THIRD DIVISION
[G.R. No. 240480. March 13, 2019.]
GEORGE FRANCO y ESLABAN, petitioner, vs.PEOPLE OF THE PHILIPPINES, accused.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated March 13, 2019, which reads as follows:
"G.R. No. 240480 (George Franco y Eslaban vs. People of the Philippines). — The Court NOTES the transmittal letter dated January 31, 2019 of Jane G. Sabido, Chief, Archives Section, Judicial Records Division of the Court of Appeals (CA), forwarding to this Court the CA rollo and original records of CA-G.R. CR No. 39094, in compliance with the Resolution 1 dated September 19, 2018.
This treats of the Petition for Review on Certiorari 2 under Rule 45 of the Revised Rules of Court filed by herein petitioner George Franco y Eslaban (Franco), seeking the reversal of the Decision 3 dated January 10, 2018, and the Resolution 4 dated June 29, 2018, rendered by the CA in CA-G.R. CR No. 39094, which affirmed the trial court's ruling convicting him of the crime of Rape through Sexual Assault under paragraph 2 of Article 266-A of the Revised Penal Code (RPC), in relation to Section 5 (b) of Republic Act (R.A.) No. 7610. 5
The Antecedents
In an Information dated March 19, 2013, Franco was charged with Rape, defined and penalized under Article 266-A, paragraph 2 of the RPC, in relation to R.A. No. 7610, committed as follows:
That on or about March 15, 2013 ______________ and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, by means of force and intimidation employed upon the person of AAA, 6 7 years old (DOB: February 5, 2006), did then and there willfully and unlawfully insert his finger inside her vagina, against her will and without her consent, thereby subjecting the said minor to sexual abuse which debased, degraded and demeaned her intrinsic worth and dignity as a human being.
CONTRARY TO LAW. 7
The antecedent facts show that on March 15, 2013, ZZZ, the daughter of Franco, invited her classmate AAA to play in their house. AAA was 7 years old. 8
While at the Franco residence, Franco suddenly carried AAA and ordered her to lie down on the bed. Then, he inserted his index finger in AAA's vagina, and then covered her eyes and face. AAA felt dizzy. Franco threatened her not to report the incident to anyone, otherwise, he will hit her with the buckle of the belt. 9
Meanwhile, at around 6:00 p.m. of March 17, 2013, AAA's mother, BBB, went to the house of her sibling CCC, a nurse. While there, AAA asked for an ointment as she had rashes in her vagina. CCC took AAA to the comfort room, and asked her to spread her legs so she could apply the ointment. CCC noticed that AAA's vagina had a big opening, and was lacerated. Suddenly, AAA cried. After a certain amount of prodding, AAA admitted that while she was at her friend ZZZ's house, Franco inserted his finger inside her vagina, and covered her face with a handkerchief. She also told BBB that Franco warned her not to report the incident to anyone. 10 CAIHTE
On March 18, 2013, PCI Jocelyn P. Cruz (PCI Cruz), Medico-Legal Officer, conducted a physical and genital examination on AAA. PCI Cruz opined that AAA's vaginal rash could have been caused by trauma or an infection due to itchiness. She, likewise, concluded that AAA's shallow, healed laceration may have been caused by a blunt object like a penis or a finger. 11
For his part, Franco vehemently denied the charges levelled against him. He admitted that he knows AAA because she is the classmate of his daughter ZZZ. He claimed that he was at work in Powertrucking System, Inc. _________________ on March 15, 2013. He reported for work at around 8:02 a.m. and left at 7:00 p.m. He stated that he does not know why AAA would accuse him of rape.
ZZZ corroborated Franco's alibi that he was at work on March 15, 2013. ZZZ, likewise, related that she was with her mother, uncle and aunt at their house. She played with her friends outside of their house in the afternoon, then went home and saw her father arrive in the evening. She denied playing with AAA, and stated that she did not see AAA on that day. 12
Ruling of the Trial Court
On August 31, 2016, the Regional Trial Court (RTC) ______________ Branch 172, rendered a Decision 13 convicting Franco of the crime of Rape through Sexual Assault.
The dispositive portion of the RTC ruling reads:
WHEREFORE, the court finds accused GEORGE FRANCO y ESLABAN guilty beyond reasonable doubt as principal of the crime of Rape through Sexual Assault under paragraph 2 of Article 266-A of the [RPC], in relation to R.A. No. 7610, and in the absence of mitigating and aggravating circumstance [sic], and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the indeterminate penalty of imprisonment of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum[,] to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal[,] as maximum. He is likewise ordered to pay AAA the amounts of P30,000.00 as civil indemnity and P30,000.00 as moral damages which shall bear interest on all the amounts of damages awarded at the legal rate of 6% per annum from the date of the finality of judgment until fully paid.
SO ORDERED. 14
Dissatisfied with the ruling, Franco filed an appeal with the CA.
Ruling of the CA
On January 10, 2018, the CA rendered the assailed Decision 15 affirming with modification the conviction handed down by the RTC against Franco. The CA believed AAA's testimony and found that she credibly narrated the ordeal that she suffered in the hands of Franco. For this, the CA held that AAA's testimony deserves full weight and credence.
Likewise, the CA modified the amount of damages awarded by the RTC by increasing the amounts of civil indemnity and moral damages from P30,000.00 to P100,000.00.
The dispositive portion of the assailed CA ruling reads:
WHEREFORE, the appeal is DENIED.
The Decision dated August 31, 2016 rendered by the [RTC], Branch 172 of _________________, in Criminal Case No. 439-V-13, entitled "People of the Philippines vs. George Franco y Eslaban," for Rape under Article 266-A of the [RPC] in relation to [R.A. No.] 7610, is AFFIRMED with MODIFICATION in that the monetary award for civil indemnity is P100,000.00 and for moral damages is P100,000.00.
SO ORDERED. 16
Aggrieved, Franco filed a Motion for Reconsideration, 17 which was denied by the CA in its Resolution 18 dated June 29, 2018.
Undeterred, Franco filed the instant Petition for Review on Certiorari.
The Issue
The main issue raised for the Court's resolution rests on whether or not Franco is guilty beyond reasonable doubt of the crime of Rape Through Sexual Assault.
In his petition, Franco asserts that the prosecution failed to prove beyond reasonable doubt the existence of all the elements of rape through sexual assault. The fact of insertion of an object inside AAA's vagina was not established from the Medico-Legal Certificate. In relation thereto, the reported rashes found on AAA's vagina could have been caused by trauma, infection or itchiness. Similarly, the healed laceration may have been due to causes other than penetration. 19 DETACa
Moreover, Franco claims that the CA erred in giving credence to AAA's testimony. He points out that AAA related that the person who defiled her covered her face and eyes. This casts doubt unto AAA's ability to identify him as the malefactor. 20
Franco also faults the CA for not giving credence to the testimony of his daughter ZZZ. Being a minor, her testimony that she did not play with AAA on March 15, 2003, and her affirmation that Franco was at work, should have been given full faith and credit. 21
Lastly, Franco avers that assuming that his guilt is established, he cannot be penalized under Section 5 (b) of R.A. No. 7610, considering that the prosecution failed to adduce evidence to show that his purported acts debased, degraded and demeaned AAA's intrinsic worth and dignity. Neither did the prosecution establish the presence of force and intimidation during the alleged commission of rape. 22
On the other hand, the People, through the Office of the Solicitor General, counters that the prosecution proved all the elements for the crime of rape by sexual assault beyond reasonable doubt. The testimony of AAA was direct, candid and replete with details of the rape by sexual assault, committed against her by Franco. 23 As a child witness, AAA's testimony bears the earmarks of truth and candor. 24 She related that Franco inserted his finger inside her vagina through force and intimidation. This was confirmed by the findings of the Medico-Legal Officer who explained that AAA's shallow and healed laceration may have been caused by the insertion of a hard object like a penis or finger. 25
Ruling of the Court
The instant petition is bereft of merit.
The Prosecution Proved Beyond
Article 266-A of the RPC defines the crime of rape by sexual assault as follows:
Art. 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. (Emphasis Ours)
Notably, rape through sexual assault is described as "'instrument or object rape,' 'gender-free rape,' or 'homosexual rape.'" 26 The gravamen of said offense is "the insertion of the penis into another person's mouth or anal orifice, or any instrument or object, into another person's genital or anal orifice." 27
In prosecuting an accused for the crime of rape by sexual assault, the following elements must be established beyond reasonable doubt, to wit:
(i) That the offender commits an act of sexual assault;
(ii) That the act of sexual assault is committed by any of the following means:
(a) By inserting his penis into another person's mouth or anal orifice; or aDSIHc
(b) By inserting any instrument or object into the genital or anal orifice of another person;
(iii) That the act of sexual assault is accomplished under any of the following circumstances:
(a) By using force and intimidation;
(b) When the woman is deprived of reason or otherwise unconscious; or
(c) By means of fraudulent machination or grave abuse of authority; or
(d) When the woman is under 12 years of age or demented. 28
(Emphasis Ours)
In the case at bar, all the elements for the crime of rape by sexual assault were sufficiently proven beyond reasonable doubt. AAA narrated in a clear and categorical manner the harrowing ordeal that she suffered in the hands of Franco. Franco ordered her to lay on the bed, and inserted his index finger inside her vagina. He covered her eyes and face, which made her feel dizzy. Thereafter, Franco warned her not to report the incident to anyone, otherwise, he will hit her with a belt. 29
In a vain attempt to seek exoneration from the charge, Franco claims that the prosecution failed to prove the fact of force or intimidation in the commission of rape, as well as the presence of acts that debased, degraded and demeaned the intrinsic worth of AAA.
The Court is not persuaded.
The records show that the prosecution, in fact, sufficiently proved that Franco used force and intimidation to succeed in his bestial desires. Franco commanded AAA to lie on the bed. While AAA was in this weak and defenseless position, he suddenly inserted his finger inside her vagina. AAA could not resist. This constitutes a sufficient amount of force and intimidation especially considering the age and frailty of AAA.
Besides, it must likewise be noted that in rape through force and intimidation, "[a] rape victim has no burden to prove that she did all within her power to resist the force or intimidation employed upon her." 30 Resistance is not an element of rape. 31 "The force used in the commission of rape need not be overpowering or absolutely irresistible." 32 What is essential is simply that the force employed was sufficient to enable the offender to consummate the lewd purpose which he had in mind. 33 More so, in the case of innocent and immature girls, "who could not be expected to act with equanimity of disposition and with nerves of steel." 34 Young girls, like AAA, cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat. 35 In the instant case, there is no question that Franco succeeded in his brutish objective, through the force and intimidation he employed against AAA.
Furthermore, it is settled in jurisprudence that "force and intimidation" is subsumed under "coercion and influence," and used synonymously, as to allow the application of Section 5 (b) of R.A. No. 7610. 36 As exhaustively discussed in People of the Philippines v. Maul Macapagal y Manalo: 37
"[F]orce and intimidation" is said to be subsumed under "coercion and influence" and such terms are used almost synonymously. This can be gleaned from Black's Law Dictionary definitions of "coercion" as "compulsion; force; duress," of "influence" as "persuasion carried over to the point of overpowering the will," and of "force" as "constraining power, compulsion; strength directed to an end"; as well as from jurisprudence which defines "intimidation" as "unlawful coercion; extortion; duress; putting in fear." 38
AAA Related in a Clear and
It bears noting that rape is usually a crime bereft of witnesses, and, more often than not, the victim is left to testify for herself. 39 Recognizing the silent nature of the crime of rape, the Court has held time and again that a conviction for the said crime may be based solely on the testimony of the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the normal course of things. 40
In addition, jurisprudence has consistently given full weight and credit to a child's testimonies. This is borne out of the belief that "youth and immaturity are badges of truth and sincerity." 41 Accordingly, leeway is given to witnesses who are minors, especially when they are relating past incidents of abuse. 42
The records reveal that AAA was 7 years old at the time of the rape incident. Innocent, naïve and guileless as she was, she had no reason to concoct malicious lies against Franco. Moreover, she related in a straightforward, convincing, and consistent manner how she was defiled and abused by Franco. Her account of the rape incident was credible.
In fact, both the trial court and the CA found that AAA's testimony was clear and unequivocal. Settled is the rule that in matters pertaining to the victim's credibility, the appellate courts give great weight to the trial court's findings, considering that it had the full opportunity to observe directly the witnesses' demeanor, conduct and manner of testifying. 43 Indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness' credibility, which no longer appear on the records. 44 These are important in unearthing the truth and determining the witnesses' candor. As such, the Court accords great respect to the findings of the trial court. ETHIDa
Furthermore, ZZZ's testimony that she never invited AAA to her house, and that her father was at work the whole day, is not sufficient to discredit AAA's testimony. ZZZ's motives were revealed when she admitted during her cross-examination that she loves her father and would do anything to free him from jail. 45 ZZZ, likewise, disclosed that if she had to choose between AAA and her father, she will choose the latter. 46 Obviously, ZZZ was inclined to favor her father. This certainly casts doubt unto the veracity of her testimony.
The Court also notes that there was no reason for AAA to falsely charge Franco of raping her. In fact, Franco himself admitted that there was never any quarrel or misunderstanding between him and AAA's family. 47 Neither did he impute any ill-motive against AAA or her family, for them to falsely charge him of rape. 48 All these show that there was no reason for AAA to concoct a fake tale. Evidently, the filing of charges was impelled, no less, by the desire to avenge the wrongs committed against her.
Franco's Defenses of Denial and Alibi
Despite proof unerringly establishing Franco's guilt for the crime of rape, he seeks exoneration by claiming that he was at work at the time of the alleged incident.
The Court is not convinced.
It cannot be gainsaid that alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving, and thus, undeserving of any weight in law. They are considered with suspicion and received with caution, due to the ease with which they may be fabricated and concocted. 49 Plainly, a denial cannot prevail over the positive testimony of a prosecution witness who was not shown to have any ill-motive to testify against the appellant. 50
Moreover, for an alibi to prosper, it is imperative for the accused to establish that he was not at the locus delicti at the time the offense was committed, and that it was physically impossible for him to be at the scene. 51
In the case at bar, it was not physically impossible for Franco to have been at the situs of the crime, considering that his house can easily be reached by jeepney in 20 minutes. 52
The Proper Penalty
In the case of People of the Philippines v. Rolando Bagsic y Valenzuela, 53 the Court, citing the case of People v. Ching, 54 stressed that an accused who is found guilty of sexual assault committed against a child below 12 years of age shall suffer the higher penalty of reclusion temporal in its medium period, as provided for in Section 5 (b), Article III of R.A. No. 7610, rather than prision mayor under Article 266-B of the RPC, to wit:
In People v. Ching, the accused' conviction for rape by sexual assault was affirmed. However, in modifying the penalty imposed to that provided in Article III, Section 5(b) of R.A. No. 7610, the Court ruled:
"In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando's act of inserting his finger in VVV's private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period." 55 (Emphasis Ours)
This ruling was reaffirmed in the more recent case of People of the Philippines v. Edwin Dagsa y Bantas @ "Wing Wing"56 where the Court explained the seeming incongruency in the laws on sexual abuse, as follows:
Meanwhile, the Court is also not unmindful of the fact that the accused who commits acts of lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium period, than the one who commits Rape Through Sexual Assault, which is merely punishable by prision mayor. In People v. Ching, the Court noted that the said fact is undeniably unfair to the child victim, and it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. The Court held that despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those "persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition."
Finally, as the Court stressed in Dimakuta v. People, where the lascivious conduct is covered by the definition under R.A. No. 7610 where the penalty is reclusion temporal medium and the said act is likewise covered by sexual assault under Article 266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender should be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the law provides the higher penalty of reclusion temporal medium, if the offended party is a child. x x x. 57 (Citations omitted and emphases Ours) cSEDTC
Based on the foregoing jurisprudence, the imposable penalty against Franco shall be reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, an indeterminate sentence shall be imposed against Franco, consisting of a maximum term, which is the penalty under the RPC properly imposed after considering any attending circumstance; while the minimum term is within the range of the penalty next lower than that prescribed by the RPC for the offense committed. 58
Accordingly, the RTC was correct in sentencing Franco with the indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.
However, the CA erred in awarding damages worth P100,000.00 in favor of AAA. The Court shall reduce the amount of civil indemnity and moral damages to P50,000.00 each, in accordance with the Court's recent pronouncement in People of the Philippines v. Salvador Tulagan. 59
Furthermore, an award of exemplary damages must be granted to AAA in the amount of P50,000.00. 60 The importance of awarding exemplary damages cannot be overemphasized, as this species of damages is given to punish the offender for his outrageous conduct, and to deter the commission of similar dastardly and reprehensible acts in the future. 61
Finally, all amounts due shall earn a legal interest of six percent (6%) per annum from the date of finality of this Resolution until full satisfaction.
WHEREFORE, premises considered, the instant petition is DENIEDfor lack of merit. Accordingly, the Decision dated January 10, 2018, and the Resolution dated June 29, 2018, rendered by the Court of Appeals in CA-G.R. CR No. 39094, convicting petitioner George Franco y Eslaban of Rape through Sexual Assault, under paragraph 2 of Article 266-A of the Revised Penal Code, in relation to Section 5 (b) of Republic Act No. 7610, are AFFIRMED with modification, in that George Franco y Eslaban shall be ordered to pay the victim AAA the following monetary awards: (i) P50,000.00 as civil indemnity; (ii) P50,000.00 as moral damages; and (iii) P50,000.00 as exemplary damages. All amounts due shall earn a legal interest of six percent (6%) per annum from the date of finality of this Resolution until the full satisfaction thereof.
SO ORDERED." (Carandang, J., designated as additional Member per Special Order No. 2624 dated November 28, 2018.)
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 106-107.
2.Id. at 12-28.
3. Penned by Associate Justice Henri Jean Paul B. Inting, with Associate Justices Sesinando E. Villon and Danton Q. Bueser concurring; id. at 33-53.
4.Id. at 55-56.
5. AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROSECUTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND OTHER PURPOSES. Approved on June 17, 1992.
6. The real name of the victim, her personal circumstances and other information which tend to establish or compromise her identity, as well as those of her immediate family, or household members, shall not be disclosed to protect her privacy, and fictitious initial shall, instead, be used, in accordance with People v. Cabalquinto (533 Phil. 703 [2006]) and the Amended Administrative Circular No. 83-2015 dated September 5, 2017.
7.Rollo, pp. 34-35.
8.Id. at 35.
9.Id.
10.Id. at 35-36.
11.Id. at 37-38.
12.Id. at 38-39.
13. Rendered by Judge Nancy Rivas-Palmones; id. at 75-81.
14.Id. at 81.
15.Id. at 33-53.
16.Id. at 52-53.
17.Id. at 97-102.
18.Id. at 55-56.
19.Id. at 20.
20.Id.
21.Id. at 24.
22.Id. at 21.
23.Id. at 91.
24.Id. at 93.
25.Id. at 92.
26.People of the Philippines v. Ramon Francisca y Navalta, G.R. No. 208625, September 6, 2017, citing Ricalde v. People, 751 Phil. 793, 804 (2015).
27.Id.
28.People of the Philippines v. Rolando Bagsic y Valenzuela, G.R. No. 218404, December 13, 2017, citing People v. Soria, 698 Phil. 676, 687 (2012).
29.Rollo, pp. 42-43.
30.People v. Japson, 743 Phil. 495, 503-504 (2014).
31.Id., citing People v. Durano, 548 Phil. 383, 397 (2007).
32.People v. Barangan, 560 Phil. 811, 836 (2007), citing People v. Villaflores, 255 Phil. 776, 784-785 (1989).
33.Id.
34.People of the Philippines v. Edwin Dagsa y Bantas @ "Wing Wing," G.R. No. 219889, January 29, 2018, citing People v. Rellota, 640 Phil. 471, 496 (2010).
35.Id.
36.Caballo v. People, 710 Phil. 792, 799-800 (2013).
37. G.R. No. 218574, November 22, 2017.
38.Id., citing Quimvel v. People, G.R. No. 214497, April 18, 2017.
39. People v. Ocdol, 741 Phil. 701, 714 (2014), citing People v. Dion, 668 Phil. 333, 348 (2011).
40. People v. Gahi, 727 Phil. 642, 657 (2014), citing People v. Penilla, 707 Phil. 130, 138 (2013).
41. People v. Entrampas, G.R. No. 212161, March 29, 2017, 822 SCRA 142, 153-154, citing People v. Dimanawa, 628 Phil. 678, 689 (2010).
42. People v. Entrampas, id., citing People v. Dominguez, 667 Phil. 105, 119 (2011).
43. People v. Bosi, 689 Phil. 66, 73 (2012).
44. People v. Caoile, 710 Phil. 564, 578 (2013).
45. Rollo, p. 45.
46. Id. at 45-46.
47. Id. at 47.
48. Id.
49. People v. Anticamara, et al., 666 Phil. 484, 507 (2011), citing People v. Togahan, 551 Phil. 997, 1013-1014 (2007).
50. Id., citing Gan v. People, 550 Phil. 133, 157 (2007).
51. People v. Manalili, 716 Phil. 762, 774-775 (2013), citing People v. Flora, 389 Phil. 601, 611 (2000).
52. Rollo, p. 50.
53. G.R. No. 218404, December 13, 2017.
54. 661 Phil. 208 (2011).
55. People of the Philippines v. Rolando Bagsic y Valenzuela, supra.
56. G.R. No. 219889, January 29, 2018.
57. Id.
58. Act No. 4103, Section 1.
59. G.R. No. 227363, March 12, 2019.
60. Id.
61. People v. Ronquillo, G.R. No. 214762, September 20, 2017, 840 SCRA 405.