ALVIN AMPLOYO y EBALADA, P e t i t i o n e r, - versus PEOPLE OF THE PHILIPPINES, R e s p o n d e n t.

G.R. No. 157718

Present:

PUNO, Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA and CHICO-NAZARIO, JJ.

Promulgated:

April 26, 2005 DECISION

CHICO-NAZARIO, J.:

This is a petition for review on certiorari assailing the Decision[1] of the Court of Appeals which affirmed the Decision[2] of the RegionalTrialCourtofOlongapoCity, Branch 72, and its Resolution[3] denying petitioner's motion for reconsideration.

On 21 July 1997, petitioner was charged with violation of Section 5(b), Article III of Republic Act No. 7610, in an Information worded as follows:

That on or about the 27th day of June, 1997, and on dates prior thereto, at Brgy. Calapandayan, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with lewd design, and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, commit acts of lascivious conduct with one Kristine Joy Mosquera, a minor of eight (8) years old, by then and there touching, mashing and playing her breast, against her will and consent, to the damage and prejudice of the latter.[4]

Upon arraignment, petitioner pleaded 'NOT GUILTY. Trial on the merits ensued thereafter. The prosecution presented as witnesses (1) the complainant herself, Kristine Joy Mosquera;

(2) complainant's mother, Gnelida Gallardo Mosquera; and (3) Department of Social Welfare and Development (DSWD) psychologist Lucrecia Cruz. Petitioner, on the other hand, waived his right to present evidence[5] after his demurrer to evidence[6] was denied by the trial court.[7]

The facts, as appreciated by the trial court, are as follows:

Kristine Joy Mosquera was eight years old on 27 June 1997,[8] having celebrated her eighth year the day before. A grade III student, she was walking to school (which was just a short distance from her house) at around seven oclock in the morning when she was met by petitioner who emerged from hiding from a nearby store. Petitioner and Kristine Joy were neighbors. Petitioner approached Kristine Joy, touched her head, placed his hand on her shoulder where it then moved down to touch her breast several times. Petitioner thereafter told Kristine Joy not to report to anybody what he did to her.

This was not the first time that the incident happened as petitioner had done this several times in the past, even when Kristine Joy was still in Grade II. However, it was only during this last incident that Kristine Joy finally told somebody ' her grandmother, who immediately talked to Gnelida Mosquera, Kristine Joy's mother.

Mrs. Mosquera conferred with Kristine Joy who said that petitioner would sometimes even insert his hand under her shirt to caress her breast. Mother and child then reported the matter to the barangay. From the barangay, the case was referred to the DSWD then to the Police Department of Subic, Zambales.

On 07 November 1997, Kristine Joy was seen by a psychologist, witness Lucrecia Cruz, who reported that Kristine Joy was a victim of sexual abuse and was showing unusual behavior as a result thereof. Among other things, Ms. Cruz detected in the eight-year old child feelings of insecurity, anger, anxiety and depression. Guilt feelings were also noted. All in all, Kristine Joy appeared on the surface to be a child with normal behavior despite the experience, but on a deeper level, she developed a fear of going to school as petitioner

might again be hiding in the store waiting for her. She was deeply bothered during the interview and even uttered 'Nahihiya ako sa mga magulang ko at uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi.

Kristine Joy continued going to school, but this time accompanied always by an adult relative.

On 22 September 1999, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing considerations, the Court finds the accused Alvin Amployo GUILTY beyond reasonable doubt of the crime of Child Abuse defined under Section 5 (b) of Republic Act 7610 and hereby sentences him to Reclusion Temporal in its medium period or FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY TO SEVENTEEN (17) YEARS and to pay the costs.[9]

The Court of Appeals, as adverted to earlier, affirmed the Decision of the trial court by dismissing petitioner's appeal for lack of merit. Upon motion for reconsideration, however, the Court of Appeals modified its ruling relative to the penalty imposed, thus:

WHEREFORE, the motion for reconsideration is DENIED. However, the penalty is MODIFIED such that accused-appellant is sentenced to imprisonment of twelve (12) years and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.[10]

Hence, the instant petition, the following issues having been presented for resolution:

I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING HEREIN PETITIONER OF ACTS OF LASCIVIOUSNESS IN RELATION TO SEC. (5) ARTICLE III OF RA NO. 7610 DESPITE THAT THE FACTUAL MILIEU NEGATES THE SAME II.

WHETHER THE ALLEGED ACT OF HEREIN PETITIONER CONSTITUTES ACTS OF LASCIVIOUSNESS AS PENALIZED UNDER SEC (5) ARTICLE III OF RA NO. 7610

The first issue basically questions the sufficiency of the evidence adduced to prove acts of lasciviousness under Article 336 of the Revised Penal Code (RPC). According to petitioner, the prosecution failed to prove beyond reasonable doubt all the elements of said crime, particularly the element of lewd design.

On the second issue, petitioner contends that even assuming that the acts imputed to him amount to lascivious conduct, the resultant crime is only acts of lasciviousness under Article 336 of the RPC and not child abuse under Section 5(b) of Rep. Act No. 7610 as the elements thereof have not been proved.

Rep. Act No. 7610, the 'Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, defines sexual abuse of children and prescribes the penalty therefor in its Article III, Section 5:

SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following; (a) (b) ... Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; . . .

Thus, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of

lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of Rep. Act No. 7610.

First Issue:

Article 336 of the RPC on Acts of Lasciviousness has for its elements the following:

(1)

That the offender commits any act of lasciviousness or lewdness;

(2)

That it is done under any of the following circumstances:

a. b.

By using force or intimidation; or When the offended party is deprived of reason or otherwise unconscious; or When the offended party is under 12 years of age; and

c.

(3)

That the offended party is another person of either sex.[11]

The presence of the second element is not in dispute, that is, Kristine Joy was below 12 years old on the material date set in the information. It is the presence of the first element which petitioner challenges, claiming that lewd design has not been proved beyond reasonable doubt.

The term 'lewd is commonly defined as something indecent or obscene;[12] it is characterized by or intended to excite crude sexual desire.[13] 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.[14] What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition. As early as U.S. v. Gomez[15] 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[16] 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.

In herein case, petitioner argues that lewd design cannot be inferred from his conduct firstly because the alleged act occurred at around seven oclock in the morning, in a street very near the school where people abound, thus, he could not have been prompted by lewd design as his hand merely slipped and accidentally touched Kristine Joy's breast. Furthermore, he could not have been motivated by lewd design as the breast of an eight year old is still very much undeveloped, which means to say there was nothing to entice him in the first place. Finally, assuming that he indeed intentionally touch Kristine Joy's breast, it was merely to satisfy a silly whim following a Court of Appeals ruling.[17]

Petitioner's arguments crumble under the weight of overwhelming evidence against him. Well-settled is the rule that factual findings of the trial court, particularly when affirmed by the Court of Appeals, are binding on this Court barring arbitrariness and oversight of some fact or circumstance of weight and substance[18] for which there are none in this case. Besides, Kristine Joy's testimony is indeed worthy of full faith and credence as there is no proof that she was motivated to falsely accuse petitioner. Thus, we stress anew that no young and decent girl like Kristine Joy would fabricate a story of sexual abuse, subject herself to medical examination and undergo public trial, with concomitant ridicule and humiliation, if she is not impelled by a sincere desire to put behind bars the person who assaulted her.[19]

Clearly then, petitioner cannot take refuge in his version of the story as he has conveniently left out details which indubitably prove the presence of lewd design. It would have been easy to entertain the possibility that what happened was merely an accident if it only happened once. Such is not the case, however, as the very same petitioner did the very same act to the very same victim in the past.[20] Moreover, the incident could never be labeled as accidental as petitioner's hand did not just slip from Kristine Joy's shoulder to her

breast as there were times when he would touch her breast from under her shirt.[21] Finally, the theory that what happened was accidental is belied by petitioner having threatened Kristine Joy to keep silent and not tell on him.[22]

As to petitioner's argument that human experience negates the presence of lewd design as Kristine Joy had no developed breasts with which to entice him, suffice it to say that on the contrary, human experience has taught us painfully well that sexual misconduct defies categorization and what might be an unusual, unlikely or impossible sexual conduct for most might very well be the norm for some.

Finally, we dismiss for being atrocious the proposition that petitioner was not compelled by lewd design as he was merely satisfying a 'silly whim. Terrifying an eight-year old school girl, taking advantage of her tender age with his sheer size, invading her privacy and intimidating her into silence, in our book, can never be in satisfaction of a mere silly whim.

Second Issue:

Petitioner contends that assuming he is guilty of lascivious conduct, still he can only be convicted under the RPC since his conduct does not amount to sexual abuse as defined under Section 5(b), Article III of Rep. Act No. 7610.

The elements of sexual abuse under Section 5, Article III of Rep. Act No. 7610 that must be proven in addition to the elements of acts of lasciviousness are the following:

(1)

The accused commits the act of sexual intercourse or lascivious conduct;

(2)

The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and

(3)

The child, whether male or female, is below 18 years of age.[23]

The first element obtains. Section 32, Article XIII of the Implementing Rules and Regulations of Rep. Act No. 7610 defines lascivious conduct as follows:

(T)he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. (Emphasis supplied)

Undoubtedly, based on the foregoing definition, petitioner's act of purposely touching Kristine Joy's breasts (sometimes under her shirt) amounts to lascivious conduct.

The second element is likewise present. As we observed in People v. Larin,[24] Section 5 of Rep. Act 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.[25] It is

sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party.[26] 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.[27] Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat.[28]

In this case, it is not hard to imagine eight-year old Kristine Joy being intimidated by her neighbor, a full grown adult male, who constantly accosted her while she was alone and on her way to school and who consistently ordered her not to report what he had been doing to her. That this child was cowed into silence and submission and was traumatized in the process is reflected in the psychological report[29] made by the DSWD psychologist, Lucrecia Cruz, the latter stating that:

BEHAVIOR OBSERVATION:

Subject appeared kemp, fair complexion, attractive, wearing white Tshirt and maong short pants. She [was] observed to be cooperative, attentive and expressive. In an interview, subject disclosed that since she was in Grade II a certain Alvin Amployo a.k.a. Tikboy who (sic) sexually molested her. She narrated that her private part was fondled for many times. The incident happened every time she went to school in the morning, noontime and in the afternoon. The abuser hide (sic) along the store way to school. Then she was threatened not to reveal to anybody especially to her parents. TEST RESULT AND INTERPRETATION: Test result revealed that subject manifest anger as she quoted 'gusto ko makulong si Tikboy ng matagal. Indicate strong fear, anxiety, poor concentration, nightmare, shame and auditory hallucination. Implies low selfesteem as she quoted 'madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi. Indicate that subject disturbed towards past as she quoted 'ang masidhing ala-ala ng aking kamusmusan ay yong panghihipo ni Tikboy. Thus, subject aiming that Tikboy be put to jail. CASE SUMMARY AND RECOMMENDATION: In summary, Kristine Joy Mosquera is a victim of sexual molestation committed by a certain Alvin Amployo or Tikboy. Subject was greatly affected psychologically and emotionally. Thus, subject manifest from (sic) anger, anxiety, poor concentration, nightmare, shame, auditory hallucination and low self-esteem. She is deeply depressed and suffer from traumatic sexualization. From psychotherapeutic point of view subject needs constant counseling to overcome her presented (sic) crisis. To assist the subject to ventilate her ambivalent feeling. To restore moral values, improve her selfesteem and enhance her emotional and social functioning.

As to the third element, there is no dispute that Kristine Joy is a minor, as she was only eight years old at the time of the incident in question.

Finally, we note that no award for moral damages was made by both the trial court and the Court of Appeals despite the fact that the mental anguish suffered by Kristine Joy on account of her harrowing experience is spread all over the records of the case and has been well documented by the psychologist who examined her as reflected in her report quoted above. At the risk of being repetitive, proof of Kristine Joy's mental anguish, wounded feelings and social humiliation finds an express outlet in her words: 'madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi and 'ang masidhing ala-ala ng aking kamusmusan ay yong panghihipo ni Tikboy. We therefore modify the ruling of the Court of Appeals by awarding moral damages to Kristine Joy in the amount of Twenty Thousand Pesos (P20,000.00) pursuant to Article 2219 of the Civil Code. [30]

Additionally, we find relevant to discuss here the case of People v. Solmoro[31] wherein we declared that upon a finding of guilt of the accused for acts of lasciviousness, the amount of P30,000.00 as moral damages may be further awarded to the victim in the same way that moral damages are awarded to victims of rape even without need of proof because it is assumed that they suffered moral injury. Considering that the crime of acts of

lasciviousness or abusos dishonestos is necessarily included in rape[32] and both cases involve sexual assault albeit in different degrees, the rationale for foregoing with proof of moral damages in rape cases applies with equal force to crimes of acts of lasciviousness, the rationale being:

One other cognate development in the case law on rape is applicable to the present disposition. The Court has also resolved that in crimes of rape, such as that under consideration, moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice. Indeed, the conventional requirement of allegata et probate in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such allegations can be made. Corollarily, the fact that complainant has suffered the trauma of mental, physical and psychological sufferings which constitute the bases for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assumes and acknowledges such agony on her part as a gauge of her credibility. What exists by necessary implication as being ineludibly present in the case need not go through the superfluity of still being proved through a testimonial charade.[33]

It does not end there. In People v. Abadies,[34] and with respect specifically to lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct in addition to the award of moral damages on the justification that '

It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment. Nevertheless, Section 31(f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to the discretion of the court, provided that the same is to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in an environment which fosters their self-respect and human dignity.

With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos (P15,000.00) on petitioner.

WHEREFORE, premises considered, the Resolution of the Court of Appeals modifying the Decision of the Regional Trial Court of Olongapo City, Branch 72, finding accused-petitioner ALVIN AMPLOYO y EBALADA alias 'TIKBOY guilty beyond reasonable doubt of violation of Republic Act No. 7610, and sentencing him to suffer the penalty of twelve (12) years and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum is AFFIRMED with the MODIFICATION that petitioner is hereby ordered to pay a fine of Fifteen Thousand Pesos (P15,000.00) and moral damages in the amount of Twenty Thousand Pesos (P20,000.00). No costs.

SO ORDERED.

G. R. No. 128823-24

December 27, 2002

PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES, JR., y FLORES ALIAS "PESIONG", accused-appellant. DECISION CARPIO-MORALES, J.:

An assault on sexual innocence can open a floodgate of emotions. This Court, however, cannot allow emotions to drown an accuseds right to be informed of the nature and cause of the accusation against him. For automatic review before this Court is the Joint Decision of the Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding accused-appellant Pedro Flores Jr. y Flores alias "Pesiong" guilty of two counts of rape of his then 11 year old daughter and sentencing him to suffer the penalty of death in each. The complaints against accused-appellant filed on February 3, 1997 read as follows: Criminal Case No. U-9184: CRIMINAL COMPLAINT1 The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of "RAPE", committed as follows: That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES Y LAZO, 11 years old, all against her will. x x x (Emphasis supplied). Criminal Case No. U-9185: CRIMINAL COMPLAINT2 The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS "PESYONG", committed as follows: That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein accused with the use of sharp pointed bladed weapon and all against her will. x x x (Emphasis supplied). Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both charges.3 Culled from the records of the case are the following facts established by the prosecution: On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old at the time, and her younger sister Catherine were left to the care of their father, herein accusedappellant, at their family residence in Sitio Buenlag, Barangay Nancamaliran West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having departed for Singapore to work as an overseas contract worker. After partaking of supper on the night of December 9, 1996,4 accused-appellant asked Filipina to accompany him to the comfort room situated outside their house,5 claiming that he was afraid of ghosts.6 Albeit Filipina did not believe7 him, she acquiesced because her mother had told her to always obey her father.8 When accused-appellant came out of the comfort room, he ordered Filipina to remove her short pants, threatening her with death if she disobeyed,9 and made her lie down.10 He then removed his short pants and brief and, against her will, he inserted his finger and later his penis into Filipinas vagina11 where she later felt hot fluid.12 Accused-appellant thereafter wiped Filipinas vagina and his hand, threatened to kill her if she reported what he did, directed her to put on her shorts, and they both went home. The following morning, Filipina reported the incident to her "Inang Lorie" whose full name is

Norielyn Antonio, the aunt of her mother, who told her that if her father would sexually assault her again, he would have him detained. Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their house, she was awakened when accused-appellant touched her right foot.13 Armed with a knife14, accusedappellant told her not to talk15 and ordered her to remove her short pants and panty. She complied. Accused-appellant thereupon removed his short pants and brief and went on top of her chest during which she tried to push him away but failed. Accused-appellant then inserted his finger into Filipinas vagina for some time,16 wiped his hands, and then inserted his penis for a long time as he was sucking her breast. Filipina felt accused-appellants semen drop into her private organ where she noticed the presence of blood and a bit of whitish substance. Accused-appellant later wiped her vagina with a towel. The following morning, private complainant again reported the matter to her grandaunt Norielyn,17 and to her playmate Carla Salvador.18 On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle driverneighbor, reported the matter to the Philippine National Police of Urdaneta where she gave a statement. On the same day, she, still accompanied by Norielyn, submitted herself to a medical examination at the Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are contained in a medical certificate19 showing the following: (-) Negative menarche - Multiple deep healed lacerations all over the labia majora. - Admits examining finger with ease. - (+) sticky whitish discharge. Dr. Jeanna B. Nebril, the examining physician, found the presence of "deep-healed lacerations all over the labia majora"20 which deep-healed lacerations connote, according to the doctor, the application of force, possibly two weeks before the examination. Denying the accusations, accused-appellant claimed as follows: Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending school on the 6th, 7th and 8th of December that year and for having received money from her classmate,21 was not in their house on the night of December 9, 1996 because she was in the house of Norielyn. Neither was she in their house on the night of December 28, 1996 as she was at the house of his mother Margarita Flores22 in Cafloresan. Accused-appellants testimony was corroborated by his mother Margarita, and his teenaged children Benito and Baby Jean Flores who were staying in his mothers house. It was also corroborated by another teenaged child, Jocelyn Flores, who was staying in the house of accused-appellants mother-in-law, Lourdes Lazo, also in Barangay Nancamaliran West.23 Jocelyn added that Filipina had intimated to her that she fabricated the rape charges because their maternal grandmother Lourdes wanted their father, accused-appellant, jailed as he begrudged him for having eloped with their mother,24 and that Lourdes threatened her with abandonment or detention in jail in case she defied, and promised to give her jewelry, shoes and dress if she agreed to carry out her desire. After trial, the court a quo found accused-appellant guilty of Statutory Rape and sentenced her to death in both cases in its April 7, 1997 Joint Decision, the dispositive portion of which reads: WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the crime of Statutory Rape, an offense defined and penalized under paragraph 3, Article 335, of the Revised Penal Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as follows: CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs.

CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court of the Philippines for automatic review of this Decision. In view of the penalty of death imposed by the court a quo, the case is now before this Court on automatic review. Accused-appellant assigns as errors the following: I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD BE ACQUITTED. II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE ACCUSEDAPPELLANT THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT WOULD HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT. It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.25 It is at once apparent, from a reading of the above-quoted complaints, that accusedappellant was denied the constitutional right to be informed of the nature and cause of the accusation against him. This right has the following objectives: 26 1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause; 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. The right cannot be waived for reasons of public policy.27 Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed.28 For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information.29 The court a quo found accused-appellant guilty of Statutory Rape under Article 33530 of the Revised Penal Code, as amended by R. A. No. 7659 (which restored the death penalty for heinous crimes effective December 31, 1993) which provides: Article 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 or is demented. The gravamen of the crime of rape is carnal knowledge or sexual intercourse between a man and a woman under the circumstances enumerated in the penal code.31 Thus, to sustain a conviction, the complaint or information must allege that the accused had carnal knowledge of or sexual intercourse with the private complainant. In the criminal complaints at bar, however, no such allegation was made. The allegation that accused-appellant did "sexually abuse" Filipina does not suffice. In the recent case of People v. Lito Egan alias Akiao32, this Court ruled that "although the prosecution has proved that [the therein private complainant] Lenie was sexually abused, the evidence proffered is inadequate to establish carnal knowledge."33 Hence, sexual abuse cannot be equated with carnal knowledge or sexual intercourse.34 The allegation in the instant criminal complaints that accused-appellant "sexually abuse[d]" the private

complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private complainant. This Court is not unaware of the rule in case there is a variance between allegation and proof as etched in Section 4 of Rule 120 of the Revised Rules of Criminal Procedure which reads: SEC. 4. Judgment in case of variance between allegation and proof.When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.35 The case at bar, however, is not one of variance between allegation and proof. The recital of facts in the criminal complaints simply does not properly charge rape, "sexual abuse" not being an essential element or ingredient thereof. Neither can accused-appellant be convicted of acts of lasciviousness or of any offense for that matter under our penal laws. It is settled that what characterizes the charge is the actual recital of facts 36 in the complaint or information. For every crime is made up of certain acts and intent which must be set forth in the complaint or information with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In other words, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged37, the accused being presumed to have no independent knowledge of the facts that constitute the offense.38 And even under the provisions of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act),39 accused-appellant cannot be held liable. Section 5 of said Act provides: SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as a prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised Penal Code, as amended by Act No. 3815, for rape or lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (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. (Emphasis and underscoring supplied).

Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases40, issued pursuant to Section 32 of Republic Act No. 7610, defines "sexual abuse" by inclusion as follows: Sexual abuse includes 1) the employment, use, persuasion, enticement, or coercion of a child to engage in, or assist another person to engage in sexual intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest with children. (Underscoring supplied) From this broad, non-exclusive definition, this Court finds that the phrase "sexually abuse" in the criminal complaints at bar does not comply with the requirement that the complaint must contain a specific averment of every fact necessary to constitute the crime. Notably, the phrase "sexual abuse" is not used under R.A. No. 7610 as an elemental fact but as an altogether separate offense. Above-quoted Section 5 thereof enumerates the punishable acts that must be alleged in the complaint or information to hold an accused liable, none of which is reflected in the complaints at bar charging accused-appellant. The case of People v. Cruz 15368-R read:
41

is instructive. There the information in Criminal Case No.

That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW. (Emphasis supplied) Finding the above-quoted information void, this Court held: The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accusedappellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), "either by raping her or committing acts of lasciviousness." It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: Designation of the offense.The complaint or information shall state the designation of the offense given by the statue, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellants constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. (Emphasis & underscoring supplied) As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused the therein private complainant by either raping or committing acts of lasciviousness on her "is not a sufficient averment of the acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts." Nothing less can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellants constitutional right to be informed of the nature and cause of the accusation against him. This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and information. For all efforts may be rendered futile and justice may be denied by a failure to state "the acts or omissions complained of as constituting the offense" as exemplified by the present case.

The foregoing disquisition leaves it unnecessary to dwell on accused-appellants assigned errors or of other errors including failure to allege relationship in the first complaint, and lack of proof of minority in both cases. WHEREFORE, the informations in Criminal Case Nos. U-9184 and U-9185 are hereby declared null and void for being violative of the constitutional right of accused-appellant Pedro Flores, Jr. y Flores alias "Pesiong," for Rape to be informed of the nature and cause of the accusation against him. Hence, the cases against him are hereby DISMISSED. The Director of Prisons is hereby directed to forthwith cause the release of accusedappellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within 10 days from notice. Costs de oficio. SO ORDERED.

[G.R. Nos. 135554-56. June 21, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO DELA CRUZ y CARIZZA, accusedappellant. DECISION KAPUNAN, J.: Before the Court on automatic review is the Decision dated August 13, 1998 of the Regional Trial Court of Baguio City, Branch 6, in Criminal Cases Nos. 15163-R, 15164-R and 15368-R finding accused-appellant Danilo dela Cruz y Carizza guilty of two (2) counts of rape and one (1) count of acts of lasciviousness. On August 29, 1997, two informations for rape were filed against accused-appellant in the RTC of Baguio City. The informations alleged: Criminal Case No. 15163-R That sometime in the month of September, 1990, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of his daughter, JEANNIE ANN DELA CRUZ, a minor, then 11 years of age, against her will and consent. CONTRARY TO LAW. i[1] Criminal Case No. 15164-R That sometime in the month of July, 1995, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously and by means of force and intimidation, have carnal knowledge of his daughter, JEANNIE ANN DELA CRUZ, a minor, then 16 years of age, against her will and consent. CONTRARY TO LAW.ii[2]

On December 11, 1997, another information was filed against accused-appellant charging him with violation of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act). The information stated: That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW.iii[3] This case was docketed as Criminal Case No. 15368-R. Upon motion of the prosecution, the trial court ordered the consolidation of the three cases. When arraigned, accused-appellant entered a plea of not guilty to each of the charges. Thereafter, a joint trial of the cases ensued. The prosecution presented as its witnesses complainant Jeannie Ann dela Cruz; Dr. Ronald R. Bandonill, the medico-legal officer of the National Bureau of Investigation-Cordillera Administrative Region (NBI-CAR); Mrs. Jean dela Cruz, mother of complainant and spouse of accused-appellant; and SPO2 Melchor Ong of the Baguio City Police. The prosecution established that accused-appellant married Jean dela Cruz in civil rites on 14 April 1977 and again in Catholic rites on 27 December 1978. They begot four children, namely: Jeanie Ann (the private complainant), Divine Grace, Daniel Jay and Gerard Nio.iv[4] Accused-appellant, a teacher, worked at the Don Bosco Technical Institute in Tarlac from 1978 to 1986. He transferred to the Don Bosco Elementary School in Baguio City sometime in 1986 and taught there until the following year. In 1987, he worked at the Saint Louis Center in Baguio City until his dismissal therefrom in 1993. Accused-appellant again taught at the Don Bosco Technical Institute in Tarlac from 1993 until his arrest in August 1997.v[5] While working there, he and his son Daniel stayed in Sto. Cristo, Tarlac on weekdays and went home every 15 days or every payday. They would go home to Baguio City, where the rest of their family stayed, on Friday evening and return to Tarlac on Sunday afternoon.vi[6] Jeannie Ann dela Cruz (Jeannie Ann) testified that she was born to accused-appellant and Jean Aqui-dela Cruz on April 18, 1979 in Tarlac, Tarlac. Not long after her birth, her family transferred to the house of her maternal grandmother in No. 2 Sumulong Street, Baguio City. Her family lived in an extension of her grandmothers house which had a basement, a second floor and an attic. The second floor had four rooms and a stairs leading to the attic, which served as a stockroom. Jeannie Anns parents and her two brothers, Daniel and Nio, stayed in the basement while she and her sister, Divine stayed in the second floor.vii[7] Jeannie Ann revealed that accused-appellant started molesting her when she was seven years old. While he helped do her homework at night, accused-appellant would on occasion make her hold his penis and masturbate him. There were also instances when he would put his penis inside her mouth and withdraw the same when a white liquid came out.viii[8] Accused-appellant warned Jeannie Ann not to tell her mother what he was doing to her and told her that it was a normal thing between father and daughter. He further warned Jeannie Ann that her mother might kill them should she learn about the things that they did. Jeannie Ann believed accused-appellant and did not tell anyone about the sexual acts he performed on her. As she was growing up, accused-appellant continued to engage in the aforementioned sexual activities with her, and continuously threatened to hurt her, her siblings or her mother if she did not give in to his desires. Jeannie Ann still refrained from complaining because she was convinced by the accused-appellant that the sexual activities which he performed on her were proper.ix[9] She recounted before the trial court three particular occasions when accused-appellant molested her. Jeannie Ann said that sometime in September 1990, she was sexually abused by accusedappellant in their house in No. 37 Leonard Wood Road, Baguio City. She was only 11 years old then. According to Jeannie Ann, their family had moved to said house when her grandmothers house in Sumulong St. was destroyed in the July 16, 1990 earthquake that hit Baguio City.x[10] They occupied the basement of the house in Leonard Wood Road. The basement had two bedrooms, a comfort room and a living room. Nobody stayed in the second floor thereof but during the day they stayed in the main house.xi[11] Sometime that month, Jeannie Ann, her three year-old brother Nio and accused-appellant were left in the house while her mother and her sister Divine went to market. She was in the living room with Nio when her father undressed her. Her father removed his pants and she was made to lie down on a cushion. Her father played with her genitalia and rubbed his penis against her private part until a white liquid came out of his penis. Jeannie Ann said that after said

incident, she felt pain in her vagina whenever she would urinate (mahapdi). She did not resist because she thought that what her father was doing to her was a normal act.xii[12] Jeannie Ann narrated that accused-appellant again abused her one night in July 1995 when she was 16 years old. She was watching television with her siblings in the living room. At that time, their mother was attending a meeting in church. Accused-appellant called her three times but she refused to respond to his call as she was watching television. Exasperated, accused-appellant pulled her inside one of the bedrooms and asked her to lie down on the bed saying, "This is only for a while." Accused-appellant then undressed her, removed his pants and underwear, inserted his finger inside her vagina, mashed her breasts and licked her vagina. Accused-appellant proceeded to rub his penis against her vagina and thereafter inserted his penis therein and kept it there until his semen started to come out. Accused-appellant placed his penis on Jeannie Anns stomach where he made his semen flow. While all this was happening, Jeannie Ann could only cry, as she was afraid of accusedappellant, because he threatened her that he would kill her or her mother and siblings.xiii[13] The third incident recounted by Jeannie Ann occurred in their house in No. 2 Sumulong Street, Baguio City on August 2, 1997. She was then 18 years old. When she came home at around 10:30 in the morning after her classes at Saint Louis University, she saw accusedappellant at the door. He told her to proceed to the attic shortly. She ignored him and went directly to her room and started cleaning the same. While she was cleaning the outer portion of her room, she saw accused-appellant go up the attic. While he was there, he repeatedly called her and asked her to go there. When Jeannie Ann remembered that her mother had earlier instructed her to clean the attic, she went up when she was done cleaning her room.xiv[14] Accused-appellant lay on the bed in the attic as Jeannie Ann swept the floor. When she was done, accused-appellant asked her to join him on the bed. He went near her and again asked her to sit on the bed when she refused to heed his call. Accused-appellant whispered to her that he was running out of time. He talked in whispers so that the other people in the house at that time would not be able to hear what he said. Sensing that accused-appellant would again molest her, Jeannie Ann became nervous and started to cry. He told her to stop crying and to relax, as what he was about to do would only take a while. Accused-appellant then lifted Jeannie Anns t-shirt and brassier, mashed her breasts with his left hand and inserted his right hand inside her pants. Jeannie Ann resisted, but accused-appellant proceeded to insert a finger of his right hand inside her vagina. While he performed the aforementioned acts on his daughter, accused-appellant told her, I love you very much. Promise me that I will be the only one who will do this to you.xv[15] Accused-appellant only stopped what he was doing when he heard Aileen, a boarder in their house, calling Jeannie Ann. He immediately fixed her clothes and hair, then moved away from her. Accused-appellant instructed Jeannie Ann not to go down and to keep quiet about the incident. When accused-appellant noticed that Aileen had left because Jeannie Ann did not respond to her, accused-appellant embraced Jeannie Ann and said: "Please cooperate with me and trust me. I have given you my life. Promise that I will be the only one who will touch you." Accused-appellant began touching her again. He inserted his fingers inside her vagina. As he touched her, he said, Please cooperate with me and trust me. This is for your own good and for the good of our family. If you will not follow me, you might regret it. I want you to have a bright future. And after you finish, I can already die and you will no longer have any problem.xvi[16] Although Aileen, Divine, Nio and Rogel, another boarder in their house were also there at the time of the incident, Jeannie Ann did not have the courage to call for help because she was very much afraid of accused-appellant, and she saw anger in his eyes.xvii[17] When accused-appellant was done with her, Jeannie Ann insisted on going down. She cried as she returned to her room to fix herself. Thereafter, she went out of the house to deal with what had just happened to her. While walking outside toward the bridge, she saw a white L-300 van belonging to the police. She flagged down the vehicle and narrated to the two police officers riding therein, SPO2 Bravo and SPO2 Ong, what accused-appellant had just done to her. The policemen accompanied her back to their house where they met accused-appellant whom Jeannie Ann identified as the person who had raped her. Accusedappellant voluntarily went with the policemen to the Baguio City Police Station.xviii[18] When they arrived at the Baguio City Police Station, Jeannie Ann narrated her experience to the police officer stationed at the Womens Desk. In her statement, Jeannie Ann described what accused-appellant did to her on August 2, 1997.xix[19] Jeannie Ann also denied accused-appellants claim that she had sexual relations with her boyfriend Charles, and that she accused her father of rape to get back at him for causing her breakup with Charles.xx[20]

Dr. Ronald R. Bandonill, the NBI-CAR medico-legal officer who conducted a physical examination of Jeannie Ann on August 8, 1997, testified that he found two old healed lacerations at 5 o'clock and 7 o'clock positions on Jeannie Anns hymen. He said that the lacerations could have been inflicted more than three months prior to the date of the examination and considering the proximity of their location, could have been inflicted at the same time. A hard rigid instrument like an erect male organ, a rigid wood or a finger could have caused these lacerations. Dr. Bandonill also opined that the positions of the lacerations did not rule out the possibility that the victim had sexual intercourse less than three months prior to his examination of her, since intercourse would not create further lacerations when done in the same position. He likewise noted that the vaginal walls were lax and the vaginal rugosities were slightly flattened and smoothed. The victim's hymenal orifice admitted a tube 2.4 cm. in diameter with ease. Dr. Bandonill said it was possible that penetration happened several times. He further testified that the frequent insertion of a finger or other rigid object, with a diameter of more than an inch, could cause the lacerations as well as the lax condition of vaginal walls.xxi[21] Jean dela Cruz (Mrs. dela Cruz), Jeannie Anns mother and wife of accused-appellant, testified that she learned that accused-appellant had sexually abused their daughter Jeannie Ann on August 2, 1997 when she arrived at home after her marketing chores. She was told by her daughter Divine that accused-appellant was picked up by the police. Mrs. dela Cruz followed accused-appellant to the police station and found Jeanie Ann crying while the latter was reporting what had happened to her at the Women's Desk. Upon seeing her daughter, Mrs. dela Cruz hugged her and they cried together.xxii[22] Mrs. dela Cruz further stated that she was shocked upon hearing Jeannie Anns statement before the police that accused-appellant had been performing oral sex on their daughter Jeannie Ann since the latter was seven years old, as it was the first time that she learned about it. In her anger, she rushed to the other room where the accused-appellant was being questioned and slapped him, kicked him and scratched his face. She said accused-appellant denied all the accusations against him. When accused-appellant was already incarcerated, Mrs. dela Cruz received several lettersxxiii[23] from him asking for forgiveness from her and from Jeannie Ann.xxiv[24] She also informed the trial court that after accused-appellants incarceration, she went to Tarlac to get her husband's things since he usually stayed there on weekdays while he taught at Don Bosco.xxv[25] She discovered several love letters by a certain Emily addressed to accused-appellant,xxvi[26] Emilys photographxxvii[27] and accused-appellants draft love letters to Emily, dated March 21, 1995,xxviii[28] September 4, 1995,xxix[29] and March 7, 1996.xxx[30] Mrs. dela Cruz also found a letter from a certain Maureen telling accused-appellant that he had a chance of winning her heart,xxxi[31] and a photograph of Maureen.xxxii[32] She said that the tenor of the letters indicated that accusedappellant was having relations with other women.xxxiii[33] Mrs. dela Cruz also denied accused-appellants claims that she had a paramour and that she helped Jeannie Ann file the complaints against him because she (Mrs. dela Cruz) wanted to get back at him for being unfaithful to her.xxxiv[34] SPO2 Melchor Ong, the police officer assigned to the Baguio City Mobile Group, also testified that on August 2, 1997, between 11:30 a.m. and 12:00 noon, while he and his companion inside an L-300 van of the Baguio City police were passing along Sumulong St., Baguio City, they saw Jeannie Ann walking towards them. The latter stopped them and tearfully reported to them that her father had just sexually molested her. They accompanied Jeannie Ann to her house and there the latter pointed to accused-appellant as the person who mashed her breasts and inserted his finger inside her vagina. SPO2 Ong and his companion approached accused-appellant, introduced themselves as policemen and invited him to the police station. He said that accused-appellant readily agreed to go with them to the police station.xxxv[35] The defense presented as witnesses the accused-appellant, Camilo Estepa, Barangay Chairman of Barangay Holy Ghost, Baguio City, Fr. Exequiel Veloso, Principal of the Don Bosco Technical Institute, and Fr. Jean Marie Tchang, Director of the Don Bosco in Trancoville, Baguio City. Accused-appellant testified that he was a teacher at the Don Bosco Technical Institute in Tarlac, Tarlac from 1978 to 1986. In 1987, he transferred to Don Bosco in Trancoville, Baguio City and worked there for a year. From 1988 to 1993, he taught also in Saint Louis School Center. In 1994, he went back to the Don Bosco Technical Institute in Tarlac, Tarlac and had taught there until his incarceration in August 1997.xxxvi[36] On weekdays, he and his son Daniel stayed in Sto. Cristo, Tarlac, Tarlac and they would go home to their family in Baguio City every 15th and 30th of each month to give his salary to his wife. When these dates fell on a weekday, they would go home to Baguio City the following Friday and return to Tarlac on Sunday afternoon.xxxvii[37] He denied all the accusations hurled against him by his daughter Jeannie Ann.xxxviii[38] According to him, he tried to provide for the needs of his family, especially his wife whom he

loved very much. He maintained that even when he was already in jail, he asked his mother and his sister to support his daughter's education. He admitted to having gone home to Baguio City in the evening of August 1, 1997, which he recalled was a Friday. That night, his wife asked him to clean the attic the following day as there was a dead rat therein.xxxix[39] The following day, August 2, 1997, accused-appellant removed the decomposing body of the rat from the attic as requested by his wife. He called his daughter Jeannie Ann who was cleaning her room on the second floor of the house to come to the attic and help him. It took a while before Jeannie Ann heeded his call. When she finally went up, she merely swept one third of the floor area of the attic, away from where the dead rat was. When she was done sweeping the floor, accused-appellant asked her to come near him, as he wanted to apologize for having scolded her earlier and to remind her that she should not have ignored him when he commanded her to go up the attic, or to at least tell him that she could not obey his command immediately. While he was talking to her, they heard someone calling her name. Jeannie Ann told accused-appellant that that person was her classmate. She then went down while accused-appellant stayed on to fix the things in the attic. Not long afterwards, his daughter Divine informed him that they had some visitors downstairs. On his way down from the attic, he looked out of the window and saw Jeannie Ann walking beyond the bridge.xl[40] Accused-appellant went down to meet the visitors who were looking for Rogel, one of their boarders. After leading these visitors to Rogel, two policemen arrived in their house with Jeannie Ann. Accused-appellant identified the policemen as SPO2 Leonardo Cruz Bravo and SPO2 Melchor Ong. The former asked for accused-appellants name and thereafter invited him to the police station. He freely went with them, without asking the purpose of the invitation.xli[41] At the station, SPO2 Leonardo Cruz Bravo interviewed accused-appellant. The interview was reduced to writing and he was asked to sign the same. He did not read the document, as he did not have his eyeglasses with him at that time. At first, accused-appellant refused to sign the document without the presence of his counsel. SPO2 Leonardo Cruz Bravo, however, told him that his refusal to sign the document may be interpreted as a sign of resistance on his part. Accused-appellant thereafter decided to sign the document.xlii[42] Accused-appellant admitted that he transferred to the Don Bosco Technical Institute in Tarlac, Tarlac because he was dismissed from the Saint Louis Center in Baguio City. He acknowledged that while teaching in Saint Louis Center, a student named Freda Miguel filed a casexliii[43] against him because accused-appellant allegedly embraced her (Miguel) in the Science Laboratory Room of the school, and that he signed an amicable settlement of the complaint. However, he denied the truth of that complaint against him and said that the filing thereof was not the cause of his dismissal from Saint Louis Center.xliv[44] He also admitted that the letters from Emily and Maureen addressed to him were his but insisted that they were only his friends, and that Emilys reference to him as her boyfriend in one of her lettersxlv[45] was only a joke. Accused-appellant claimed that his wife and Jeannie Ann conspired to file the cases against him because they had resentments against him. He said Jeannie Ann blamed him for having caused her breakup with her boyfriend Charles. His wife, on the other hand, wanted him out of her life because she had a paramour. According to him, his wife admitted to him that she had an illicit relationship with a man named Alfredo dela Cruz, a namesake of his brother. His wife had a second relationship with a person named Alfredo Aquino against whom he filed a case before the barangay.xlvi[46] Camilo Estepa, Barangay Captain of Barangay Holy Ghost, Baguio City, told the trial court that sometime in 1993, accused-appellant filed a case for malicious mischief against a certain Alfredo or Federico Aquino, a boarder in the house of Mrs. Aqui, the mother of Mrs. dela Cruz. Accused-appellant alleged that Aquino was courting his wife. However, the case was settled amicably when Aquino agreed to leave the boarding house of Mrs. Aqui.xlvii[47] Fr. Exequiel Veloso, Principal of the Don Bosco Technical Institute in Tarlac from 1994 to 1998, testified that he had known accused-appellant since 1994 and was not aware of any untoward incident involving the latter. He said that accused-appellant and his son Daniel would go home to his family in Baguio City every weekend and returned to Tarlac either on Sunday evening or Monday morning. He would come to school on time and attended the flag ceremony regularly. Fr. Veloso said that none of the lady teachers ever complained about accused-appellant.xlviii[48] Fr. Jean Marie Tchang, Director of the Don Bosco Elementary School in Trancoville, Baguio City, testified that accused-appellant was a very competent teacher in Science and had a

very good relationship with the other teachers. He said he regretted that accused-appellant left his teaching job at the Don Bosco Elementary School after only one year.xlix[49] On August 13, 1998, the trial court promulgated its decision, the dispositive portion of which reads: WHEREFORE, Judgment is hereby rendered as follows: 1. In Criminal Case No. 15163-R, the Court finds the accused Danilo dela Cruz y Carizza guilty beyond reasonable doubt of the offense of Rape (committed in September 1990) as charged in the Information defined and penalized under paragraph No. 3 of Article 335 of the Revised Penal Code (Statutory Rape) and hereby sentences him to suffer the penalty of reclusion perpetua; to indemnify the offended party, Jeannie Ann dela Cruz the sum of P50,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. The accused Danilo dela Cruz being a detention prisoner is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Code. 2. In Criminal Case No. 15164-R, the Court finds the accused Danilo dela Cruz y Carizza guilty beyond reasonable doubt of the offense of incest rape (committed in July 1995) as charged in the Information defined and penalized under Section 11 of Republic Act 7659 (Heinous Crime Law) which amended Article 335 of the Revised Penal Code and hereby sentences him to suffer the supreme penalty of Death to be implemented in accordance with law; to indemnify the offended party Jeannie Ann dela Cruz the sum of P50,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. 3. In Criminal Case No. 15368-R, the Court finds the accused Danilo dela Cruz y Carizza guilty beyond reasonable doubt of the offense of Acts of Lasciviousness defined and penalized under Article 336 of the Revised Penal Code instead of violation of RA 7610 (Child Abuse Law) as charged in the Information and hereby sentences him, applying the indeterminate sentence law, to suffer the penalty of imprisonment ranging from two (2) months and one (1) day of Arresto Mayor as Minimum to two (2) years four (4) months and one (1) day of prision correccional as Maximum; to indemnify the offended party Jeannie Ann dela Cruz the sum of P5,000 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. The accused Danilo dela Cruz being a detention prisoner is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Law. SO ORDERED.l[50] In his brief, accused-appellant contends that the trial court erred in giving credence to the testimony of Jeannie Ann and in finding him guilty beyond reasonable doubt of the crimes of rape and acts of lasciviousness. He alleges that Jeannie Anns testimony was fabricated and inconsistent.li[51] Accused-appellant points out that Jeannie Ann failed to immediately notify the authorities, or at least her mother, of her harrowing experience. Notwithstanding the fact that he was often away from their home because he stayed in Tarlac where he worked on weekdays, and Jeannie Ann was with her mother in Baguio City, it took her eleven years to disclose the sexual abuses which accused-appellant allegedly committed against her.lii[52] Moreover, he claims that considering Jeannie Anns tender age at the time he allegedly raped her, she must have suffered great pain and should have complained about it to her mother or told the latter what accused-appellant had been doing to her. Accused-appellant argues that the delay in the reporting of the sexual acts he performed on his daughter is not normal and is indicative of the untruthfulness of complainants charges.liii[53] The Court finds that the trial court did not err in finding accused-appellant guilty beyond reasonable doubt of raping his daughter Jeannie Ann in September 1990 and July 1995. Article 335 of the Revised Penal Code, which defined the crime of Rape prior to the enactment of Republic Act No. 8353 (the Anti-Rape Law of 1997), and which is the applicable law for the rape incidents of September 1990 and July 1995, states: 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 or is demented. The crime of rape shall be punished by reclusion perpetua. xxx In reviewing the cases at bar, the Court observed the following guidelines it had previously formulated for the review of rape cases: (1) an accusation of rape can be made with facility, but it is difficult to prove, and even more difficult for the accused to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.liv[54] In rape cases, the issue invariably boils down to the credibility of the victims testimony. The trial courts evaluation of the credibility of the victims statements is accorded great weight because it has the unique opportunity of hearing the witnesses testify and observing their deportment and manner of testifying. The trial court judge is indisputably in the best position to determine the truthfulness of the complainants testimony. Thus, unless it is shown that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight or substance that would otherwise affect the result of the case, its findings will not be disturbed on appeal.lv[55] The Court has adhered to the rule that when the testimony of a woman who states under oath that she has been raped meets the test of credibility, the accused may be convicted on the basis of such testimony. A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner, and who remains consistent, is a credible witness.lvi[56] In the cases at bar, the trial court found Jeannie Anns testimony to be "natural, coherent and touching as she recounted her harrowing experience in the hands of her father,"lvii[57] as follows: xxx q Now, sometime in the month of July, 1995, Madame Witness, do you remember if there was anything unusual which took place again in your house at Sumulong St., Baguio City? a q There was, sir. What was that incident?

[a] On that night I was watching TV with my brothers and sisters. While I was watching TV my father was calling me but I did not heed his call because I said I was watching TV. So, three times he called me and I know that he was already angry. Then he went near me and pulled me into the other room. And in that other room, he did bad things that I cannot imagine. q Now, you said that you and your brothers and sisters were watching TV on that night of July, 1995. Where was your mother at that time? a She was not in the house at that time because she attended a meeting in our church.

COURT: (to witness) q That is why we already excluded the public. Dont let the Court speculate. Will you tell us straight. What did your father actually do which you said (sic) he did things which you cannot imagine? a When we were in the room he let me sit on the bed. And he asked me to lie down. And he said, This is only for a while. And after that he put down my pants and my underwear. Then he undressed, lowered his pants and removed his brief. Then he started touching my vabina (sic). COURT: Continue from there. Make it of record that at this point the witness is crying.

PROS. CENTENO: q Now after your father had removed your pants and your underwear as you said, and he also removed his pants and his brief and started holding your vagina, what else happened? a He fingered my vagina and also mashed mybreasts (sic). And with his tongue he licked my vagina. After that he used his penis and rubbed it into my vagina. And he played with my vagina. q a q a q What did you do when your father was doing that to you? I was just crying, sir. Did you not fight back? No sir, because I was afraid of my father. Why are you afraid of your father?

a Because when I was still young, one time he told me that either I will be killed or our family will be killed. q On what occasion was that when your father old (sic) you that it is either you or the family that will be killed? a q I cannot remember, sir. But that was when I was still young. Now, aside from rubbing his penis to your vagina, what else did your father do?

a When he was rubbing his penis against my vagina there was a white liquid that came out. And when that white liquid came out he placed his penis on my stomach where the white liquid was placed. COURT: (to witness) q Will you tell us what you mean by his rubbing his penis to your vagina? What was being done actually? a I felt that half of the head of his penis was inside my vagina. That is what I felt. (At this point the witness again broke into tears) COURT: Continue. PROS. CENTENO: q Now, when you felt that as you said half of the penis of your father was inside your vagina, what did you do? a q a q None, sir. Why did you not do anything? Because I didnt know what to do, sir. Did you not try to fight your father?

a No, sir, because I am really afraid of my father. Because when he gets mad at my mother, my brothers and sisters would be involved. q Now, before July 1995, Madame Witness, particularly in September of 1990, several months after the earthquake of July 16, 1990, will you tell us where you were residing? a q We were residing then at No. 37 Leonard Wood Road, sir. How old were you?

a xxx

I was 11 years old.

q When you were staying at Leonard Wood Road, Baguio City, together with your father, your mother, your sister and your brothers in September of 1990, do you remember if there was any unusual incident which happened to you? a q Yes, sir. What was that incident?

a I was with my father and brother Nio at the sala. And at the sala he undressed me and did the same. He removed his pants. Then he took a cushion from the sala and asked me to lie down. And there he played with my vagina. Then he rubbed his penis against my vagina. Nio was still a baby at that time. q Where was your mother at that time?

a My mother was not in the house at that time. What I know is that she went to the market. q a How about you sister Divine? She was with my mother, sir.

COURT: (to witness) q Again, in this incident will you describe actually to us the motions that took place with the rubbing of his penis into your vagina? a It is like this, sir. For example this is my vagina (witness showing her left hand, palms up) and this is his penis (witness demonstrating with her right forefinger), he made a push and pull movement on my vagina. PROS. CENTENO: q What did you feel while your father was doing that to you which you term as rubbing his penis into your vagina? a I felt pain, sir.

PROS. CENTENO: May we put the word mahapdi which was the term used by the witness, in the record. (to witness) q a q a q a How long did your father rub his penis into your vagina? It was for quite a long time until a white liquid came out. Did you not fight back when your father did that to you? No, sir. Why did you not fight back? Because I thought that what he was doing to me was a normal act.

xxxlviii[58] The trial court judge saw "from the face of the victim the anguish and the pain and the shame and the embarrassment as she broke down and cried several times in the course of her testimony every time she was asked [about] the despicable acts of her father."lix[59] Moreover, no woman would fabricate charges of sexual abuse, allow an examination of her private parts and endure the humiliation of a public trial where she would be forced to

recount the details of her unfortunate experience had she not really been raped. This is especially true in cases of incestuous rape, as in these cases where Jeannie Ann accused her own father of abusing her, since reverence and respect for ones parents and other elders is deeply ingrained in Filipino children.lx[60] The delay in reporting a rape incident does not necessarily impair the credibility of the victim where the delay can be attributed to the pattern of fear instilled by the threats of bodily harm, especially when made by a person who exercised moral ascendancy over the victim. It is not uncommon for a young girl to conceal for sometime the assault on her virtue because of the rapists threat on her life, or on the life of the other members of her family. lxi [61] In the cases at bar, Jeannie Ann repeatedly explained that accused-appellant threatened to hurt her, her mother or her siblings if she did not give in to his desires.lxii[62] Her fear of what accused-appellant would do to her, her mother and siblings if she revealed his evil deeds was what compelled her to suffer in silence for a long time. In People v. Nicolas,lxiii [63] the Court stated: The pattern of instilling fear, utilized by the perpetrator in incestuous rape to intimidate his victim into submission, is evident in virtually all cases that have reached this Court. It is through this fear that the perpetrator hopes to create a climax of extreme psychological terror which would, he hopes, numb his victim into silence and force her to submit to repeated acts of rape over a period of time. The relationship of the victim and the perpetrator magnifies this terror, because the perpetrator is a person normally expected to give solace and protection to the victim.lxiv[64] On the other hand, the trial court found accused-appellant to be evasive in his narration of his story. All that he offered in his defense were his bare denials. Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and credible testimony of the prosecution witness that the accused committed the crime. A mere denial constitutes negative evidence which cannot be accorded greater evidentiary weight than the declaration of a credible witness who testifies on affirmative matters.lxv[65] Accused-appellant's assertion that his daughter made up the charges against him to get back at him for causing her breakup with her boyfriend Charles is likewise unbelievable. It is not likely that a complainant in a rape case would fabricate a story of defloration against her own father and put to shame not only herself but her whole family as well, unless it was the plain truth and her motive was purely to obtain justice.lxvi[66] Neither does the Court believe accused-appellant's claim that his wife urged their daughter to file rape charges against him because she (his wife) wanted to get him out of the way of her extra-marital relationship. It is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject them to embarrassment and even stigma.lxvii[67] No mother would have the courage to expose an ignominious act of her husband that could lead to a breakup of the family unless she was prompted by a desire to obtain justice for her daughter.lxviii[68] The trial court committed no error in imposing upon accused-appellant the penalty of reclusion perpetua for the rape he committed in September 1990, since the offense was committed prior to the effectivity of Republic Act No. 7659 (the Death Penalty Law).lxix[69] However, the Court finds that the lower court erred in imposing the supreme penalty of death upon him for the rape committed in July 1995. R.A. No. 7659, which was already in force at that time, requires that the circumstances of the minority of the victim and her relationship with the offender must concur for the death penalty to be imposable. Article 335 of the Revised Penal Code, as amended by R.A. No. 7659 provides: xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances. 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common degree, or the common-law spouse of the parent of the victim. xxx The Court has previously explained that the circumstances of minority and relationship are considered as special qualifying circumstances because they alter the nature of the crime of rape and thus warrant the imposition of the death penalty. These circumstances must be alleged in the information and established during trial for the court to be able to impose the

death penalty.lxx[70] It was, therefore, incumbent upon the prosecution to satisfactorily prove both circumstances of minority and relationship. In Criminal Case No. 15164-R, the father-daughter relationship was alleged in the information and proven in the course of the trial. However, Jeannie Anns minority, although likewise alleged in the information, was not sufficiently proved. All that was offered to establish her age was her bare testimony that she was born on April 18, 1979. The prosecution failed to present her birth certificate, or in lieu thereof, other documentary evidence such as her baptismal certificate, school records which would have aided the court in verifying her claim that she was a minor when she was raped by accused-appellant in July 1995. In the absence of adequate proof of Jeannie Anns minority, the penalty imposable for the offense in Criminal Case No. 15164-R is reclusion perpetua.lxxi[71] The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accusedappellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), either by raping her or committing acts of lasciviousness.lxxii[72] It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant.lxxiii[73] Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. The allegation in the information that accused-appellant willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts.lxxiv[74] The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellants constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him.lxxv[75] Although accused-appellant failed to call the attention of both the trial court and this Court regarding the defects of the information in Criminal Case No. 15368-R, the Court may motu proprio dismiss said information at this stage, pursuant to its ruling in Suy Sui vs. People,lxxvi [76] because the information is a patent violation of the right of the accused to be informed of the nature and cause of the accusation against him and of the basic principles of due process. Moreover, an appeal in a criminal proceeding throws the whole case open for review, and it is the duty of the appellate court to correct such errors as might be found in the appealed decision, whether these errors are assigned or not. It is likewise necessary to increase the award of damages by the trial court. The lower court in its decision ordered accused-appellant to indemnify the complainant in the amount of Fifty Thousand Pesos (P50,000.00) only in each of the cases, representing moral damages. It failed to award the prescribed amounts for civil indemnity, the award of which is mandatory upon the finding of the fact of rape.lxxvii[77] This civil liability ex delicto is equivalent to actual or compensatory damages in civil law.lxxviii[78] It is not to be confused with moral damages, which is awarded upon a showing that the victim endured physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.lxxix[79] Under prevailing jurisprudence, when the penalty imposed on the accused is reclusion perpetua, the amount of Fifty Thousand Pesos (P50,000.00) should be awarded as civil indemnity to the rape victim.lxxx[80] Thus, in Criminal Case Nos. 15163-R and 15164-R, an award of Fifty Thousand Pesos (P50,000.00) as civil indemnity for each count of rape is proper. In addition to civil indemnity, moral damages are automatically granted to the victim in rape cases without need of proof for it is assumed that the private complainant has sustained mental, physical and psychological suffering.lxxxi[81] The Court affirms the award by the trial court of Fifty Thousand Pesos (P50,000.00) as moral damages in Criminal Cases Nos. 15163-R and 15164-R, since said amounts are in accord with its current rulings.lxxxii[82]

WHEREFORE, the Decision of the Regional Trial Court of Baguio City, Branch 6 in Criminal Cases Nos. 15163-R and 15164-R is hereby MODIFIED, as follows: 1. In Criminal Case No. 15163-R, the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to pay the victim the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity and Fifty Thousand Pesos (P50,000.00) as moral damages; 2. In Criminal Case No. 15164-R, the appellant is sentenced to suffer the penalty of reclusion perpetua, and ordered to pay the amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity and Fifty Thousand Pesos (P50,000.00) as moral damages. 3. The Information in Criminal Case No. 15368-R is declared null and void for being violative of the accused-appellant's constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. Hence, the case against him is DISMISSED. SO ORDERED.

i ii iiiFIRST DIVISION G.R. No. 133922 February 12, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DEOLITO OPTANA, accused-appellant. KAPUNAN, J.: Upon a sworn complaint filed by Maria Rizalina Onciano on November 28, 1995, four (4) Informations for violation of Section 5 of Republic Act No. 7610, or known as the Special Protection of Children Against Child Abuse and four (4) Informations for Rape were filed against herein accused-appellant Deolito Optana committed as follows: 1. Criminal Case No. 482-95 for rape: That on or about the 28th day of October, 1995 at Sitio Daan Naugsul, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 13 years old and ten (10) months, against her will and consent, to the damage and prejudice of the latter. 2. Criminal Case No. 483-95 for rape: That on or about and during the month of October 1993, at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 11 years old and ten (10) months, against her will and consent, to the damage and prejudice of the latter. 3. Criminal Case No. 484-95 for rape: That on or about the month of September, 1995 at Sitio Daan Naugsul, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 13 years old and nine (9) months, against her will and consent, to the damage and prejudice of the latter. Criminal Case No.485-95 for rape: That on or about and during the month of September 1993, at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic. Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 11 years old and nine (9) months, against her will and consent, to the damage and prejudice of the latter. 5. Criminal Case No. 486-95 for Viol. Of Sec. 5(b) ART. III of Republic Act 7610 (Child Abuse): That on or about and during the month of September, 1993, at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales. Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration (sic), did then and there willfully, unlawfully, and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano, a minor of 11 years old and nine (9) months, to the damage and prejudice of said Rizalina Onsiano. 6. Criminal Case No. 487-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child Abuse):

That on or about the 28th day of October, 1995 at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration, did then and there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano, a minor of 13 years old and ten (10) months, to the damage and prejudice of said Rizalina Onsiano. 7. Criminal Case No. 488-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child Abuse): That on or about the month of September, 1995 at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration, did then and there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano. 8. Criminal Case No. 489-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child Abuse): That on or about and during the month of October, 1993 at Sitio Daan Naugsol, Brgy . Mangan Vaca, in the Municipality of Subic, Province (sic) of Zambales, Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration, did then and there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano, a minor of 11 years old and ten (10) months, to the damage and prejudice of said Rizalina Onsiano.1 Upon arraignment, accused-appellant pleaded not guilty to each of the above informations. The facts are as follows: Maria Rizalina Onciano is the daughter of Nida A. Onciano who was born on December 13, 1981 at Tondo General Hospital. The father. Rau1 Gomez left Nida Onciano even before Maria Rizalina was born.2 Nida Onciano met the accused-appellant. Deolito Optana in 1985 at Doris Restaurant in Olongapo City where they were both working.3 They decided to live together in 1986 without the benefit of marriage even if accused-appellant knew that Nida Onciano already had a daughter. Out of this common-law relationship, the couple had seven children, the eldest being born in 1988 and the youngest, less than a month when the accused-appellant testified in court in June, 1997.4 In 1990, the couple moved to Subic and established residence at Sitio Daan Naugsol, Manganvaca, Subic, Zambales with Maria Rizalina and three born children in tow. Maria Rizalina started to go to school at Manggahan Elementary School, Subic, Zambales. Sometime in September, 1993, Maria Rizalina was playing in the yard with her brothers and sisters when her stepfather called for her to come up to the room. Her mother was out of the house at that time. Upon entering the room, Maria Rizalina was ordered to undress but she refused. The accused-appellant slapped her face twice on her cheeks and threatened to box her.5 He finally succeeded in removing her clothes. The accused-appellant kissed Maria Rizalina on the mouth, on her breast, and on her private parts. Thereafter, accused-appellant removed his shorts, held both hands of Maria Rizalina and went on top of her while she was lying on the wooden bed. Accused-appellant inserted his penis into the vagina of Maria Rizalina. The latter felt pain in her private part and shouted "masakit po." Accused-appellant stayed on top of Maria Rizalina for about ten (10) minutes making "downward and upward movement" or "pumping." Accused-appellant stood up, took a piece of cloth from the bed (pamunas) and wiped the blood in his sex organ. Afterwhich, he gave the rag to Maria Rizalina and told her to wipe her private part because there was blood on it. He told her to dress up quickly since Maria Rizalina' s mother would arrive shortly. Maria Rizalina did not tell her mother what happened to her because she was afraid of the accused-appellant. She was threatened to be killed once she reports the incident. Maria Rizalina was twelve (12) years old at that time of this fateful day. On several occasions, whenever Nida Onciano was out of the house since she was busy selling wares in the market, accused-appellant raped Maria Rizalina. The victim could no longer remember how many times she was raped but she particularly recalled that on October 28, 1995, the accused-appellant raped her inside the room where she and her brothers and sisters were sleeping. This was the last time that accused-appellant touched her.6 It was on November 24, 1995 when Nida Onciano noticed that Maria Rizalina's tummy was quite protruding while the latter was sleeping on the floor. Maria Rizalina at first refused to answer her mother's inquisitions but finally revealed that the accused-appellant raped her. The next day, Nida

Onciano asked her sister, Evelyn Nallos to accompany Maria Rizalina to the doctor to have her examined. At the Olongapo City General Hospital, Dr. Laila Patricio of the Obstetrics and Gynecology Department found Maria Rizalina to be 6-7 months pregnant. Maria Rizalina told her that her stepfather repeatedly raped her. The Medical Report revealed the following: Medical Certification November 27, 1995 TO WHOM IT MA Y CONCERN: This is to certify that RIZALINA ONSIANO 14 y/o, of Daangbakal, Daan Naugsog Subic, Zambales was examined and treated/confined in this hospital on/from November 25, 1995 xxx with the following findings and/or diagnosis: BREAST - Enlarged, areola 3.5 x 3.5 cm, no fissures nor hematoma. ABDOMEN - FH 21. cm, FHT -/36/ min. RLQ Hymen not intact, vagina admits 2 fingers with ease, Cervix closed, uneffaced, floating cephalic. Pregnancy uterine 6-7 months by size, not in labor. (SGD.) LAILA S. PATRICIO, M.D. Attending Physician7 After Maria Rizalina's statement was taken at the police station, a formal complaint was filed against the accused-appellant on November 27, 1995. Considering Maria Rizalina ' s minor age, she was referred to the Municipal Social Welfare and Development Office for assistance. Initial interviews revealed that Maria Rizalina was so confused considering that her mother was pressuring her to withdraw the complaint against the stepfather. It was then recommended that Maria Rizalina be committed to the Department of Social Welfare and Development for protective custody and placed under the care of the Substitute Home for Women in Especially Difficult Circumstances - Saup Lugud Center, San Ignacio Subdivision, Pandan, Angeles City.8 On February 23, 1996, Maria Rizalina delivered a baby boy at the "Hospital Ning Angeles" in Angeles City whom she named Richard Onciano. The name of the father was not indicated. At the Saup Lugud Center, Maria Rizalina manifested signs of depression and violence to the extent of killing herself. She was committed to the National Center for Mental Health for treatment and rehabilitation. The accused, on the other hand, denied having raped his stepdaughter. He testified that his stepdaughter was always out of the house with her barkadas. In fact, her mother, Nida Was always complaining that she spent so much time looking for her. He testified further that Maria Rizalina was always absent from school. He only learned about the complaint for rape filed against him when he was apprehended by the police. Deolito Optana testified that he met Nida Onciano in 1985 in a restaurant in Olongapo City .He knew that Nida had a daughter but he still courted her and promised to take care of both of them and help support in the education of Maria Rizalina. Nida Onciano corroborated the accused-appellant's testimony. She did not believe that her common-law husband would rape her daughter because she considered her sexual relationship with him as very satisfactory. She averred that it was her sister, Evelyn Nallos who insisted on pursuing the case against Optana because of an old grudge against them. Evelyn Nallos took care of two of the children of Nida Onciano and Deolito Optana but who died of pneumonia and drowning during a flood. Since the death of the children, her relationship with her sister had been estranged. Evelyn Nallos still wanted to take her other children including Maria Rizalina but she refused. On March 5, 1998, the RTC rendered a decision, the dispositive portion of which reads: WHEREFORE, finding the accused Deolito Optana guilty beyond reasonable doubt by direct participation of the crime of rape as defined and penalized under Article 335 of the Revised Penal Code and for violation of Section 5(b) of Republic Act 7610, judgment is rendered in the following manner: 1. In Criminal Case No.485-95 for rape, the accused is sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties attached thereto and

to indemnify the minor Ma. Rizalina Onciano the amount of P50,000.00, moral damages in the amount of P100,000.00, and exemplary damages of P100,000.00. 2. In Criminal Case No. 487-95, for violation of Section 5 (b) R.A. 7610, the said accused is sentenced to suffer an indeterminate prison term of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum with all the accessory penalties attached thereto and to indemnify Ma. Rizalina Onciano the amount of P50,000.00, plus moral damages in the amount of P100,000.00 and exemplary damages in the amount of P100,000.00. 3. The accused shall support Ma. Rizalina Onciano's child Richard Onciano. 4. The accused is acquitted of the crimes charged in Criminal Case Nos. 482-95, 483-95, 484-95, 486-95, 488-95, 489-95, for insufficiency of evidence. 5. The accused shall be entitled in full of his preventive imprisonment if he agreed in writing to abide by all the disciplinary rules imposed on convicted prisoners, otherwise to only 4/5 thereof. 6. Costs against the accused. SO ORDERED.9 Accused-appellant now comes to this Court with the following assignment of errors: I THE APPELLANT'S CONVICTION BY THE TRIAL COURT IS GROUNDED ON FACTS AND ENVIRONMENTAL CIRCUMSTANCES THAT ARE INCONSISTENT AND IMPROBABLE TO HAPPEN, AND THE ACTS CHARGED ARE NOT CLEAR, POSITIVE AND CONVINCING, AND NOT CONSISTENT WITH HUMAN BEHAVIOR AND THE (SIC) NATURAL COURSE OF THINGS. II THE TRIAL COURT FAILED TO CONSIDER AND APPRECIATE THE ILL-MOTIVE AND CONSUMING HATRED OF APPELLANT'S IN-LAWS WHO ORCHESTRATED THE FILING OF THIS CASE, AND WHO WITH UNCUNNY MEASURES PREVENTED THE DEFENSE THE MUCH NEEDED CORROBORATIVE EVIDENCE. III THE TRIAL COURT FAILED TO CONSIDER AND APPRECIATE THAT THE ACTUATIONS AND CONDUCT OF THE COMPLAINT AFTER THE INCIDENTS AND DURING THE TRIAL WHEN INTER TWINED WITH OTHER FACTS DOES NOT CONFORM TO THE NORM OF CONDUCT OF PEOPLE WHO ARE INJURED AND RAVAGED; IV THE COURT A QUO OVERLOOKED, MISUNDERSTOOD, MISAPPRECIATED AND MISINTERPRETED MATERIAL FACTS OF IMPORTANCE AND SUBSTANCE WHICH IF CONSIDERED AND GIVEN WEIGHT AND PROBATIVE VALUE WILL TILT THE SCALE OF "LADY JUSTICE" IN FAVOR OF ACQUITTAL.10 We agree with the trial court's decision. 1wphi1.nt The victim, Maria Rizalina, first took the witness stand on August 7, 1996. She was, however, observed to be psychologically and emotionally unprepared to testify at that time so the trial court decided to postpone her testimony to a later date after her complete rehabilitation at the National Center for Mental Health.11 On January 22, 1997, Maria Rizalina was called back to the witness stand. Now very much calm and composed, she gave a recount of her ordeal under her stepfather. She testified as follows: q a Now, Ms. Onsiano, did you go to school sometime in September 1993? Yes, sir. xxx q What school were you enrolled in 1993?

a q a q a

Manggahan Elementary School, sir. School in 1993? Grade IV, sir. And who was supporting your education? My mother, sir.

q And aside from your mother, who else, if any, was helping your mother in providing your educational expenses? a Deolito Optana, sir, my stepfather.

q If Deolito Optana is inside the courtroom, will you be able to point him out to the court? a Yes, sir.

COURT Point him out. xxx a. That's him, sir. xxx q Now, how long have you been living with your mother together with your stepfather Deolito Optana at Barangay Mangavaca, Subic, Zambales, prior to September 1993? a Since I was in Grade 1, sir.

q Now, in September 1993, do you recall if Deolito Optana was still living with your mother in your house at Mangavaca, Subic, Zambales? a Yes, sir.

q Now, do you recall sometime in the afternoon or noontime of September 1993 while you were in your house at Manganvaca, Subic, Zambales, if any unusual incident that happened to you? xxx a Yes, sir.

PROS. FLORESTA q Could you please tell this Honorable Court what is that unusual incident that happened in your house at Subic sometime in September 1993? a q a I was raped, sir. By whom? By my stepfather, sir.

COURT q a q a And who is your stepfather? Deolito Optana, sir. Is Deolito Optana married to your mother? No, sir.

q a

So, he is a live-in partner of your mother? Yes, sir. xxx

PROS FLORESTA q a q a q a q a q a q a And how did Deolito Optana raped (sic) you? He was forcing me, sir. Do you still recall what dress were you wearing at that time? No, sir. But you have clothes on your body? Yes, sir. And do you know what did the accused Deolito Optana do with your clothes? He was forcing me to undress or to remove my clothes, sir. And was he able to make you undress? No, sir. And when Deolito Optana failed to force you to undress, what did he do, if any? He was hurting me, sir.

COURT q How was he hurting you?

a He was slapping me on my face, and sometimes he would threaten me that he would box me, sir. xxx PROS FLORESTA q And what did you do when Deolito Optana was hurting you by slapping you on your face? a I was scared, sir.

COURT q a q a How many times were you slapped on the face? Twice, sir. And what happened to you wen you were slapped on the face? My cheeks were painful, sir. xxx PROS FLORESTA q a q And after you were slapped by the accused, what else happened, if any? He was forcing me to undress and then, he repeatedly kissed me, sir. What part of your body was kissed by the accused?

a q a q a q a q a q

My mouth, my breast and my private part, sir. And after the accused kissed your private part, what did the accused do, if any? And afterwards, he was forcing to insert his penis into my vagina, sir . And do you still recall what the accused was wearing at that time? Yes, sir. Could you please tell us what was he wearing at that time? Yes, sir, shorts. And what did he do with his shorts? He removed his shorts, sir. And then after removing his shorts, what did the accused do, if any?

a After removing his shorts and underwear, he held both of my hands and went on top of me, sir. q a sir. And after he was able to move on top of you, what else did he do? He repeatedly kissed me and then, he was forcing to insert his penis into my vagina,

COURT q a q a Was he able to insert his penis into your vagina? Yes, sir. What did you feel? It was painful, sir.

COURT Continue. PROS FLORESTA q And what did you do when (sic) felt pain in your body after the accused had inserted his penis? a I shouted, sir.

COURT q a q a q a q a q What did you shout? I said MASAKIT PO, sir. To whom did you address that? To the accused, sir. You are referring to the accused Deolito Optana? Yes, sir. Were you alone at that time? My brother and sister were there, sir. And how many brothers do you have?

a q a q a q a q a q a q a q a

Two, sir. Where were they? Downstairs, sir. How many sisters do you have? One, sir. Where was she at that time? Downstairs, also, sir. How about your mother? She was not around sir. Where was she? She left the house at that time, and I do not know where she went, sir. How long did the accused stayed on top of you? More or less, ten minutes, sir. What did you do during that period when he was on top of you? He was making a downward and upward movement, sir. He was pumping. xxx

PROS. FLORESTA q a q a Now, after making those downward and forward movement, what happened? At first, he was trembling, sir. And then after that, what did the accused do? He stood up and he got a PAMUNAS, sir.

COURT q a q a q a q a Why would he have to take a wipe? It was because there was blood on his sex, sir. How about in your private part? Yes, sir, I was having blood in my private part. What else did you found (sic) out in your private Part? It was painful, sir. Why was it painful? Because of his private part, I sustained a wound in my private part, sir. xxx PROS. FLORESTA q Now, after the accused stood up, and got a piece of cloth and. . .

COURT

q a q a q a q

Was he able to get this piece of cloth? Yes, sir. Where? On the HIGAAN, sir. What did he do with this? He used it in wiping his face, sir. What else did he do?

a After wiping his face, and gave the piece of cloth to me in order to wipe my vagina, and he told me to do it faster, sir. xxx PROS. FLORESTA q a q a And why did the accused in this case told (sic) you to act faster? Because my mother was about to arrive, sir. So what did you do when the accused told you to wipe your private part fast? I followed him because I was afraid of him, sir.

q And what else did the accused do after you wiped your private part with the cloth he gave to you? a q a q a q He instructed me to dress up quickly because my mother would arrive, sir. And did you follow him? Yes; sir. And did your mother arrive home? Yes, sir. And when your mother arrived home, what did you do?

a I did not do anything because I was instructed not to tell my mother. So I did not do anything because I was afraid, sir. COURT q a q a q a Why were you afraid (sic) of your stepfather? Because he would kill me if I report the incident, sir. How did you know? Because he told me, sir. When was it when he told you that? After he raped me, sir. xxx PROS. FLORESTA q Now, after the accused raped you sometime in September 1993, do you know if this incident was repeated by the accused? COURT

q Before you go to that This incident that you have described, where in the house did this happen? a q a q a q a q a q a q a q a Upstairs, sir. In what room? In their room, sir. When you said THEY, to whom do you refer? My mother, sir. You were lying down? Yes, sir. On what? On the bed, sir. What kind of bed? Wooden bed, sir. How many rooms were there upstairs? Two, sir. The other room is for whom? For us, sir, my brothers and sisters. xxx PROS. FLORESTA q a q After this incident, was there any other incident that happened to you? Yes, sir. When was that?

a I could no longer recall when but everytime my mother was out, he would do the same thing to me, sir. q Could you still recall how many weeks or days have passed from the first incident in September 1993 when the last incident happened? a q a q a I could no longer count because it happened several times, sir. And how many times, more (or) less does this incident happened to your? Several times, sir. Now, in the month of September 1993, do you recall how many times? I cannot, sir.

q Now, you said that everytime that your mother is out, out of the house, your stepfather used to rape you, could you please tell us what is the reason why your mother is always out of your house? a sir. q a Sometimes she would go to the market and sometimes she would sell some things,

Do you know the occupation of your stepfather Deolito Optana in 1993? He was a waiter, sir.

xxx q a q a q a q a And in what grade were you at the time this first incident happened? Grade IV, sir. How old were you then? 12 years old, sir. What is your birth day? 13 December 1981, sir. How did you know that your birth is 13 December 1981? From my mother, sir. xxx PROS. FLORESTA q Now, in 1995, do you still recall if the accused is still living in your house in Manganvaca, Subic, Zambales with you and your mother? a No more, sir.

q Now, do you know the reason why he was no longer residing in the house of your mother in 1995? a He was already detained at that time, sir. xxx PROS. FLORESTA q When was the last incident?

WITNESS a 28 October 1995, sir.

PROS. FLORESTA q a q a And where did this 28 October 1995 rape happened? In our house, sir. In the same room upstairs? In our room, sir.

COURT q a You mean in the room where your brothers and sisters were sleeping? Yes, sir. x x x12 q During the last hearing, you testified that after you were first raped by the accused in September, 1993, the accused repeated the act of having raped you. Now could you please tell this honorable court how did the accused raped (sic) you after September, 1993? a q He was forcing me, sir. And how did the accused forced (sic) you . . . to have raped you?

COURT

q a q a q a

He was forcing you to what? He was forcing me to undress, sir. Where? In our house, sir. Where in your house? In the room, sir. xxx

PROS. FLORESTA q a Is that the room, the same room, where the first incident took place? It happens sometime in our room and sometimes in their room, sir.

q Could you still recall the month after the first incident that happened to you when the accused forced you to undress inside his room? a The incident started in September 1993, but he would always rape me when my mother was out, sir. (GINAGALAW NIYA AKO TUWING WALA ANG MAMA KO.) q So, when you say that since September 1993 up to October 28, 1995, the accused had been GINAGALAW you, is that correct, Ms. Onsiano? a q a Yes, sir. What do you mean by GINAGALAW? He was using me, sir.

COURT q a How did he use you? He was forcing his penis into my vagina, sir. xxx q Why did you not report this or why did you report your stepfather, the accused in this case, to anyone of what he did to you? a I was afraid because he threatened me that he would kill me if I report the matter to anyone, sir. q But do you remember having reported this incident to your mother?

a Yes, sir, on 24 November 1995. That was the time when I told my mother about the incident. q And what did your mother do when you reported the matter to her?

a She summoned my Aunt in order to accompany me to the municipal hall to report the matter, sir. After that, I was investigated by the policeman and then, my stepfather was apprehended, sir. xxx q a q What happened to you when you were raped by your stepfather? I was hurt and I got pregnant, sir. When did you get pregnant?

a q a q a q a

I cannot say what month, sir. But what happened to your pregnancy? I gave birth to a child, sir. When? 23 February 1996. Sir. Where? At a hospital in Angeles, sir. xxx

q a

And what name did you give your child? Richard Onsiano, sir.

COURT Who is the father as appearing in the document? PROS. FLORESTA Unknown because this is out of wedlock, your Honor. q You made the registration of the child with the Office of the Local Civil Registrar of Angeles City? a The Social Worker, sir.

q Now, you mentioned awhile ago that when you reported this incident to your mother sometime in November 1995, your mother called for your Aunt Evelyn Nallos? a q a q a Yes, sir. For what purpose? In order to accompany me to the Municipal Hall, sir. And were you and your Aunt Evelyn Nallos able to go to the Municipal Hall? Yes, sir.

COURT q a q a q a q a What is the name of the aunt? Evelyn Nallos? Yes, your Honor. And what did you do at the Municipal Hall? A complaint was filed against my stepfather, sir. And to whom did you complain? Police officer, sir. And what did the police officer do when you complained to him?. Deolito Optana, my stepfather, was apprehended. xxx PROS. FLORESTA

q Could you still recall what month in 1995, prior to 28 October 1995 when you were raped by the accused in this case? a sir. I could no longer recall the exact date because he has been using me several times,

q Could you still recall how many times in a month the accused has been using you since September 1993 up to 28 October 1995? a Several times, sir. I could no longer count because he would always use me each time my mother was out, sir. xxx q Did you have any sexual intercourse with any other men before you gave birth to your child? a q a Yes, sir, my stepfather. You are referring to the accused? Yes, sir.

q Aside from the accused, was there any other men who had sexual intercourse with you prior to October 1995? a None, sir, he was the only one.

q Prior to the birth of your child, it was only your stepfather who had sexual intercourse with you? a Yes, sir. xxx q a Do you have any boyfriend? None, sir. x x x13 Mindful of the well-settled rule that findings of facts of the trial court are accorded great respect considering that the trial judge has observed the demeanor of the witnesses, the Court does not find any cogent reason to depart from such rule. The trial judge had these observations about the witness: Rizalina was already 14 years old when she testified in Court. At the time she testified she was succinct in her declaration and appeared to the Court to be truthful. She had no reason to fabricate a story against the accused who supported her in her daily needs and spent for her education until she finished Grade 6. Ingratitude is not a trait common to a provincial child still innocent of the vicissitudes of life.14 A witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent is a credible witness.15 Since the trial court found Maria Rizalina' s testimony to be credible and trustworthy, it was More than sufficient to sustain the accused-appellant's conviction.16 The fact that the accused-appellant bad carnal knowledge with the young victim is corroborated by the findings of Dr. Laila Patricio, who upon examination on November, 1995 found Maria Rizalina to be 6-7 months pregnant already. Maria Rizalina confided to her that her stepfather raped her.17 This accusation was repeated when she was investigated by SPO3 Cesar Antolin at the Subic Police Station, Subic, Zambales,18 and when she was interviewed by Social Welfare Officer II, Ana Ecle of the DSWD, Iba, Zambales.19 When the accused-appellant was courting Nida Onciano, he was very aware that she had a daughter. Before they agreed to live together, he was made to understand that he had to accept and treat Maria Rizalina as his own daughter, too-caring for her and providing for her education.20 Since Maria Rizalina did not have a father, she regarded the accused-appellant as such. Even at her young age, she recognized the parental authority the accused-appellant had over her and in return, she gave the reverence and respect due him as a father. Undeniably, there was moral ascendancy on the part of the accused-appellant over the victim.21

In a rape committed by a father against the daughter, the former's moral ascendancy and influence over the latter substitutes for violence and intimidation. The experience has certainly caused great trauma on Maria Rizalina that she had to be committed to the National Center for Mental Health, Mandaluyong City to undergo psychological and medical treatment for severe depression.22 The testimony of Dr. Dijamco, a psychiatrist at the National Center for Mental Health is quite revealing: A After having gathered all the informations we have conceded and collated the data and we have agreed to come up with an impression as stated m the protocol or major depression, sir, and that it was advised that the patient be given medication and to undergo regular psycho therapy, Sir. xxx23 Q Now, in your honest opinion, what could have been the cause of your findings that the patient Rizalina Onsiano suffered from major depressive (sic) disorder? A After having a thorough study of the patient's case. We could only conclude that it was the abuser and the trauma that she underwent which led to her deppression (sic), her major and severe deppression (sic), sir. q By the way, was she able to disclose to you on your initial interview with the patient Rizalina Onciano regarding the sexual abuse committed in her person? A Initially, sir, she had difficulty, she would cry, she would request that we change the topic, however, she was consistent in identifying the perpetrator of the crime, sir, or the accused. Q Now, in your honest opinion as a psychiatrist, is it normal for a child not to tell or recall the sexual abuse committed on her person? A An abuse is a trauma in itself. So, for a child not to remember is quite impossible. So, abuse especially if these abuses have taken quite a number of times or it happened several times, sir. Q But is it normal for a child not to tell the details of the abuse committed in her person? A There is a possibility, sir, especially when a threat comes along or for several reasons, sir, but it is possible does not disclose immediately that she has been sexually abused by some other people, sir. Q Would you be able to give an example of what other factors that would prevent the child from disclosing or tell the abuse committed on her person? A Sir, based on my observations and the cases I have handled for one it would be shame and the guilt since the patient underwent such trauma they feel that they are to be blamed that's why they don't tell, they feel that they have a part in the crime that's why they don't tell. For another reason, an important reason for not disclosing is the threat the perpetrator imposes on the victim. The threat to life, the threat to property, the threat to steal. Basically, those are the major reasons why a child or adolescent would not disclose immediately that she has been sexually molested. Q Would you say the influence of the mother for being uncooperative with her in her fighting for her right, is one of the factor that would prevent the child from disclosing? A There is a possibility, sir, since whenever a child is abused, it is not the child or the victim which is just affected. It is the entire family, the brothers, the sisters, the mother, the father, the entire family. Since their child is affected, so, the mother and the other relatives may have stayed in the child not disclosing about the attempts or the abuse, sir. Q Now, in the case of Rizalina Onsiano, while she was presented by this representation, when this representation was about to ask her of the actual abuse committed on her person, she broke down and refused to talk. Is it normal, is that a normal behavior of Rizalina Onsiano? A Basically, prior to the commission of the crime, Rizalina was an up-grown child. Having undergone abuse for quite sometime, it is not easy for one to fully disclose what she underwent. There are times when the patient will be able to identify him just about that. Now, in Rizalina's case, I don't think it was normal. Basically, it is a normal part wherein she would not automatically disclosed what happened. It would take time prior to full disclosure of such trauma, sir.

Q Now, later on, after she was discharged from the National Center for Mental Health specifally (sic) on January 23, 1997, when Rizalina Onsiano was presented again to testify on the abuse committed against her by the accused, her own stepfather, she was able to narrate the details of what happened to her, is that also normal? A That proved, sir, that the therapy, the medication she took or that she underwent at the Center helped her in gradually dealing with the situation as such, sir, whenever she has to testify against her stepfather. The course she is undergoing right now is the effect of the treatment she has undergone at our Center. xxx24 Accused-appellant denies having raped his stepdaughter alleging that it was quite impossible for him to have committed the crime "in broad daylight, in a small house, abundant with open windows and doors, peopled by six or seven mischievous and open-eyed curious souls keen with every unusual scenarios of members involving kins and idols like their fathers."25 The Court sees no impossibility for the commission of this abominable act on the victim under the alleged circumstances. Many cases attest to the unfortunate fact that rape can be committed even in places where people congregate: in parks, along the roadside, within school premises and even inside a house where there are occupants. Lust is no respecter of time or place.26 Furthermore, accused-appellant points to his sister-in-law, Evelyn Nallos as the person who allegedly pressured his stepdaughter to file the charges of rape against him considering an old grudge existing between the two of them. It can be recalled that. Evelyn Nallos took care of two of their children who, unfortunately, died under her care, one died of meningitis and pneumonia and the other by drowning in a flood. To the defense, the deaths were plainly due to Evelyn's negligence.27 Since then, their relationship was estranged. This contention deserves scant consideration. Ill motive is never an essential element of a crime. It becomes inconsequential in a case where there are affirmative, nay, categorical declarations towards the accused-appellant's accountability for the felony.28 Maria Rizalina's straightforward and consistent testimony belies any claim of being pressured by her aunt to concoct a story of defloration against the stepfather. Upon cross examination, she was quick to deny that her Tita Evelyn prompted her to report to the authorities about her physical condition and the person responsible thereof.29 To the accused-appellant, it strains credulity why the victim never said anything about the incidents until the discovery by the mother on November 24, 1994 when she revealed that it was her stepfather who was responsible for her pregnancy. Delay in reporting the crime is understandable. It is not uncommon for young girls to conceal for some time the assaults on their virtue because of the rapist's threat on their lives.30 The case at bar is no exception to these well-founded rule. Maria Rizalina never said anything to her mother of the many times the accused-appellant had sexually abused her for fear of her life. She was definitely afraid of her stepfather who threatened to kill her once she reports the matter to her mother.31 Neither was there any medical impossibility to the commission of the crime as accused-appellant argues: Granting "en gratia arguendo" that accused-appellant did the act complained of in September 1993, or the last act on October 28, 1995, it is medically impossible and contrary to the natural laws and religious belief And, the medical books and hospital records is in dearth or paucity of four (4) months premature births. xxx xxx the turning point when the pregnancy became apparent and noticeable was a clear span or intereggnum (sic) of one (1) year and five (5) months from the month and year subject matter of this review (November 24, 1995) which logically coincides with the months that complainant gallivanted with the "barkada", but is off-tangent and is irreconcilable and medically and naturally impossible with the alleged commission of rape of September 1993.32 This defense is unavailing. Maria Rizalina gave birth on February 23, 1996. She testified that she was raped several times by her stepfather. While she could hardly remember the exact dates of these instances, she only remembered the first time she was raped which was in September, 1993 when she was only 12 years old and was in Grade IV33 and the last time was on October 28, 1995. Obviously, she could not have conceived in September, 1993 because as she testified, she was not yet menstruating at

that time. She started to have her menstruation when she was in Grade V34 or in 1994. She denies going home late after school and is not fond of being out with friends.35 Since she maintained that her stepfather raped her several times, the child was definitely conceived as a result of the rape between September, 1993 and October 28, 1995. Given all these facts and circumstances, we rule with moral certainty that the accused-appellant is indeed guilty of the crimes. Accused-appellant was charged for violation of Section 5(b) of R.A. 7610 and Article 335 of the Revised Penal Code for rape which read as follows: Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: "xxx "(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, that when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its mediumperiod;"36 xxx 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." xxx Anent the numerous informations filed, the trial court corrected the erroneous filing of these informations as it explained: It will be noted, however, that for the same act committed on the same date by the accused on the same offended party, the accused stands charged with two offenses: for violation of Section 5, paragraph (b) of Republic Act 7610 and for rape committed through force and intimidation. Thus: (1) in Criminal Case Nos. 482-95 and 487-95, the accused was charged with rape and violation of Section 5 paragraph (b) of Republic Act 7610, respectively, committed on the same date, October 1995, when the victim was 13 years old and 9 months; (2) in Criminal Case Nos. 484-95 and 488-95, the Informations charged rape and violation of the same special law, respectively, committed on the same date, "September 1995, when the victim was 13 years and 9 months old; (3) in Criminal Case Nos. 483-95 and 489-95, the accused was charged with rape and violation of the same special law, respectively, committed in October 1995 when the child was 11 years and 10 months old; and (4) in Criminal Case Nos. 485-95 and 486-95, the accused was charged with rape and violation of the same special law, respectively, committed in September 1993 when the victim was 11 years and 9 months old. Charging the accused with two different offenses for the same act committed on the same date against the said victim is erroneous as it is illegal, except where the law itself so allows. Section 5 (b) Republic Act 7610, however, does not so allow. The said law in fact provides that if the child is below 12 years old, the accused must be prosecuted under Article 335 of the Revised Penal Code. Conversely, if the child is above 12 years old but below 18 years old, then the accused must be prosecuted under Republic Act 7610 for the so called "child abuse.37

The trial court correctly convicted the accused for Rape under Article 335 of the RPC in Criminal Case No. 485-95 for it was clearly proven that the accused had carnal knowledge with the victim through force and intimidation on that fateful day in September, 1993. This was the first time the accused raped Maria Rizalina who was able to give a detailed account of this traumatic experience. She was below 12 years old at that time. While Maria Rizalina also testified that she was raped several times after September, 1993, the prosecution, however, failed to establish the material details as to the time, place, and manner by which these offenses were committed. There is still a need for proof beyond reasonable doubt that the offenses alleged in the informations were indeed committed.38 Thus, the trial court acquitted the accused under Criminal Case Nos. 482-95, 483-95, 484-95, 486-95, 488-95, 489-95 for want of sufficient evidence. Aside from the first incident of rape, all what Maria Rizalina could say was that she was molested by the accused for the last time on October 28, 1995. Whether there was force and intimidation to qualify this incident as rape was, unfortunately, not proven. Nonetheless, there is no dispute that Maria Rizalina was sexually abused by the accused on this occasion. Hence, the trial court convicted the accused under Criminal Case No. 487-95 for violation of Sec. 5(b) of R.A. 7610 or the Child Abuse Law. In the case of People v. Larin,39 the Court has explained that the elements of the offense penalized under this provision are as follows; 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age. 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 RA 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." It must be noted 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. Hence, the foregoing provision penalizes not only child prostitution, the essence of which is profit, but also other forms of sexual abuse of children. This is clear from the deliberations of the Senate. From the above disquisition, the accused is certainly guilty for sexual abuse committed on his stepdaughter, using his moral ascendancy in intimidating the victim to engage in sexual intercourse with him. The amount of damages must, however, be modified. In each of the cases, the trial court awarded the amount of P50,000 as civil indemnity. P100,000 for moral damages and another P100,000 as exemplary damages. In line with recent jurisprudence, the award of P50,000 as civil indemnity is in order regardless of proof In addition to civil indemnity, moral damages may, likewise, be awarded without the need for proving the same in the amount not exceeding P50,000.40 The award of exemplary damages must be deleted for lack of legal basis.41 WHEREFORE, the Decision dated March 5, 1998 of the Regional Trial Court, Branch 75, Olongapo City is AFFIRMED with the MODIFICATION that the accused-appellant is ordered to pay the victim the amount of FIFTY THOUSAND PESOS (P50,000.000) as civil indemnify, FIFTY THOUSAND PESOS (P50,000.00) as moral damages in Crim. Case No. 485-95 and Crim. Case No. 487-95, the award of exemplary damages is deleted in the above criminal cases. 1wphi1.nt SO ORDERED.

ivEN BANC A.M. No. MTJ-99-1207 November 21, 2001

NATIONAL BUREAU OF INVESTIGATION, complainant, vs.

JUDGE FRANCISCO D. VILLANUEVA, Metropolitan Trial Court of Quezon City, Branch 36, respondent. PANGANIBAN, J.: The conduct and behavior of those connected with an office charged with the dispensation of justice must always be beyond reproach. They must be free of impropriety, not only with respect to the performance of their judicial duties, but also in relation to their behavior outside the courtroom. The Case The administrative charge before us was triggered by a letter1 from then Director Santiago Y. Toledo of the National Bureau of Investigation (NBI), recommending the prosecution of Judge Francisco D. Villanueva (Branch 36, Metropolitan Court of Quezon City) and three others for illegal recruitment under Republic Act (RA) 8042 and white slave trade under the Revised Penal Code in relation to RA 7610. The letter also charged respondent with immorality, alleging that Marian Herrera was his live-in partner.@lawphil.net At the recommendation of then Court Administrator Alfredo L. Benipayo, the Court in a Resolution dated June 8, 1999, resolved to suspend respondent until further orders. After receiving the counter-affidavits of Judge Villanueva and his co-respondents in the NBI investigation, which he adopted as his answer/comment in this administrative case, the Court referred the matter to former Court of Appeals Justice Pedro A. Ramirez -- consultant of the Office of the Court Administrator (OCA) -- for investigation, report and recommendation. The Facts The investigation on the matter began on August 24, 1999 and continued until April 19, 2001. Complainant presented four witnesses: Jobeth Diocales; Janet Ramas; Juvylyn Requilmen; and NBI Supervising Agent Julma Dizon Dapilos, executive officer of the Anti Child Abuse Division (ACADED) of the NBI. The defense, on the other hand, called eight witnesses: Judge Francisco D. Villanueva himself, Marlyn Sumadilla, Mrs. Violeta Jarra Villanueva (wife of respondent), Nitz Tao, Andres C. Torres-Yap, Felilu Amon Ying, Oscar Inocentes and Justice Catalino R. Castaneda Jr.@lawphil.net In his Report, Justice Ramirez summarized the facts as follows: "As testified by Jobet Diocales, Janet Ramas and Juvylyn Requilmen[,] it was Marlyn Sumadila and Joy Elardo who recruited and brought them from Tagum to Manila where they arrived by airplane early in the morning of January 19, 1999. It was Marian Herrera and her brother Paolo who met them at the airport and brought them to the house of Marian's livein partner Judge Francisco Villanueva at No. 1 Hanna Street, Fil-Invest Batasan, Quezon City. Next morning at breakfast about 7:00 o'clock, Jobet, Janet and Juvylyn met respondent Judge Villanueva who was introduced to them by Marian, 'Ito and asawa ko Judge Francisco Villanueva at ito naman yong mga talent na galing Davao.' Addressing Marian, respondent Judge Villanueva said, 'Love, x x x an[g] babata pa [n]ila. Hindi pa sila p'wedeng makapunta sa Japan. Gawin nalang natin silang Dance Instructor.' On January 21, 1999, after coming from Divisoria to buy clothes to wear as dance instructors, the three girls were brought by respondent Judge first to Ihaw-Ihaw then to the house at Matalino Street, Quezon City that he (respondent Judge Villanueva) and Marian owned. In the evening of that day Jobet saw respondent Judge Villanueva and Marian asleep together. Awakened, Marian upon seeing her, told Jobet to massage respondent Judge which she did assisted by Juvylyn. In the evening of January 23, 1999 Jobet, Janet and Juvylyn were brought by Marian and respondent Judge to Bodega Nightclub where they started working as GROs. There they worked for two nights only because they could not stand the vulgarity of their companions. 'Binastos po ako ng customer,' said Janet. She could not stand the laughter at them, said Juvylyn. According to Jobet customers touched her legs and shoulders and kissed her. Janet said she was touched from the shoulders down to her thighs and was kissed. "After the three girls[:] Jobet Diocales, Janet Ramas and Juvylyn Requilmen stopped working as GROs at Bodega Night Club, on [January] 26, 1999, Marian Herrera and respondent Judge fetched them from his (respondent Judge's) condominium at Murphy, Socorro, Cubao, Quezon City and brought the three girls to KTV Night Club in Timog, Quezon City where they worked as GROs for about a week. After January 29, 1999, when she (Janet) was 'binastos x x x nang customers,' all three girls stopped working at KTV Night Club which angered respondent Judge. In the evening of February 11, 1999, Jobet Diocales and Janet Ramas were rescued by the NBI team at respondent Judge's condominium at 15th Avenue, Murphy, Socorro, Cubao, Quezon City. Juvylyn Requilmen was rescued by the same team at Ihaw-Ihaw Balot-Balot Restaurant owned by Marian Herrera and respondent Judge.itc-alf

"Respondent Judge denied having any amorous relation with Marian Herrera. According to him[,] she is but his distant relative on his mother's side. He was but a business adviser to her[,] which his wife Violeta confirmed. He did not have anything to do with the three girls' (Jobet, Janet and Juvylyn) stay at the condominium owned by Marian and their employment as GROs. Neither did he sleep there."2 Recommendation of the OCA Consultant In his Report to the Court dated April 19, 2001, the OCA consultant said that respondent's denial could not prevail over the positive and clear adverse testimony of the three young women. Their version was more credible, considering that they had no motive to falsify their declarations. He recommended that respondent be held administratively liable for serious misconduct arising from violation of RA 7610. The OCA investigator also found a clear indication of an illicit amorous relation between Marian Herrera and respondent, who was still married to Violeta Jarra Villanueva. He pointed out that such extramarital relation constituted immorality -- a serious charge under Section 8, Rule 140 of the Revised Rules of Court, the penalty for which is dismissal from the service. The OCA consultant also reported that this Court administratively disciplined respondent three times as follows: (1) in AM No. MTJ-96-1107, he was reprimanded for failure to secure a written permission from the Supreme Court to engage in business; (2) in AM No. MTC-99-1227, he was found guilty of abuse of authority and ordered to pay a fine of P2,000; and (3) in AM No. MTJ-001245, he was found guilty of serious misconduct and/or inefficiency in violation of the Canons of Judicial Ethics, fined P10,000, and suspended for one year without pay. The penalties in the last two were each accompanied by a stern warning that a repetition of the same or similar infractions would be dealt with more severely. The Court's Ruling The Court agrees with the recommendation of Justice Ramirez that respondent is administratively liable for immorality and unbecoming conduct, but not for gross or serious misconduct. Respondent's Administrative Liability The evidence shows that respondent is not the owner of any of the establishments involved in this case. Moreover, there is no showing that the three alleged victims were being forced to work as "guest relations officers" (GROs) or that their private parts were fondled by customers. As testified to by the three young women, they had voluntarily gone with respondent to the night clubs to seek jobs. They needed no prior encouragement in spending all the money handed to them by Marian Herrera or in splurging on clothes and make-up to equip themselves for night club jobs.@lawphil.net Furthermore, the three "victims" were free to enter and leave the condominium where they resided.3 They went to the disco only whenever they wanted to.4 It is clear from their testimonies that they were not forced to do anything against their will. They were free to change their jobs, as they did twice later. They were allowed to leave their place of residence or work5 anytime, as they in fact also did whenever they went to the discos and when they were "rescued." The evidence clearly shows that they were merely fetched -- two from the condominium where they were staying while looking for more acceptable jobs, and the third from the Ihaw-Ihaw Balot-Balot Restaurant, where she was already working as a cashier. The three alleged "victims" were not in need of any rescuing, for they were not in detention at the time they were fetched.itc-alf The above notwithstanding, respondent cannot be excused for his deeds. "The Canons of Judicial Ethics requires a judge to keep himself free from any appearance of impropriety. His personal behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach, for he is -- as he is so aptly perceived to be -- the visible personification of law and of justice. A judicial office circumscribes a personal conduct and imposes a number of inhibitions, whose faithful observance is the price one has to pay for holding an exalted position."6 Though he denies encouraging the three young women to apply for jobs as GROs, his actions loudly speak otherwise. It is undisputed that he accompanied them to the Bodega Night Club one night in January 1999.7 He introduced8 them to the operator, Andres C. Torres-Yap, and informed the latter that the women were looking for jobs. Respondent also accompanied them when they applied at the KTV night club, where they eventually worked as GROs from January 26, 1999 to January 29, 1999.9itc-alf By his acts, respondent clearly facilitated the employment of the three young women as GROs. Our present society considers their work as morally wrong. By facilitating the employment of the three in a night club as such, he was placing the then impressionable minors directly on a path of moral decay. He was exposing them to a seedy world where the practice of offering one's flesh in exchange for money was thrust right in front of their faces.

Furthermore, by his careless acts, respondent opened himself to the charges of white slave trade and violation of RA 7610. Such acts are unacceptable, because "no position exacts a greater demand on moral righteousness and uprightness than a seat in the judiciary. High ethical principles and a sense of propriety should be maintained, without which the faith of the people in the judiciary so indispensable in an orderly society cannot be preserved."10 In sum, his actions show conduct unbecoming his office. The Court does not agree with the OCA consultant that the said acts of respondent constitute serious misconduct in office. "Serious misconduct is such misconduct which affects a public officer's performance of his duties as such officer and not only that which affects his character as a private individual. For serious misconduct to warrant dismissal from the service, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law. It must (1) be serious, important, weighty, momentary, and not trifling; (2) imply wrongful intention and not mere error of judgment; and (3) have a direct relation to and be connected with the performance of his official duties."11 In this case, the acts complained of are not connected with the performance of respondent's official duties; thus, they cannot be considered serious or gross misconduct. However, such acts are violations of the Code of Judicial Conduct, specifically Canon 2 which states that "[a] judge should avoid impropriety and the appearance of impropriety in all activities." In the matter of immorality, we agree with the findings of the OCA consultant. First, the evidence clearly shows that respondent and Marian Herrera were lovers because respondent was found sleeping inside the same bedroom occupied by Herrera at No. 1 Hanna Street, Fil-Invest, Batasan, Quezon City. Second, they were cohabiting in the same house in the aforementioned address. Finally, respondent never denied that he was the husband of Herrera when he was introduced to complainant's witnesses. The testimonies on this point were spontaneous, clear and consistent. Pertinent portions of the testimony of Jobeth Diocales are reproduced hereunder: "Q When you reached Manila on January 19, 1999 at 1:30 a.m., was there anybody who pick you up from the airport? A Q A Tita Marian Herrera and her brother Paolo, ma'am. And where did you proceed from the airport? In the house of Judge Francisco Villanueva and Tita Marian, ma'am.

COURT: Q A Q A Q A Who's this Tita Marian you're talking about? Live-in partner of Judge, sir. Do they live in the same house? Yes, ma'am. Can you tell us exactly where this house is? No. 1 Hanna Street, Fil-Invest, Batasan, Quezon City, ma'am.

Q You said that it was Ate Marian and her brother Paolo who picked you up from the airport and you proceeded to 1 Hannah Street. You said also that it was the house of Judge Villanueva and Marian Herrera? A Q Yes, ma'am. When you arrived in 1 Hanna Street, was the Judge there?

A Yes, he's sleeping and in the morning at 7:00 o'clock Ate Marian introduced Judge Villanueva to us as her husband, ma'am. Q A Q A And what if any did Judge Villanueva tell upon seeing you? 'Good Morning', ma'am. Aside from that, any other thing? Invited us for breakfast, ma'am.

Q A Q

What else if any? He said we are of minor age and we could not go to Japan, ma'am. Why not according to him?

A He said 'Love' referring to Ate Marian. 'Ang babata pa nila. Hindi pa sila p'wedeng makapunta ng Japan. Gawin na lang natin silang Dance Instructor.'12 xxx xxx xxx

Q So, let's make this clear, from the time you arrived in Manila on January 19 up to the time according to you, you were rescued when actually what you meant you were fetched by the NBI, you had only one conversation with Judge Villanueva? A Q A Q A No, sir. How many times did you talk to him? Every time that we met, sir. The first time you talk with Judge Villanueva, what did you talk about? He asked me how's my work, how's being G.R.O., our customers okay?

Q Now, when you arrived in Manila, you were met according to you by Marian Herrera and you were brought to a place which you identified before the investigator as the house of Judge Villanueva, how did you know that was the house of Judge Villanueva? A Q A Q Because they were together in the house and they were together sleeping, sir. Did you see them sleeping together? Yes, sir. Pumasok ka ba sa k'warto?

A Once. Tita Marian even asked me to get inside the room, so that I can massage Judge Francisco Villanueva who wanted to know what was my pressure, sir. Q A This was how many days after your arrival in Manila? Two (2) days, January 21, 1999 at 9:30 in the evening, sir.

Q And did you not object and you agreed to massage Judge Villanueva, was that the kind of work that you were doing as a student of the Natural Therapeutic? A xxx Yes, sir."13 xxx xxx

Q And when you met Marian Herrera, how did she talk to you in English, tagalog or what? A Tagalog, sir.

Q When according to you Marian Herrera said 'My husband', did she say that in English or in Tagalog? A Q In Tagalog, sir. What in exact words?

A 'Ito ang asawa ko Judge Francisco Villanueva at ito naman yong mga talents na galing Davao', sir. Q A She was saying that in? In Tagalog, sir.

Q A Q A

So Marilyn Herrera never used the word 'husband' with respect to Judge Villanueva? Yes, sir. What she said was 'Ito ang asawa ko'? Yes, sir."14

Janet L. Ramas, on the other hand, testified thus: "ATTY PASCUAL: Q A Q Miss Ramas, do you know Judge Francisco Villanueva? Yes, ma'm. Why do you know him?

A Ate Marian introduced Judge Francisco Villanueva during breakfast time in the house of Judge Francisco Villanueva, ma'm. COURT: Q A xxx Q A xxx Q A By whom was he introduced? By Ate Marian Herrera, your Honor. xxx xxx

Can you give us exactly the address of that house of Judge Francisco Villanueva? Yes ma'm No. 1, Hana Street, Batasan Hills."15 xxx xxx

And who is Ate Marian Herrera? Live-in partner of Judge Francisco Villanueva, ma'm."16

Juvylyn Requilmen testified on the same matter in this wise: Q A xxx Q A Q A Q A Q A Q Where is the house of Marian Herrera? No. 1 Hannah Street, Batasan Hills, Filinvest, sir. xxx xxx

Later in the day, did you ever meet anyone inside the house of Marian Herrera? Yes, sir. Who was that? Judge Francisco Villanueva, sir. If you were ask to point him out, could you point him to us? (Witness pointing to a person who identified himself as Judge Francisco Villanueva) How did you meet Judge Francisco Villanueva? He was introduced to us by Marian Herrera as her husband, sir. After you were introduced, did Judge Villanueva say anything if any?

A When we have breakfast and he said 'Ay, Love ang babata pa nila, hindi pa sila p'wedeng pumunta ng Japan, gawin na lang natin silang D.I.', sir.

Q When Judge Villanueva said 'Ay, Love ang babata pa nila, and then continued with this statement, to whom was he talking to? A xxx Marian Herrera, sir."17 xxx xxx

ATTY. DE ALBAN: Q A Q A Q A Did you meet Judge Villanueva early morning of June 19, 1999? Yes, sir. And you said that he was introduced to you as the husband of Marian Herrera? Yes, sir. What did Judge Villanueva say, if any? he just laughed, sir."18

In contrast, respondent's denials and explanations were hollow and unworthy of belief. If indeed he was merely the business consultant of Marian Herrera, he would not be so free and so comfortable sleeping in the same bedroom as she or waking up and then having breakfast with her in her house. This is taking business consultancy much too far. In an administrative proceeding, as contradistinguished from a criminal case, only substantial evidence -- that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion -- is required.19 Here, the existence of extramarital relations between respondent and Marian Herrera is substantially supported by the evidence on record. Appropriate Penalty Rule 140 of the Rules of Court provides: "Sec. 8. Serious charges. Serious charges include: xxx xxx xxx

"3. Gross misconduct constituting violations of the Code of Judicial Conduct; xxx xxx xxx

"8. Immorality; xxx xxx xxx

"Sec. 11. Sanctions.-- A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: "1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporation. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; "2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or "3. A fine of more than P20,000.00 but not exceeding P40,000.00." Considering that respondent has already retired, he can no longer be dismissed or suspended. Hence, the appropriate penalty is a fine. WHEREFORE, Judge Francisco D. Villanueva is found GUILTY of immorality and conduct unbecoming a judge. He is hereby FINED in the amount of P40,000. SO ORDERED.

v vi vii viii ix x xi xii xiii

xiv xv

xvi

G.R. No. 177752 : February 24, 2009

PEOPLE OF THE PHILIPPINES, Appellant, vs. ROBERTO ABAY y TRINIDAD, Appellee.

DECISION

CORONA, J.:

On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 4 [1] under the following Information: chanroblesvirtuallawlibrary

chanroblesvirtuallawlibrary

That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and whole body, lying on top of her and inserting his penis into her vagina, thus succeeded in having carnal knowledge of her, against her will and consent thereafter threatening to kill her should she report the incident, thereby gravely endangering her survival and normal growth and development, to the damage and prejudice of [AAA]. chanroblesvirtuallawlibrary CONTRARY TO LAW. chanroblesvirtuallawlibrary

Appellant pleaded not guilty during arraignment. chanroblesvirtuallawlibrary

During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses. chanroblesvirtuallawlibrary

AAA testified that appellant, her mothers live-in partner, had been sexually abusing her since she was seven years old. Whenever her mother was working or was asleep in the evening, appellant would threaten her with a bladed instrument[2] and force her to undress and engage in sexual intercourse with him. chanroblesvirtuallawlibrary

BBB corroborated AAAs testimony. She testified that she knew about appellants dastardly acts. However, because he would beat her up and accuse AAA of lying whenever she confronted him, she kept her silence. Thus, when she caught appellant in the act of molesting her daughter on December 25, 1999, she immediately proceeded to the police station and reported the incident. chanroblesvirtuallawlibrary

According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing her for six years. This was confirmed by AAAs physical examination indicating prior and recent

penetration injuries. chanroblesvirtuallawlibrary

The defense, on the other hand, asserted the incredibility of the charge against appellant. Appellants sister, Nenita Abay, and appellants daughter, Rizza, testified that if appellant had really been sexually abusing AAA, the family would have noticed. The rooms of their house were divided only by -inch thick plywood walls that did not even reach the ceiling. Thus, they should have heard AAAs cries. Moreover, Nenita and Rizza claimed that they often caught AAA and her boyfriend in intimate situations. chanroblesvirtuallawlibrary

According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here, appellant kept his silence which was contrary to human nature. On the other hand, AAA straightforwardly narrated her horrifying experience at the hands of appellant. The RTC concluded that appellant had indeed sexually abused AAA. A young girl would not have exposed herself to humiliation and public scandal unless she was impelled by a strong desire to seek justice.[3] chanroblesvirtuallawlibrary

In a decision dated November 25, 2003, [4] the RTC found appellant guilty beyond reasonable doubt of the crime of rape: chanroblesvirtuallawlibrary

chanroblesvirtuallawlibrary

WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5, Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty,[5] and to pay private complainant moral damages in the amount of Fifty Thousand (P50,000) Pesos. chanroblesvirtuallawlibrary SO ORDERED. chanroblesvirtuallawlibrary

The Court of Appeals (CA), on intermediate appellate review,[6] affirmed the findings of the RTC but modified the penalty and award of damages. chanroblesvirtuallawlibrary

In view of the enactment of RA 8353[7] and RA 9346,[8] the CA found appellant guilty only of simple rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil indemnity ex delicto (which is mandatory once the fact of rape is proved)[9] granted by the RTC, it awarded P50,000 as moral damages and P25,000 as exemplary damages. Moral damages are

automatically granted in rape cases without need of proof other than the commission of the crime[10] while exemplary damages are awarded by way of example and in order to protect young girls from sexual abuse and exploitation.[11] chanroblesvirtuallawlibrary

We affirm the decision of the CA with modifications. chanroblesvirtuallawlibrary

Under Section 5(b), Article III of RA 7610[12] in relation to RA 8353,[13] if the victim of sexual abuse[14] is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code[15] and penalized with reclusion perpetua.[16] On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse[17] under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes[18] for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act.[19] Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes),[20] a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.[21] chanroblesvirtuallawlibrary

In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecutions evidence only established that appellant sexually violated the person of AAA through force and intimidation[22] by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established.[23] chanroblesvirtuallawlibrary

Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape under Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua. Furthermore, to conform with existing jurisprudence, he is ordered to pay AAA P75,000 as civil indemnity ex-delicto[24] and P75,000 as moral damages.[25] chanroblesvirtuallawlibrary

WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365 is hereby AFFIRMED WITH MODIFICATION. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA P75,000 as civil indemnity ex-delicto, P75,000 as moral damages and P25,000 as exemplary damages.

Costs against appellant. chanroblesvirtuallawlibrary

SO ORDERED.

xvii xviii xix xx xxi xxii xxiii [G.R. Nos. 139346-50. July 11, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ABADIES y CLAVERIA, accused-appellant. DECISION PUNO, J.: This is an appeal from the decision[1] of the Regional Trial Court of San Pedro, Laguna, in Criminal Case Nos. 0658-SPL to 0661-SPL, dated May 26, 1999, finding accused-appellant Jose Abadies guilty beyond reasonable doubt of four counts of violation of Republic Act No. 7610 or the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," penalized under Section 5 (b), Article III and Section 31, Article XII thereof, and sentencing him for each count to suffer the penalty of reclusion perpetua and to pay a fine of P30,000.00. Accused-appellant Abadies was charged with a violation of Republic Act No. 7610 in five separate Informations[2] which, except for the dates of commission, are similarly worded as follows: That on or about July 1, 1997, in the Municipality of San Pedro, Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously, with force and intimidation commit acts of lasciviousness upon the person of his 17-year old daughter ROSALIE ABADIES Y MANUNGHAYA by kissing, mashing her breast and touching her private parts against her will and consent. CONTRARY TO LAW. The other incidents were allegedly committed on July 2, 3, 7 and 26, 1997. In an Order[3] dated July 16, 1998, the trial court, upon motion of the public prosecutor, dismissed Criminal Case No. 0657-SPL on the ground that the crime charged appears to have been committed in Las Pias City, hence, outside the territorial jurisdiction of the court.

During the arraignment, accused-appellant entered a plea of not guilty and hence, trial ensued. The facts show that accused-appellant has been living for the past twenty years with his commonlaw wife, Catalina Manunghaya, at Bgy. Pulo, Landayan, San Pedro, Laguna, together with their two children, Jonathan and complainant Rosalie. The family sleeps together in one room and usually Catalina wakes up early in the morning to buy bread. It was during these short periods of time while Catalina was out of the house that the abuses took place. On the dates material to these cases, complainant was 17 years old, having been born on July 29, 1980.[4] Complainant testified that on July 1, 1997, at about 6:00 a.m., she was sleeping in their house when she was awakened by somebody touching her breast and other private parts of her body. She was startled to see her father, accused-appellant, and she covered her breast with a pillow. Complainant struggled with accused-appellant as he persisted in mashing her breast. She could not shout as fear overcame her when she saw anger from accused-appellants face. Accusedappellant was forced to stop only when complainant's mother arrived from the store. Complainant did not tell her mother about the incident for fear of accused-appellant. The following day, July 2, 1997, at about the same time, complainant was again jolted from her sleep by accused-appellant who was touching her breast. She covered herself with a blanket and with her hands. She fought accused-appellant when he tried to remove her hands. Again, accused-appellant desisted only when complainant's mother arrived from the store. Complainant ran to the bathroom where she shed tears. The next day, July 3, 1997, complainant was once more roused from her sleep by accusedappellant mashing her breast. She started to cry and asked accused-appellant why he was abusing her. Accused-appellant simply continued touching her. Again, he stopped only when his wife arrived from the store. Complainant was again awakened in the early morning of July 7, 1997 by accused-appellant touching her breast. This time, accused-appellant straddled her, inserted his hand inside her shorts and touched her private part. Complainant resisted and removed accused-appellants hand. She reached out for the blanket of her brother, Jonathan, who was sleeping beside her in a bid to wake him up. When accused-appellant saw that Jonathan was about to turn, he stopped. However, he warned complainant not to tell her mother about the incident. On July 26, 1997, complainant was brought by accused-appellant to the house of her stepsister in Las Pias. Nobody was in the house and strangely, accused-appellant started to sharpen his sickle. He ordered complainant to write a letter to her mother and revealed that he was planning to kill himself and complainant. When complainant refused, accused-appellant forced her inside the bedroom where he threatened complainant to choose whether he would kill her or rape her. Accused-appellant started kissing complainant but the latter was able to run away from him. Complainant reached their house and saw her mother. Crying and looking very pale, she narrated to her mother her ordeal. She likewise disclosed the past abuses of accused-appellant. Complainant and her mother then proceeded to the barangay office where they made a report. On the strength of their complaint, accused-appellant was arrested. Complainant further testified that on December 6, 1997, accused-appellant wrote her a letter from his detention cell asking for forgiveness. Accused-appellant proffered the defense of denial and alibi. He denies having committed acts of lasciviousness against complainant. He testified that on the dates of the alleged incidents, he woke up between 7:00 to 7:30 a.m.; that complainant and her mother were already preparing breakfast; and after eating breakfast, he would leave for work. He also testified on the reason why the charges at bar were filed against him. Allegedly, on July 26, 1997, he asked complainant what was happening to their lives as his children were aloof with him. Complainant threatened to end her life because she felt she was to be blamed for their problems. Accused-appellant also declared he was too strict with his children, and even inflicts physical harm on them when they disobey him. In the present appeal, accused-appellant asserts that the court a quo erred in finding the prosecution's version more credible and in convicting him despite the implied pardon given by complainant. Accused-appellant likewise contends that there exists no factual basis for the trial court to consider his plea of forgiveness in his letter to complainant as an implied admission of guilt. The appeal is not impressed with merit. Accused-appellant stands charged with violation of Republic Act No. 7610 or The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, specifically Article III, Section 5 (b) thereof which reads: SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult,

syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; x x x. The elements of the crime of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (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.[5] The testimony of complainant that accused-appellant touched and mashed her breasts and other private parts of her body against her will, and that she could not shout or fight back because she was afraid of accused-appellant, sufficiently constitute acts of lasciviousness under the foregoing provision. Although accused-appellant was not armed nor did he threaten complainant, his moral ascendancy over her is a sufficient substitute for the use of force or intimidation.[6] Accused-appellant faults the trial court in giving credence to the testimony of complainant. He contends that it is difficult to comprehend why complainant did not shout or do anything to ask help from her brother who was sleeping beside her. He also claims that if the charges were true, it is inconceivable why complainant did not immediately tell her mother. The argument is specious. The Court has probed into the records to assess complainant's credibility and we find that her testimony deserves full faith and credit. Complainant's testimony was straightforward and free from contradiction as to any material point. We also accord great weight to the findings of the trial court having heard the witnesses and observed their deportment and manner of testifying during trial.[7] Complainant's failure to disclose about her misfortune to her mother does not destroy her credibility. Complainant explained that she did not tell her mother about her ordeal because she was afraid of accused-appellant. Accused-appellant admitted that his children were afraid of him because he was very strict with them, and that there were occasions when he would hit them with anything that he could get hold of or inflict physical punishment whenever they disobeyed him.[8] This is enough reason for complainant to be cowed into silence. It is of no moment that complainant failed to shout for help while she was being molested with her brother sleeping beside her in the same room. Accused-appellant was complainants own father, who exercised moral ascendancy over her.[9] Indeed, it is now hoary jurisprudence that lust is no respecter of time and place for rape has been committed in places where people congregate, even in the same room where other members of the family are sleeping.[10] Moreover, we have also ruled that no standard form of behavior has been observed when a person is confronted by a shocking or a harrowing and unexpected incident, for the workings of the human mind, when placed under emotional stress, are unpredictable. Some people may cry out, some may faint, some may be shocked into insensibility, while others may yet appear to yield to the intrusion.[11] On the other hand, accused-appellant's simple denial of the crime charged is inherently weak. It is negative evidence which cannot overcome the positive testimonies of credible witnesses. For accused-appellants denial to prevail, it must be buttressed by strong evidence of non-culpability and there is none.[12] Accused-appellant further contends that there is no factual basis for the trial court to conclude that the plea for forgiveness contained in his letter is to be deemed as an implied admission of guilt. We do not agree. A cursory reading of the relevant parts of the letter will readily show that accused-appellant was indeed seeking pardon for his misdeeds. Some of the pertinent portions read as follows: "I made this letter to ask your 'forgiveness. x x x Alam mo bang sobra-sobra na ang pagsisisi ko sa ginawa kong iyon. x x x Parang awa mo na Ne hirap na hirap na ako at ang lahat ay buong puso ko ng pinagsisisihan. Patawarin mo na ako anak. x x x." There is no iota of doubt that accusedappellant was asking forgiveness for having committed the acts with which he now stands charged. Settled is the rule that in criminal cases, except those involving quasi-offenses or those allowed by law to be settled through mutual concessions, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.[13] Evidently, no one would ask for forgiveness unless he had committed some wrong and a plea for forgiveness may be considered as analogous to an attempt to compromise.[14] Under the circumstances, accused-appellants plea of forgiveness should be received as an implied admission of guilt.

Accused-appellant likewise contends that he was impliedly pardoned by the complainant. He deduced the purported implied pardon from complainants testimony that she did not disclose to her mother the dastardly acts committed by accused-appellant on July 1, 2, 3 and 7, 1997 and that she had not intended to file charges against him. He alleged that the present charges were filed against him only after the Las Pias incident which happened on July 26, 1997. Accused-appellant posits the thesis that the failure of complainant to report the first four acts of lasciviousness is tantamount to an implied pardon. He relies on Article 344 of the Revised Penal Code which provides: ART. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. xxx xxx xxx

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. x x x. The argument will not hold. First, the supposed pardon cannot be implied from the fact that the complainant did not immediately reveal to her mother her defloration. As earlier stated, it was her fear of accused-appellant which restrained complainant from reporting the incidents to her mother. Second, Article 344 of the RPC and Section 5, Rule 110 of the Revised Rules of Criminal Procedure provide that the pardon must be express and cannot be based on hazy deduction.[15] The imposable penalty prescribed under Section 5, Article II of Republic Act No. 7610 is reclusion temporal in its medium period to reclusion perpetua. Section 31 (c), Article XII thereof provides that the penalty in its maximum period shall be imposed when the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity. In the cases at bar, the relationship of complainant and accused-appellant is established by the birth certificate of complainant which shows that accused-appellant is her father. This relationship is further supported by the testimonies of complainant and her mother, as well as that of accused-appellant. Hence, the trial court did not err in appreciating the generic aggravating circumstance of relationship and in imposing the penalty of reclusion perpetua for each count of lascivious conduct committed by accused-appellant against his daughter. It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment. Nevertheless, Section 31 (f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to the discretion of the court, provided that the same is to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in an environment which fosters their self-respect and human dignity. In the case of People vs. Jaime Cadag Jimenez[16] where a minor victim was sexually molested by her own father, the accused was ordered to pay a fine of P20,000.00 as cash fund for the rehabilitation of the victim and moral damages in the amount of P50,000.00 for each count of lascivious act committed by the accused. Hence, in the cases at bar, the trial court correctly imposed a fine of P30,000.00 for each count of lascivious conduct committed by accusedappellant. In addition, moral damages should be awarded in the amount of P50,000.00 for each count. As a final note, we deem it relevant to stress the escalating awareness and concern for the protection of the rights of children. The need of children for special protection was given recognition by the nations of the world as early as 1924 when the assembly of the League of Nations endorsed the Declaration of the Rights of the Child (commonly known as The Declaration of Geneva) which focused on children's welfare, specifically their economic, psychological and social needs. Reaffirming the fact that children need special care and protection because of their vulnerability, and the vital role of international cooperation in securing children's rights, the General Assembly of the United Nations adopted on November 20, 1989 the Convention on the Rights of the Child (CRC), which incorporates the full range of human rights - civil, political, economic, social and cultural - of children. The Convention stresses the duty of the state to take all the necessary steps to protect children from being sexually abused (as in rape, molestation and incest) or exploited (forced or induced into prostitution, pornographic performances and others). [17] It is reassuring to note that we are not lagging far behind on the domestic front. Over the past years, Congress has enacted a number of laws relating to the protection of children's welfare and rights,[18] while the executive department has issued various executive orders and proclamations in order to give teeth to the implementation and enforcement of these laws.[19] These international instruments and national legislation emphasize that the primodial consideration in deciding issues and cases involving children is the welfare and best interests of

the child.[20] For its part, the Supreme Court has issued Administrative Circular No. 23-95 enjoining trial courts to act with dispatch on all cases involving children, including but not limited to pedophilia, child labor and child abuse cases. To date, procedural rules applicable specifically to cases involving children have already been approved by the Court such as the Rules on Examination of a Child Witness, on Commitment of Children, and on Juveniles in Conflict with the Law. Our duty does not end here though. As the highest court of the land, it is incumbent upon us to give life to all these covenants, agreements, and statutes by enriching and enhancing our jurisprudence on child abuse cases, bearing in mind always the welfare and protection of children. WHEREFORE, the decision of the Regional Trial Court of San Pedro, Laguna, Branch 93, in Criminal Case Nos. 0658-SPL to 0660-SPL, finding accused-appellant JOSE ABADIES guilty beyond reasonable doubt of four counts of violation of Republic Act No. 7610, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P30,000.00, for each count, is hereby AFFIRMED with the MODIFICATION that accused-appellant is hereby ordered to pay moral damages in the amount of P50,000.00 for each count. No costs. SO ORDERED.

xxiv xxv xxvi xxvii xxviii xxix xxx xxxi xxxii

xxxiii

CLEMENT JOHN FERDINAND M. cralawG.R. No. 147913 NAVARRETE, Petitioner, cralawPresent:

PUNO, J., Chairperson, SANDOVAL-GUTIERREZ, -versuscralawCORONA, AZCUNA and GARCIA, JJ.

PEOPLE OF THE PHILIPPINES, cralaw Respondent.cralawPromulgated:

January 31, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CORONA, J.:

cralawThis petition for review on certiorari[1] assails the September 29, 2000 decision[2] and May 4, 2001 resolution[3] of the Court of Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January 16, 1997 decision of the Regional Trial Court (RTC), Branch 171, Valenzuela,[4] Metro Manila in Criminal Case No. 5302-V-96.[5] cralaw

Petitioner Clement John Ferdinand M. Navarrete was charged with the crime of statutory rape of BBB[6] under the following information:

That on or about October 30, 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, did then and there [willfully], unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5 years old.

CONTRARY TO LAW.[7]chanroblesvirtuallawlibrary

On arraignment, petitioner pleaded not guilty.

The facts show that BBB, who was at that time five years old, and petitioner were neighbors, their houses being adjacent to each other.[8]On October 30, 1995, at around past 9:00 in the evening, BBB went to petitioners house to watch television, which was something she often did.[9] Only petitioner and BBB were there that night. [10]BBB testified that it was on this occasion that petitioner sexually abused her,

placed his penis [in her] vagina twice, poked her vagina with a stick with cotton[11] and boxed her on the right side of her eye.[12]Then, petitioner brought her to the comfort room and pointed a knife to her throat.[13]Afterwards, she and petitioner watched a pornographic movie[14] together.[15]

AAA, BBBs mother, testified that around 10:30 p.m., BBB went out of petitioners house. While trembling and crying, BBB embraced her mother and told her that Kuya Ferdie sinundot ako.[16]

The next day, on October 31, 1995, Dr. Noel Minay, medico-legal officer of the National Bureau of Investigation, examined BBB. He found that her maidenhead was short, intact and had a narrow opening at 0.3 cm. in diameter.He concluded that these findings precluded complete penetration by an average-sized Filipino male organ in full erection.[17]

Testifying in his own behalf, petitioner denied the accusation against him and claimed that AAA merely concocted the charge against him.He alleged that she had ill feelings against his mother who she thought had something to do with the separation of her (AAAs) son from the Philippine Postal Corporation. He also posited that she resented the Navarretes refusal to allow her to place a jumper on their electrical connection. [18]chanroblesvirtuallawlibrary

In a decision dated January 16, 1997, the RTC absolved petitioner of statutory rape as there was no clear and positive proof of the entry of petitioners penis into the labia of the victims vagina. However, it convicted petitioner for acts of lasciviousness under Article 336 of the Revised Penal Code (RPC) in relation to Section 5(b), Article III of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and

Discrimination Act):

WHEREFORE, [petitioner] Clement John Ferdinand Navarrete is sentenced to suffer an indeterminate imprisonment of TWELVE (12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as maximum with the accessory penalties prescribed by the law and to pay the costs.

The accused is hereby ordered to indemnify the victim the amount of P20,000.00 as moral damages and the amount of P10,000.00 pursuant to

Section 31 of the [Act].[19]

On appeal, the CA affirmed the decision of the RTC.Thus, this petition.

Petitioner asserts that he cannot be convicted of acts of lasciviousness in relation to Section 5(b), Article III of RA 7610, a crime not specifically alleged in the information which charged him with statutory rape. Otherwise, his constitutional right to be informed of the nature and cause of the accusation against him would be violated. He likewise contends that his guilt for the said offense was not proven beyond reasonable doubt. There is no merit in the petition.

The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the nature and cause of the accusation against him.[20] From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged.[21]chanroblesvirtuallawlibrary

An exception to this rule is the rule on variance in Section 4, Rule 120 of the Rules of Court:[22]chanroblesvirtuallawlibrary

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 that which is proved.

Petitioner was found guilty of violating Article 336 of the RPC in relation to Section 5(b), Article III of RA 7610:

Sec. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

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

xxxxxxxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, [or] the

[RPC], 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.

Under this provision, when the victim is under 12 years old, the accused shall be prosecuted under either Article 335 (for rape) or Article 336 (for acts of lasciviousness) of the RPC.Accordingly, although an accused is charged in the information with the crime of statutory rape (i.e., carnal knowledge of a woman under twelve years of age[23]), the offender can be convicted of the lesser crime of acts of lasciviousness, which is included in rape.[24]

The case of People v. Bon[25] is squarely in point. In that case, the accused was charged with the rape of a six-year old girl. The Court ruled that rape was not proved beyond reasonable doubt. We, however, held that the accused was liable for the crime of acts of lasciviousness, as defined and penalized under Article 336 of the RPC in relation to RA 7610[26] since all the elements of this offense were established.Petitioner cannot therefore successfully argue that his constitutionally protected right to be informed of the nature and cause of the accusation against him was violated when he was found guilty under Section 5 of RA 7610. Petitioner next contends that his guilt was not proven beyond reasonable doubt.We disagree.

In Amployo v. People,[27] we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of RA 7610.[28]chanroblesvirtuallawlibrary

The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following: (1) (2) The offender commits any act of lasciviousness or lewdness; 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)

The offended party is another person of either sex.(emphasis

supplied)[29]chanroblesvirtuallawlibrary

The general rule is that the factual findings of the trial court deserve a high degree of respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misapprehended or misapplied some facts or circumstances of weight and substance which can alter the result of the case.[30]We uphold the findings of fact of the RTC, as affirmed by the CA.

The RTC and CA did not find evidence of the entrance of petitioners penis into the labia of the victims female organ.Nevertheless, BBBs testimony established that petitioner committed lascivious acts on her:

BY ATTY. PRINCIPE:(to witness)

Q: A:

cralaw[BBB], do you know accused Ferdinand Navarette? cralawYes, sir.

Q: A:

cralawAlso named Clement John Ferdinand Navarette? cralawYes, sir.

Q: A:

cralaw Why do you know Clement John Ferdinand Navarette? cralawBecause he is the one who did something to me.

Q:

cralawWhat do you mean by umano? A. He placed his penis into my vagina.(pekpek)

Q:

cralawHow many times? A: cralawTwo times, sir.

Q: A:

cralawThen he placed his penis to your vagina, what did you feel? cralawI felt pain, sir.

xxx

xxx

xxx

Q:What else happened after Ferdinand Navarette put his penis twice on your vagina which you told the Court you felt pain? A: cralawHe locked me inside the [comfort room] and he took aknife.

Q:Now, when you were inside the Comfort Room and you told the Court that he got a knife, what happened next, if any? A: cralawHe stabbed me.

Q: A:

cralawWhere? cralaw(Witness pointing the throat.)

Q:And when you said sinaksak on your throat you mean accused only pointed [to] your throat?

xxx

xxx

xxx

COURT:

[All right], witness may answer.

(Witness pointing to her throat.)

Q:

cralawAnd what is the meaning that she wants to convey?

ATTY. TENEZA:

cralawWitness holding her throat.

ATTY.PRINCIPE:

cralawPointing.Very clear.

Q:

cralawWhen you pointed your throat, what do you want to convey [with] the word stab?

ATTY. PRINCIPE:

A. Sinaksak.That is, Your herinterpretation of pointing the knife.

Honor.Because

this

is

xxx

xxx

xxx

ATTY. PRINCIPE:

After the accused locked you in the [comfort room] with the knife, according to you, what happened next, if any?

xxx

xxx

xxx

Witness:

A:Then I went [out] of the [comfort room] when I heard my mother calling me.

ATTY. PRINCIPE:(to the witness)

Q:

cralawAnd where was your mother at that time?

A :She was outside and waiting for my Kuya [XXX].

Q:When you were called by your mother, according to you, did you approach your mother when hearing that she was calling you?

ATTY. TENEZA:

It was already answered, Your Honor.

ATTY. PRINCIPE :

cralawNo.

COURT:

Witness may answer.

ATTY. PRINCIPE:(to the witness)

Q: A:

cralawAnd what did you tell your mother, if any?

cralawI embraced her.

Q:After embracing your mother, did you tell [her] something ifany? A: cralawShe [asked] me [why] I was still watching T.V. when the people of the house were already sleeping.

Q:

cralawWhat was your reply to your mama? A: cralawBecause I used to watch T.V. [in] that place.

Q:Did you report to your mother what Ferdinand Navarette did to you?

A:

cralawYes, sir.

cralaw Q: cralawHow did you tell your mother? A. I told my mama Binastos ako ni Ferdie.

Q: A:

cralawHow did you relate that you were binastos ni Ferdie? cralawI told my mama: Mama, Ferdie [placed] his penis on my vagina and then he placed a stick with cotton on my vagina and then he boxed me, on my right side of my eye.

Q: A:

cralawHow many times were you boxed by Ferdie, the accused?

cralawTwo (2) times, sir.[31]

The foregoing shows that all the elements of acts of lasciviousness were proved.That BBB was less than twelve years old at the time of the commission of the offense was not disputed. The prosecution established that petitioner intentionally placed his penis in BBBs vagina but without any indication that he was able to penetrate her: cralaw Victim [BBB] testified that the accused placed his penis into my vagina and [placed] a stick with cotton [in] my vagina but the [specific] part of her vagina where the penis was placed was not indicated.

xxx

xxx

xxx

The Court cannot [assume] without doing violence to the precious jural yardstick but the prosecution must prove and present clear, positive and conclusive evidence of the act complained of particularly that the penis of the accused gained entrance [in] the labia majora of the organ of the victim.Not even in the medical findings and testimony of the NBI MedicoLegal Officer Dr. Noel Minay who conducted physical/genital examinations on the victim could [we] find support to justify an inference that there was entrance of the male organ of the accused within the labia of pudendum. [32]

Both lower courts also found that petitioner poked victims vagina with a stick with cotton and watched a pornographic movie with her.[33] These acts are undoubtedly acts of lasciviousness or lewdness.[34]

The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: 1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age. (Emphasis supplied)[35]

Lascivious conduct is defined under Section 2 (h) of the rules and regulations[36] of RA 7610 as:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

The aforestated acts of petitioner undeniably amounted to lascivious conduct under this law.

Petitioner insists that Section 5 (b) of RA 7610 refers only to those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution and argues that this does not apply in this case since the victim is not a child exploited in prostitution.[37]chanroblesvirtuallawlibrary

Petitioners argument is untenable.In People v. Larin (and reiterated in several subsequent cases),[38] we emphasized 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.[39]The very title of Section 5, Article III (Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other sexual abuse.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.[40]Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife)[41] to indulge in lascivious conduct.

Hence, the prosecution was able to prove beyond reasonable doubt that petitioner committed acts of sexual abuse against BBB. The RTC found BBBs testimony to be clear, candid, and straightforward. Her testimony was worthy of belief since she was young and had no ill-motive to falsely testify and impute a serious crime against the accused.[42]In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.[43]

Moreover, courts are inclined to lend credence to the testimony of children of tender years. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is

an eloquent testament to the truth of her complaint.[44]In so testifying, she could have only been impelled to tell the truth.[45]

The trial courts evaluation of the testimonies of witnesses is given great respect by the appellate court in the absence of proof that it was arrived at arbitrarily or that the trial court overlooked material facts.[46]The rationale behind this rule is that the credibility of a witness can best be determined by the trial court since it has the direct opportunity to observe the candor and demeanor of the witnesses at the witness stand and detect if they are telling the truth or not.[47]We will not interfere with the trial courts assessment of the credibility of witnesses.

In the face of the serious accusation against him, petitioner could only interpose denial as defense. Denial is an inherently weak defense and cannot prevail over the positive and categorical identification provided by the complainant. Denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law.[48] As between the positive declaration of the prosecution witness and the negative statement of the accused, the former deserves more credence.[49] The lower courts also correctly disbelieved the corroborating testimonies of petitioners aunt and sister.[50]

Petitioner asserts that the RTC should not have given evidentiary weight to the inconsistent and contradictory testimonies of the prosecution witnesses.He urges this Court to apply the Latin maxim falsus in unus, falsus in omnibus (false in part, false in everything).

We disagree.We have stated that:

[T]he maxim or rule falsus in [unus], falsus in omnibus does not lay down a categorical test of credibility.It is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all the testimony of a witness on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and deliberate intention to falsify a material point.[51]

cralaw Furthermore, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. Instead of eroding the effectiveness of the evidence, such imperfections and discrepancies in the testimony can in fact be considered as signs of veracity.[52] Aside from the fact that it is very difficult to give a mechanical and accurate account of a traumatic and horrifying experience,[53] the victim here was a mere five-year old girl when she was put on the witness stand. We

should not expect a five-year old child to explain with exact precision the nature of the acts done to her, given her naivet and still undeveloped vocabulary and command of language.[54] Despite this limitation, however, the victim never wavered in her claim that petitioner molested her.

In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 (b), Article III of RA 7610.

WHEREFORE, the petition is hereby DENIED.The September 29, 2000 decision of the Court of Appeals affirming the decision of the Regional Trial Court of Valenzuela, Branch 171, in Criminal Case No. 5302-V-96 finding petitioner guilty beyond reasonable doubt of acts of lasciviousness and sentencing him to suffer imprisonment of twelve years and one day of reclusion temporal, as minimum, to sixteen years of reclusion temporal, as maximum, as well as to pay P20,000 moral damages and P10,000 fine is AFFIRMED.

Costs against petitioner.

SO ORDERED.

xxxiv xxxv xxxvi xxxvii xxxviii xxxix xl

xli[G.R. No. 174205, June 27, 2008]

GONZALO A. ARANETA PETITIONER, V.S. PEOPLE OF THE PHILIPPINES RESPONDENT. DECISION

CHICO-NAZARIO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails the Decision[1] of the Court of Appeals dated 15 February 2005, which affirmed the Decision[2] of the Regional Trial

Court (RTC) of Dumaguete City, Branch 41, finding petitioner Gonzalo Araneta y Alabastro guilty of violating Section 10(a), Article VI of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended. On 12 October 1999, petitioner was charged before the RTC with violation of Section 10(a), Article VI of Republic Act No. 7610, allegedly committed as follows: That on April 10, 1998, at about 11:00 o'clock in the morning, at Barangay Poblacion, District III, Dauin, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the said Gonzalo Araneta y Alabastro, with intent to abuse, harass and degrade 17-year-old offended party AAA [3], and gratify the sexual desire of said accused, the latter, did, then and there willfully, unlawfully and feloniously, by means of force and intimidation, hold and embrace said AAA, after trespassing with violence into the room of the dwelling occupied by said offended party, all against the latter's will and consent.[4] When arraigned on 15 November 1999, petitioner pleaded not guilty. Thereafter, trial ensued. At the trial, the prosecution presented the following witnesses: (1) the victim herself, AAA, who testified on matters that occurred prior, during and after her abuse; (2) BBB, AAA's 12-year-old sister, whose testimony corroborated that of the victim; (3) CCC, AAA's mother who testified on the fact that the victim was a minor during the alleged commission of the crime. As culled from the combined testimonies of the prosecution witnesses, the prosecution was able to establish that at the time of the commission of the crime, AAA was 17 years old, having been born on 28 March 1981, in Batohon Daco, Dauin, Negros Oriental.[5] Because she was then studying at Dauin Municipal High School located at Poblacion, District III, Dauin, AAA left her birthplace to live near her school. She stayed at the house of a certain DDD as a boarder. At around 10:00 o'clock in the morning of 10 April 1998, while AAA and her two younger sisters, BBB and EEE were sitting on a bench at the waiting shed located near her boarding house, petitioner approached her. Petitioner, who had been incessantly courting AAA from the time she was still 13 years old, again expressed his feelings for her and asked her to accept his love and even insisted that she must accept him because he had a job.[6] She did not like what she heard from petitioner and tried to hit him with a broom but the latter was able to dodge the strike.[7] She and her two sisters dashed to the boarding house which was five meters away and went inside the room. When they were about to close the door, the petitioner, who was following them, forced himself inside. The three tried to bar petitioner from entering the room by pushing the door to his direction. Their efforts, however, proved futile as petitioner was able to enter.[8] There petitioner embraced AAA, who struggled to extricate herself from his hold. AAA then shouted for help. Meanwhile, petitioner continued hugging her and tried to threaten her with these words: "Ug dili ko nimo sugton, patyon tike. Akong ipakita nimo unsa ko ka buang"[9] (If you will not accept my love I will kill you. I will show you how bad I can be). BBB, tried to pull petitioner away from her sister AAA, but to no avail.[10] Andrew Tubilag, who was also residing in the same house, arrived and pulled petitioner away from AAA. [11] AAA closed the door of the room and there she cried. She then went to the police station to report the incident. [12] The petitioner, on the other hand, denied the charge. He alone took the stand. Petitioner narrated that he met AAA and her younger sisters at the waiting shed, but he denied having embraced or kissed the victim.[13] He said he only spoke to her and told her that he loved her. Although he admitted that he followed AAA and her sisters when they went to the boarding house, it was because AAA beckoned him to follow her. [14] When he was inside the room, he again told her of his feelings but he was merely told by her to wait until she finished her studies.[15] He further said that he had been courting and visiting AAA since she was 12 or 13 years old.[16] On 27 February 2001, the RTC rendered a decision totally disregarding petitioner's bare denials and flimsy assertions. In convicting petitioner of the crime charged, it held that petitioner's act of forcibly embracing the victim against her will wrought injury on the latter's honor and constituted child abuse as defined under Section 10(a), Article VI of Republic Act No. 7610. It further ruminated that if the mentioned statute considers as child abuse a man's mere keeping or having in his company a minor, twelve years or under or ten years or more his junior, in any public place, all the more would the unwanted embrace of a minor fall under the purview of child abuse. The decretal portion of the RTC decision reads: WHEREFORE, the Court finds accused Gonzalo Araneta y Alabastro guilty beyond reasonable doubt of Violation of Section 10(a) of Republic Act No. 7610 and hereby sentences him to suffer the penalty of prision mayor in its minimum period, to pay the offended party Php50,000.00 as moral

damages without subsidiary imprisonment in case of insolvency, and to pay the costs.

[17]

Dissatisfied with the ruling of the RTC, petitioner elevated the case to the Court of Appeals. Petitioner claimed that the RTC gravely erred in convicting him of child abuse despite failure of the prosecution to establish the elements necessary to constitute the crime charged. Section 10(a) provide: "Any person who shall commit any other acts of abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period "; and Section 3(b)(2) defines child abuse in this manner: "Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being." From these provisions, petitioner concludes that an act or word can only be punishable if such be prejudicial to the child's development so as to debase, degrade or demean the intrinsic worth and dignity of a child as a human being. In other words, petitioner was of the opinion that an accused can only be successfully convicted of child abuse under Section 10(a) if it is proved that the victim's development had been prejudiced. Thus, according to petitioner, absent proof of such prejudice, which is an essential element in the crime charged, petitioner cannot be found guilty of child abuse under the subject provision. The Office of the Solicitor General (OSG), on the other hand, believes that the questioned acts of petitioner fall within the definition of child abuse. According to the OSG, when paragraph (a) of Section 10 of Republic Act No. 7610 states: "Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other condition prejudicial to the child's development x x x," it contemplates two classes of "other acts" of child abuse, i.e., (1) other acts of child abuse, cruelty, and exploitation; and (2) other conditions prejudicial to the child's development. It argues that unlike the second kind of child abuse, the first class does not require that the act be prejudicial to the child's development. In a decision dated 15 February 2005, the Court of Appeals concurred in the opinion of the OSG. It affirmed in toto the decision of the RTC, viz: WHEREFORE, the instant appeal is DENIED and accordingly, the assailed Decision is AFFIRMED in toto.[18] Petitioner filed a motion for reconsideration dated 14 March 2005, which was denied by the Court of Appeals in its 10 August 2006 Resolution. Hence, the instant petition. The petition is devoid of merit. Republic Act No. 7610 is a measure geared towards the implementation of a national comprehensive program for the survival of the most vulnerable members of the population, the Filipino children, in keeping with the Constitutional mandate under Article XV, Section 3, paragraph 2, that " The State shall defend the right of the children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." [19] This piece of legislation supplies the inadequacies of existing laws treating crimes committed against children, namely, the Revised Penal Code and Presidential Decree No. 603 or the Child and Youth Welfare Code.[20] As a statute that provides for a mechanism for strong deterrence against the commission of child abuse and exploitation, the law has stiffer penalties for their commission, and a means by which child traffickers could easily be prosecuted and penalized.[21] Also, the definition of child abuse is expanded to encompass not only those specific acts of child abuse under existing laws but includes also "other acts of neglect, abuse, cruelty or exploitation and other conditions prejudicial to the child's development." Article VI of the statute enumerates the "other acts of abuse." Paragraph (a) of Section 10 thereof states: Article VI OTHER ACTS OF ABUSE

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. (a) Any person who shall commit any other acts of abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article Article 59 of Presidential Decree No. 603, as amended, but not covered by the

Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. (Emphasis supplied.) As gleaned from the foregoing, the provision punishes not only those enumerated under Article 59 [22] of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the child's development. The Rules and Regulations of the questioned statute distinctly and separately defined child abuse, cruelty and exploitation just to show that these three acts are different from one another and from the act prejudicial to the child's development. Contrary to petitioner's assertion, an accused can be prosecuted and be convicted under Section 10(a), Article VI of Republic Act No. 7610 if he commits any of the four acts therein. The prosecution need not prove that the acts of child abuse, child cruelty and child exploitation have resulted in the prejudice of the child because an act prejudicial to the development of the child is different from the former acts. Moreover, it is a rule in statutory construction that the word "or" is a disjunctive term signifying dissociation and independence of one thing from other things enumerated.[23] It should, as a rule, be construed in the sense which it ordinarily implies. Hence, the use of "or" in Section 10(a) of Republic Act No. 7610 before the phrase "be responsible for other conditions prejudicial to the child's development" supposes that there are four punishable acts therein. First, the act of child abuse; second, child cruelty; third, child exploitation; and fourth, being responsible for conditions prejudicial to the child's development. The fourth penalized act cannot be interpreted, as petitioner suggests, as a qualifying condition for the three other acts, because an analysis of the entire context of the questioned provision does not warrant such construal. The subject statute defines children as persons below eighteen (18) years of age; or those over that age 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.[24] It is undisputed that the victim, under said law, was still a child during the incident. Subsection (b), Section 3, Article I of Republic Act No. 7610, states: (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. The evidence of the prosecution proved that petitioner, despite the victim's protestation, relentlessly followed the latter from the waiting shed to her boarding house and even to the room where she stayed. He forcibly embraced her and threatened to kill her if she would not accept his love for her. Indeed, such devious act must have shattered her self-esteem and womanhood and virtually debased, degraded or demeaned her intrinsic worth and dignity. As a young and helpless lass at that time, being away from her parents, the victim must have felt desecrated and sexually transgressed, especially considering the fact that the incident took place before the very eyes of her two younger, innocent sisters. Petitioner who was old enough to be the victim's grandfather, did not only traumatize and gravely threaten the normal development of such innocent girl; he was also betraying the trust that young girls place in the adult members of the community who are expected to guide and nurture the well-being of these fragile members of the society. Undoubtedly, such insensible act of petitioner constitutes child abuse. As the RTC aptly observed: It bears stressing that the mere keeping or having in a man's companion a minor, twelve (12) years or under or who is ten (10) years or more his junior in any public or private place already constitutes child abuse under Section 10(b) of the same Act. Under such rationale, an unwanted embrace on a minor would all the more constitute child abuse.[25] This factual findings of the RTC, which were affirmed by the Court of Appeals are entitled to respect and are not to be disturbed on appeal, unless some facts or circumstances of weight and substance, having been overlooked or misinterpreted, might materially affect the disposition of the case.[26] The assessment by the trial court of the credibility of a witness is entitled to great weight. It is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact

or circumstance of weight and influence. In the case under consideration, we find that the trial court did not overlook, misapprehend, or misapply any fact of value for us to overturn the said findings. The RTC imposed upon petitioner the penalty of prision mayor in its minimum period. The penalty is in order, pursuant to Section 10(a), Article VI of Republic Act No. 7610. As to the award of damages, the victim is entitled to moral damages, having suffered undue embarrassment when petitioner forcibly hugged her and threatened to kill her if she would not accept petitioner's love. There is no hard-and-fast rule in the determination of what would be a fair amount of moral damages, since each case must be governed by its own peculiar facts. [27] The yardstick should be that it is not palpably and scandalously excessive.[28] The Court finds that the award of moral damages in the amount of P50,000.00 is reasonable under the facts obtaining in this case. WHEREFORE, the 15 February 2005 Decision of the Court of Appeals in CA-G.R. CR No. 25168, which affirmed in toto the Decision of the Dumaguete City Regional Trial Court, Branch 41 in Criminal Case No. 14246 finding Gonzalo A. Araneta guilty of violating Section 10(a), Article VI of Republic Act No. 7610 and sentencing him to suffer the penalty of prision mayor in its minimum period and awarding to the victim moral damages in the amount of G.R. No. 132875-76 February 3, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO G. JALOSJOS, accused-appellant. RESOLUTION YNARES-SANTIAGO, J.: The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts1 is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense. The issue raised is one of the first impression. Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in the judicial interpretation of legislative privilege in the context of penal law. The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was filed on the grounds that 1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any ruling, giving priority to any right or interest not even the police power of the State. 2. To deprive the electorate of their elected representative amounts to taxation without representation. 3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed mandates entrusted to him by the people. 4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard. 5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress. 6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of government to respect its mandate. 7. The concept of temporary detention does not necessarily curtail the duty of accusedappellant to discharge his mandate. 8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.

The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by his constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints arising from pending criminal cases. True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first task is to ascertain the applicable law. We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to high government office, by itself, frees the official from the common restraints of general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience rather than exemption. The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations. The 1935 Constitution provided in its Article VI on the Legislative Department. Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going to and returning from the same, . . . Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal. The 1973 Constitution broadened the privilege of immunity as follows: Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from the same. For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by the concluding portion of the provision, to wit: . . . but the Batasang Pambansa shall surrender the member involved the custody of the law within twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so. The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session. The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations. Accused-appellant's reliance on the ruling in Aguinaldo v. Santos2, which states, inter alia, that

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people. will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or, otherwise, disqualified. One rationale behind confinement, whether pending appeal or after final conviction, is public selfdefense. Society must protect itself. It also serves as an example and warning to others. A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States v. Gustilo,3 it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his absconding.4 The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his regular place of confinement. It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to welldefined Constitutional restrains, it would be a mockery of the aims of the State's penal system. Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit: a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue of whether to expel/suspend him from the House of Representatives; b) to undergo dental examination and treatment at the clinic of his dentist in Makati City; c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City; d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered plane and private vehicle. He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises, to wit. a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one guard and allowed to use his own vehicle and driver in going to and from the project area and his place of confinement. b) to continue with his dental treatment at the clinic of his dentist in Makati City. c) to be confined at the Makati Medical Center in Makati City for his heart condition. There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders. What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meeting for five (5) days or more in a week will virtually make him free man with all the privilege appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard are the following observations of the Court in Martinez v. Morfe:5

The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience of their conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would remain independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence. The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions when he is allowed to leave jail. We remain unpersuaded.1wphi1.nt No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department coordination, he is also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further admits that while under detention, he has filed several bills and resolutions. It also appears that he has been receiving his salaries and other monetary benefits. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been allowed by the prison authorities at the National Penitentiary to perform these acts. When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws."6 This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.7 The organs of government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislative ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need to its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into

a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals.8 The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.9 We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.10 Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of his power of locomotion.11 More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is restraint by judgment of a court or lawful tribunal, and is personal to the accused.12 The term refers to the restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free action according to his own pleasure and will.13 Imprisonment is the detention of another against his will depriving him of his power of locomotion14 and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits defined by wall or any exterior barrier."15 It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in society.16 Prison officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.17 Premises considered, we are constrained to rule against the accused-appellant's claim that reelection to public office gives priority to any other right or interest, including the police power of the State. WHEREFORE, the instant motion is hereby DENIED. SO ORDERED. Kapunan, Panganiban, Quisumbing, Purisima, Pardo Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., and also in separate opinion of Justice Reyes. Bellosillo, J., I concur in the main and separate opinion. Melo, J., I join the majority as well as the separate opinion. Puno, J., I concur with the main and separate opinion. Vitug, J., I concur in both the ponencia and the separate opinion. Mendoza, J., I concur in this as well as in the separate opinion of Justice Gonzaga-Reyes. Gonzaga-Reyes, J., See separate concurring opinion.

Separate Opinions GONZAGA-REYES, J., concurring opinion; For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who has been convicted by the trial court of two counts of statutory rape and six counts of acts of lasciviousness, which judgment is currently pending appeal before this Court. As a member of the House of Representatives, accused-appellant claims that his constituents are deprived of representation by reason of his incarceration pending appeal of the judgment of conviction and that he should therefore be allowed to discharge his legislative functions, including attendance of legislative sessions and committee meetings. I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in holding that accused-appellant's motion is bereft of any legal merit. The Bill of Rights provides All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired

even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.1 (emphasis supplied) This constitutional provision denying the right to bail for offenses punishable by reclusion perpetua when the evidence of guilt is strong is reiterated in Rule 114 of the Rules of Criminal Procedure, viz Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. The trial court found accused-appellant guilty of the crime of statutory rape, which is punishable by reclusion perpetua. In People v. Divina2 we held that the trial court's judgment of conviction imports that the evidence of guilt of the crime charged is strong. Unquestionably, the continued incarceration of accused-appellant is a valid and constitutionally mandated curtailment of his rights to provisional liberty pending appeal of his conviction. Neither may the constitutional provision granting immunity from arrest to legislators provide legal justification for accused-appellant's motion. The Constitution states that A Senator of Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.3 I agree with the ponencia that to allow accused-appellant to attend legislative sessions would constitute an unjustified broadening of the privilege from the arrest bestowed by the Constitution upon members of Congress. Neither the legislative history of this provision nor the general principles of official immunity support an expanded interpretation of such privilege. Unlike the present Constitution, the 1935 Constitution4 limited the privilege from arrests to "all cases except treason, felony, and breach of the peace." This provision was taken from the Philippine Autonomy Act of 1916, which was in turn based upon the American Constitution. In accordance with American precedents, the word "treason, felony and breach of the peace" have been construed to include all indictable offenses.5 Thus, under the 1935 Constitution the freedom from arrest only encompassed civil arrest. Under the 19736 and the 1987 Constitution, the privilege was broadened to include arrests for crimes punishable by imprisonment of six years or less. Despite the expansion of the privilege, the rationale for granting members of Congress immunity from arrest remained the same to ensure that they are not prevented from performing their legislative duties.7 In fact, the 1986 Constitutional Commission rejected the proposal of one of its members to expand the scope of the parliamentary immunity to include searches because, unlike arrest, it was not demonstrated that the conduct of searches would prevent members of Congress from discharging their legislative functions.8 It is a well-established principle that official immunity is a necessary adjunct to the vigorous and effective performance of official functions. Members of Congress in particular, who are called upon to exercise their discretion and judgment in enacting laws responsive to the needs of the people, would certainly be impeded in the exercise of their legislative functions if every dissatisfied person could compel them to vindicate the wisdom of their enactments in an action for damages or question their official acts before the courts.9 It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a member of Congress from the consequences of his wrongdoing. Thus, despite the widening of its scope to include criminal offenses, the privilege from arrest is still circumscribed by the nature or the gravity of the offenses of which the accused is charged. Hence, the commission of serious crimes, i.e., crimes punishable by afflictive penalties or with capital punishment, does not fall within the scope of the constitutional privilege. A member of Congress could only invoke the immunity from arrest for relatively minor offenses, punishable at most by correctional penalties. As enunciated in Martinez v. Morfe,10 "when it comes to freedom from arrest, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same" The accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua, an afflictive penalty, is obviously not entitled to the privilege of parliamentary immunity and, proceeding from the above stated rationale for legislative immunity, a liberal construction of the constitutional privilege is not in order. It should also be mentioned that, under the factual circumstances of this case, the applicability of this privilege from arrest to accused-appellant is already moot and academic. The constitutional

provision contemplates that stage of the criminal process at which personal jurisdiction is sought to be acquired over the accused by means of his arrest. Accused-appellant is no longer at the point of merely being arrested. As a matter of fact, he has already been arrested, tried and convicted by the trial court. Accused-appellant's contention that his re-election constitutes a renewal of his mandate and that such an expression of the popular will should not be rendered inutile by even the police power of the State is hollow. In Aguinaldo v. Comelec,11 Aguinaldo v. Santos12 and in Salalima v. Guingona13 we laid down the doctrine that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove therefor. This doctrine of forgiveness or condonation cannot apply to criminal acts which the re-elected official may have committed during his previous term.14 The administrative liability of a public officer is separate and distinct from his penal liability.1wphi1.nt Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the Constitution itself provides for the immunities from the general application of our criminal laws which a Senator or Member of the House of Representatives may enjoy, it follows that any expansion of such immunities must similarly be based upon an express constitutional grant. I vote to deny the motion. bbP50,000.00 as moral damages, is AFFIRMED in toto. No costs. SO ORDERED.

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