THIRD DIVISION
[G.R. No. 250130. June 16, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ELMER ZERNA y ZAMORA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJune 16, 2021, which reads as follows: HTcADC
"G.R. No. 250130 (People of the Philippines v. Elmer Zerna y Zamora). — After a thorough review of the case, the Court finds this Appeal 1 wanting in merit. The Court rules that the Court of Appeals (CA), in its Decision 2 dated August 29, 2018 in CA-G.R. CR-HC No. 08904, properly affirmed with modification the Judgment 3 dated September 27, 2016 of Branch 9, Regional Trial Court (RTC), Manila in Criminal Case Nos. 04229435 and 04229436. The RTC found Elmer Zerna y Zamora (accused-appellant) guilty beyond reasonable doubt of the crimes of Rape and Acts of Lasciviousness.
Accused-appellant was charged with Rape under Article 266-A of the Revised Penal Code (RPC) in relation to Republic Act (RA) No. 8353 4 in Criminal Case No. 04229435, and Acts of Lasciviousness under Article 336 of the same Code in Criminal Case No. 04229436, both committed against AAA. 5 Accused-appellant was also charged with acts of lasciviousness under Article 336 of the same Code committed against BBB in Criminal Case No. 04229438. The accusatory portions of the Informations 6 read:
Criminal Case No. 04229435 (Rape)
"That sometime during the year 2000, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with lewd designs, commit sexual abuse and lascivious conduct upon said [AAA], a minor, 11 years of age, by then and there while the latter was asleep, fondling and kissing her breast, in the process, awakening her and thereafter, inserting his penis into the vagina of said [AAA], succeeded in having carnal knowledge with her against her will and consent.
CONTRARY TO LAW." 7
Criminal Case No. 04229436 (Acts of Lasciviousness)
"That sometime in or about January 2003, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, when the said [AAA] was asleep with lewd designs, commit child abuse and lascivious conduct upon said [AAA], a minor, 13 years of age, by then and there while the latter was sleeping, fondling and kissing her breast that awakened said [AAA] in the process, against her will and consent.
CONTRARY TO LAW." 8
Criminal Case No. 04229438 (Acts of Lasciviousness)
"That sometime in or about January 2003, in the City of Manila, Philippines, the said accused with lewd design through force, threat and intimidation, did then and there willfully, unlawfully and feloniously lascivious conduct upon said [BBB], a minor, 12 years of age, then and there touching and fondling her breast against her will and consent.
CONTRARY TO LAW." 9
Accused-appellant's brother, Andrew Zerna (Andrew), was also charged with Rape and Acts of Lasciviousness in two separate Informations in Criminal Case Nos. 04229434 and 04229437, both involving the same offended parties. 10 The criminal cases against accused-appellant and his brother were consolidated, for being founded on the same facts and for forming part of a series of offenses of similar character. 11 Both accused pleaded "not guilty" to the charges. 12
Accused-appellant and Andrew are uncles of the victims, AAA and BBB. They resided in one house located in Sta. Mesa, Manila, owned by accused-appellant's mother and the victims' grandmother, CCC. The victims were abandoned by their parents. 13
Sometime in 2000, when AAA was eleven (11) years old, she and her siblings came home dirty and soiled after they played outside. As Andrew gave the siblings a sponge bath, his hands slowly touched AAA's stomach with a wet cloth before moving down to her vagina. In another incident, AAA was sleeping inside their room with her siblings. When she woke up, she saw accused-appellant touching, mashing, and kissing her breast. She vigorously resisted by kicking accused-appellant, who then walked away. The following night, accused-appellant again touched, mashed, and kissed AAA's breast despite her resistance by kicking and boxing him. 14
In yet another incident that same year, AAA was sleeping beside her siblings when she was awakened by accused-appellant, who was removing her shorts and panties. She struggled by boxing her uncle, to no avail. Accused-appellant lowered his shorts to just above his knees, exposed his penis, and slightly penetrated AAA's vagina. 15
Sometime in 2003, when AAA was thirteen (13) years old, accused-appellant abused her again by touching, mashing, fondling, and kissing her breasts. She struggled and resisted, but accused-appellant was much stronger. He also pointed a sharp object at her neck. AAA did not tell her grandmother about her ordeal because she was busy with other things, but her elder sisters DDD and EEE knew about the sexual abuses. 16
One day, she was on her way to school when EEE fetched her and told her to go to the house of a certain Ate Joy, a friend of her grandmother. She then saw a representative from ABS-CBN Bantay-Bata, who talked to her about the sexual abuses she experienced from her uncles. Later, she was brought to Camp Crame for physical examination. The medico-legal report showed that while there were no external signs of application of any form of physical trauma, the genitalia showed the presence of a shallow healed laceration at 3 o'clock position and deep healed laceration at 5 o'clock position. According to Dr. Ruby Grace Diangson (Dr. Diangson), chief of the Medico-Legal Division at Camp Crame, the "shallow healed laceration" was period and deep and the wound was noted to be 50% part of the total annular wound laceration. There was also a possibility that a blunt object was used by accused-appellant against AAA as she was "in non-virgin state physically" and there was a sign of penetration of her genitalia. 17
Meanwhile, BBB narrated that she filed cases against her uncles because of their "panghihipo" (indecent touching). In 2002, accused-appellant touched her breast and BBB pushed him away. The following year, Andrew did the same; he stopped after she punched him. 18
Accused-appellant denied the charges against him, alleging that the victims were always accompanied by their, grandmother and their elder sisters EEE and DDD whenever they go to sleep. He claimed he was just accused of the crimes because the victims were angry with him for scolding them after they stole money from their grandmother. The victims, he added, were liars. There were instances when his mother, CCC, would give them errands that they did not follow. Worse, whenever they were asked to collect the payments from the sales of newspapers, they would hide and steal the money. 19
After trial on the merits, the RTC rendered the assailed Judgment 20 dated September 27, 2016. The dispositive portion reads:
WHEREFORE, accused ELMER ZERNA is hereby found GUILTY beyond reasonable doubt of:
1) RAPE, in Criminal Case No. 04229435. He is sentenced to suffer the penalty of RECLUSION PERPETUA and is ORDERED to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages, plus interest of 6% per annum on the amount of damages, reckoned from the finality of this decision until full payment.
2) ACTS OF LASCIVIOUSNESS in Criminal [C]ase No. 04229436. He is sentenced to suffer the indeterminate penalty of 5 months and 10 days of Arresto Mayor medium as minimum, to 4 years and 2 months of Prision Correccional Medium as maximum, and is ORDERED to pay the victim P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages, plus interest of 6% per annum on the amount of damages, reckoned from the finality of this decision until full payment.
Cost against accused ELMER ZERNA.
Accused ELMER ZERNA is hereby ACQUITTED of the crime of Acts of Lasciviousness in Criminal Case No. 04229438 due to insufficient evidence to prove his guilt beyond reasonable doubt.
Accused ANDREW ZERNA is ACQUITTED of the crimes of Rape in [Criminal Case No.] 04229434 and Acts of Lasciviousness in Criminal Case No. 04229437 due to insufficient evidence to prove his guilt beyond reasonable doubt.
SO ORDERED. 21
Accused-appellant filed an Appeal 22 before the CA. In the assailed Decision 23 dated August 29, 2018, the CA affirmed the findings of the RTC, but modified the award of damages; thus:
WHEREFORE, the Appeal is DENIED. The September 27, 2016 Judgment of the Regional Trial Court, Branch 9, Manila is hereby AFFIRMED with MODIFICATION only with respect to Criminal Case No. 04229436 for acts of lasciviousness. The award of Thirty Thousand Pesos (Php30,000.00) moral damages is RETAINED, the Thirty Thousand Pesos (Php30,000.00) exemplary damages is DELETED while the Thirty Thousand Pesos (Php30,000.00) civil indemnity is REDUCED to Twenty Thousand Pesos (Php20,000.00). Such amounts shall earn legal interest at the rate of six percent (6%) per annum from the date of finality of the judgment until fully paid.
SO ORDERED. 24
Hence, this appeal.
The Court sustains the finding of the lower courts that accused-appellant is guilty of Simple Rape and Acts of Lasciviousness against AAA.
The prosecution established that accused-appellant had carnal knowledge of his 11-year-old niece, AAA. Moreover, AAA narrated her tragic ordeal in the hands of accused-appellant in a clear, straightforward, and convincing manner. It appears that there is no ill motive on her part in filing the complaints of rape and acts of lasciviousness against accused-appellant.
AAA's narration as regards the rape incident is consistent with the medical findings of Dr. Diangson that she was "in a non-virgin state" physically. Dr. Diangson found that AAA's hymen had a shallow healed laceration at 3 o'clock position and a deep healed laceration at 5 o'clock position. The pain that AAA felt during the sexual act and the presence of healed lacerations prove that there was penile penetration. 25 Following jurisprudence, 26 "when the testimony of a rape victim is consistent with the medical findings, there is sufficient basis to conclude that there has been carnal knowledge." "Laceration, whether healed or fresh, is the best physical evidence of forcible defloration." 27
Still, accused-appellant insists that the present cases were filed against him because he would spank AAA and her siblings when they steal the income from the family's business. 28 Accused-appellant's mother, CCC, asserted that her son could not have committed the charges because there were many occupants in the house. 29
The Court is not swayed by these contentions.
"[T]he Court must uphold the factual findings of the trial court in the absence of any showing that in assessing the witnesses' credibility, in relation to their testimonies, it had overlooked or misconstrued any relevant fact that would alter the result of the case." 30
First, denial and alibi are inherently weak and constitute self-serving negative evidence, which cannot prevail over the declaration of a credible witness who testified on affirmative matters. 31 Here, AAA's positive testimony that accused-appellant sexually abused her deserves more credence than the latter's uncorroborated defenses.
Second, "settled is the rule that the presence of people in a certain place is no guarantee that rape will not and cannot be committed. [In rape cases,] it is unnecessary for the place to be ideal, or the weather to be fine, for rapists bear no respect for place and time when they execute their evil deed. In fact, it may be committed inside a room in an illegal settler colony and even during a wake." 32
The CA properly imposed upon accused-appellant the penalty of reclusion perpetua for having found him guilty of Simple Rape. In view of the prevailing jurisprudence, the CA likewise correctly ordered him to pay AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages. All the monetary awards shall earn interest at the rate of 6% per annum from the date of finality of this Resolution until paid in full. 33
Similarly, in Criminal Case No. 04229436, the Court finds no reason to reverse the factual findings of the RTC, as affirmed by the CA. AAA was able to narrate the lascivious acts done to her by accused-appellant. The acts of fondling and kissing of her breasts undeniably amounted to "lascivious conducts."
All the same, there is a need to modify he nomenclature of the charge for Acts of Lasciviousness against accused-appellant to be consistent with the principles elucidated in People v. Tulagan. 34 The following are the guidelines in designating or charging the proper offense in case lascivious conduct is committed under Section 5 (b) of RA 7610 and in determining the imposable penalty; thus:
1. The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty.
2. If the victim is under twelve (12) years of age, the nomenclature of the crime should be "Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5 (b) of R.A. No. 7610." Pursuant to the second proviso in Section 5 (b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period.
3. If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as "Lascivious Conduct under Section 5 (b) of R.A. No. 7610," and the imposable penalty is reclusion temporal in its medium period to reclusion perpetua. 35
Under the law, the penalty to be imposed for the crime of "lascivious conduct under Section 5 (b) of RA 7610" is reclusion temporal in its medium period to reclusion perpetua. In the absence of mitigating or aggravating circumstances, the maximum term of the sentence shall be taken from the medium period of the penalty to be imposed. 36 Notwithstanding the fact that RA 7610 is a special law, accused-appellant may enjoy the benefits of the Indeterminate Sentence Law. In applying its provisions, the minimum term shall be taken within the range of the penalty next lower in degree, which is prision mayor in its medium period to reclusion temporal in its minimum period, that is, eight (8) years and one (1) day to 14 years and eight (8) months. 37 Thus, he 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.
It is also proper to modify the monetary awards awarded by the CA. Pursuant to Tulagan, 38 the amount of civil indemnity, moral damages, and exemplary damages awarded for "lascivious conduct under Section 5 (b) of RA 7610," where the victim is a child below eighteen (18) years of age and the penalty imposed is within the range of reclusion temporal medium, is P50,000.00 each. 39
WHEREFORE, the appeal is DISMISSED. The Decision dated August 29, 2018 in CA-G.R. CR-HC No. 08904 is AFFIRMED with MODIFICATIONS. Accused-appellant Elmer Zerna y Zamora is found:
1. GUILTY beyond reasonable doubt of the crime of Simple Rape and is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. Civil indemnity, moral damages, and exemplary damages shall be in the amount of P75,000.00 each; and
2. GUILTY beyond reasonable doubt of the crime of Lascivious Conduct under Section 5 (b) of Republic Act No. 7610. He is sentenced to suffer the indeterminate penalty often (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; and is ordered to pay civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00), moral damages in the amount of Fifty Thousand Pesos (P50,000.00), and exemplary damages in the amount of Fifty Thousand Pesos (P50,000.00).
All the monetary awards shall earn interest at the rate of 6% per annum from the date of finality of this Resolution until paid in full. aScITE
SO ORDERED." (HERNANDO, J., on official leave).
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1. CA rollo, pp. 150-151.
2.Rollo, pp. 3-26; penned by Associate Justice Carmelita Salandanan Manahan with Associate Justices Mario V. Lopez (now a member of the Court) and Ronaldo Roberto B. Martin, concurring.
3. CA rollo, pp. 55-67; penned by Presiding Judge Jacqueline S. Martin-Balictar.
4. An Act Expanding the Definition of the Crime of Rape, Reclassifying the Same as a Crime Against Persons, Amending for the Purpose Act No. 3815, as Amended, Otherwise Known as the Revised Penal Code and for Other Purposes (The Anti-Rape Law of 1997, Republic Act No. 8353, [September 30, 1997]).
5. The real name of the victim and of the members of her immediate family are withheld pursuant to Republic Act No. 7610 otherwise known as the "Special Protection of Children against Abuse, Exploitation and Discrimination Act" and A.M. No. 12-7-15-SC entitled "Protocols and Procedures in the Promulgation, Publication, and Posting on the Websites of Decisions, Final Resolutions and Final Orders Using Fictitious Names." People v. Tuballas, 811 Phil. 201 (2017).
6. As culled from the RTC Decision, CA rollo, pp. 56-57.
7. As culled from the RTC Decision, CA rollo, pp. 56.
8. As culled from the RTC Decision, CA rollo, p. 57.
9. As culled from the RTC Decision, id.
10.Id. at 55-56.
11.Id. at 57.
12.Id.
13.Rollo, p. 6.
14.Id. at 6-7.
15.Id. at 7.
16.Id.
17.Id. at 7-8.
18.Id. at 8.
19.Id. at 8-9.
20. CA rollo, pp. 55-67.
21.Id. at 67.
22. CA rollo, p. 15.
23.Rollo, pp. 3-26.
24.Id. at 25.
25. CA rollo, p. 61.
26. See People v. Mercado, 664 Phil. 747, 751 (2011); See also People v. Sabal, 734 Phil. 742, 746 (2014), citing People v. Perez, 595 Phil. 1232, 1258 (2008).
27.People v. Manaligod, 831 Phil. 204, 212-213 (2018).
28.Rollo, pp. 15-16.
29.Id. at 15.
30.People v. Caipang, G.R. No. 236837 (Notice), January 29, 2020, citing People v. Gomez, 826 Phil. 561, 568 (2018).
31.People v. XXX, G.R. No. 243789, September 11, 2019 (Resolution).
32.People v. Gratela, G.R. No. 225961, January 6, 2020, citing People v. Adjar, G.R. No. 231306, June 17, 2019.
33.People v. AAA, G.R. No. 247007, March 18, 2021.
34. G.R. No. 227363, March 12, 2019, citing People v. Caoili, 815 Phil. 839 (2017).
35.People v. Caoili, 815 Phil. 839, 894 (2017).
36.People v. Baya, G.R. No. 242512, August 14, 2019.
37. Luis Reyes, Revised Penal Code, Book II, 17th ed. (2008), p. 1077. Encinares v. People, G.R. No. 252267, January 11, 2021.
38.People v. Tulagan, supra note 33.
39.People v. Baya, supra note 35.