Fernandez v. People

FIRST DIVISION

[G.R. No. 246006. February 1, 2021.]

SUNNY FERNANDEZ @ "BULDOG", petitioner,vs. PEOPLE OF THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedFebruary 1, 2021which reads as follows: HTcADC

"G.R. No. 246006 (Sunny Fernandez @ "Buldog" v. People of the Philippines). — Before Us is a Petition for Review on Certiorari1 assailing the Decision 2 dated September 26, 2018 of the Court of Appeals (CA) in CA-G.R. CR No. 40251 which affirmed the Joint Decision 3 dated May 9, 2017 of the Regional Trial Court (RTC) of Dagupan City, Branch 43 in Criminal Case Nos. 2015-1324-D and 2015-1410-D finding Sunny Fernandez @ "Buldog" (petitioner) guilty beyond reasonable doubt of violation of Section 5 (b), Article III, of Republic Act (R.A.) No. 7610.

After a perusal of the records of the case, this Court resolves to deny the petition for failure to sufficiently show any reversible error in the assailed Decision of the CA.

Section 5 (b) of Republic Act No. (R.A.) 7610 provides that:

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

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

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x

Under Section 5 (b) of R.A. 7610, the elements of sexual abuse are:

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

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

(3) The child, whether male or female, is below 18 years of age. 4

Here, the allegations of petitioner to the effect that he could not have sexually abused AAA 5 on January 1, 2015 and on April 11, 2015 because of the presence of his siblings and family 6 cannot be given consideration to exonerate him. It is not impossible to commit the sexual abuse even if petitioner's family was present or just in the other room during the commission of the sexual abuse. It is well-settled that the presence of other people is not a deterrent to the commission of the sexual abuse. 7 Rapists are not deterred from committing the odious act of sexual abuse by the mere presence of people nearby or even family members; rape is committed not exclusively in seclusion. Lust is no respecter of time and place. 8

Further, the reason of petitioner that the charges of AAA was merely fabricated to get back at petitioner's parents for preventing AAA to go to their house since AAA was a bad influence and a stow away 9 is flimsy to be considered by this Court. No woman, especially not a minor, would concoct a story of defloration, allow an examination of her private parts, and submit herself to public humiliation and scrutiny, if her charges were not true and was only orchestrated and motivated by revenge. The charges against the petitioner are motivated simply by AAA's fervent desire to seek justice.

We observed that the Informations 10 filed against the petitioner contained elements of rape under Article 266-A of the Revised Penal Code (RPC) 11 and sexual abuse under Section 5 (b), Article III, R.A. 7610. 12 In the recent case of People v. Tulagan, 13 when the victim who is 12 years old or below 18, and the charge against the accused is carnal knowledge through "force, threat, or intimidation," then he must be charged with rape under Article 266-A of the RPC. When the child is deemed exploited in prostitution or other sexual abuse, without the element of force, threat or intimidation, the crime is sexual abuse under Section 5 (b), Article III, of R.A. 7610. 14

In People v. Tubillo, 15 when the Information involves both elements of rape under Article 266-A of the RPC and Section 5 (b), Article III of R.A. 7610, the court must examine the evidence of the prosecution, whether it was focused on the specific force or intimidation employed by the offender or on the broader concept of coercion or influence to have carnal knowledge with the victim. 16

In this case, petitioner was able to have sexual intercourse with AAA by coercing or influencing her in the pretext that he will report AAA to her mother that she has a boyfriend. Even though the said coercion was only in relation to the incident on December 25, 2014 and not to the other dates of the sexual abuse, 17 such coercion was enough to subdue AAA's free will and coerced her to have sexual intercourse with petitioner until AAA had enough and reported the incident to her classmate and her parents. 18

Force, threat or intimidation to the victim is not necessary to be liable for sexual abuse under Section 5 (b), Article III of R.A. 7610. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. 19 The disparity in age of AAA and the petitioner coupled with the fear of being reported to her mother that she has a boyfriend even if she has none, was enough to coerce AAA to engage in sexual intercourse with petitioner.

As instructed by this Court in People v. Caoili20 that if the victim is 12 years of age or more but below 18 years of age, the crime should be designated as Lascivious Conduct under Section 5 (b) of R.A. 7610 and the penalty imposed is reclusion temporal medium to reclusion perpetua. 21 It is therefore necessary to modify the penalty imposed by the RTC in this case. Since there is no mitigating or aggravating circumstance in this case, the penalty should be imposed in its medium period or 17 years, 4 months and 1 day to 20 years. Thereafter, applying the Indeterminate Sentence Law, the minimum of the penalty should be taken with the next degree from that prescribed by law, which is prision mayormedium to reclusion temporalminimum or anywhere within the range of 8 years and 1 day to 14 years and 8 months. Hence, petitioner should be penalized an indeterminate 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.

As for damages, this Court held in People v. Tulagan22 that for those convicted of the crime of Lascivious Conduct under Section 5 (b) of R.A. 7610 and the penalty imposed is reclusion temporalmedium the amounts of P50,000.00 as moral damages, P50,000.00 as civil indemnity and P50,000.00 as exemplary damages are to be imposed. 23

Further, a legal interest of 6% per annum is to imposed on the total damages awarded reckoned from the date of finality of this Resolution until full payment thereof.

WHEREFORE, the instant petition is DENIED. The Decision dated September 26, 2018 of the Court of Appeals in CA-G.R. CR No. 40251 is MODIFIED as follows:

a. In Criminal Case Nos. 2015-1324-D and 2015-1410-D, petitioner Sunny Fernandez @ "Buldog" is found GUILTY beyond reasonable doubt of the crime of Lascivious Conduct under Section 5 (b) of Republic Act No. 7610 and is sentenced to suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum for each count;

b. Petitioner Sunny Fernandez @ "Buldog" is further ORDERED to pay AAA the amounts of P50,000.00 as moral damages, P50,000.00 as civil indemnity and P50,000.00 as exemplary damages, each for Criminal Case Nos. 2015-1324-D and 2015-1410-D; and

c. A legal interest of six percent (6%) per annum is to imposed on the total damages awarded reckoned from the date of finality of this Resolution until full payment thereof.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 18-29.

2. Penned by Associate Justice Stephen C. Cruz, with the concurrence of Associate Justices Zenaida T. Galapate-Laguilles and Rafael Antonio M. Santos; id. at 37-49.

3. Penned by Judge Caridad V. Galvez; id. at 54-88.

4.People v. Caoili, 815 Phil. 839, 886 (2017).

5. The real name of the victim and of the members of her immediate family are withheld pursuant to Republic Act No. 7610 otherwise known as the "Special Protection of Children against Abuse, Exploitation and Discrimination Act" and A.M. No. 12-7-15-SC entitled "Protocols and Procedures in the Promulgation, Publication, and Posting on the Websites of Decisions, Final Resolutions and Final Orders Using Fictitious Names."

6.Rollo, pp. 25-27.

7.People v. Gaduyon, 720 Phil. 750, 776 (2013).

8.People v. Agudo, 810 Phil. 918, 929 (2017).

9.Rollo, pp. 27-28.

10.Id. at 123-124, 219-220.

11. Article 266-A. Rape: When and How Committed. — Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

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

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

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

12. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x

13. G.R. No. 227363, March 12, 2019.

14.Id.

15. 811 Phil. 525 (2017).

16.Id. at 536.

17.Rollo, pp. 4-12.

18.Id. at 90, 98.

19.People v. Dagsa, 824 Phil. 704, 722 (2018).

20. 815 Phil. 839 (2017).

21.Id. at 894.

22.Supra note 13.

23.Id.