THIRD DIVISION
[G.R. No. 236777. April 16, 2018.]
FRANKLIN FELIX y GOTO a.k.a. "INGKI", petitioner,vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedApril 16, 2018, which reads as follows:
"G.R. No. 236777 (Franklin Felix y Goto a.k.a. "Ingki", Petitioner, v. People of the Philippines, Respondent.) — The petitioner was charged under the information dated November 6, 2013 with the crime of child abuse as defined and punished under Section 5 (b) of Republic Act No. 7610 (Special Protection of Children against Abuse, Exploitation and Discrimination Act) in relation to Section 5 (j) of Republic Act No. 8369 in the Regional Trial Court (RTC), Branch 68, in Binangonan, Rizal.
The minor victim, AAA, 1 testified that she knew the petitioner; that he was not good to her because he touched her pepe while they were inside the house of her Tito BBB; that her mother was then upstairs at the time, which she and the petitioner were in the ground floor watching television; that he inserted his hand inside her panty, kissed her on the neck, and touched her breasts; and that she told her mother what he did to her.
TTT, AAA's mother, recalled that at around 10:00 o'clock in the morning of May 21, 2013, she was in the second floor of her house while AAA and the petitioner were downstairs; that when she went down, she noticed that he was no longer around; that AAA then told her: Mommy, mommy, bad kuya Ingki hinipo po niya pepe ko tsaka dede, kiss po niya ako labas po dila niya tapos yung laway nya; that she got mad at this, and texted the petitioner, but he did not respond; that she went out to look for him but did not find him; that on June 5, 2013, she learned from someone of the his whereabouts; that she finally found him there and immediately hit him; and that she uttered at him: Walang utang na loob, manyakis ka.
The petitioner denied the accusation. He stated that TTT was AAA's adopted mother; that he was then in the house of one Gil Francisco on May 21, 2013, at about 10:00 o'clock in the morning, when the supposed incident occurred; that TTT, who was a lesbian, was only jealous of him because he courted VVV, TTT's live-in partner; that on June 5, 2013, TTT confronted him about his having molested AAA; that TTT then had company; and that TTT slapped and hurt him but he defended himself by parrying her assault.
On November 14, 2016, the RTC rendered judgment convicting the petitioner, 2 disposing:
WHEREFORE, judgment is rendered finding accused FRANKLIN FELIX y GOTO GUILTY beyond reasonable doubt of the offense of Child Abuse under Section 5(b), Article III of R.A. 7610 and sentencing him to suffer the penalty of 8 years and 1 day of Prision Mayor as minimum and 17 years, 4 months and 1 day of Reclusion Temporal as maximum and to pay the fine of Two Thousand Pesos (P2,000.00) and to pay AAA moral damages in the same amount of Two Thousand Pesos (P2,000.00)
In the service of sentence, the accused Franklin shall be credited the time during which he undergone preventive imprisonment subject to the provisions of Article 29 of the Revised Penal Code.
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SO ORDERED. 3
The petitioner appealed, but the CA affirmed his conviction on October 19, 2017 with modification, 4 to wit:
WHEREFORE, premises considered, the appeal is DENIED. The Decision dated 14 November 2016 of the Regional Trial Court of Binangonan, Rizal, Branch 68 in Crim. Case No. 13-488, finding accused-appellant Franklin Felix y Goto a.k.a. "Ingki," guilty beyond reasonable doubt of violation of Section 5(b), Article III of Republic Act No. 7610 is AFFIRMED with MODIFICATION, in that accused appellant is hereby sentenced to suffer the indeterminate penalty of twelve (12) years and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty-one (21) days of reclusion temporal, as maximum, and to pay a fine of Php15,000.00. Further, accused-appellant is ordered to pay the child victim AAA the amounts of Php20,000.00 as civil indemnity, Php15,000.00 as moral damages and Php15,000.00 as exemplary damages, plus interest of six percent (6%) per annum on all damages from finality of this Decision until fully paid.
SO ORDERED.
Hence, this appeal.
Ruling of the Court
After a judicious review of records, the Court RESOLVES TO DENY the petition for review on certiorari for failure of the petitioner to show that the CA committed reversible error in finding him guilty of the offense charged.
The elements of sexual abuse under Section 5 of R.A. No. 7610 are the following, namely: (a) the accused commits the act of sexual intercourse or lascivious conduct; (b) the act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (c) the child, whether male or female, is below 18 years of age.
The Prosecution proved beyond reasonable doubt that the petitioner committed acts lasciviousness against AAA by placing his hand inside the panty of AAA, kissing her on the neck and touching her breast to satisfy his lust. The Court of Appeals pointed out that he thereby subjected AAA to sexual abuse. Based on her certificate of live birth, AAA was four years old at the time he committed the acts of lasciviousness.
The petitioner challenges the competence of AAA to sit as a witness during the trial, claiming that she had been coached by TTT on what to say when she gave her statement to the police. We reject the challenge. In our view, the RTC correctly determined AAA's competence as a witness, and properly rejected his imputation of ill-motives to TTT. The determination of the competence and credibility of a child as a witness rests primarily with the trial judge who has the direct opportunity to see the witness and observe her manner, her apparent intelligence or lack of it, and her understanding of the nature of the oath. The trial judge's evaluation will not be disturbed on review because many of these considerations cannot be conveyed by the records of the trial unless the evaluation is shown to be erroneous. 5 The simplicity and candor of AAA's describing what transpired between the petitioner and herself manifested a truthfulness worthy of this Court's belief. We cannot but reiterate that all matters affecting credibility are best left to the trial court because of its unique opportunity to observe the elusive and incommunicable evidence of that witness' deportment on the stand while she was testifying, an opportunity denied to the appellate courts which usually rely on the cold pages of the silent records of the case. 6
The petitioner further contends that the two witnesses presented by the Defense accurately attested to his whereabouts during the date and time of the supposed commission of the crime. We should remark, however, that the attestations of his witnesses did not substantiate a credible alibi for him considering that they did not thereby show the physical impossibility for him to be at the scene of the crime on the date and time in question. Alibi, to be a defense, must consist not only of a showing of the culprit's having been in another place at the time of the commission of the crime, but also of a showing of the physical impossibility for the culprit to be in the place of the commission of the crime at the time thereof. That showing was not made in this case.
Section 5 (b) of R.A. No. 7610 provides:
Section 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
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(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and
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The penalty for the petitioner is reclusion temporal in its medium period, which ranges from 14 years, eight months and one day to 17 years and four months. In the absence of any aggravating or mitigating circumstances, such penalty is to be imposed in its medium period, that is, 15 years, six months and 21 days to 16 years, five months and 10 days.
Section 1 of the Indeterminate Sentence Law provides that the sentence of the accused shall be "an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the [Revised Penal] Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the [Revised Penal] Code for the offense." Accordingly, the maximum of the indeterminate sentence of the petitioner shall be 15 years, six months and 21 days, which the CA correctly determined, and the minimum shall be taken from reclusion temporal in its minimum period (i.e., 12 years and one day to 14 years, eight months). Although the CA fixed 12 years and one day as the minimum, the Court imposes the median of 13 years of reclusion temporal as the minimum. Hence, the indeterminate sentence shall be 13 years of reclusion temporal, as minimum, to 15 years, six months and 21 days of reclusion temporal, as maximum.
WHEREFORE, the Court AFFIRMS the decision promulgated on October 19, 2017 subject to the FURTHER MODIFICATION that the indeterminate sentence shall be 13 years of reclusion temporal, as minimum, to 15 years, six months and 21 days of reclusion temporal, as maximum.
Cost of suit to be paid by the petitioner.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1. The real names of the offended party and the members of her immediate family is withheld pursuant to Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti-Violence against Women and Their Children Act of 2004); and A.M. No. 04-10-11-SC effective November 15, 2004 (Rule on Violence against Women and Their Children). See also People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 421-423.
2.Rollo, pp. 63-71.
3.Id. at 70-71.
4.Id. at 30-48; penned by Associate Justice Celia C. Librea-Leagogo and concurred in by Associate Justice Maria Elisa Sempio Diy and Associate Justice Henri Jean Paul B. Inting.
5.Dulla v. Court of Appeals, G.R. No. 123164, February 18, 2000, 326 SCRA 32, 41.
6.People v. Del Mundo, Jr., 408 Phil. 118, 129 (2001).