under Article 336 of the RPC, Acts of
Lasciviousness in relation to Section 5(b) of R.A. No. 7610, Lascivious
Conduct under Section 5(b) of R.A. No. 7610, Sexual Assault under
paragraph 2, Article 266-A of the RPC, and Sexual Assault in relation to
Section 5(b) of R.A. No. 7610, are as follows:
Moral Exemplary
Crime Civil Indemnity
Damages Damages[134]
Acts of
Lasciviousness
under Article 336
P20,000.00 P20,000.00 P20,000.00
of the RPC
[Victim is of legal
age]
Acts of
lasciviousness in
relation to
Section 5(b) of
R.A. No. 7610 P50,000.00 P50,000.00 P50,000.00
[Victim is a child
under 12 years
old or is
demented]
Sexual Abuse or P75,000.00 (If P75,000.00 (If P75,000.00 (If
Lascivious penalty imposed penalty imposed penalty imposed
Conduct under is reclusion is reclusion is reclusion
Section 5(b) of perpetua) perpetua) perpetua)
R.A. No. 7610 P50,000.00 (If P50,000.00 (If P50,000.00 (If
[Victim is a child penalty imposed penalty imposed penalty imposed
12 years old and is within the is within the is within the
below 18, or range range range
above 18 under of reclusion of reclusion of reclusion
special temporal temporal temporal
circumstances] medium) medium) medium)
Sexual Assault
under Article
266-A(2) of the P30,000.00 P30,000.00 P30,000.00
RPC [Victim is of
legal age]
Sexual Assault
under Article
266-A(2) of the
RPC in relation to
Section 5(b) of
P50,000.00 P50,000.00 P50,000.00
R.A. No. 7610
[Victim is a child
under 12 years
old or is
demented]
It is settled that an award of civil indemnity ex delicto is mandatory upon a
finding of the fact of rape, and moral damages may be automatically
awarded in rape cases without need of proof of mental and physical
suffering. The award of exemplary damages is also called for to set a public
example and to protect the young from sexual abuse. As to the civil liability
in Criminal Case No. SCC-6210 for sexual assault under paragraph 2,
Article 266-A of the RPC, in relation to Section 5(b) of R.A. No. 7610,
Tulagan should, therefore, pay AAA the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary
damages.
Anent the award of damages in Criminal Case No. SCC-6211 for statutory
rape, We modify the same in line with the ruling in People v. Jugueta,
[135]
where We held that "when the circumstances surrounding the crime call
for the imposition of reclusion perpetua only, there being no ordinary
aggravating circumstance, the proper amounts should be P75,000.00 as
civil indemnity, P75,000.00 as moral damages, and P75,000.00 as
exemplary damages." Also in consonance with prevailing jurisprudence, the
amount of damages awarded shall earn interest at the rate of six percent
(6%) per annum from the finality of this judgment until said amounts are
fully paid.
Over and above the foregoing, We observe that despite the clear intent of
R.A. No. 7610 to provide for stronger deterrence and special protection
against child abuse, the penalty for violation of Section 5(b) of R.A. No.
7610 [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,[136] Article XII of
R.A. No. 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,[137] whereas as
the minimum term in the case of the older victims shall be taken
from prision mayor medium to reclusion temporal minimum.[138] 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, [139] 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.[140] Thus, a corrective legislation is the proper
remedy to address the noted incongruent penalties for acts of
lasciviousness committed against a child.
We further note that R.A. No. 8353 did not expressly repeal Article 336 of
the RPC, as amended. Section 4 of R.A. No. 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. No.
8353, except in sexual assault as a form of rape. To recall, R.A. No. 8353
only modified Article 336 of the RPC, as follows: (1) by carrying over to acts
of lasciviousness the additional circumstances[141] 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.
Hence, Article 336 of the RPC, as amended, is still a good law despite the
enactment of R.A. No. 8353 for there is no irreconcilable inconsistency
between their provisions. When the lascivious act is not covered by R.A. No.
8353, then Article 336 of the RPC is applicable, except when the lascivious
conduct is covered by R.A. No. 7610.
We are 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) of
R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its
medium period, than the one who commits Rape Through Sexual Assault,
which is merely punishable by prision mayor.
In People v. Chingh,[142] We noted that the said fact is undeniably unfair to
the child victim, and it was not the intention of the framers of R.A. No.
8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses
committed to children. We held that despite the passage of R.A. No. 8353,
R.A. No. 7610 is still a 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
physical or mental disability or condition."[143]
In Dimakuta, We added that where the lascivious conduct is covered by the
definition under R.A. No. 7610, where the penalty is reclusion
temporal medium and the said act is, likewise, covered by sexual assault
under Art. 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. No. 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 Art.
266-A, par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least
18 years old and she is unable to fully take care of herself or protect herself
physical or mental disability or condition, in which case, the offender may
still be held liable of sexual abuse under R.A. No. 7610. The reason for the
foregoing is that with respect to lascivious conduct, R.A. No. 7610 affords
special protection and stronger deterrence against child abuse, as compared
to R.A. No. 83.53 which specifically amended the RPC provisions on rape.
Finally, despite the enactment of R.A. No. 8353 more than 20 years ago in
1997, We had been consistent in our rulings in Larin, Olivarez,
and Garingarao, Quimvel and Caoili, all of which uphold the intent of R.A.
No. 7610 to provide special protection of children and stronger deterrence
against child abuse. Judicial stability compels to stand by, but not to
abandon, our sound rulings: [1] that Section 5(b), Article III of R.A. No.
7610 penalizes not only child prostitution, the essence of which is profit,
but also other forms of sexual abuse wherein a child engages in sexual
intercourse or lascivious conduct through coercion or influence; and [2]
that it is inconsequential that the sexual abuse occurred only once. Our
rulings also find textual anchor on Section 5, Article III of R.A. No. 7610,
which explicitly states that a child is deemed "exploited in prostitution or
subjected to other sexual abuse," when the child indulges in sexual
intercourse or lascivious conduct for money, profit or any other
consideration, or under the coercion or influence of any adult, syndicate or
group, as well as on Section 3(b), Article I thereof, which clearly provides
that the term "child abuse" refers to the maltreatment, whether habitual or
not, of the child which includes sexual abuse.
If the lawmakers disagreed with our interpretation, they could have easily
amended the law, just like what they did when they enacted R.A. No.
10591[144] [Amendment on the provision of use of firearm in the commission
of a crime], R.A. No. 10951[145] [Amendments to certain penalty and fines
under the Revised Penal Code] and R.A. No. 10707[146] [Amendments to the
Probation Law] after We rendered People v. Ladjaalam,[147] Corpuz v.
People,[148] Colinares v. People and Dimakuta v. People, respectively, and
their silence could only be construed as acquiescence to our rulings.
WHEREFORE, PREMISES CONSIDERED, the appeal is DENIED.
The Joint Decision dated February 10, 2014 of the Regional Trial Court in
Criminal Case Nos. SCC-6210 and SCC-6211, as affirmed by the Court of
Appeals Decision dated August 17, 2015 in CA-G.R. CR-HC No. 06679,
is AFFIRMED with MODIFICATIONS. We find accused-appellant
Salvador Tulagan:
1. Guilty beyond reasonable doubt of Sexual Assault under paragraph
2, Article 266-A of the Revised Penal Code, in relation to
Section 5(b) of Republic Act No. 7610, in Criminal Case No. SCC-
6210, and is sentenced to suffer the indeterminate penalty of twelve (12)
years, ten (10) months and twenty-one (21) days of reclusion temporal,
as minimum, to fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal, as maximum. Appellant
is ORDERED to PAY AAA the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary
damages.
Guilty beyond reasonable doubt of Statutory Rape under Article
266-A(1)(d) and penalized in Article 266-B of the Revised Penal
Code, in Criminal Case No. SCC-6211, and is sentenced to suffer the
2. penalty of reclusion perpetua with modification as to the award of
damages. Appellant is ORDERED to PAY AAA the amounts of
P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P75,000.00 as exemplary damages.
Legal interest of six percent (6%) per annum is imposed on all damages
awarded from the date of finality of this Decision until fully paid.
Let a copy of this Decision be furnished the Department of Justice, the
Office of the Solicitor General, the Office of the Court Administrator, and
the Presiding Justice of the Court of Appeals, for their guidance and
information, as well as the House of Representatives and the Senate of the
Philippines, as reference for possible statutory amendments on the
maximum penalty for lascivious conduct under Section 5(b), Article III of
R.A. No. 7610 when the victim is under 12 years of age [reclusion
temporal medium], and when the victim is 12 years old and below 18, or 18
or older under special circumstances [reclusion
temporal medium to reclusion perpetua] under Section 3(a) of R.A. No.
7610.
SO ORDERED.
Bersamin, (C.J.), Carpio, Del Castillo, A. Reyes, Jr., Gesmundo, J. Reyes,
Jr., Hernando, and Carandang, JJ., concur.
Perlas-Bernabe, J., please see separate opinion.
Leonen, J., concurring in the result see separate opinion.
Jardeleza, J., I join separate concurring and dissenting opinion
of J. Caguioa.
Caguioa, J., please see separate concurring and dissenting opinion.
Lazaro-Javier, J., no part.

NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on March 12, 2019 a Decision, copy attached
herewith, was rendered by the Supreme Court in the above-entitled case,
the original of which was received by this Office on April 12, 2019 at 11:10
a.m.
Very truly yours,
EDGAR O. ARICHETA
Clerk of Court

By: (SGD.) ANNA-LI R. PAPA-
GOMBIO
Deputy Clerk of Court En Banc

[1]
Penned by Associate Justice Amy C. Lazaro-Javier (now a member of this
Court), with Associate Justices Celia C. Librea-Leagogo and Melchor Q.C.
Sadang, concurring; rollo, pp. 2-38.
[2]
[3]
The identity of the victim or any information to establish or compromise
her identity, as well as those of her immediate family or household
members, shall be withheld pursuant to Republic Act No. 7610, "An Act
Providing for Stronger Deterrence and Special Protection Against Child
Abuse, Exploitation and Discrimination, and for Other Purposes"; Republic
Act No. 9262, "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes"; Section 40 of A.M. No. 04-10-
11-SC, known as the "Rule on Violence Against Women and Their
Children," effective November 15, 2004; People v. Cabalquinto, 533 Phil.
703 (2006); and Amended Administrative Circular No. 83-2015 dated
September 5, 2017, Subject: Protocols and Procedures in the Promulgation,
Publication, and Posting on the Websites of Decisions, Final Resolutions,
and Final Orders Using Fictitious Names/Personal Circumstances.
[4]
[5]
Rollo, pp. 36-37. (Emphasis in the original)
[6]
People v. Gahi, 727 Phil. 642 (2014).
[7]
Id. at 658.
[8]
People v. Appegu, 429 Phil. 467,477 (2002).
[9]
695 Phil. 576 (2012).
[10]
Id. at 588-589. (Citations omitted).
[11]
People v. Barberan, et al., 788 Phil. 103, 113 (2016).
[12]
See People v. Ilogon, 788 Phil. 633, 643-644 (2016).
[13]
People v. Jugueta, 783 Phil. 806 (2016).
[14]
Article 266-A. Rape; When And How Committed. — Rape is Committed
—
xxxx
2) By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person's mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.
[15]
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 in the preceding article, shall be punished
by prision correccional.
[16]
PO3 Sombilon, Jr. v. People of the Philippines, 617 Phil. 187, 195-196
(2009).
[17]
496 Phil. 747 (2005).
[18]
Id. at 756. (Emphasis added).
[19]
See Records of the Bicameral Conference Committee on the Disagreeing
Provisions of Senate Bill No. 950 and House Bill No. 6265 dated February
19, 1997.
[20]
Journal of the House of Representatives, Unfinished Business: Second
Reading of Committee Report No. 224 on House Bill No. 6265.
[21]
Article 266-A. Rape: When And How Committed. - Rape is committed:
xxxx
2) By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another person's mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.
[22]
771 Phil. 641 (2015).
[23]
Id. at 670.
[24]
Id. at 670-671.
[25]
Supra note 22.
[26]
Id. at 668-669. (Emphasis, underscoring; italics added in the original)
[27]
G.R. No. 196848, August 8, 2017, 835 SCRA 107; penned by Associate
Justice Noel Gimenez Tijam.
[28]
Id. at 153-154. (Emphasis added).
[29]
Supra note 27.
[30]
Id.
[31]
Article 266 A. Rape: When And How Committed. - Rape is committed:
1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or 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.
[32]
Article 266-8. Penalties. - Rape under paragraph 1 of the next preceding
article shall be punished by reclusion perpetua. x x x.
[33]
Art. 335. When and how rape is committed. — Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be
present.
The crime of rape shall be punished by reclusion perpetua.
[34]
Underscoring added.
[35]
G.R. No. 214497, April 18, 2017, 823 SCRA 192.
[36]
Id. See Separate Concurring Opinion and Majority Opinion.
[37]
Chinese Flour Importers Association v. Price Stabilization Board, 89
Phil. 439 (1951); Arenas v. City of San Carlos, 172 Phil. 306 (1978).
[38]
Quimvel v. People, supra note 35, at 268-269. (Emphasis added).
[39]
See Separate Concurring Opinion and Majority Opinion.
[40]
Section. 3. Definition of Terms.-
(a) "Children" refers to a person below eighteen (18) years of age or those
over but are unable to fully take care of themselves or protect from
because of a physical or mental disability or condition.
[41]
Item II (1) of A.M. No. 15-08-02-SC, entitled "Guidelines for the Proper
Use of the Phrase 'Without Eligibility for Parole' in Indivisible Penaties,
"dated August 4, 2015 provides:
(1) In cases where the death penalty is not warranted, there is no need to
use the phrase "without eligibility for parole" to qualify the penalty
of reclusion perpetua; it is understood that convicted persons penalized
with an indivisible penalty are not eligible for parole; x x x
[42]
Section 2(g) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases states that "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.
[43]
Section 3(h) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases states that "lascivious conduct" means
the intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction
of any object into the genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.
[44]
560 Phil. 119 (2007); penned by Associate Justice Renato C. Corona.
[45]
Supra, at 138.
[46]
Id. at 139-140.
[47]
See Separate Concurring Opinion in Quimvel v. People, supra note 35.
[48]
People v. Brioso, 788 Phil. 292, 306 (2016).
[49]
The elements of violation of the first clause of Section 5(b) of R.A. No.
7610 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
other sexual abuse; and (3) the child, whether male or female, is 12 years
old or below 18. On the other hand, the elements of statutory rape under
paragraph 1 (d), Article 266-A of the RPC are: (1) the offender is a man; (2)
the offender shall have carnal knowledge of a woman; and (3) the offended
party is under 12 years of age or is demented.
[50]
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 in the preceding article, shall be punished
by prision correccional.
[51]
Section 5. Child Prostitution and Other Sexual Abuse. — Children,
whether male or female, who for money, profit, or any other consideration,
or due to 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.
(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
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.
[52]
Article 17. Principals. -The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.
[53]
(c) Those who derive profit or advantage therefrom, whether as manager
or owner of the establishment where the prostitution takes place, or of the
sauna, disco, bar, resort, place of entertainment or establishment serving as
a cover or which engages in prostitution in addition to the activity for which
the license has been issued to said establishment.
[54]
Art. 335. When and how rape is committed. — Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the whom is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be
present.
The crime of rape shall be punished by reclusion perpetua.
xxx
[55]
People v. Bentayo, G.R. No. 216938, June 5, 2017, 825 SCRA 620,
626; People v. Mayola, 802 Phil. 756, 762 (2016).
[56]
Art. 337. Qualified seduction. — The seduction of a virgin over twelve
years and under eighteen years of age, committed by any person in public
authority, priest, house-servant, domestic, guardian, teacher, or any person
who, in any capacity, shall be entrusted with the education or custody of the
woman seduced, shall be punished by prision correccional in its minimum
and medium periods.
The penalty next higher in degree shall be imposed upon any person who
shall seduce his sister or descendant, whether or not she be a virgin or over
eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the
offender has carnal knowledge of any of the persons and under the
circumstances described herein.
[57]
Article 338. Simple seduction. — The seduction of a woman who is single
or a widow of good reputation, over twelve but under eighteen years of age,
committed by means of deceit, shall be punished by arresto mayor.
[58]
People v. Tubillo, G.R. No. 220718, June 21, 2017, 828 SCRA 96; penned
by Associate Justice Jose Catral Mendoza.
[59]
599 Phil. 390 (2009); penned by Associate Justice Renato C. Corona.
[60]
676 Phil. 16 (2011); penned by Associate Justice Diosdado M. Peralta.
[61]
Supra note 59, at 395-396.
[62]
People v. Pangilinan, supra note 60, at 37.
[63]
People v. Tubillo, supra note 58, at 107.
[64]
"Lascivious conduct" means the intentional touching, either directly or
through clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire
of any person, bestiality, masturbation, lascivious exhibition of the genitals
or pubic area of a person. [Section 2(h) Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases]
[65]
Issued in October 1993.
[66]
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.
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 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. (Emphasis
supplied)
[67]
Id.
[68]
Section 5. Child Prostitution and Other Sexual Abuse. -x x x.
(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
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.
[69]
AN ACT DECRIMINALIZING VAGRANCY, AMENDING FOR THIS
PURPOSE ARTICLE 202 OF ACT NO. 3815, AS AMENDED, OTHERWISE
KNOWN AS THE REVISED PENAL CODE.
[70]
Section 3(h) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases states that "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.
[71]
Section 3. Grounds. - The accused may move to quash the complaint or
information on any of the following grounds:
xxxx
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
[72]
Republic of the Philippines v. Yahon, 736 Phil. 397, 410 (2014).
[73]
Id. at 410-411.
[74]
The "children" refers to a person below eighteen (18) years of age or
those over but are unable to fully take care of themselves or protect
because of a physical or mental disability or condition. [Section 3(a), R.A.
No. 7610]
"Child" shall refer to a person below eighteen (18) years of age or one over
said age and who, upon evaluation of a qualified physician, psychologist or
psychiatrist, is found to be incapable of taking care of himself fully because
of a physical or mental disability or condition or of protecting himself from
abuse. [Section 2(a), Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases]
[75]
"Lascivious conduct" means the intentional touching, either directly or
through clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire
of any person, bestiality, masturbation, lascivious exhibition of the genitals
or pubic area of a person. [Section 2(h), Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases]
[76]
Subject to R.A. No. 9346 entitled "An Act Prohibiting the Imposition of
Death Penalty in the Philippines."
[77]
"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. [Section 3(g) of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases]
[78]
Supra note 22.
[79]
Supra note 35; penned by Associate Justice Presbitero J. Velasco, Jr.
[80]
People v. Ursua, G.R. No. 218575, October 4, 2017, 842 SCRA 165,
178; Malto v. People, supra note 44, at 135-136.
[81]
Id.
[82]
Emphasis supplied.
[83]
Record of the Senate, Vol. II, No. 58, December 2, 1991, pp. 793-794.
[84]
Record of the Senate, Vol. I, No. 7, August 1, 1991, p. 262.
[85]
Id.
[86]
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.
[87]
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.
xxxx
(b) Those who commit the act of sexual intercourse of lascivious conduct
with a child exploited in prostitution or subject to other sexual abuse;
Provided, That when the victims is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or for 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;
[88]
Record of the Senate Vol. IV, No. 116, May 9, 1991, pp. 333-334.
[89]
Supra note 85.
[90]
Supra note 42.
[91]
Issued in October 1993.
[92]
AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL
PROTECTION AGAINST CHILD ABUSE AND EXPLOITATION,
PROVIDING LEGAL PRESUMPTIONS AND PENALTIES FOR ITS
VIOLATIONS.
[93]
Record of the Senate, December 2, 1991, Volume II, No. 58, pp. 793-794.
[94]
Id.
[95]
Record of the Senate on Senate Bill No. 1209, Volume III, No. 104, pp.
1204-1205. (Emphasis added).
[96]
See Separate Concurring Opinion in Quimvel v. People, supra note 36.
(Emphasis added).
[97]
ARTICLE 339. Acts of Lasciviousness with the Consent of the Offended
Party. — The penalty of arresto mayor shall be imposed to punish any other
acts of lasciviousness committed by the same persons and the same
circumstances as those provided in Articles 337 and 338.
ARTICLE 337. Qualified Seduction. — The seduction of a virgin over twelve
years and under eighteen years of age, committed by any person in public
authority, priest, house-servant, domestic, guardian, teacher, or any person
who, in any capacity, shall be entrusted with the education or custody of the
woman seduced, shall be punished by prision correccional in its minimum
and medium periods.
The penalty next higher in degree shall be imposed upon any person who
shall seduce his sister or descendant, whether or not she be a virgin or over
eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the
offender has carnal knowledge of any of the persons and under the
circumstances described herein.
ARTICLE 338. Simple Seduction. — The seduction of a woman who is
single or a widow of good reputation, over twelve but under eighteen years
of age, committed by means of deceit, shall be punished by arresto mayor.
[98]
Presidential Decree No. 968.
[99]
An Act Amending Presidential Decree No. 968, otherwise known as the
"Probation Law of 1976", as amended. Approved on November 26, 2015.
Section 9 of the Decree, as amended, provides that the benefits thereof shall
not be extended to those "(a) sentenced to serve a maximum term of
imprisonment of more than six (6) years." Note: The duration of the
penalty of prision correccional is 6 months and 1 day to 6 years.
[100]
Centeno v. Judge Villalon-Pornillos, 306 Phil. 219, 230 (1994).
[101]
U.S. v. Go Chico, 14 Phil. 128, 140 (1909)
[102]
People v. Manantan, 115 Phil. 657, 665 (1962)
[103]
Akbayan-Youth v. Comelec, 407 Phil. 618, 639 (2001).
[104]
Record of the Senate, Vol. I , No. 7, August 1, 1991, pp. 258-259.
(Emphasis added).
[105]
Id.
[106]
Section 31. Common Penal Provisions. -
xxxx
(c) The penalty provided herein shall be imposed in its maximum
period when the perpetrator is an ascendant, parent, guardian,
stepparent or collateral relative within the second degree of
consanguinity or affinity, or a manager or owner of an establishment
which has no license to operate or its license has expired or has been
revoked. [Emphasis added]
[107]
Citations omitted.
[108]
Record of the Senate, Vol. IV, No. 116, May 9, 1991, pp. 334-335.
[109]
Id. at 336-337.
[110]
272 Phil. 532 (1991).
[111]
Deliberation of the Committee on Justice, December 19, 1989.
[112]
503 Phil. 421 (2005).
[113]
People v. Francisco Ejercito, G.R. No. 229861, July 2, 2018.
[114]
Id.
[115]
Penned by Senior Associate Justice Antonio T. Carpio.
[116]
See Justice Carpio's Dissenting Opinion in Quimvel v.
People, supra note 35.
[117]
Record of the Senate, Vol. I, No. 7, August 1, 1991, p. 262.
[118]
Commissioner of Customs v. Relunia, 105 Phil. 875 (1959).
[119]
Records of the Senate, Vol. IV, No. 116, May 9, 1991 , p. 33.
[120]
357 Phil. 987 (1998).
[121]
Supra note 17.
[122]
Supra note 111. Penned by Associate Justice Consuela Ynares-Santiago,
with Associate Justices Leonardo A. Quisumbing and Adolfo S. Azcuna,
concurring; and Chief Justice Hilario G. Davide, Jr. joining the dissent of
Associate Justice Antonio T. Carpio.
[123]
669 Phil. 512 (2011).
[124]
Supra note 35.
[125]
Supra note 27, at 144.
[126]
[127]
[128]
Record of the Senate, Bill on Second Reading, S. No. 950- Special Law
on Rape, July 29, 1996.
[129]
Section 3(h) of R.A. No. 7610 states that "lascivious conduct" means the
intentional touching, either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks, or the introduction of any
object into the genitalia, anus or mouth, of any person, whether of the same
or opposite sex, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person.
[130]
Supra note 13.
[131]
People v. Brioso, supra note 48; Ricalde v. People, 751 Phil. 793 (2015).
[132]
653 Phil. 487 (2010).
[133]
Id. at 504-508. (Emphasis added; citations omitted).
[134]
If an aggravating circumstance is present or to set as a public example
to deter sexual abuse.
[135]
Supra note 13.
[136]
Section 31 . Common Penal Provisions. -
xxxx
(c) The penalty provided herein shall be imposed in its maximum period
when the perpetrator is an ascendant, parent, guardian, stepparent or
collateral relative within the second degree of consanguinity or affinity, or a
manager or owner of an establishment which has no license to operate or
its license has expired or has been revoked.
[137]
Ranging from 12 years and 1 day to 14 years and 8 months.
[138]
Ranging from 8 years 1 day to 14 years and 8 months.
[139]
Lamb v. Phipps, 22 Phil. 456 (1912).
[140]
People v. De Guzman, 90 Phil. 132 (1951).
[141]
Aside from the use of force or intimidation, or when the woman is
deprived of reason or otherwise unconscious.
[142]
661 Phil. 208 (2011).
[143]
R.A. No. 7610, Art. I, Sec. 3(a).
[144]
AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON FIREARMS
AND AMMUNITION AND PROVIDING PENALTIES FOR VIOLATIONS
THEREOF.
[145]
AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY
A ND DAMAGE ON WHICH A PENALTY IS BASED, AND THE FINES
IMPOSED UNDER THE REVISED PENAL CODE, AMENDING FOR THE
PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS "THE REVISED
PENAL CODE," AS AMENDED.
[146]
Supra note 98.
[147]
395 Phil. 1 (2005).
[148]

SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 182835 April 20, 2010

RUSTAN ANG y PASCUA, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.
DECISION
ABAD, J.:
This case concerns a claim of commission of the crime of violence against women when a former
boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it.
The Indictment
The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial
Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children
Act or Republic Act (R.A.) 9262 in an information that reads:
That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines
and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and
feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS)
using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend,
whereby the face of the latter was attached to a completely naked body of another woman making it
to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture
thereby causing substantial emotional anguish, psychological distress and humiliation to the said
Irish Sagud.1
The Facts and the Case
The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan
were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became
"on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had
taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him.
Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with
him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and
told Rustan to take on his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and sent her text messages.
Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-
8084768. Irish replied to his text messages but it was to ask him to leave her alone.
In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a
picture of a naked woman with spread legs and with Irish’s face superimposed on the figure (Exhibit
A).2 The sender’s cellphone number, stated in the message, was 0921-8084768, one of the numbers
that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they
were in Baguio in 2003 (Exhibit B).3
After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it
would be easy for him to create similarly scandalous pictures of her. And he threatened to spread
the picture he sent through the internet. One of the messages he sent to Irish, written in text
messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa
lahat ng chatter."4
Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police
supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture
and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada,
Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the
waiting police officers intercepted and arrested him. They searched him and seized his Sony
Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police
station, he shouted at Irish: "Malandi ka kasi!"
Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in
information technology and computer graphics. He said that it was very much possible for one to lift
the face of a woman from a picture and superimpose it on the body of another woman in another
picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and
the body belonged to just one person.
Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was
not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake
and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained
how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson
P900 seized from Rustan.
For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003
and their relation lasted until December of that year. He claimed that after their relation ended, Irish
wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that
time (later his wife) was already pregnant, Irish walked out on him.
Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort
as she needed his help in selling her cellphone. When he arrived at the place, two police officers
approached him, seized his cellphone and the contents of his pockets, and brought him to the police
station.
Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a
prankster who was sending her malicious text messages. Rustan got the sender’s number and,
pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages
from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the
obscene messages appeared to have originated from his cellphone number. Rustan claims that it
was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a
woman whom he identified as Irish (Exhibits 2 to 7).5
Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish sent the six pictures. Michelle
claims that she received the pictures and hid the memory card (Exhibit 8) that contained them
because she was jealous and angry. She did not want to see anything of Irish. But, while the woman
in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the
face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman
in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed.
After trial, the RTC found Irish’s testimony completely credible, given in an honest and spontaneous
manner. The RTC observed that she wept while recounting her experience, prompting the court to
comment: "Her tears were tangible expression of pain and anguish for the acts of violence she
suffered in the hands of her former sweetheart. The crying of the victim during her testimony is
evidence of the credibility of her charges with the verity borne out of human nature and
experience."6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the
violation of Section 5(h) of R.A. 9262.
On Rustan’s appeal to the Court of Appeals (CA),7 the latter rendered a decision dated January 31,
2008,8 affirming the RTC decision. The CA denied Rustan’s motion for reconsideration in a
resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari.
The Issues Presented
The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message
the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological
distress, and humiliation on her in violation of Section 5(h) of R.A. 9262.
The subordinate issues are:
1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is
defined in R.A. 9262;
2. Whether or not a single act of harassment, like the sending of the nude picture in this
case, already constitutes a violation of Section 5(h) of R.A. 9262;
3. Whether or not the evidence used to convict Rustan was obtained from him in violation of
his constitutional rights; and
4. Whether or not the RTC properly admitted in evidence the obscene picture presented in
the case.
The Court’s Rulings
Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person
against a woman with whom he has or had a sexual or dating relationship. Thus:
SEC. 3. Definition of Terms. – As used in this Act,
(a) "Violence against women and their children" refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate, within or without the
family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.
xxxx
Section 5 identifies the act or acts that constitute violence against women and these include
any form of harassment that causes substantial emotional or psychological distress to a
woman. Thus:
SEC. 5. Acts of Violence Against Women and Their Children. – The crime of violence against
women and their children is committed through any of the following acts:
xxxx
h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that
alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:
xxxx
5. Engaging in any form of harassment or violence;
The above provisions, taken together, indicate that the elements of the crime of violence against
women through harassment are:
1. The offender has or had a sexual or dating relationship with the offended woman;
2. The offender, by himself or through another, commits an act or series of acts of

harassment against the woman; and
3. The harassment alarms or causes substantial emotional or psychological distress to her.
One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a
"dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation
where the parties are romantically involved over time and on a continuing basis during the course of
the relationship. Thus:
(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the
benefit of marriage or are romantically involved over time and on a continuing basis during the
course of the relationship. A casual acquaintance or ordinary socialization between two individuals in
a business or social context is not a dating relationship. (Underscoring supplied.)
Here, Rustan claims that, being "romantically involved," implies that the offender and the offended
woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites
Webster’s Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal
meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He
romanced her."
But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies
a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it
used the noun "romance" to describe a couple’s relationship, i.e., "a love affair."9
R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of
acts committed by any person against a woman x x x with whom the person has or had a
sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating
relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines
"sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing
of a common child." The dating relationship that the law contemplates can, therefore, exist even
without a sexual intercourse taking place between those involved.
Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety
(away-bati), their romance cannot be regarded as having developed "over time and on a continuing
basis." But the two of them were romantically involved, as Rustan himself admits, from October to
December of 2003. That would be time enough for nurturing a relationship of mutual trust and love.
An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking
place does not mean that the romantic relation between the two should be deemed broken up during
periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when
she could not reply to Rustan’s messages, he would get angry at her. That was all. Indeed, she
characterized their three-month romantic relation as continuous. 10
Two. Rustan argues that the one act of sending an offensive picture should not be considered a form
of harassment. He claims that such would unduly ruin him personally and set a very dangerous
precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes
violence against women. This means that a single act of harassment, which translates into violence,
would be enough. The object of the law is to protect women and children. Punishing only violence
that is repeatedly committed would license isolated ones.
Rustan alleges that today’s women, like Irish, are so used to obscene communications that her
getting one could not possibly have produced alarm in her or caused her substantial emotional or
psychological distress. He claims having previously exchanged obscene pictures with Irish such that
she was already desensitized by them.
But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not
impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It
is doubtful if the woman in the picture was Irish since her face did not clearly show on them.
Michelle, Rustan’s wife, claimed that she deleted several other pictures that Irish sent, except
Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2
to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not
have time to delete them.11 And, if she thought that she had deleted all the pictures from the memory
card, then she had no reason at all to keep and hide such memory card. There would have been
nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for
her to keep it for several years, given that as she said she was too jealous to want to see anything
connected to Irish. Thus, the RTC was correct in not giving credence to her testimony. 1avvphi1
Secondly, the Court cannot measure the trauma that Irish experienced based on Rustan’s low
regard for the alleged moral sensibilities of today’s youth. What is obscene and injurious to an
offended woman can of course only be determined based on the circumstances of each case. Here,
the naked woman on the picture, her legs spread open and bearing Irish’s head and face, was
clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish,
who is not in the pornography trade, would be scandalized and pained if she sees herself in such a
picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat
to post it in the internet for all to see. That must have given her a nightmare.
Three. Rustan argues that, since he was arrested and certain items were seized from him without
any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that
the prosecution did not present in evidence either the cellphone or the SIM cards that the police
officers seized from him at the time of his arrest. The prosecution did not need such items to prove
its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900
cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference.
Actually, though, the bulk of the evidence against him consisted in Irish’s testimony that she received
the obscene picture and malicious text messages that the sender’s cellphone numbers belonged to
Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to
Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the
confiscated cellphone and SIM cards to prove that Rustan sent those messages.
Moreover, Rustan admitted having sent the malicious text messages to Irish. 13 His defense was that
he himself received those messages from an unidentified person who was harassing Irish and he
merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone
number of the unidentified person who sent the messages to him to authenticate the same. The RTC
did not give credence to such version and neither will this Court. Besides, it was most unlikely for
Irish to pin the things on Rustan if he had merely tried to help her identify the sender.
Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an
electronic document. Thus, it should be authenticated by means of an electronic signature, as
provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).
But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for
the first time before this Court. The objection is too late since he should have objected to the
admission of the picture on such ground at the time it was offered in evidence. He should be
deemed to have already waived such ground for objection. 14
Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic
Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings. 15
In conclusion, this Court finds that the prosecution has proved each and every element of the crime
charged beyond reasonable doubt.
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in
CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
PRESBITERO J. VELASCO, JR. ARTURO D. BRION

JOSE PORTUGAL PEREZ

Associate Justice
ATTESTATION
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
REYNATO S. PUNO
Chief Justice
Footnotes
* Designated as additional member in lieu of Associate Justice Mariano C. Del Castillo, per
raffle dated September 14, 2009.
1
Docketed as Criminal Case 3493.
2
Records, p. 69.
3
Id. at 70.
4
Exhibit D and sub-markings, id. at 72-76.
5
Id. at 156-159.
6
Rollo, p. 38.
7
Docketed as CA-G.R. CR 30567.
8
Penned by then Associate Justice Mariano C. Del Castillo (now a member of this Court),
and concurred in by Associate Justices Arcangelita Romilla-Lontok and Romeo F. Barza.
9
Webster’s New World College Dictionary, Third Edition, p. 1164.
10
TSN, April 11, 2006, pp. 22-24.
11
TSN, July 19, 2006, pp. 10-12.
12
TSN, April 11, 2006, p. 28.
13
TSN, June 27, 2006, pp. 23-24.
14
People v. Mendoza, G.R. No. 180501, December 24, 2008, 575 SCRA 616, 625-626.
15
A.M. No. 01-7-01-SC, Rule 1, Section 2.

Criminal Law Handwritten Digest

Uploaded by

Copyright:

Available Formats

You might also like

Criminal Law Handwritten Digest

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Criminal Law Handwritten Digest

Uploaded by

Copyright:

Available Formats

THIRD DIVISION

G.R. No. 128089 February 13, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

Assisted by counsel de parte, the accused pled "not guilty" at his arraignment.

"THE TRIAL COURT ERRED IN DISREGARDING THE EVIDENCE SUPPORTING THE

"A I do not know of any reason sir.

"Q What is that valid reason?

"A Because of my reputation being dismerged (sic).

"A Yes, sir.

"A That was long before October 27.

"Q Could that have been in September 1983?

"A I am not very sure of that date.

"A Yes, sir.

"Q About how many times?

"A I can no longer recall sir.

"A Only for that particular reason.

"A Yes, sir.

"A Yes, sir.

"Q And what was her comment?

"A She did not want to reveal the truth.

"A Yes, sir.

"A Yes, sir.

"A Yes, sir.

Melo, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

Republic of the Philippines

G.R. No. 178198 December 10, 2008

PEOPLE OF THE PHILIPPINES, appellee,

The facts of the case follow:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE

Indubitably, conspiracy was established.

ANTONIO EDUARDO B. NACHURA

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Penned by Associate Justice Rosmari D. Carandang, with Associate Justices Renato C.

Dacudao and Estela M. Perlas-Bernabe, concurring; rollo, pp. 2-24.

175925, August 17, 2007, 530 SCRA 706, 725.

crime when the victim was attacked while he was asleep:

(2) People v. Demate, 465 Phil. 127 (2004).

(3) People v. Bernal, 437 Phil. 11 (2002).

v. Barcenal, supra note 39, at 727.

G.R. No. 116200-02 June 21, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The facts as condensed from the records are as follows:

Criminal Case No. 92-09-3434

CONTRARY TO LAW. (Italics supplied)

Criminal Case No. 92-09-4775

CONTRARY TO LAW. (Italics supplied)

Criminal Case No. 92-09-4786

CONTRARY TO LAW. (Italics supplied)

A. We were immediately strapped.

Q. What do you mean by immediately strapped?

A. All of us.

A. Naval pier.

Q. Who were the four accused?

A. On top of the fire truck.

Q. On what particular place on top of the fire truck?

A. On top of the water tank.

Q. What was his position when you were fired?