So Hiong Law Offices

L30 Tower 3, Enterprise Tower 6764 Ayala Avenue, City of Antipolo Tel No. (02) 623- 5649 Fax No. (02) 623-5555

Private and Confidential MR. ARMADO DE LA CERNA 34 Bravo Street Asistio Village, Taytay, Rizal Dear MR. DE LA CERNA: In response to your request, here is the opinion. The facts, gathered from our previous interview with your daughter, Desiree de la Cerna, age 16, are as follows:
After your separation, Carissa and Desiree de la Cerna, your wife and daughter, had been living at the residence of one Valdemor Refuerzo in Cainta, Rizal. Valdemor, age 45, is the present cohabitating partner of Carissa. On the midnight of January 15, 2011, while Desiree is on her room and Carissa was not at home, Valdemor entered the said area without her permission. Upon the demand of your daughter, he got out of the room, but only to return naked after some time. He then and there wilfully, unlawfully, feloniously, by means of force, threats and intimidation, forced the victim to lie down. He pulled her shorts and panty down, and with lewd designs successfully had carnal knowledge against her will and consent. Victim struggled but was overpowered. She experienced extreme pain. Unsatisfied with the event, on February 20, 2011 at around 4:00 oclock in the early dawn, suspect again entered victims room and by means of force and intimidation, inserted his finger inside the vagina of the victim. Suspect warned the victim that something wrong will happen to her if she resisted. Because of fear, she did not call for help. The last incident happened on March 11, 2011, at around 5:00 in the afternoon. Valdemor wilfully and succeeded in having carnal knowledge with the victim, against her will and consent. Desiree resisted but was overwhelmed by the strength of the perpetrator. The victim never told her mother about the incident, fearing she might not believe her.

Based on the facts that you and your daughter have provided, Valdemor Refuerzo is liable for 3 counts of Qualified Rape in reference to Article 266-A and Article 266-B of the Revised Penal Code. But before discussing the details, I would advise you to immediately report the incident to the Women and Children Protection Desk of the Philippine National Police in your area. This will guarantee that a proper complaint be placed in the records of the authorities and for the commencement of investigations. Next, secure a medico legal report to document the physical implications of the incident to Desiree. Obtaining this is very significant to the case, since the result of the examination is prime evidence that shall be presented in court. The Women and Children Protection Desk of the PNP can be of assistance in this matter.

So Hiong Law Offices

L30 Tower 3, Enterprise Tower 6764 Ayala Avenue, City of Antipolo Tel No. (02) 623- 5649 Fax No. (02) 623-5555

Now to the legal matters, in my opinion, Valdemor Refuerzo is liable for 2 counts of Rape by sexual intercourse, for the 1st and 3rd episodes of sexual abuse that transpired on January 15, 2011 and March 11, 2011 respectively. On the other hand, as ruled in the similar case of FLORDELIZ vs. PEOPLE OF THE PHILIPPINES, G.R. No. 186441, March 3, 2010, the perpetrator had also consummated the crime of Rape through Sexual Assault by merely using his finger to perform the 2nd sexual abuse that occurred on February 2011. Article 266-A of the Revise Penal Code states that;
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. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by: "a) Inserting his penis into another person's mouth or anal orifice, "b) Inserting any instrument or object, into the genital or anal orifice of another person.

The penalties for his acts of rape through sexual intercourse and through sexual assault are punishable by reclusion perpetua and prision mayor correspondingly. However, in PEOPLE OF THE PHILIPPINES vs. HENRY ARCILLAS, G.R. No. 181491, July 30, 2012 it is ruled that; The rape of a female over 12 years but under 18 years of age by the common-law spouse of her mother is qualified rape. Consequently, Valdemors sentences will be qualified due to his relationship to the victim. Thus, he will be sentenced to a death penalty, but shall be lowered to reclusion perpetua by virtue of R.A. No. 9346 (which prohibits the imposition and instead mandates, in lieu of the capital punishment, the imposition of the penalty of reclusion perpetua or life imprisonment) plus a period of reclusion temporal. As mentioned in Article 266-B Penalty;
Article 266-B. Penalty. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. XXXXXXXXX The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; XXXXXXXXX

So Hiong Law Offices

L30 Tower 3, Enterprise Tower 6764 Ayala Avenue, City of Antipolo Tel No. (02) 623- 5649 Fax No. (02) 623-5555

Article 266-B. Penalty. Rape under paragraph 2 of the next preceding article shall be punished by prison mayor. XXXXXXXXX

Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/ qualifying circumstances mentioned in this article. As indicated in Article 100 of the Revise Penal Code, Every person criminally liable for a felony is also civilly liable. Alongside the criminal responsibility of the perpetrator, civil guarantees should also be sought by the offended. Valdemor can be civilly liable for moral and exemplary damages.

I have faith that court will gaze at the same strength of character, courage and candour that I have witnessed in Desiree in our last encounter. The court time and again has held that;
when the offended party is a young and immature girl between the ages of 12 and 16, as in this case, courts are inclined to give credence to her version of the incident, considering not only her relative vulnerability but also the public humiliation to which she would be exposed in the course of trial if her accusations were untrue. Testimonies of youthful rape victims are, as a general rule, given full faith and credit, considering that when a girl says she has been raped, she says in effect all that is necessary to show that the rape was indeed committed. (PEOPLE OF THE PHILIPPINES vs. DACALLOS, G.R. No. 189807, July 5, 2010) XXXXXXXXXXXXXX

If you decided to continue with the litigation, I recommend that you secure all possible physical evidences that can be used. Also, try to look for possible witnesses to the incident.
"Justice Delayed is Justice Denied".

If you pursue with the action, I believe that you have an excellent chance of the case being decided in your favor. Should you decide to communicate or if you need further clarification on the matter, do not hesitate to contact us through the address and numbers above.

Truly yours, Atty. Don So Hiong