People v. XXX

SECOND DIVISION

[G.R. No. 237046. November 10, 2021.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.XXX, 1accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated10 November 2021which reads as follows: HTcADC

"G.R. No. 237046 (People of the Philippines v. XXX). — Challenged in this appeal 2 is the July 27, 2017 Decision 3 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08088 which affirmed with modification the November 6, 2015 Joint Decision 4 of the Regional Trial Court (RTC), Branch 270 of ________. 5

The CA found accused-appellant XXX (accused-appellant) guilty of:

(a) two counts of Rape through carnal knowledge in Criminal Case Nos. 645-V-15 and 646-V-15 with a penalty of reclusion perpetua;

(b) Rape by sexual assault in Criminal Case No. 647-V-15 with a penalty of imprisonment of 14 years as minimum to 17 years as maximum;

(c) two counts of Acts of Lasciviousness under Article 366 of the Revised Penal Code (RPC) in relation to Republic Act No. (RA) 7610 in Criminal Case Nos. 648-V-15 and 649-V-15 with a penalty of reclusion perpetua; and

(d) violation of Section 10 (a) of RA 7610 in Criminal Case No. 650-V-15 with a penalty of imprisonment of six years, one day as minimum, and six years, eight months as maximum.

In addition, accused-appellant was ordered to pay:

(a) P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages in Criminal Case Nos. 645-V-15 and 646-V-15;

(b) P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages in Criminal Case No. 647-V-15;

(c) P75,000.00 as civil indemnity, P50,000.00 moral damages, and P25,000.00 as exemplary damages in Criminal Case Nos. 648-V-15 and 649-V-15; and

(d) P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages in Criminal Case No. 650-V-15.

The Antecedents:

Accused-appellant was charged before the RTC with:

(a) two counts of Rape through carnal knowledge in relation to RA 7610;

(b) Rape by sexual assault under Article 266-A (2) of the RPC;

(c) two counts of Acts of Lasciviousness under Article 366 of the RPC in relation to RA 7610; and

(d) Maltreatment.

The Informations in the foregoing criminal cases allege as follows:

Criminal Case No. 645-V-15:

That on or about the January 28, 2012, in ____________________ 6 and within the jurisdiction of this Honorable Court, the above-named accused, being the father of herein minor victim [AAA] 7 (complainant), who was then 12 years old (DOB: January 28, 2000), did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation, have sexual intercourse with said minor victim 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. 8

Criminal Case No. 646-V-15:

That sometime in September 2013, in ____________________ and within the jurisdiction of this Honorable Court, the above-named accused, being the father of herein minor victim [AAA] (complainant), who was then 13 years old (DOB: January 28, 2000), did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation, have sexual intercourse with said minor victim 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. 9

Criminal Case No. 647-V-15:

That on or about November 17, 2013, in ______________________ and within the jurisdiction of this Honorable Court, the above-named accused, being the father of herein minor victim (AAA) (complainant), who was then 13 years old (DOB: January 28, 2000), did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation, inserted his finger inside the vagina of said minor victim 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. 10

Criminal Case No. 648-V-15:

That sometime in October 18, 2014, in ____________________ and within the jurisdiction of this Honorable Court, the above-named accused, being the father of herein minor complainant, with lewd design and malice, by means of force, threat or intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of minor victim (AAA) (complainant), 14 years old (DOB: January 28, 2000), by touching vagina of said minor, 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. 11

Criminal Case No. 649-V-15:

That sometime in October 18, 2014, in ___________________ and within the jurisdiction of this Honorable Court, the above-named accused, being the father of the minor complainant, with lewd design and malice, by means of force, threat or intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of minor victim (AAA) (complainant), 14 years old (DOB: January 28, 2000), by touching vagina of said minor, against her will and without her consent, thereby subjecting the said minor victim to sexual abuse which debased, degraded and demeaned her intrinsic worth and dignity as a human being.

CONTRARY TO LAW. 12

Criminal Case No. 650-V-15:

That sometime in August 2014, in ________________ and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, did then and there willfully, unlawfully and feloniously ill-treat her minor daughter (AAA) (complainant), 14 years old (DOB: January 28, 2000), by forcibly tried to slot some dog shit into the mouth of his minor daughter.

CONTRARY TO LAW. 13

Upon arraignment, accused-appellant pleaded not guilty to the crimes charged. 14 During the preliminary conference, the parties through their counsels stipulated on the following: (a) the accused-appellant is the biological father of the private complainant AAA (AAA); (b) the identity of the accused-appellant as the same person charged in the above Informations; (c) the territorial jurisdiction of the court; and (d) the minority of AAA. 15

Thereafter, trial on the merits ensued.

Version of the Prosecution:

AAA testified that she was born on January 28, 2000 and the 6th child among eight siblings. Her father is accused-appellant while her mother died in 2004.

a) Rape through Carnal Knowledge

On January 28, 2012, at around 12 midnight, accused-appellant molested then 12-year old AAA. After having a drinking spree with his friends, accused-appellant entered the room, turned the lights off, and lay beside AAA who was sleeping with her sister BBB (BBB) and brother. He then removed her shorts and underwear, and inserted his finger in her vagina. Then, accused-appellant mounted AAA and inserted his penis into her vagina. During the act, accused-appellant held AAA's hands and mouth. He told her to stay quiet or else he would hit her. The victim wept in pain causing BBB to wake up. When BBB switched on the lights and asked AAA why she was in tears, accused-appellant pretended not to know and even asked AAA the same question.

The same assault happened in September 2013, at around 12 midnight, when a drunk accused-appellant lay beside AAA and touched the latter's body. He then stripped off AAA's pajamas and underwear, and inserted his penis inside her vagina. He threatened to kill AAA if she would reveal the assault to anyone.

b) Rape by Sexual Assault

On November 17, 2013, at around 1 o'clock in the morning, accused-appellant, who arrived after a drinking spree, inserted his finger inside AAA's vagina despite the latter's monthly period. She attempted to shout because of the pain but accused-appellant threatened her with a strong blow using a wooden stick. She wept and took refuge beside her sister but because of fear, she failed to disclose the said incident.

c) Acts of Lasciviousness

On October 18, 2014, at around 4 o'clock in the morning, AAA was roused from sleep as she felt accused-appellant touching her private part. When confronted regarding his lewd acts, accused-appellant countered that he was just merely waking her up. Whenever accused-appellant would wake her and her sisters by touching their private parts, she would retort "ano ba naman yan pa, dyan mo pa ako hinahawakan." AAA further averred that accused-appellant forced her to swallow his hands soaked in saliva after using the same hand to masturbate in front of her and her sisters.

d) Maltreatment

In a morning sometime in August 2014, accused-appellant arrived and saw a dog's feces inside their house. He got mad and forcibly tried to feed the dog's feces into AAA's mouth, who at that time was cleaning the rice pot. She resisted but even so, she was able to swallow some. Her sister CCC saw the whole incident.

In support of the foregoing, the prosecution offered a Medico-Legal Report prepared by Police Chief Inspector (PCI) Charyl Escarro (PCI Escarro), who examined AAA. She found shallow healed lacerations at 6 o'clock and 9 o'clock positions which could have been sustained through penetration of a blunt hard object in AAA's private part. The penetration happened more than seven days from the examination because the lacerations were already healed.

Version of the Defense:

Accused-appellant denied the accusations against him. He averred that AAA filed the instant cases because he religiously scolded her as she was a very stubborn daughter.

He testified that on October 18, 2014, he was cuddling his youngest child but AAA got jealous. Thus, he also fondled her and touched her private part. He even tickled her neck. However, accused-appellant explained that it was only a caress of a father to his daughter. He did not know that AAA put malice on his actions.

He averred that sometime in August 2014, he was tired from work and went home with dog feces inside their house. He got mad and threatened to put some dog feces into his daughter's mouth. Because of the said incident, AAA got very angry at him.

He also avowed that he was not aware whether his daughter has a boyfriend. But he recalled that AAA confessed to him that sometime in September 2014, her sister's husband touched her. He was extremely enraged upon learning the same.

Ruling of the Regional Trial Court

On November 6, 2015, the RTC rendered its Joint Decision 16 finding accused-appellant guilty of: (a) two counts of incestuous rape through carnal knowledge under Article 266-A of the RPC; (b) incestuous rape by sexual assault under Article 266-A (2) of the RPC; (c) two counts of acts of lasciviousness under Article 366 of the RPC in relation to RA 7610; and (d) violation of Section 10 (a) of RA 7610. The dispositive portion of the trial court's ruling reads:

WHEREFORE, in the light of the foregoing judgment is hereby rendered as follows, to wit:

IN CRIMINAL CASE NO. 645-V-15, accused [XXX] is hereby found guilty of INCESTUOUS RAPE BY CARNAL KNOWLEDGE under Article 266-A of the Revised Penal Code and he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay civil indemnity in the amount of Php75,000.00, moral damages in the amount of Php50,000.00 and exemplary damages in the amount of Php25,000.00;

IN CRIMINAL CASE NO. 646-V-15, accused [XXX] is hereby found guilty of INCESTUOUS RAPE BY CARNAL KNOWLEDGE under Article 266-A of the Revised Penal Code and he is hereby sentenced to suffer the penalty RECLUSION PERPETUA and to pay civil indemnity in the amount of Php75,000.00, moral damages in the amount of Php50,000.00 and exemplary damages in the amount of Php25,000.00;

IN CRIMINAL CASE NO. 647-V-15, accused [XXX] is hereby found guilty of INCESTUOUS RAPE BY SEXUAL ASSAULT under Article 266-A (2) of the Revised Penal Code and he is hereby sentenced to suffer the penalty of 14 years, as minimum to 17 years, as maximum imprisonment and to pay civil indemnity in the amount of Php75,000.00, moral damages in the amount of Php50,000.00 and exemplary damages in the amount of Php25,000.00;

IN CRIMINAL CASE NO. 648-V-15, ACCUSED [XXX] is hereby found GUILTY OF ACTS OF LASCIVIOUSNESS UNDER ARTICLE 366 OF THE REVISED PENAL CODE IN RELATION TO RA 7610 and he is hereby sentenced to suffer the penalty of 12 years, as minimum to 17 years, as maximum imprisonment and to pay civil indemnity in the amount of Php75,000.00, moral damages in the amount of Php50,000.00 and exemplary damages in the amount of Php25,000.00;

IN CRIMINAL CASE NO. 649-V-15, ACCUSED [XXX] is hereby found GUILTY OF ACTS OF LASCIVIOUSNESS UNDER ARTICLE 366 OF THE REVISED PENAL CODE IN RELATION TO RA 7610 and he is hereby sentenced to suffer the penalty of 12 years, as minimum to 17 years, as maximum imprisonment and to pay civil indemnity in the amount of Php75,000.00, moral damages in the amount of Php50,000.00 and exemplary damages in the amount of Php25,000.00;

IN CRIMINAL CASE NO. 650-V-15, ACCUSED [XXX] is hereby found GUILTY OF VIOLATION OF SECTION 10 (a) OF RA 7610 and he is hereby sentenced to suffer the penalty of 6 years and 1 day, as minimum to 6 years and 8 months, maximum imprisonment and to pay civil indemnity in the amount of Php50,000.00, moral damages in the amount of Php50,000.00 and exemplary damages in the amount of Php25,000.00.

SO ORDERED. 17

Ruling of the Court of Appeals:

In its July 27, 2017 Decision, 18 the CA affirmed with modification the RTC's November 6, 2015 Joint Decision. The CA sustained the conviction of accused-appellant and accorded great credence on AAA's testimony in contrast to accused-appellant's self-serving denial. The fallo of the CA's assailed Decision reads:

WHEREFORE, premises considered, the Joint Decisions of the trial court dated November 6, 2015 are AFFIRMED with MODIFICATION. The Court finds accused-appellant XXX:

1. GUILTY of two (2) counts of RAPE THROUGH CARNAL KNOWLEDGE in Criminal Case Nos. 645-V-15 and 646-V-15 and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay civil indemnity in the amount of P100,000, moral damages in the amount of P100,000 and exemplary damages in the amount of P100,000;

2. GUILTY of RAPE BY SEXUAL ASSAULT in Criminal Case No. 647-V-15 and is hereby sentenced to suffer the indeterminate penalty of 14 years, as minimum to 17 years, as maximum imprisonment and to pay civil indemnity in the amount of P75,000, moral damages in the amount of P50,000 and exemplary damages in the amount of P25,000; aScITE

3. GUILTY of two (2) counts of ACTS OF LASCIVIOUSNESS under Article 366 of the Revised Penal Code in relation to R.A. 7610 in Criminal Case Nos. 648-V-15 and 649-V-15 and is hereby sentenced to suffer RECLUSION PERPETUA and to pay civil indemnity in the amount of P75,000, moral damages in the amount of P50,000 and exemplary damages in the amount of P25,000; and

4. GUILTY of VIOLATION OF SECTION 10(a) OF R.A. 7610 in Criminal Case No. 650-V-15 and is hereby sentenced to suffer the penalty of 6 years and 1 day, as minimum to 6 years and 8 months years (sic), maximum imprisonment and to pay civil indemnity in the amount of P50,000, moral damages in the amount of P50,000 and exemplary damages in the amount of P25,000.

SO ORDERED. 19

Hence, the present appeal.

Issues:

Accused-appellant and the People adopted their respective briefs before the CA. 20

Accused-appellant submits the following assignment of errors:

I

THE TRIAL COURT GRAVELY ERRED IN GIVING DUE WEIGHT TO THE IMPROBABLE AND FLAWED TESTIMONY OF [AAA].

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIMES CHARGED DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 21

Accused-appellant claims that AAA's testimony is highly improbable and fraught with many inconsistencies. Hence, it should not be given credence.

For the charge of two counts of Rape through carnal knowledge, he claims that AAA could not have actually seen his penis inserted in her vagina considering that the room was dark at those times. Besides as stated in the Medico-Legal Report, it is possible that a blunt hard object caused the lacerations on AAA's hymen which seriously casts doubt on her accusations of rape against him. Also, for the second charge of rape through carnal knowledge, he argues that AAA merely testified that she saw his penis already out but did not categorically declare that he inserted it on her vagina or tried to insert the same.

As to Rape by sexual assault, accused-appellant insists that the AAA's testimony is lacking in detail as she did not exhibit a slightest hint of pain while being raped or when his fingers were inserted inside her vagina.

As to the two (2) counts of acts of lasciviousness, accused-appellant contends that the prosecution failed to discharge the burden in overcoming his presumption of innocence. He argues that RA 7610 defines acts of lasciviousness as one with intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire. Nothing in AAA's testimony would support that he had any intent to abuse, humiliate, harass, degrade, arouse or gratify sexual desire. His mere touching of AAA's vagina was to merely wake her up and not to abuse her or arouse and gratify his sexual desires.

Lastly, accused-appellant contends that not every act of laying hands on a child constitutes the crime of child abuse under Section 10 (a) of RA 7610. It has to be coupled with an intent to debase, degrade or demean the intrinsic worth and dignity of the child as a human being. He maintains that he got mad when he saw the dog feces inside his house. However, even granting that he fed the dog feces to AAA, the prosecution failed to show that he had the intention to debase, degrade or demean her intrinsic worth and dignity as a human being. Also, a careful reading of the Information in Criminal Case No. 650-V-15 reveals that the charge does not allege that the physical abuse, cruelty and/or emotional treatment was inflicted to debase, degrade or demean the intrinsic worth and dignity of AAA as human being. He argues that this runs counter to accused-appellant's constitutional right to due process and to be informed of the nature and cause of accusation against him.

On the other hand, the People, through the Office of the Solicitor General, argues that the complainant gave a categorical, straightforward, and direct testimony that unambiguously identified accused-appellant as having sexually abused her in a bestial manner. Her testimony was corroborated by the medical findings of PCI Escarro which revealed clear evidence of blunt penetrating trauma to the hymen.

The People maintains that it is inconceivable that a child such as AAA would falsely incriminate her own father of a grave and scandalous crime such as rape were it not for the truthfulness of her accusation. No woman would openly admit that she was raped and consequently subject herself to an examination of her private parts, undergo trauma and humiliation of a public trial and embarrass herself with the need to narrate in detail how she was raped, if she was not in fact raped.

Lastly, the People contends that accused-appellant's bare denial and self-serving assertion have no merit or weight in law and cannot be given greater evidentiary value than the testimony of a credible witness who testified on affirmative matters. These cannot prevail over the positive testimony of AAA who was not shown to have any ill motive to fabricate the charge of rape against him.

Our Ruling

We have carefully reviewed the records of this case and see no compelling reason to reverse or modify the factual findings of the RTC, particularly since the CA had affirmed the same. We modify, nonetheless, the nomenclature of the crime and the amount of damages awarded to AAA.

In resolving this case, we refer to the time-tested principles in deciding rape cases, to wit:

In the review of rape cases, we continue to be guided by the following principles: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and, (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense. Thus, in a prosecution for rape, the complainant's credibility becomes the single most important issue. 22 (Citation omitted.)

We will not disturb the weight and credence accorded by both the RTC and the CA with respect to AAA's testimony. When it comes to credibility, the assessment by the trial court deserves great weight, and is even considered conclusive and binding, unless the same is tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. Since it had the full opportunity to observe directly the deportment and the manner of testifying of the witnesses before it, the trial court is in a better position than the appellate court to properly evaluate testimonial evidence. Accordingly, the rule finds an even more stringent application where the CA sustained said findings, as in this case. 23

The records of this case clearly show that accused-appellant raped AAA through sexual intercourse and sexual assault. She categorically narrated that accused-appellant had inserted against her will: (a) his penis into her vagina on two occasions, i.e., on January 28, 2012 and September 2013; and (b) his finger into her vagina in one instance, i.e., on November 17, 2013, thus:

PROSECUTION

Q So on January 28, that was the first time he attempted to rape you?

A Yes, Sir.

Q Okay, kindly tell us what happened?

A Initially, they were having a drinking session and my father got drunk. It was very late at night when they finished and he went inside and turned the light off, Sir.

xxx xxx xxx

Q And then?

A He turned the lights off, Sir.

Q And then?

A He removed my clothes, Sir.

xxx xxx xxx

A Yes, Sir, but they did not know what happened because the light was off and I kept on crying. He removed my clothes at that time and he inserted his penis inside my vagina, Sir.

Q And then?

A And then I ran at the back of my sister and my sister asked me what happened to me and I kept on crying. Then my sister turned on the lights and my father pretended to sleep, he also asked me what was happening to me at that time and he fixed his eyes and stared badly at me, Sir.

xxx xxx xxx

Q Okay, so your father inserted his penis inside your vagina, how did you know that it was inserted?

A He removed my clothes, Sir, and I bled at that time.

Q When he was removing your clothes, you did not push him?

A He held me, Sir.

Q Where did he hold you?

A My hands and my mouth, Sir.

Q Was he saying anything at that time while he was doing those things to you?

A Yes, Sir, he told me not to make a noise.

Q Because?

A Because he said if don't keep quiet, I would be in trouble, Sir.

xxx xxx xxx

Q What did you feel, did you feel anything?

A It was painful, Sir.

Q Did you feel something was inserted inside your vagina?

A Yes, Sir.

Q Did it stay there for long?

A No, Sir, it was just momentary.

xxx xxx xxx

Q Just momentary, why?

A Because I cried and my sister was awakened.

xxx xxx xxx

Q Can you recall when was the second time?

A It was his birthday, Sir, November 17, 2013.

Q So the second time was in November 17, 2013, on your father's birthday. In between January 28, 2012 to November 17, 2013, did your father do anything bad to you? DETACa

A Yes, Sir.

Q What is that?

A He was also drunk at that time, they were also having a drinking session and the same thing happened, Sir. He turned off the lights and he removed my clothes.

Q He raped you again?

A Yes, Sir.

xxx xxx xxx

Q x x x Okay, on November 17, 2013, what did your father do to you, can you narrate it to us?

A The same, Sir, it was midnight, the electric fan fell because he was raping me and then he inserted his fingers inside my vagina.

Q After he inserted his fingers, what was he saying?

A He said for me to keep quiet and he covered my mouth and he was threatening me, Sir.

Q What was his threat to you?

A That he would kill us, Sir, if I tell anyone.

xxx xxx xxx

Q You did not resist?

A I was scared of him, Sir.

Q You did not shout?

A No, Sir.

xxx xxx xxx

Q On September 2013, do you remember anything unusual incident that happened?

A Yes, Sir, he also raped me.

Q Where did that happen?

A Also in our house, Sir.

xxx xxx xxx

Q Okay, can you tell us how did he rape you on September 2013, how did it all start?

A On September 2013, we were already sleeping. I was sleeping soundly when I felt something heavy was on top of me and then he removed my clothes, Sir.

Q And then?

A I woke up and saw that his penis was already out, Sir.

Q And then?

A And then my sister was awakened. My father threatened me that he would hit me with a wood.

xxx xxx xxx

Q So while he was raping you, he was covering your mouth?

A Yes, Sir.

Q What was your position when that happened, were you on top or was he on top?

A He was on top, Sir.

Q What was he doing while his penis was inside your vagina, his lips, his face?

A He was just looking at me, Sir.24 (Emphasis and underscoring ours)

Contrary to accused-appellant's assertion, AAA confirmed that he went on top of her and inserted his penis inside her vagina during the rape which happened in September 2013. She recounted that she saw accused-appellant's penis when she was woken up on the night of September 2013; and she later on affirmed that accused-appellant inserted his penis into her vagina on that same night.

As to the charges of two (2) counts of Acts of Lasciviousness, AAA was categorical, candid and straightforward when she testified as follows:

PROSECUTION

Q You just saw that he was being touched also?

A Yes, Sir, and sometimes he would touch his penis and then put saliva into his fingers and then he would put his fingers with his saliva into our mouth.

Q He will touch his penis and then?

A Then he will put saliva and put it in our mouth, Sir.

Court:

Q He would put his penis out?

A No, Your Honor, he would just touch it.

Q He would put his fingers into his short or to his pants to touch his penis?

A Yes, Your Honor.

Q Or he would put his penis out while he's doing that?

A No, Your Honor.

Q So after touching his penis, he will put saliva?

A No, Your Honor.

Q So after touching his penis, he will put saliva?

A Yes, Your Honor, and then he would put it in our mouth.

Pros. Fajardo:

Q So you would see that he's doing that act to CCC also?

A Yes, Sir, and also to our other siblings.

Q Who else among your siblings whom he was doing those things to as well?

A DDD and BBB, Sir.

xxx xxx xxx

Q What was BBB's reaction while your father was doing that her? (sic)

A She would say 'ano ba yan, papa, bastos mo naman.'

xxx xxx xxx

Q Do you remember anything that happened on October 18, 2014?

A Yes, Sir.

Q What is it, can you tell us?

A That was the last time, Sir, he touched our vagina.

Q Who were there when it happened and what time was that?

A It was early in the morning, Sir.

Q Who was beside you?

A My sister CCC, Sir.

Q Did you see your father touching her also?

A Whenever he wakes up, he would touch our private parts, Sir.

xxx xxx xxx

Q Were you crying while it was being done to you?

A No, Sir.

Q Not anymore, why, before you were crying?

A I just shout at him "ano ba yan, papa, ang bastos mo naman, diyan mo pa kami hinahawakan."

xxx xxx xxx

Q What did your father tell you?

A Sometime he would beat me, Sir. 25 (Emphasis ours)

The RTC found, and the CA affirmed, that AAA's testimony was given in a straightforward, convincing, and consistent manner. Indeed, AAA described vividly how accused-appellant sexually assaulted her. We cannot imagine how a child of tender age like AAA, could directly and consistently recount in open court such an ordeal, unless she, in fact, had experienced the horrendous acts from her own father. Between accused-appellant's plain denial and AAA's categorical testimony, We give more weight to the latter, especially because accused-appellant admitted that he was actually living together with AAA in the same house.

Also, AAA could not have been impelled by a motive other than trying to bring justice to the despoiler of her virtue. There is no showing that she was moved by anger or any ill motive against her father or that she was unduly pressured or influenced by anyone to charge him with the serious crime of rape as well as acts of lasciviousness. Where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he/she was not so actuated and his/her testimony is entitled to full credence. 26

However, the courts below erred when they convicted accused-appellant in Criminal Case No. 647-V-15 of Rape through sexual assault under the RPC instead of Lascivious Conduct under RA 7610. Article 266-A (2) of the RPC, as amended by RA 8353, provides that Rape through sexual assault is committed by any person who, under the same set of circumstances in Article 266-A (1), inserts his penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. In this case, AAA testified that accused-appellant inserted his finger into her vagina which is tantamount to Rape by sexual assault. However, in People v. Caoili, 27 the Court clarified that RA 7610 shall apply when the victims of abuse, exploitation, or discrimination are children or those persons below 18 years of age; or those over 18 years of 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.

Section 5 (b) of RA 7610 provides for the elements of sexual abuse, thus: (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. 28 Sexual abuse includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children. 29 On the other hand, lascivious conduct is defined as 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, arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. 30

Verily, accused-appellant's act of inserting his finger into AAA's vagina is considered a lascivious conduct under Section 5 (b) of RA 7610. AAA was subjected to sexual abuse because she was coerced to engage in a lascivious conduct and she was below 18 years of age at the time of incident. As held in Dimakuta v. People, 31 when the accused committed lascivious conduct under RA 7610 and rape by sexual assault under the RPC, as amended by RA 8353, the offender should be convicted of Lascivious Conduct under RA 7610, if the victim is a child. Thus:

Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person if the victim did not consent either it was done through force, threat or intimidation; or when the victim is deprived of reason or is otherwise unconscious; or by means of fraudulent machination or grave abuse of authority as sexual assault as a form of rape. However, in instances where the lascivious conduct is covered by the definition under R.A. No. 7610, where the penalty is reclusion temporal medium, and the 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 for the higher penalty of reclusion temporal medium, if the offended party is a child victim. But if the victim is at least eighteen (18) years of age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully take care of herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, in which case, the offender may still be held liable for sexual abuse under R.A. No. 7610. 32 (Emphasis and underscoring supplied.) HEITAD

Applying the foregoing, the RTC and the CA, therefore, erred when they convicted accused-appellant of Rape through sexual assault under the RPC. Since the victim is a 12-year old child, accused-appellant shall be liable under Section 5 (b), Article III of RA 7610 and not Article 266-A (2) under the RPC.

Moreover, contrary to accused-appellant's contention, his atrocious perverted acts of touching AAA's private parts and letting her swallow his saliva-wet hands used in masturbation are also considered acts of lasciviousness under Section 5 (b), Article III of RA 7610. As previously defined, lascivious conduct includes intentional touching, either directly or through clothing, of the genitalia or inner thigh with an intent to abuse, humiliate, harass, degrade, arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

Patently, it was established beyond reasonable doubt that accused-appellant committed two counts of Lascivious Conduct on AAA who was then below 18 years old. In People v. Larin, 33 a child is deemed subjected to other sexual abuse when he or she is under the coercion or influence of any adult, syndicate or group, to wit:

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. . . .

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 lascivious conduct. 34 (Emphasis supplied.)

We held in Olivarez v. Court of Appeals35 that RA 7610 does not only cover child prostitution but also other forms of sexual abuse. It includes those children who indulge in a lascivious conduct because of coercion or intimidation by any adult, syndicate or group. In this case, the records clearly show that AAA was heavily intimidated by accused-appellant. In fact, she attested that her father also engaged in lascivious conduct with her other sisters by touching their private parts in the pretext of waking them up and making them swallow his hands covered with saliva after masturbating. These atrocious acts evidently confirm accused-appellants' intimidation over his children as the latter merely succumb to their father's corrupt practices because of his moral ascendancy over them.

Also, in Dimakuta v. People, 36 a 12-year old child, such as AAA is presumed by law to be incapable of giving a rational consent to any lascivious conduct, to wit:

There could be no other conclusion, a child is presumed by law to be incapable of giving rational consent to any lascivious act, taking into account the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth, as well as, in harmony with the foremost consideration of the child's best interests in all actions concerning him or her. This is equally 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; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation, and discrimination. Besides, if it was the intention of the framers of the law to make child offenders liable only of Article 266-A of the RPC, which provides for a lower penalty than R.A. No. 7610, the law could have expressly made such statements.37 (Emphasis and underscoring supplied.)

Similar to Criminal Case No. 647-V-15, accused-appellant shall be held liable for two (2) counts of Lascivious Conduct in Criminal Case Nos. 648-V-15 and 649-V-15 under Section 5 (b), Article III of RA 7610 and not under the RPC.

Lastly, We are not persuaded by accused-appellant's contention that the Information charging him with violation of Section 10 (a) of RA 7610 failed to state that his alleged act of maltreatment was with intent to debase, degrade, or demean the intrinsic worth and dignity of a child as a human being. Neither are we convinced that the prosecution must prove the "intent to debase, degrade, or demean the intrinsic worth and dignity of a child as a human being" as one of the elements of Section 10 (a) of RA 7610.

Section 10 (a) of RA 7610 provides that:

Article VI

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 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 and underscoring supplied.)

In Araneta v. People, 38 We clarified that Section 10 (a) of RA 7610 punishes four distinct acts, i.e., (a) child abuse, (b) child cruelty, (b) child exploitation, and (d) being responsible for conditions prejudicial to the child's development. Contrary to accused-appellant's contention, he can be prosecuted and convicted if he commits any of the four acts. Child abuse is defined in subsection (b), Section 3, Article 1 of RA 7610 as:

(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. (Emphasis and underscoring supplied.)

It is clear from the above provision that an act by deeds or words which debases, degrades, or demeans the intrinsic worth and dignity of a child as a human being is only one of the four forms of child abuse or maltreatment enumerated under Section 3 (b), Article 1 of RA 7610. Evidently, the prosecution need not prove that accused-appellant's act of forcing AAA to swallow the dog feces is done with intent to debase, degrade, or demean the intrinsic worth and dignity of a child as a human being. Plainly, there is nothing normal in eating dog feces even as a form of punishment. The very act itself is considered cruel and excessive Section 3 (b), Article 1 of RA 7610; and no child or even an adult should be forced to eat such filthy thing.

Accused-appellant's act of forcing AAA to eat the dog feces is by itself vicious and appalling, regardless of whether the subject is a child or an adult. Subjecting a child to such form of abuse will not only affect his or her physical health but also his psychological well-being. It is inherently inhumane to subject a child to such cruelty and abuse even as a form of punishment. Verily, accused-appellant's act of maltreatment is at its core debasing, degrading, and demeaning of AAA's intrinsic worth and dignity as a human being.

Finally, as to the imposition of penalties and damages, We deem it proper to modify the same.

First, in Criminal Case Nos. 645-V-15 and 646-V-15, the accused-appellant is liable for two counts of Qualified Rape through carnal knowledge. There is no dispute that the qualifying circumstances of relationship and minority have been duly established. Under Article 266-B of the RPC, the imposable penalty is death where the victim is below eighteen (18) years of age and the violator is the victim's own biological father. By virtue of RA 9346, however, the death penalty is reduced to reclusion perpetua but without eligibility for parole. Hence, accused-appellant should, for each count of Qualified Rape, be meted with the penalty of reclusion perpetuawithout eligibility for parole and to pay AAA the amounts of P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages.

Second, in Criminal Case No. 647-V-15, for Lascivious Conduct under Section 5 (b), Article III of RA 7610, the penalty prescribed by law is reclusion temporal in its medium period to reclusion perpetua. However, Section 31 (c), Article XII of RA 7610 provides that the penalty shall be imposed in its maximum period when perpetrator is the parent of the victim. Hence, accused-appellant should be meted with the penalty of reclusion perpetua.

Third, in Criminal Case Nos. 648-V-15 and 649-V-15, the penalty imposed by the appellate court for two (2) counts of Lascivious Conduct under RA 7610 is reclusion perpetua. However, the proper penalty shall be reclusion perpetua for each count of Lascivious Conduct.

As to the award of civil indemnity, moral damages and exemplary damages in Criminal Case Nos. 647-V-15, 648-V-15 and 649-V-15, the same should be increased to P75,000.00 each. 39 In addition, accused-appellant is ordered to pay a fine in the amount of P15,000.00 for each count of Lascivious Conduct, pursuant to Section 31 (f), Article XII of RA 7610.

Fourth, in Criminal Case No. 650-V-15, considering that accused-appellant is the father of the victim, the penalty prescribed by law shall be imposed in its maximum period. Under Section 10 (a) of RA 7610, the proper penalty to impose against accused-appellant would be prision mayor in its minimum period. Applying the Indeterminate Sentence Law and taking into consideration the aggravating circumstance of relationship, the Court hereby modifies the penalty against accused-appellant to six (6) years of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. Moreover, a fine of P15,000.00 is imposed pursuant to Section 31 (f), Article XII of RA 7610.

WHEREFORE, the July 27, 2017 Decision of the Court of Appeals in CA-G.R. CR-HC No. 08088 is AFFIRMED with MODIFICATION as follows:

1. In Criminal Case Nos. 645-V-15 and 646-V-15, accused-appellant is found GUILTY of two counts of QUALIFIED RAPE under Article 266-A of the Revised Penal Code. For each count of Qualified Rape, he is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole pursuant to A.M. No. 15-08-02-SC 40 and is ordered to pay the victim P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages.

2. In Criminal Case Nos. 647-V-15, 648-V-15 and 649-V-15, accused-appellant is found GUILTY of three counts of LASCIVIOUS CONDUCT under Section 5 (b), Article III of Republic Act No. 7610. For each count of Lascivious Conduct, he is sentenced to suffer the penalty of reclusion perpetua and is ordered to pay a fine in the amount of P15,000.00, civil indemnity in the amount of P75,000.00, moral damages in the amount of P75,000.00 and exemplary damages in the amount of P75,000.00,

3. In Criminal Case No. 650-V-15, accused-appellant is found GUILTY of CHILD ABUSE or MALTREATMENT under Section 10 (a), Article VI of Republic Act No. 7610. He is sentenced to suffer six (6) years of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum and is ordered to pay the victim civil indemnity the amount of P50,000, moral damages in the amount of P50,000 and exemplary damages in the amount of P25,000. In addition, accused-appellant is ordered to pay a fine of P15,000.00 pursuant to Section 31 (f), Article XII of Republic Act No. 7610.

All monetary awards and damages shall earn interest at the rate of six percent (6%) per annum from the date of finality of this Resolution until full satisfaction thereof. ATICcS

SO ORDERED."

By authority of the Court:

(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court

 

Footnotes

1. Initials were used to identify the accused-appellant pursuant to Supreme Court Amended Administrative Circular No. 83-15 dated September 5, 2017 Protocols and Procedures in the Promulgation, Publication, and Posting on the Websites of Decisions, Final Resolutions, and Final Orders using Fictitious Names/Personal Circumstances.

2.Rollo, pp. 15-17.

3.Id. at 2-14. Penned by Associate Justice Zenaida T. Galapate-Laguilles and concurred in by Associate Justices Magdangal M. De Leon and Franchito Diamante.

4. CA rollo, pp. 20-48. Penned by Presiding Judge Evangeline M. Francisco.

5. Geographical location is blotted out pursuant to Supreme Court Amended Administrative Circular No. 83-2015.

6. Geographical location is blotted out pursuant to Supreme Court Amended Administrative Circular No. 83-2015, supra note 1.

7. "The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, Providing Penalties for its Violation, and for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence against Women and their Children, effective November 15, 2004." (People v. Dumadag, 667 Phil. 664, 669 [2011]).

8. Records (Crim. Case No. 645-V-15), p. 1.

9. Records (Crim. Case No. 646-V-15), p. 1.

10. Records (Crim. Case No. 647-V-15), p. 1.

11. Records (Crim. Case No. 648-V-15), p. 1.

12. Records (Crim. Case No. 649-V-15), p. 1.

13. Records (Crim. Case No. 650-V-15), p. 1.

14.Id. at 22-23.

15.Id. at 26.

16.Supra note 4.

17. CA rollo, pp. 47-48.

18.Supra note 3.

19.Rollo, pp. 13-14.

20.Id. at 26-36.

21. CA rollo, p. 64.

22.People v. Ramos, 743 Phil. 344, 355-356 (2014).

23. See People v. Regaspi, 768 Phil. 593, 598 (2015).

24. TSN July 21, 2015, pp. 14-15.

25.Id. at 27-28, 35-37.

26.People v. Invencion, 446 Phil. 775, 787 (2003) citing People v. Ramos, 371 Phil. 66, 78 (1999).

27. 815 Phil. 839, 885 (2017), citing People v. Chingh, 661 Phil. 208, 223 (2011).

28.Amployo v. People, 496 Phil. 747, 758 (2005).

29. Implementing Rules and Regulations of R.A. No. 7610, Section 2.

30.Id.

31.Dimakuta v. People, 771 Phil. 641 (2015).

32.Id. at 670.

33. 357 Phil. 987, 998 (1998).

34.Id. at 998.

35. 503 Phil. 421 (2005).

36.Dimakuta v. People, supra note 30.

37.Id. at 670-671.

38. 578 Phil. 876 (2008).

39. See People v. Tulagan, G.R. No. 227363, March 12, 2019.

40. Dated August 4, 2015.