THIRD DIVISION
[G.R. No. 252093. July 7, 2021.]
FRANKIE ROSAURO y SUBING-SUBING, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJuly 7, 2021, which reads as follows:
"G.R. No. 252093 (Frankie Rosauro y Subing-Subing v. People of the Philippines). — Before the Court is a Petition for Review on Certiorari1 assailing the Decision 2 dated November 13, 2019 of the Court of Appeals (CA) in CA-G.R. CR No. 42359 which affirmed the Judgment 3 dated August 16, 2018 of Branch 73, Regional Trial Court (RTC), Olongapo City finding Frankie Rosauro y Subing-Subing (petitioner) guilty beyond reasonable doubt of Acts of Lasciviousness, in relation to Section 5 (b) of Republic Act No. (RA) 7610. 4
The Antecedents
The instant case stemmed from an Information 5 docketed as Crim. Case No. 427-2015FC filed before the RTC charging petitioner with the crime of Rape through Sexual Assault defined under Article 266-A (2) of the Revised Penal Code (RPC), committed against AAA, 6 who was then nine years old. The accusatory portion of the Information 7 states:
That on or about the 10th day of November 2015, at around 4:30 in the morning, at Barangay Nagbunga, in the Municipality of Castillejos, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with lewd design, through force, threat or intimidation, did then and there willfully, unlawfully and feloniously commit an act of sexual assault, upon AAA, then a nine-year-old female child, or under twelve (12) years of age, against her will and without her consent, thereby debasing, degrading, and demeaning the intrinsic worth and dignity of said minor "AAA" as a human being, to her damage and prejudice.
CONTRARY TO LAW. 8
When arraigned on January 22, 2016, petitioner pleaded not guilty to the charge. 9 cEaSHC
Trial ensued. 10
The prosecution established that at around 4:30 a.m. on November 10, 2015, AAA, who was then nine years old, was asleep on a wooden sofa inside an office located in a jeep terminal in Castillejos, Zambales. 11 Suddenly, AAA felt that someone, whom she thought was her father, was arranging the bed sheet. Then, she felt that the person touched her vagina. When AAA opened her eyes, she saw petitioner; he was using his thumb to stroke her vagina. AAA got frightened; she ran away from the room. AAA went upstairs to look for her mother. 12
Upon learning that her mother was in the market, AAA went to a waiting shed and waited for her father to arrive. When her father did not arrive, she went inside a parked jeepney of a certain Kuya Boyet. While she was inside the jeepney, Kuya Boyet asked why she was crying; she told him that petitioner molested her. Another person, whom she knew as Kuya Boy, arrived and asked her what she was doing inside the jeepney. She then told Kuya Boy that she was waiting for her father because petitioner molested her. Thereafter, her mother arrived. She disclosed to her mother her ordeal with petitioner. In no time, she and her mother went to the police station to file a complaint against petitioner. 13
BBB, the mother of AAA, corroborated AAA's statements. She testified that she knew petitioner because the latter helps in cleaning the jeepney terminal; and that there were times he rides the jeepneys. 14
In defense, petitioner denied the accusation against him. He testified that on November 10, 2015, he was at the jeepney terminal in Castillejos, Zambales. He slept inside a jeepney. At around 6:00 a.m., he was awakened by a police officer because of a criminal complaint filed against him. He insisted that he does not know AAA and only saw her inside the police station. 15
The RTC Ruling
In a Judgment 16 dated August 16, 2018, the RTC found petitioner guilty of the crime of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610 instead of Sexual Assault under the RPC. 17 The dispositive portion of the Judgment 18 reads:
WHEREFORE, premises considered, the court finds accused FRANKIE ROSAURO y SUBING-SUBING GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness in relation to RA 7610 and is hereby sentenced to suffer the indeterminate imprisonment of twelve (12) years and one (1) day of reclusion temporal in its minimum period as minimum to fifteen (15) years, six (6) months, and twenty-one (21) days of reclusion temporal in its medium period as maximum. He is further ORDERED to pay the victim, AAA, moral damages, exemplary damages and fine in the amount of P15,000.00 each as well as P20,000.00 as civil indemnity. All damages shall earn interest at the rate of six percent (6%) per annum from the date of finality of this judgment.
SO ORDERED. 19
The RTC gave full weight and credit to AAA's testimony. It emphasized that per the testimony of AAA, petitioner pressed her vagina in a circular motion with the use of a finger. Although she felt the pressure exerted on her vagina, she did not feel petitioner's finger penetrating her vagina. Thus, the RTC found petitioner guilty of Acts of Lasciviousness. Moreover, the RTC held that because AAA was nine years old at the time of the commission of the crime, petitioner likewise violated Section 5 (b) of RA 7610. Hence, the RTC concluded that petitioner is guilty of Acts of Lasciviousness in relation to Section 5 (b) of RA 7610; and not Sexual Assault under the RPC. 20
Undaunted, petitioner filed an appeal to the CA.
The CA Ruling
In the assailed Decision, 21 the CA denied the appeal. It disposed of the case as follows:
WHEREFORE, the appeal is DENIED. The Judgment dated August 16, 2018 of the RTC, Branch 73, Olongapo City, in Criminal Case No. 427-2015FC, is hereby AFFIRMED in toto.
SO ORDERED. 22
According to the CA, petitioner can still be convicted of Acts of Lasciviousness in relation to Section 5 (b) of RA 7610 despite the fact that petitioner was charged with Sexual Assault in the Information 23 considering that elements of Acts of Lasciviousness in relation to Section 5 (b) of RA 7610 are necessarily included in the crime of Sexual Assault defined and punished under the RPC. In addition, the CA found petitioner's denial and alibi to be self-serving defenses. The CA likewise affirmed the penalty imposed against petitioner and the monetary awards he was ordered to pay. 24
Aggrieved, petitioner filed the instant petition.
Petitioner avers that the Information 25 is defective as it did not categorically allege the acts constituting the offense of Rape through Sexual Assault. Hence, he insists on his acquittal from the crime charged as his right to be informed of the nature of accusation against him was violated. 26 He likewise reiterates that the prosecution failed to prove his guilt beyond reasonable doubt. 27
On the other hand, the People, through the Office of the Solicitor General (OSG), asserts that the prosecution was able to prove the elements of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610, even if such crime was not alleged in the Information. 28 The OSG explains that Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610, was duly proven during trial; and that its elements are necessarily included in the crime of Rape through Sexual Assault, which was alleged in the Information. 29 Finally, the OSG argues that petitioner's defenses of denial and alibi cannot prevail over the categorical and consistent positive identification of the rape victim. 30 DcHSEa
Issue
The core issues are (1) whether the CA erred in affirming petitioner's conviction for Acts of Lasciviousness despite the alleged defect in the Information; and (2) whether the CA erred in affirming petitioner's conviction despite the alleged failure of the prosecution to prove his guilt beyond reasonable doubt.
The Court's Ruling
The petition is denied.
It must be stressed that in criminal cases, an appeal 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 that the parties raised as errors. 31 The appeal confers the appellate court full jurisdiction over the case and renders such court competent to examine records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law. 32
In other words, the Court may still review the factual findings of the trial court "if it is not convinced that such findings are conformable to the evidence of record and to its own impressions of the credibility of the witnesses." 33 Significant facts and circumstances may have been overlooked, which, if properly considered, could affect the result of the case. 34
After a judicious scrutiny of the entire records of the instant case, the Court is convinced that petitioner is guilty beyond reasonable doubt of the crime of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610.
Petitioner argues that the Information 35 is defective as it does not aver any act constituting the crime of Rape. Thus, petitioner insists that he cannot be convicted of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610 because his right to be informed of the nature and cause of the accusation against him was violated.
Petitioner's argument does not persuade.
An Information to be sufficient must contain all the elements required by the Rules on Criminal Procedure. 36 The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. 37 Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. 38 To convict him of an offense other than that charged in the complaint or information would be violative of this constitutional right. 39
The test in determining whether the Information 40 validly charges an offense is whether the material facts alleged in the complaint or Information will establish the essential elements of the offense charged as defined in the law. 41
In the case, although the Information did not specifically allege the acts constituting Sexual Assault, the complaint of AAA sufficiently alleged the elements of such act. In her Sinumpaang Salaysay, 42 AAA stated that, "x x x pero naramdaman ko po na daliri niya po yung iniikut-ikot niya sa butas ng pepe ko dahil manipis lang naman po yung suot kong pajama."
In People v. Galido, 43 the accused-appellant therein averred that because the Informations on which he was arraigned did not allege the element of force or intimidation, he was deprived of his right to be informed of the nature and cause of the accusation against him. The Court held that such omission is not fatal because the complaint specifically accused him of three counts of rape committed by means of force and intimidation. Thus, the Court declared that the accused-appellant was informed at the outset that he was being charged with rape through force or intimidation as all the elements of the crime were sufficiently alleged in the complaint of the victim. 44 SCaITA
But in People v. Cubay, 45 the Court acquitted the accused-appellant therein because both the Information and Complaint did not sufficiently allege the essential elements of the crime of rape, i.e., "force or intimidation" or that the victim was "deprived of reason or unconscious" or under twelve (12) years of age or was demented.
In here, although the Information 46 failed to sufficiently allege the acts constituting Sexual Assault, such acts were sufficiently alleged in the Complaint filed by AAA. The deficiency in the Information is not fatal against the prosecution's theory. Thus, at the outset petitioner was sufficiently informed that he was charged with Sexual Assault.
Moreover, because petitioner was legally charged with Rape through Sexual Assault, he can be convicted of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610 as the elements of the latter crime are necessarily included in the elements of the former.
Acts of Lasciviousness is defined and penalized under Article 336 of the Revised Penal Code (RPC), which reads:
Art. 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.
Clearly, before the accused may be convicted of Acts of Lasciviousness, there must be a confluence of the following elements: (1) the offender commits any act of lasciviousness or lewdness; (2) the offended party is another person of either sex; (3) the act/s is done under any of the following circumstances: (a) [t]hrough force, threat, or intimidation; (b) [w]hen the offended party is deprived of reason or otherwise unconscious; (c) [b]y means of fraudulent machination or grave abuse of authority; (d) [w]hen the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 47
On the other hand, the elements of Rape by Sexual Assault are the following: (1) [t]he offender commits an act of sexual assault; (2) [t]he act of sexual assault is committed by any of the following means: (a) [b]y inserting his penis into another person's mouth or anal orifice; or (b) [b]y inserting any instrument or object into the genital or anal orifice of another person; (3) [t]hat the act of sexual assault is accomplished under any of the following circumstances: (a) [b]y using force and intimidation; (b) [w]hen the woman is deprived of reason or otherwise unconscious; or (c) [b]y means of fraudulent machination or grave abuse of authority; or (d) [w]hen the woman is under 12 years of age or demented. 48
Thus, the RTC and the CA correctly ruled that petitioner can be convicted of Acts of Lasciviousness. This is consistent with the variance doctrine provided under Section 4, in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure which state:
Section 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (4a)
Section 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter. (5a)
Applying the variance doctrine, the Court finds that petitioner was correctly convicted of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610.
Furthermore, the Court highlights that Section 5 (b) of RA 7610 is applicable considering that AAA was a nine-year-old child when she was sexually molested by petitioner. Section 5 (b) of RA 7610 provides:
Sec. 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. aTHCSE
xxx xxx xxx.
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and
xxx xxx xxx.
The essential elements of sexual abuse under Section 5 (b) of RA 7610 are as follows: (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 eighteen (18) years of age. 49
All of the elements of Acts of Lasciviousness, in relation to Section 5 (b) of RA 7610 were proven by the prosecution beyond reasonable doubt. Specifically, petitioner committed lascivious conduct when he used his finger in rubbing, in circular motion, the vagina of AAA. The prosecution ably proved AAA to be nine years old 50 when the incident happened. Petitioner committed the acts with lewd desires. Evidently, petitioner's lascivious conduct subjected AAA to sexual abuse.
AAA's testimony was straightforward unshaken by rigid cross-examination; hence, the RTC correctly gave it more weight and credence. Time and again, the Court has held that when the offended party is a young and immature girl, as in this case, courts are generally inclined to lend credence to their version of what transpired, considering not only their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the matter about which they testified were not true. 51 Youth and immaturity are generally badges of truth and sincerity. 52
Finally, the Court does not give weight to petitioner's plain denial and alibi. Jurisprudence dictates that positive identification prevails over alibi since the latter can easily be fabricated and is inherently unreliable. 53 Since alibi is a weak defense for being easily fabricated, it cannot prevail over and is worthless in the face of the positive identification by a credible witness that an accused perpetrated the crime. 54
As to the penalty imposed, the RTC, as sustained by the CA, correctly imposed the indeterminate penalty of twelve (12) years and one (1) day of reclusion temporal in its minimum period, as minimum, to fifteen (15) years, six (6) months, and twenty-one (21) days of reclusion temporal in its medium period, as maximum.
Section 5 (b) of RA 7610 provides that the penalty for lascivious conduct, when the victim is under twelve (12) years of age, shall be reclusion temporal in its medium period, which ranges from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. In the absence of any mitigating or aggravating circumstance, the maximum term of the sentence to be imposed shall be taken from the medium period of reclusion temporal in its medium period, which ranges from fifteen (15) years, six (6) months and twenty (20) days to sixteen (16) years, five (5) months and nine (9) days. On the other hand, the minimum term shall be taken from the penalty next lower to reclusion temporal medium, that is reclusion temporal minimum, which ranges from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Thus, the penalty imposed by the RTC is in order.
As to the monetary awards, the Court finds reason to make some modifications. The award of civil indemnity, as well as moral and exemplary damages in favor of AAA, should be increased to P50,000.00 each in view of the recent pronouncement in People v. Tulagan. 55 Likewise, a fine in the amount of P15,000.00 is imposed. 56 Additionally, the monetary awards shall earn legal interest of six percent (6%) per annum from the date of the finality of this Resolution until fully paid. 57
WHEREFORE, the petition is DENIED. The Decision dated November 13, 2019 of the Court of Appeals in CA-G.R. CR No. 42359 is AFFIRMED with MODIFICATIONS. Petitioner Frankie Rosauro y Subing-Subing is found GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness in relation to Section 5 (b) of Republic Act No. 7610. Accordingly, he is sentenced to suffer the indeterminate penalty of twelve (12) years and one (1) day of reclusion temporal in its minimum period, as minimum, to fifteen (15) years, six (6) months, and twenty-one (21) days of reclusion temporal in its medium period, as maximum, and to pay a fine of P15,000.00. Further, petitioner is ORDERED to pay AAA P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as exemplary damages. All the damages awarded shall earn interest at the legal rate of six percent (6%) per annum from the date of finality of this Resolution until fully paid. AHDacC
SO ORDERED." (ROSARIO, J., designated as additional member per Special Order No. 2833 dated June 29, 2021).
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1. Rollo, pp. 11-27.
2. Id. at 32-41; penned by Associate Justice Ma. Luisa C. Quijano-Padilla with Associate Justices Edwin D. Sorongon and Ruben Reynaldo G. Roxas, concurring.
3. Id. at 58-63; penned by Acting Presiding Judge Ma. Cristina J. Mendoza-Pizarro.
4. "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, Providing Penalties for its Violation, and for Other Purposes" approved June 17, 1992.
5. As culled from the CA Decision, rollo, p. 33.
6. Any information to establish or compromise the identity of the victim, as well as those of her immediate family or household members, shall be withheld, and fictitious initials are used, pursuant to RA 7610, "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, 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"; 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.
7. As culled from the CA Decision, rollo, p. 33.
8. As culled from the CA Decision, rollo, id.
9. Id.
10. Id.
11. Id. at 59.
12. Id. at 33-34.
13. Id. at 34.
14. Id.
15. Id. at 34.
16. Id. at 58-63.
17. Id. at 63.
18. Id. at 58-63.
19. Id. at 63.
20. Id. at 61-63.
21. Id. at 32-41.
22. Id. at 41.
23. As culled from the CA Decision, id. at 33.
24. Id. at 39-40.
25. As culled from the CA Decision, id. at 33.
26. Id. at 17-22.
27. Id. at 22-24.
28. As culled from the CA Decision, id. at 33.
29. Id. at 69-76.
30. Id. at 77.
31. Casilac v. People, G.R. No. 238436, February 17, 2020.
32. Yap v. People, G.R. No. 234217, November 14, 2018.
33. Constantino v. People, G.R. 225696, April 8, 2019.
34. Id.
35. As culled from the CA Decision, id. at 33.
36. People v. Ukay, G.R. No. 246419, September 16, 2020.
37. Villarosa v. People, G.R. Nos. 233155-63, June 23, 2020, citing People v. Manalili, 355 Phil. 652 (1998).
38. Id.
39. Id.
40. As culled from the CA Decision, id. at 33.
41. People v. Ukay, supra note 36, citing People v. Solar, G.R. No. 225595, August 6, 2019.
42. As culled from the CA Decision, id. at 37.
43. 470 Phil. 345 (2004).
44. Id.
45. G.R. No. 224597, July 29, 2019.
46. As culled from the CA Decision, id. at 33.
47. See People v. Baya, G.R. No. 242512, August 14, 2019 and People v. Bejim, 824 Phil. 10 (2018).
48. BBB v. People, G.R. No. 249307, August 27, 2020, citing People v. Bagsic, 822 Phil. 784 (2017).
49. People v. Bejim, 824 Phil. 10, 28 (2018).
50. Rollo, p. 61.
51. See People v. Fetalco, G.R. No. 241249, July 28, 2020.
52. People v. Deliola, 794 Phil. 194-214 (2016), citing People v. Suarez, 750 Phil. 858 (2015).
53. People v. XYZ, G.R. No. 244255, August 26, 2020.
54. People v. Agustin, 690 Phil. 17 (2012).
55. G.R. No. 227363, March 12, 2019.
56. People v. Eulalio, G.R. No. 214882, October 16, 2019.
57. Id.