People v. Ochinang y Velasco

FIRST DIVISION

[G.R. No. 238615. May 14, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY OCHINANG y VELASCO A.K.A. "KA UNYOK", accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated May 14, 2021which reads as follows:

"G.R. No. 238615 — (PEOPLE OF THE PHILIPPINES, plaintiff-appellee v. LARRY OCHINANG y VELASCO a.k.a. "KA UNYOK", accused-appellant). — This is an ordinary appeal under Rule 122 of the Rules of Court, as amended, from the Decision 1 dated September 25, 2017 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 07001. The CA affirmed with modifications the Consolidated Judgment 2 of Branch 49 of the Regional Trial Court (RTC) of Urdaneta City, finding Larry Ochinang y Velasco a.k.a. Ka Unyok (accused-appellant) guilty beyond reasonable doubt of the crime of rape by sexual intercourse in Criminal Case No. U-16207, rape by sexual assault in Criminal Case No. U-16208 and acts of lasciviousness in Criminal Case No. U-16209.

Accused-appellant was charged of the crimes of rape under Article 266-A paragraph 1 (a), rape under Article 266-A paragraph no. 2 both of the Revised Penal Code (RPC) as amended by Republic Act (R.A.) No. 8353, and lascivious conduct committed against a minor under Article III, Section 5 (b) of R.A. No. 7610 through the following Informations:

Criminal Case No. U-16207:

That sometime in April 2009 at x x x, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with the said AAA, 3 a minor, fifteen (15) years old, against her will and without her consent, to her damage and prejudice.

CONTRARY to Article 266-A, paragraph 1(a) of the Revised Penal Code as amended by R.A. No. 8353 (The Anti-Rape Law of 1997). 4

Criminal Case No. U-16208:

That sometime in April 2009 at x x x, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation did then and there willfully, unlawfully and feloniously commit an act of sexual assault upon the person of AAA, a minor, fifteen (15) years old, by inserting his finger into her vagina against her will and without her consent, to her damage and prejudice.

CONTRARY to Article 266-A, paragraph no. 2 of the Revised Penal Code as amended by R.A. No. 8353 (The Anti-Rape Law of 1997). 5

Criminal Case No. U-16209:

That sometime in April 2009 at x x x, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, by means of coercion and intimidation and with lewd design, did then and there willfully, unlawfully and feloniously commit lascivious conduct upon the person of AAA, a minor, fifteen (15) years old, subjected to sexual abuse, by sucking her breasts against her will and without her consent, her damage and prejudice.

CONTRARY to Article III Sec. 5(b) of R.A. 7610. 6

Accused-appellant, assisted by counsel, was arraigned on September 30, 2010 and he pleaded not guilty to all the charges against him. 7

The prosecution presented the victim, AAA and her mother, BBB as witnesses. The testimonies of Dr. Brenda Tumacder (Dr. Tumacder) and Senior Police Officer 1 Luzviminda Pablico were dispensed with as parties stipulated on the authenticity and due execution of the medico-legal report and the police blotter. 8

The prosecution established that sometime in the afternoon of April 2009, AAA, then 15 years of age, was watching television inside their house when accused-appellant knocked on their door. She unlocked the door and accused-appellant pushed the door open, entered the house and dragged AAA outside the house towards the creek. There accused-appellant made AAA sit and removed AAA's shirt. Accused-appellant proceeded to suck AAA's breast, showed his penis and forced her to hold his penis. 9

A few days later, accused-appellant returned to AAA's house and this time he dragged AAA to the toilet. While in the toilet, accused-appellant removed AAA's short and panty and ordered her to bend over. Accused-appellant succeeded to have sexual intercourse with AAA by inserting his penis inside AAA's vagina. 10

On another day, accused-appellant went to AAA's house and there accused-appellant inserted his finger inside AAA's vagina. 11 AAA further testified that accused-appellant keeps on going to their house drunk and she was very afraid of him. Accused-appellant was their neighbor living three houses away from them about 40-50 meters away. 12

On April 20, 2009, BBB noticed a significant change in the behavior of her daughter. This prompted her to confront AAA which led to AAA disclosing what the accused-appellant has done to her. They reported the incident to the police station of Binalonan, Pangasinan. 13 Thereafter, BBB brought AAA to Region I Medical Center and there, Dr. Tumacder, attending physician, conducted a medical examination on AAA. In the Medico Legal Report 14 showed the following diagnosis which is consistent with the crime of rape:

HYMEN (+) Lacerations, healed at 3 and 6 o'clock positions.

xxx xxx xxx

DISCHARGE (+) Minimal, whitish-mucoid non-foul-smelling vaginal discharge.

xxx xxx xxx

IMPRESSIONS Medical evaluation showed evidence of sexual abuse. 15

In his defense, accused-appellant denies the allegations of sexual crimes against him. He admits that AAA and him are neighbors as their houses are built on the same parcel of land. He was not aware of any misunderstanding between him and AAA or her family which would provoke them to file this case against him. Accused-appellant stated that he was a widower and as such it seems normal for him to court AAA. He further stated that he was not physically attracted to AAA, but he still finds AAA a little bit beautiful. 16

According to the accused-appellant, it was not possible that he could have committed the acts described by AAA. He vehemently denies dragging her to the creek or to the toilet where the lascivious act and rape allegedly took place. The said creek is located around 13 to 15 meters away from the barangay road while the toilet is located 10 meters away from the barangay road, where lots of motor vehicles were traversing. The toilet is made up of plastic sacks at a height of one and a half 1.5 meters and without any cover or roof. 17 Accused-appellant asseverated that one has to sit in order not to be seen from the road. A person standing up and using the toilet can be seen by the people around. As the description of the act of rape requires the accused-appellant to stand up, people around would have definitely seen him standing five foot seven inches tall. 18

After trial, on February 6, 2014, the RTC found herein accused-appellant guilty beyond reasonable doubt of all the criminal charges against him, to wit:

WHEREFORE, this Court finds the accused LARRY OCHINANG y VELASCO a.k.a. KA UNYOK, GUILTY beyond reasonable doubt of Rape; Rape by sexual assault and Acts of Lasciviousness under Article 336 of the Revised Penal Code.

Accordingly, he is sentenced to suffer the penalty of reclusion perpetua in Criminal Case No. U-16207; imprisonment of four (4) years and two (2) months of prision correccional to ten (10) years of prision mayor in Criminal Case No. U-16208; and four (4) months of arresto mayor to four (4) years and two (2) months of prision correccional in Criminal Case No. U-16209, subject to successive service of sentence under Article 70 of the Revised Penal Code.

He shall pay the offended party civil indemnity of One Hundred Thousand Pesos (Php100,000.00) in all these cases.

The accused is ordered committed to the Bureau of Corrections, Muntinlupa City without necessary delay.

SO ORDERED. 19

Accused-appellant filed an appeal before the CA, which rendered herein assailed Decision, modifying the consolidated judgment of the trial court. The dispositive portion reads:

We MODIFY the Consolidated Judgment dated 6 February 2014 issued by the Regional Trial Court, Branch 49, Urdaneta City, thus:

CRIMINAL CASE No. U-16207

We find the appellant Larry Ochinang Velasco a.k.a. Ka Unyok GUILTY BEYOND REASONABLE DOUBT of the crime of Rape by sexual intercourse (pursuant to Article 266-A and 266-B of the Revised Penal Code), and

1. sentence appellant to imprisonment of Reclusion Perpetua;

2. order appellant to pay the victim AAA the following sums:

a. P75,000.00, as civil indemnity;

b. P75,000.00, as moral damages;

c. P75,000.00, as exemplary damages.

All the monetary awards are subject to 6% legal interest computed from the finality of this Decision, until full payment.

CRIMINAL CASE No. U-16208

We find the appellant Larry Ochinang Velasco a.k.a. Ka Unyok GUILTY BEYOND REASONABLE DOUBT of the crime of Rape by sexual assault (pursuant to Article 266-A and 266-B of the Revised Penal Code), and

1. sentence appellant to imprisonment of 4 years and 2 months of prision correccional (as minimum) to 10 years of prision mayor (as maximum);

2. order appellant to pay the victim AAA the following sums:

a. P30,000.00, as civil indemnity;

b. P30,000.00, as moral damages;

c. P30,000.00, as exemplary damages.

All the monetary awards are subject to 6% legal interest computed from the finality of this Decision, until full payment.

CRIMINAL CASE No. U-16209

We find the appellant Larry Ochinang Velasco a.k.a. Ka Unyok GUILTY BEYOND REASONABLE DOUBT of the crime of Acts of Lasciviousness (pursuant to Article 336 of the Revised Penal Code), and

1. sentence appellant to imprisonment of 4 months of arresto mayor (as minimum), to 4 years and 2 months of prision correccional (as maximum);

2. order appellant to pay the victim AAA the following sums:

a. P20,000.00, as civil indemnity;

b. P30,000.00, as moral damages;

c. P10,000.00, as exemplary damages.

All the monetary awards are subject to 6% legal interest computed from the finality of this Decision, until full payment.

IT IS SO ORDERED. 20

Both parties dispensed with the filing of their supplemental briefs, instead manifested that their briefs submitted in the appellate court would suffice. 21

In the main, accused-appellant assails the judgment of conviction on the ground that his guilt has not been proven beyond reasonable doubt. Accused-appellant claims that there are gross inconsistencies in the prosecution evidence. 22

The appeal is not meritorious.

In our jurisprudence, factual findings of the trial court when affirmed by the appellate court are accorded great weight and respect, especially when such findings are supported by substantial evidence on record. This court will only allow review of the findings of the courts below when material and relevant factual findings are overlooked by the trial court which if considered will result to a different conclusion. 23 In the case at bar, this Court finds no reason to disturb the Decision of the CA with regard to its ruling on the two counts of (2) rape and acts of lasciviousness committed by herein accused-appellant. Both the RTC and CA found that the prosecution has sufficiently established the elements of the crimes committed against AAA.

Accused-appellant insisted that there were inconsistencies in the prosecution evidence which raises reasonable doubt on his conviction. 24 He questions the reliance of the court to the Medico Legal Report submitted when the content of such was not testified by the doctor who conducted the medical examination. Thus, the veracity or truthfulness of the content of the report is doubtful. 25

We are not persuaded.

Our jurisprudence is replete with decisions that states that a medico legal report is merely corroborative evidence and not indispensable in the prosecution of rape. What is essential is that the victim's testimony meets the test of credibility, that is sufficient to convict the accused-appellant. 26 In the present case, there is no showing that either the RTC or the CA committed any error in law and in its findings of fact especially as to AAA's credibility. It has been consistently held that in criminal cases, the evaluation of the credibility of witnesses is addressed to the sound discretion of the trial judge, whose conclusion thereon deserves much weight and respect because the judge has the direct opportunity to observe said witnesses on the stand and ascertain if they are telling the truth or not. Absent any showing in this case that the lower courts overlooked substantial facts and circumstances, which if considered, would change the result of the case, this Court gives deference to the trial court's appreciation of the facts and of the credibility of witnesses, especially since this Court's own review of the records leads it to conclude that the victim's testimony meets the test of credibility. 27

It must also be emphasized that AAA, in the instant case is a minor, 15 years of age. The bestial acts committed upon her person, which is not only embarrassing but also degrading, is not a story which a girl of tender age would fabricate if the same is not true. It is hornbook doctrine that no woman, least of all a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and impelled to seek justice for the wrong done to her. Testimonies of child-victims are normally given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity are generally badges of truth and sincerity. 28 Thus being said, the guilt of herein accused-appellant was properly established beyond reasonable.

However, this Court deems it proper to correct the nomenclature and penalty with regard to the acts of lasciviousness under Article 336 and sexual assault under Article 266-A paragraph 2 in relation to Article 266-B of the RPC, as amended, committed by herein accused-appellant to conform with the recent pronouncement in People v. Tulagan. 29 In the said case, this Court extensively discussed and, at the same time, reconciled the rulings that were made in People v. Caoili, 30Dimakuta v. People31 and Quimvel v. People32 cases to come up with the proper designation and penalty for rape and lascivious conduct taking into consideration Articles 266-A, 33 266-B 34 and 336 35 of the RPC, Section 5 (b) of R.A. No. 7610 36 and the age of the victim, to wit:

In sum, the following are the applicable laws and penalty for the crimes of acts of lasciviousness or lascivious conduct and rape by carnal knowledge or sexual assault, depending on the age of the victim, in view of the provisions of paragraphs 1 and 2 of Article 266-A and Article 336 of the RPC, as amended by R.A. No. 8353, and Section 5(b) of R.A. No. 7610:

Designation of the Crime & Imposable Penalty

 

Crime Committed:

Age of Victim:

Under 12 years old or demented

12 years old or below 18, or 18 under special circumstances.

18 years old and above

 

Acts of Lasciviousness committed against children exploited in prostitution or other sexual abuse	Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious conduct under Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Sexual Assault committed against children exploited in prostitution or other sexual abuse	Sexual Assault under Article 266-A (2) of the RPC in relation to Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious Conduct under Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Sexual Intercourse committed against children exploited in prostitution or other sexual abuse	Rape under Article 266-A (1) of the RPC: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed	Sexual Abuse under Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Not applicable
Rape by carnal knowledge	Rape under Article 266-A (1) in relation to Article 266-B of the RPC: reclusion perpetua, except when the victim is below 7 years old in which case death penalty shall be imposed	Rape under Article 266-A (1) in relation to Article 266-B of the RPC: reclusion perpetua	Rape under Article 266-A (1) of the RPC: reclusion perpetua
Rape by Sexual Assault	Sexual Assault under Article 266-A (2) of the RPC in relation to Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period	Lascivious Conduct under Section 5 (b) of R.A. No. 7610: reclusion temporal in its medium period to reclusion perpetua	Sexual Assault under Article 266-A (2) of the RPC: prision mayor

 

For the crime of acts of lasciviousness or lascivious conduct, the nomenclature of the crime and the imposable penalty are based on the guidelines laid down in Caoili. For the crimes of rape by carnal knowledge and sexual assault under the RPC, as well as sexual intercourse committed against children under R.A. No. 7610, the designation of the crime and the imposable penalty are based on the discussions in Dimakuta, Quimvel and Caoili, in line with the policy of R.A. No. 7610 to provide stronger deterrence and special protection to children from all forms of abuse, neglect, cruelty, exploitation, discrimination, and other conditions prejudicial to their development. x x x 37 (Citations omitted)

Nevertheless, the designation in the Information of the specific statute violated is imperative to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. 38 In the case at bar, the Information charges accused-appellant of committing lascivious conduct upon the person of AAA who was a minor, 15 years of age at that time, contrary to Article III, Section 5 (b) of R.A. No. 7610. Prosecution has clearly established through the testimony of AAA's mother 39 and her birth certificate 40 the age of AAA. Having proven the elements of the crime of lascivious conduct and the age of AAA being more than 12 years old but less than 18 years old at the time of the incident the trial court should have convicted herein accused-appellant of Lascivious Conduct under Section 5 (b) of R.A. No. 7610 which carries with it a penalty of reclusion temporal in its medium period to reclusion perpetua instead of acts of lasciviousness under Article 336 of the RPC.

As regard to the sexual assault committed against AAA, the same is covered by the definition of "lascivious conduct" as defined under Rules and Regulations on the Reporting and Investigation of Child Abuse Cases. Lascivious conduct means the 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. 41 Herein accused-appellant committed sexual assault against AAA by inserting his finger in AAA's vagina. It has been held that in instances where a "lascivious conduct" committed against a child is covered by sexual assault under paragraph 2 Article 266-A of the RPC (punishable by prision mayor), accused-appellant should be held liable for violation of Section 5 (b) of R.A. No. 7610 (punishable by reclusion temporal medium), consistent with the declared policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development. 42

Thus, based on the foregoing and applying the Indeterminate Sentence Law, there being no aggravating and no mitigating, the penalty of imprisonment for an indeterminate period of ten (10) 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 of the lascivious conduct committed is imposed to herein accused-appellant. 43

With the above modification of the crimes charged, the damages imposed are also modified to comply with the recent jurisprudence. In People v. Jugueta, 44 the court pronounced that where the penalty on the crime of rape is reclusion perpetua, the civil indemnity, moral damages and exemplary damages amounts to P75,000.00 each. On the other hand, lascivious conduct under Section 5 (b) of R.A. No. 7610 carries with it a civil indemnity amounting to P50,000.00, moral damages amounting to P50,000.00 and exemplary damages amounting to P50,000.00. 45

Modification of the penalty is but a mere consequence of this Court's review of an appeal in a criminal case. Settled is the rule that an appeal in a criminal case throws the entire case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's decision based on grounds other than those raised as errors by the parties. "The appeal confers the appellate court full jurisdiction over the case and renders such court competent to examine the records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law." 46

WHEREFORE, in view of the foregoing, the appeal is hereby DISMISSED. The Decision dated September 25, 2017 of the Court of Appeals in CA-G.R. CR-HC No. 07001 is hereby AFFIRMED with the following MODIFICATIONS:

1. Criminal Case No. U-16207

Accused-appellant Larry Ochinang y Velasco a.k.a. Ka Unyok is GUILTY beyond reasonable doubt of the crime of rape by sexual intercourse under Article 266-A (1) in relation to Article 266-B of the Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua. Accused-appellant is further ordered to pay AAA the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P75,000.00 as exemplary damages.

2. Criminal Case No. U-16208

Accused-appellant Larry Ochinang y Velasco a.k.a. Ka Unyok is GUILTY beyond reasonable doubt of the crime of Lascivious Conduct under Section 5 (b) of Republic Act No. 7610 and is sentenced to suffer the penalty of imprisonment for an indeterminate period of ten (10) 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. Accused-appellant is further ordered to pay AAA the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P50,000.00 as exemplary damages.

3. Criminal Case No. U-16209

Accused-appellant Larry Ochinang y Velasco a.k.a. Ka Unyok is GUILTY beyond reasonable doubt of the crime of Lascivious Conduct under Section 5 (b) of Republic Act No. 7610 and is sentenced to suffer the penalty of imprisonment for an indeterminate period of ten (10) 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. Accused-appellant is further ordered to pay AAA the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P50,000.00 as exemplary damages.

All damages awarded shall earn interest at the rate of six percent (6%) per annum from the date of finality of this Resolution until fully paid.

SO ORDERED." Carandang, J., participated in the assailed CA Decision; Inting, J., designated Additional Member per Raffle dated October 16, 2019.

By authority of the Court:

LIBRADA C. BUENADivision Clerk of Court

by:

(SGD.) MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 2-16; penned by Associate Nina G. Antonio-Valenzuela with Associate Justices Rosmari D. Carandang (now a Member of this Court) and Stephen C. Cruz, concurring.

2. Records 120-127; penned by Presiding Judge Efren B. Tienzo.

3. Pursuant to Supreme Court Amended Administrative Circular No. 83-2015, the personal circumstances and other information which tend to establish or compromise the identity of the victim, including the names of her family members or relatives, and the barangay and town where the incidents occurred, are withheld. The names of the victim and her family members or relatives are replaced with fictitious initials. Likewise, the real name of the accused-appellant is replaced with fictitious initials by reason of his relationship to the minor victim.

4. Records, p. 1.

5.Rollo, p. 3.

6.Id. at 3-4.

7. Records, p. 38.

8.Id. at 68.

9.Rollo, p. 4.

10.Id.

11.Id.

12. CA rollo, pp. 66-67.

13.Id. at 67.

14. Records, p. 15.

15.Id.

16. CA rollo, p. 68.

17.Id.

18.Id. at 57.

19. Records, p. 127.

20.Rollo, pp. 13-15.

21.Id. at 25-27; 35-37.

22. CA rollo, p. 57.

23.Seguritan v. People, 632 Phil. 415, 418 (2010).

24. CA rollo, p. 57.

25.Id. at 58.

26.People v. Primavera, 813 Phil. 355, 366-367 (2017).

27.People v. Villarmea, 721 Phil. 262, 275-276 (2013).

28.People v. Guambor, 465 Phil. 671, 678 (2004).

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

30. 815 Phil. 839 (2017).

31. 771 Phil. 641 (2015).

32. 808 Phil. 889 (2017).

33. REPUBLIC ACT NO. 8353: The Anti-Rape Law of 1997.

Article 266-A. Rape; When and How Committed. — Rape is committed — x x x

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.

34. Article 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion perpetua to death.

When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying 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-law spouse of the parent of the victim;

2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;

3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;

4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime;

5) When the victim is a child below seven (7) years old;

6) When the offender knows that he is afflicted with Human Immune-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;

7) When committed by any member of the Armed Forces of the Philippines or paramilitary units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;

8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability;

9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and

10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.

Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal.

When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua.

When by reason or on the occasion of the rape, homicide is committed, the penalty shall be reclusion perpetua.

Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/qualifying circumstances mentioned in this article.

35. Article 336. Acts of Lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.

36. REPUBLIC ACT NO. 7610 "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for other Purposes."

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.

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; Provided, [t]hat 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; and

xxx xxx xxx

37.People v. Moya, G.R. No. 228260, June 10, 2019.

38.Malta v. People, 560 Phil. 119, 135-136 (2007).

39. TSN, pp. 7-8, dated April 28, 2011.

40. Records, p. 14.

41. Paragraph (h), Section 2 of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, Done in the City of Manila: October 1993 of Republic Act No. 7610.

42.People v. Tulagan, supra note 29.

43.People v. Fornillos, G.R. No. 231991, January 27, 2020.

44. 783 Phil. 806 (2016).

45.People v. Tulagan, supra note 29.

46.People v. Moya, supra note 37.