SPECIAL PENAL LAWS

Cases on R.A. No. 7610 Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act

Special Penal Laws

(R.A. No. 7610)

Table of Contents Page/s I. Doctrines/Synopsis .. 2-4 II. Case Digests a. People v. Degay | G.R. No. 182526 | August 25, 2010..5-6 b. People c. People d. Acuzar v. v. v. Fragrante Pangilinan Jorolan | | | G.R. G.R. G.R. No. 182521 | | February November | April 09, 14, 7, 2011..7-10 No.183090 No. 2011..11-13 177878 2010.14-15

e. Garingarao v. People | G.R. No. 192760 | July 20,

2011..16-17

f. People v. Bonaagua | G.R. No. 188897 | June 06,

2011...18-19

g. People v. Dahilig | G.R. No. 187083 | June 13,

2011..20

h. People v. Dominguez | G.R. No. 191065 | June 13,

2011.21-22 i. Flordeliz v. People | G.R. No. 186441 2010.23-24 | March 3,

III. Original Cases a. People v. Degay | G.R. No. 182526 | August 25, 2010..25-31 b. People v. Fragrante | G.R. No. 182521 | February 09, 201132-42 c. People v. Pangilinan | G.R. No.183090 | November 14, 2011.43-55 d. Acuzar v. Jorolan | G.R. No. 177878 | April 7, 2010...56-61

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e. Garingarao v. People | G.R. No. 192760 | July 20, 2011..62-67 f. People v. Bonaagua | G.R. No. 188897 | June 06, 2011...68-76 g. People v. Dahilig | G.R. No. 187083 | June 13, 2011.77-82

h. People v. Dominguez | G.R. No. 191065 | June 13,

2011.83-94 i. Flordeliz v. People | G.R. No. 186441 2010...95-103 | March 3,

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I. DOCTRINES a. People of the Philippines v. Leonardo Degay | G.R. No. 182526 | August 25, 2010 | J. Perez Absence of hymenal lacerations on the private organs of the victims does not negate rape. It stressed that the RTC correctly convicted the accused of three counts of statutory rape since the accused had sexual intercourse with the victims who are both under 12 years of age. b. People of the Philippines v. Ernesto Fragrante | G.R. No. 182521 | February 09, 2011 | J. Carpio (1) 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. (2) In crimes against chastity, like acts of lasciviousness, relationship is considered aggravating." In that case, the Court considered relationship as an aggravating circumstance since the information mentioned, and the accused admitted, that the complainant is his daughter. In the instant case, the information expressly state that AAA is appellant's daughter, and appellant openly admitted this fact . c. People of the Philippines v. Bernabe Pangilinan | G.R. No.183090 | November 14, 2011 | J. Perez Under Section 5 (b), Article III of RA 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1)(d) of the Revised Penal Code and penalized withreclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. d. SPO1 Acuzar v. Jorolan and Hon. Apresa, Peoples Law Enforcement Board (PLEB) | G.R. No. 177878 | April 7, 2010 | J. Villarama Jr.

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Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated, obstinate or intentional purpose.It usually refers to transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or criminal intention but implies wrongful intention and not to mere error of judgment.

e. Jojit Garingarao v. People of the Philippines | G.R. No. 192760 | July 20, 2011 | J. Carpio In case of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. A child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. It is inconsequential that sexual abuse under RA 7610 occurred only once. Section 3 (b) of RA 7610 provides that the abuse may be habitual or not. Hence, the fact that the offense occurred only once is enough to hold the accused liable for acts of lasciviousness under RA 7610.

f. People of the Philippines v. Ireno Bonaagua y Berce | G.R. No. 188897

| June 06, 2011 | J. Peralta It must be emphasized, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. However, when the victim testifies that the accused only touched her private part and licked it, but did not insert his finger in her vagina, this testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by the accused. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting the accused with the crime of rape through sexual assault. If such act is committed against a victim who was 8 years old at the time of the commission of the crime, the accused shall be charged of the crime of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610. g. People of the Philippines v. Eduardo Dahilig y Agaran | G.R. No. 187083 | June 13, 2011 | J. Mendoza

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Under Section 5(b), Article III of RA 7610in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. h. People of the Philippines v. Jonie Dominguez | G.R. No. 191065 | June 13, 2011 | J. Sereno Any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. i. Salvador Flordeliz y Abenojar v. People of the Philippines | G.R. No. 186441 | March 3, 2010 | J. Nachura The Court is aware that the Information specifically charged petitioner with Acts of Lasciviousness under the RPC, without stating therein that it was in relation to R.A. No. 7610. However, the failure to designate the offense by statute or to mention the specific provision penalizing the act, or an erroneous specification of the law violated, does not vitiate the information if the facts alleged therein clearly recite the facts constituting the crime charged. The character of the crime is not determined by the caption or preamble of the information or by the specification of the provision of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information.

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II. CASE DIGESTS a. People of the Philippines v. Leonardo Degay | G.R. No. 182526 | August 25, 2010 | J. Perez FACTS: At the time the crime of rape was complained by private respondent (AAA) she was nine (9) years old and a grade III pupil. The accused is their neighbor with only five houses separating them. During the second week of March, 2004, AAA was on her way to school when she met the accused. The accused kissed AAA on the forehead several times, and he brought her inside his house. He laid her on the sofa, mounted her, and inserted his hard penis into her vagina. AAA felt pain in her vagina. After satisfying himself, the accused gave AAA P5.00 and warned her not to tell her mother about what happened. The said act was again repeated on March 25, 2004. CCC, AAAs mother learned about what happened to her daughter. CCC confronted AAA and she confirmed to CCC that she was raped by the accused. AAA and BBB, a four-year old girl who is another complainant were examined at the Bontoc General Hospital. BBB confessed that she is also raped by the accused when one day the accused brought her to the bedroom on the second floor of the house. He laid her down on the bed and the accused went on top of her. She felt pain in her vagina. The defense presented seven witnesses including the accused himself. The accused denied that he knew the victims and that he came to know them when he was detained at Bauko Municipal Jail. The RTC found the accused guilty of three counts of statutory rape and it was affirmed by the Court of Appeals. ISSUE: Whether the accused is guilty of lascivious conduct and not statutory rape. RULING: The accused argues that his acts of showing his penis to BBB and the touching of AAAs vagina, mashing of her breasts and letting his penis touch her vagina constitute lascivious conduct and not statutory rape, citing Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, Republic Act No. 7610, which defines lascivious conduct 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 or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals on pubic area of a person. He cites that the lascivious conduct is supported by the medico-legal findings on AAA and BBB, when it was found that there was no hymenal laceration on their organs. The accused further faults the RTC for not giving credence to his plausible alibi that he

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was in another place on 8 May 2004 and it was impossible for him to have brought BBB to his house and raped her. On the other hand, the prosecution, through the Office of the Solicitor General, in its brief argues that it had proven beyond reasonable doubt that the accused committed statutory rape and not just acts of lasciviousness. It cited the categorical and straightforward testimonies of AAA and BBB as corroborated by the medical findings showing both victims suffered erythema or redness in the areas of their labias minora and majora. It pointed out that this Court had held in People v. De la Cuesta, that absence of hymenal lacerations on the private organs of the victims does not negate rape. It stressed that the RTC correctly convicted the accused of three counts of statutory rape since the accused had sexual intercourse with the victims who are both under 12 years of age. It finally argued that the accused cannot exculpate himself from liability by alleging that from the last week of February, 2004 to the first week of April, 2004, he was in Caboan, Capangdanan because Caboan is only three kilometers away from Sabangan and could be traversed in an hour or less. It was therefore not physically impossible for the accused to be at the crime scenes. After review, we uphold the rulings of the appellate court and the RTC.

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b. People of the Philippines v. Ernesto Fragrante | G.R. No. 182521 | February 09, 2011 | J. Carpio FACTS: Ernesto Fragrante was married to CCC; they had three children and the victim (AAA) is their third child. Three or four months before her eleventh (11) birthday, she woke up early because her father promised them that they will have driving lessons that day. Her father enterd her room, lie beside her on her bed, he was talking about a lot of things to her and then he started to fondle her breast and suck her nipples. The said incident was repeated between June and August 1993 and on some other occasions. In September 1995 when AAA is at the age of thirteen (13), she was raped by her father Ernesto. She was told to get inside his room. He scolded her and told her to lie down on his bed. And then he raped her. She bbegged and struggled for him to remove his penis inside her but despite all her pleas he stayed on top of him. In the evening of October 25, 1997 AAA was left home with his father because her mother and siblings went to a wake. Her father started massaging her breast. Her father strangled her and asked her whether she preferred to be strangled first and she answered no. He started touching her private parts and then she told him that her mother has arrived, that was the only time that she was allowed to leave but she was warned to not tell her mother what happened. After that, they report the incident to the NBI. The appellant was charged with nine (9) counts of acts of lasciviousness and (1) count of rape. ISSUE: Whether the Court of Appeals erred in affirming appellant's conviction for nine (9) counts of acts of lasciviousness and one (1) count of rape . RULING: The court sustained the appellants conviction for (7) counts of acts of lasciviousness and (1) count of rape. He was acquitted for (2) counts of acts of lasciviousness on the ground of reasonable doubt. The prosecution sufficiently established appellant's guilt beyond reasonable doubt for the crime of rape. Article 335 of the Revised Penal Code provides: Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented.

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As correctly found by the Court of Appeals, all the essential elements of rape are present in this case. The evidence on record clearly proves that appellant had carnal knowledge of his own minor daughter AAA. It must be stressed that the gravamen of rape is sexual congress with a woman by force and without consent. In People v. Orillosa, we held that actual force or intimidation need not be employed in incestuous rape of a minor because the moral and physical dominion of the father is sufficient to cow the victim into submission to his beastly desires. When a father commits the odious crime of rape against his own daughter, his moral ascendancy or influence over the latter substitutes for violence and intimidation. The absence of violence or offer of resistance would not affect the outcome of the case because the overpowering and overbearing moral influence of the father over his daughter takes the place of violence and offer of resistance required in rape cases committed by an accused who did not have blood relationship with the victim. In this case, AAA's testimony clearly showed how appellant took advantage of his relationship with and his moral ascendancy over his minor daughter when he had carnal knowledge of her. As found by the Court of Appeals, appellant instilled fear on AAA's mind every time he sexually molested her, thus: [AAA] also admitted that after accused-appellant has started sexually molesting her until she was raped, she was so frightened of him. In fact she could not tell her mother of her ordeal, mindful of the serious threats on her life and of the chaos it would cause their family. We likewise find appellant's claim that the medical findings do not support the charge of rape untenable. Aside from AAA's positive, straightforward, and credible testimony, the prosecution presented the medical certificate issued by Dr. Bernadette Madrid and the latter's testimony which corroborate AAA's claim that appellant raped her. The Court is not impressed with appellant's claim that AAA's failure to immediately report the incidents to the proper authorities affected her credibility. Delay could be attributed to the victim's tender age and the appellant's threats. A rape victim's actions are oftentimes influenced by fear, rather than reason. In incestuous rape, this fear is magnified because the victim usually lives under the same roof as the perpetrator or is at any rate subject to his dominance because of their blood relationship. Appellant was charged with violation of Article 336 of the Revised Penal Code, as amended, in relation to Section 5(b), Article III of Republic Act No. 7610. These provisions state:

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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. 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. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxxx (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 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; x x x The elements of sexual abuse under Section 5, Article III of Republic Act No. 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 sexual abuse. 3. The child, whether male or female, is below 18 years of age. As correctly found by the Court of Appeals, all the elements of sexual abuse under Section 5, Article III of RA 7610 are present here. First, appellant's repeated touching, fondling, and sucking of AAA's breasts and inserting his finger into AAA's vagina with lewd designs undoubtedly constitute lascivious conduct under Section 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610, to wit: (h) "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 public area of a person.

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Second, appellant, as a father having moral ascendancy over his daughter, coerced AAA to engage in lascivious conduct, which is within the purview of sexual abuse. In People v. Larin, we held: 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. Third, AAA is below 18 years old at the time of the commission of the offense, based on her testimony which was corroborated by her Birth Certificate presented during the trial. Section 3(a), Article I of Republic Act No. 7610 provides: SECTION 3. Definition of Terms. (a) "Children" refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; Since all three elements of the crime were present, the conviction of appellant for acts of lasciviousness was proper. In Criminal Case Nos. 98-652 and 98-658, we agree with the Office of the Solicitor General, representing the People, that the prosecution failed to prove appellant's guilt for acts of lasciviousness beyond reasonable doubt. While AAA testified that appellant habitually molested her, there was no specific evidence supporting the charge that appellant committed acts of lasciviousness in May 1993 and September 1997, or on or about those dates. Hence, we find appellant not guilty for two counts of acts of lasciviousness (Criminal Case Nos. 98-652 and 98-658) on the ground of reasonable doubt. As regards the other criminal cases for acts of lasciviousness, where appellant's guilt was proved beyond reasonable doubt, we affirm appellant's conviction. In these cases, the alternative circumstance of relationship under Article 15 of the Revised Penal Code should be considered against appellant. In People v. Fetalino, the Court held that, "in crimes against chastity, like acts of lasciviousness, relationship is considered aggravating." In that case, the Court considered relationship as an aggravating circumstance since the informations mentioned, and the accused admitted, that the complainant is his daughter. In the instant case, the information expressly state that AAA is appellant's daughter,

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and appellant openly admitted this fact. Accordingly, we modify the penalty imposed in Criminal Case Nos. 98-657 and 98-659. Section 5, Article III of Republic Act No. 7610 prescribes the penalty of reclusion temporal in its medium period to reclusion perpetua. Since there is an aggravating circumstance and no mitigating circumstance, the penalty shall be applied in its maximum period - reclusion perpetua. Besides, Section 31 of Republic Act No. 7610 expressly provides that "The penalty provided herein shall be imposed in its maximum period when the perpetrator is [a] x x x parent, x x x. In People v. Montinola and People v. Sumingwa, where the accused is the biological father of the minor victim, the Court appreciated the presence of the aggravating circumstance of relationship and accordingly imposed the penalty of reclusion perpetua. Thus, appellant herein is sentenced to suffer the penalty of reclusion perpetua in Criminal Case Nos. 98-657 and 98-659. In Criminal Case Nos. 98-651, 98-653, 98-654, 98-655, and 98-656, where AAA was still below 12 years old at the time of the commission of the acts of lasciviousness, the imposable penalty is reclusion temporal in its medium period in accordance with Section 5(b), Article III of Republic Act No. 7610. This provision specifically states "[t]hat the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period."Considering the presence of the aggravating circumstance of relationship, as explained, the penalty shall be imposed in its maximum period. In People v. Velasquez, which involved a two year old child sexually abused by her grandfather, the Court imposed the indeterminate sentence of 12 years and 1 day of reclusion temporal as minimum to 17 years of reclusion temporal as maximum. Accordingly, appellant herein is sentenced to suffer the indeterminate penalty of 12 years and 1 day of reclusion temporal as minimum to 17 years of reclusion temporal as maximum. Also, we modify the amount of moral damages and fine awarded by the Court of Appeals. We reduce the amount of moral damages from P50,000 to P15,000 and the amount of fine from P30,000 to P15,000 for each of the seven (7) counts of acts of lasciviousness. In addition, we award civil indemnity in the amount of P20,000, and exemplary damages in the sum of P15,000, in view of the presence of the aggravating circumstance of relationship, for each of the seven (7) counts of acts of lasciviousness.

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c. People of the Philippines v. Bernabe Pangilinan | G.R. No.183090 | November 14, 2011 | J. Perez FACTS: AAA, a thirteen year old girl lived with her aunt BBB and her husband since she was two years old until July 27, 2001. At around 10 p.m. of July 27, 2001, while her aunt was working in Angeles, Pampanga, and she was watching television in their house, appellant arrived and ordered her to cook chicken adobo which she did. Appellant approached her and pointed a samurai at her. Appellant then kissed her neck and mashed her breast. It was not the first time that appellant did that to her. AAA testified that prior to the said incident; she was already abused by the appellant several times. She said that the reason why she did not tell her aunt about the molestation is because the appellant threatened to kill her and her aunt. She also said that her aunt and appellant treated her like their own child. BBB denied all the allegations against him and on his defense he said that it was CCC, AAAs cousin who molested her and that AAA is only forced by her wifes relatives to file charges against him because they were against him and their relationship. His testimony was corroborated by two other witnesses. The Trial Court found the accused guilty for rape and sexual abuse. The Court of Appeals affirmed the said decision but with modifications as to the award for damages. ISSUE: Whether the accused should be penalized for rape under RA 7610 or under Article 266-A of the Revised Penal Code. RULING: In this case, appellant was charged under two separate information for rape under Article 266-A of the Revised Penal Code and sexual abuse under Section 5 (b) of RA No. 7610, respectively. However, we find the Information in Criminal Case No. 11769 for sexual abuse to be void for being violative of appellants constitutional right to be informed of the nature and cause of the accusation against him. The allegations in the above-quoted Information would show the insufficiency of the averments of the acts alleged to have been committed by appellant. It does not contain the essential facts constituting the offense, but a statement of a conclusion of law. Thus, appellant cannot be convicted of sexual abuse under such Information. The right to be informed of the nature and cause of the accusation against an accused cannot be waived for reasons of public policy. Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed. Art. 266-A Rape; When and How Committed Rape is Committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

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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. We find that AAA remained steadfast in her assertion that appellant raped her through force and intimidation with the use of a samurai. And even after the incident, appellant threatened AAA that he would kill her and her aunt, i.e., appellant's wife, should AAA report the incident. A finding that the accused is guilty of rape may be based solely on the victim's testimony if such testimony meets the test of credibility. We held that no woman, much less a child of such tender age, would willingly submit herself to the rigors, the humiliation and the stigma attendant upon the prosecution of rape, if she were not motivated by an earnest desire to put the culprit behind bars. Appellant argues that he could not be convicted of rape since based on the medical examination report, AAA's genitalia had no hymenal laceration which corroborated AAA's testimony that appellant merely kissed her and touched her breast on July 27, 2001. Proof of hymenal laceration is not an element of rape.[53] An intact hymen does not negate a finding that the victim was raped. Penetration of the penis by entry into the lips of the vagina, even without laceration of the hymen, is enough to constitute rape, and even the briefest of contact is deemed rape.[54] While it appears from AAA's testimony that she was not raped precisely on July 27, 2001 as what appellant did was kiss her lips and mash her breast on that day, however, her entire testimony in the witness stand positively shows that appellant with the use of force and intimidation had carnal knowledge of her at some other time. She testified that appellant violated her since she was seven years old. The first time was when they were still staying in Angeles City where appellant touched her private parts; the second time was when they were already in Gerona, Tarlac, where appellant pointed a samurai at her and raped her; and the third time happened on July 27, 2001 when appellant kissed her lips and mashed her breast. Indeed, appellant may be convicted for rape in the light of AAA's testimony. For in rape cases, the date of the commission is not an essential element of the offense; what is material is its occurrence.

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Notably, the information alleges that the crime of rape was committed on or about July 27, 2001, thus the prosecution may prove that rape was committed on or about July 27, 2001, i.e., few months or years before, and not exactly on July 27, 2001. In his Supplemental Brief, appellant claims that he should have been prosecuted for rape under RA No. 7610 since AAA was already more than 12 years old when the alleged rape was committed which carries the penalty of reclusion temporal in its medium period to reclusion perpetua. We do not agree. In People v. Dahilig, wherein the question posed was whether the crime committed was rape (Violation of Article 266-A, par. 1, in relation to Article 266B, 1st paragraph of the Revised Penal Code, as amended by RA No. 8353), or is it Child Abuse, defined and penalized by Section 5, (b), RA No. 7610, we said: As elucidated by the RTC and the CA in their respective decisions, all the elements of both crimes are present in this case. The case of People v. Abay, however, is enlightening and instructional on this issue. It was stated in that case that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1 [d] of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Specifically, Abay reads: Under Section 5 (b), Article III of RA 7610 in relation to RA 8353,if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.

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In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1 [d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established. Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction. As in the present case, appellant can indeed be charged with either Rape or Child Abuse and be convicted therefor. The prosecution's evidence established that appellant had carnal knowledge of AAA through force and intimidation by threatening her with a samurai. Thus, rape was established. Considering that in the resolution of the Assistant Provincial Prosecutor, he resolved the filing of rape under Article 266-A of the Revised Penal Code for which appellant was convicted by both the RTC and the CA, therefore, we merely affirm the conviction.

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(R.A. No. 7610)

d. SPO1 Acuzar v. Jorolan and Hon. Apresa, Peoples Law Enforcement Board (PLEB) | G.R. No. 177878 | April 7, 2010 | J. Villarama Jr. FACTS: Aproniano Jorolan filed an Administrative Case against petitioner before the PLEB charging the latter of Grave Misconduct for allegedly having an illicit relationship with respondents minor daughter. Jorolan also instituted a criminal case against the petitioner before the Municipal Trial Court of New Corella for Violation of Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Child Abuse Act. Petitioner filed a Counter Affidavit before the PLEB and he denied all the accusations against him. He also attached the complainants daughters affidavit wherein she denied having relationship with the petitioner. Upon receipt of the decision of PLEB whish found him guilty of grave misconduct (Child Abuse), he filed a Petition for Certiorari with Prayer for Preliminary Injunction and Temporary Restraining Order with the RTC of Tagum City which annulled the decision of PLEB. The respondent elevated the case to the CA which reversed and set aside the ruling of the RTC. ISSUE: Whether or not the CA erred in ruling that petitioners resort to certiorari was not warranted as the remedy of appeal from the decision of the PLEB was available to him. RULING: petitioner opted to file a petition for certiorari before the trial court on the pretext that the PLEB had no jurisdiction to hear the administrative case until petitioner is convicted before the regular court. According to petitioner, although the case filed before the PLEB was captioned as Grave Misconduct, the offense charged was actually for Violation of Law, which requires prior conviction before a hearing on the administrative case can proceed. Thus, petitioner insists that the PLEB should have awaited the resolution of the criminal case before conducting a hearing on the administrative charge against him. The contention however is untenable. A careful perusal of respondents affidavitcomplaint against petitioner would show that petitioner was charged with grave misconduct for engaging in an illicit affair with respondents minor daughter, he being a married man, and not for violation of law, as petitioner would like to convince this Court. Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated, obstinate or intentional purpose. It usually refers to transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or criminal intention but implies wrongful intention and not to mere error of judgment. On the other hand, violation of law presupposes final conviction in court of any crime or offense penalized under the Revised Penal Code or any special law or ordinance. The settled rule is that criminal and administrative cases are separate and

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(R.A. No. 7610)

distinct from each other. In criminal cases, proof beyond reasonable doubt is needed whereas in administrative proceedings, only substantial evidence is required. Verily, administrative cases may proceed independently of criminal proceedings. The PLEB, being the administrative disciplinary body tasked to hear complaints against erring members of the PNP, has jurisdiction over the case. In the instant case, petitioner was notified of the complaint against him and in fact, he had submitted his counter-affidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and even asked for several postponements. Petitioner therefore cannot claim that he had been denied of due process. Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Here, we note that petitioner had more than enough opportunity to present his side and adduce evidence in support of his defense; thus, he cannot claim that his right to due process has been violated. Wherefore, the petition is denied.

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(R.A. No. 7610)

e. Jojit Garingarao v. People of the Philippines | G.R. No. 192760 | July

20, 2011 | J. Carpio FACTS: AAA, 16 years of age, was brought to the Virgen Milagrosa Medical Center by her father BBB and mother CCC due to fever and abdominal pain. AAA was admitted at the hospital for further observation. The next day, her father and mother left the hospital to process AAAs Medicare papers and to attend to their store, respectively, leaving AAA alone in her room. When her father returned to the hospital, AAA told him that she wanted to go home. The doctor allowed them due to AAAs insistence but instructed her that she should continue her medications. At home, AAA told her parents that Garingarao sexually abused her. They went back to the hospital and reported the incident to Dr. Morante. They inquired from the nurses station and learned that Garingarao was the nurse on duty on that day. An Information was filed against Garingarao for acts of lasciviousness in relation to RA 7610. During the trial, AAA testified that, Garingarao, entered her room to check her medications and if she was still experiencing pains. Garingarao lifted AAAs bra and touched her left breast and insisted that he was only examining her. Garingarao also slid his finger inside AAAs private part and only stopped when he saw that AAA really had her monthly period. In his defense, the accused testified that he went inside AAAs room to administer her medicines and check her vital signs. Garingarao alleged that the filing of the case was motivated by the argument he had with AAAs father about the administering of medicines. He was supported by the testimony of the nursing aide, Tamayo. Garingarao further alleged that, assuming the charges were correct, there was only one incident when he allegedly touched AAA and as such, he should have been convicted only of acts of lasciviousness and not of violation of RA 7610. The RTC found Garingarao guilty as charged and gave credence to the testimony of AAA over Garingaraos denial, which was affirmed by the CA. ISSUE: Whether or not the single incident of act of lasciviousness would suffice to hold the accused liable under RA 7610 RULING: Yes. The Court has ruled that in case of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. It is a settled rule that denial is a weak defense as against the positive identification by the victim. Both denial and alibi are inherently weak defenses and constitute self-serving negative evidence which cannot be accorded greater evidentiary weight than the positive declaration by a credible witness. Section 5, Article III of RA 7610 provides:

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(R.A. No. 7610)

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. The elements of sexual abuse under Section 5, Article III of RA 7610 are the following: 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. Under Section 32, Article XIII of the Implementing Rules and Regulations of RA 7610, lascivious conduct is defined as follows: [T]he 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 the 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. In this case, the prosecution established that Garingarao touched AAAs breasts and inserted his finger into her private part for his sexual gratification. Garingarao used his influence as a nurse by pretending that his actions were part of the physical examination he was doing. Garingarao persisted on what he was doing despite AAAs objections. AAA twice asked Garingarao what he was doing and he answered that he was just examining her. The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended partys free will. In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her. Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he should not be convicted of violation of RA 7610 because the incident happened only once. Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610. This argument has no legal basis. The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once. Section 3(b) of RA 7610 provides that the abuse may be habitual or not. Hence, the fact that the offense occurred only once is enough to hold Garingarao liable for acts of lasciviousness under RA 7610. The Court

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(R.A. No. 7610)

finds Jojit Garingarao guilty beyond reasonable doubt of acts of lasciviousness in relation to Republic Act No. 7610.

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(R.A. No. 7610)

f. People of the Philippines v. Ireno Bonaagua y Berce | G.R. No. 188897

| June 06, 2011 | J. Peralta FACTS: AAA and her mother left their house in Candelaria to spend the Christmas with accused-appellant who is also AAAs father, and stayed in the house of a certain Lola Jean in Las Pias. One afternoon, AAA was inside a room lying in bed while her younger brothers were playing outside the house and her mother was not home. Accused-appellant entered the room, undressed her and thereafter, touched and caressed her breasts. He licked her vagina then inserted his finger into it. In the evening of the same day, the accused-appellant raped AAA again in the same manner and under the same circumstances. Afterwhich, AAA was raped by accused-appellant for several times. AAA again did not report these incidents for fear that her mother would be killed by the accused. AAA complained of severe abdominal pain which prompted her mother to take her to the hospital. In Quezon Memorial Hospital Lucena, she was physically examined by Dr. De Leon. The results revealed that there was a healed superficial laceration at the 9 o'clock position on the hymen of AAA. She told her mother about all the incidents of rape committed by accused-appellant. AAA's mother took her to the Police Headquarters to file a complaint for rape against accused-appellant. She was also taken at the NBI where she executed a sworn statement. Accused-appellant denied committing the charges of rape charged against him. He claimed to be working in Las Pias while AAA, her mother and siblings where in Sariaya, Quezon at the time the alleged rapes occurred. And every time they would visit him in Las Pias, they would leave on the same day they arrived after he gives them money. The RTC after finding the evidence for the prosecution overwhelming against the accused's defense of denial and alibi, convicted Ireno with four (4) counts of rape, affirmed by the CA. ISSUE: Whether the accuseds act of touching the victims private part and licking it constitutes the crime of Rape through Sexual Assault or Acts of Lasciviousness under Section 5 (b) of RA 7610. RULING: It is well entrenched in this jurisdiction that when the offended parties are young and immature girls, as in this case, courts are 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. A young girl would not usually concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the examination of her private parts; and undergo all the trouble and inconvenience, not to mention the trauma and scandal of a public trial, had she not in fact been raped and been truly moved to protect and preserve her honor, and motivated by the desire to obtain justice for the wicked acts committed against her. Moreover, the Court has repeatedly held that the lone testimony of the victim in a rape case, if credible, is

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(R.A. No. 7610)

enough to sustain a conviction. Contrary to Ireno's contention, the medical findings of Dr. Melissa De Leon did not refute AAA's testimony of defilement, but instead bolstered her claim. As to the three of four incidents (Criminal Case Nos. 03-0254, 030256, and 03-0257) of rape, Ireno was convicted with Qualified Rape through Sexual Assault. Ireno, is the father of the minor victim. Hence, the offenses were committed with the aggravating/qualifying circumstances of minority and relationship, which in turn, warrants the imposition of the higher penalty of reclusion temporal prescribed by Article 266-B of the RPC. However, in one incident (Criminal Case No. 03-0255), accused-appellant cannot be held guilty as charged for the crime of rape. It must be emphasized, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. For this part, the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault. Section 5 (b), Article III of R.A. No. 7610, defines and penalizes acts of lasciviousness committed against a child as follows: 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. Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation where a child is abused for profit, but also where one through coercion, intimidation or influence engages in sexual intercourse or lascivious conduct with a child. However, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct committed against a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of R.A. No. 7610. Corollarilly, Section 2 (h) of the rules and regulations of R.A. No. 7610 defines "Lascivious conduct" as:

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Special Penal Laws

(R.A. No. 7610)

[T]he 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. Undeniably, all the afore-stated elements are present in Criminal Case No. 03-0255. Ireno committed lascivious acts against AAA by touching her breasts and licking her vagina and the lascivious or lewd acts were committed against AAA, who was 8 years old at the time as established by her birth certificate. Thus, Ireno is guilty of the crime of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610.

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(R.A. No. 7610)

g. People of the Philippines v. Eduardo Dahilig y Agaran | G.R. No. 187083 | June 13, 2011 | J. Mendoza FACTS: AAA, a helper, was sleeping when the accused made sexual advances on her. She shouted for help from her co-helper but to no avail because the latter was sound asleep. Eventually, the accused succeeded to undress her. Then, he forced his penis into her vagina which caused her pain and returned to his quarters when he was done. The accused left their employer's house; AAA then informed her employer about the incident. Their employer immediately assisted her in filing a case against accused which caused the arrest of the accused. The accused offered to marry AAA but the latter refused. In the medical examination, it was disclosed that there was a healing laceration in her hymen although no spermatozoa was found. The accused denied the allegations and contended that the sexual congress that transpired between them was consensual as she was then his girlfriend. The RTC found the accused guilty beyond reasonable doubt for the crime of Rape as what he laid before the court for its consideration was a mere self-serving claim of their relationship. The CA affirmed the RTCs decision but clarified that the crime charged should have been "Child Abuse" as defined and penalized in Sec. 5 (b) of R.A. No. 7610, based on the fact that the complainant was a minor, being 16 years of age at the time of the commission of the offense. ISSUE: Whether the crime committed was Rape (Violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353), or is it Child Abuse, defined and penalized by Sec. 5, (b), R.A. No. 7610 RULING: As elucidated by the RTC and the CA in their respective decisions, all the elements of both crimes are present in this case. Under Section 5(b), Article III of RA 7610in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at

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(R.A. No. 7610)

the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610orrapeunderArticle 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established. Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction.

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Special Penal Laws

(R.A. No. 7610)

h. People of the Philippines v. Jonie Dominguez | G.R. No. 191065 | June 13, 2011 | J. Sereno FACTS: Jonie Dominguez, being the brother of the mother of the victims father, raped AAA twice when she was only nine years old and BBB seven times when she was only twelve years old. Both of the victims kept silence about the instances of rape, until it their mother accidentally overheard Dominguez boasting in a drinking session that his grandchildrens vaginas were already wide. The mother confronted her children and found what had happened. The children were brought to a doctor for examination. The doctor found AAAs hymen intact but did not discount the fact that the child could have been molested. BBB was found to have old hymenal lacerations. During trial, AAA and BBB testified against Dominguez by narrating the lascivious acts he had done to them. According to their testimonies, the accused had employed trickery so that either AAA or BBB would be left alone with him and thereafter raped, with threats of harm to her person or her family. The only alibi of the accused is that he was in the mountains on the dates that he was alleged to have committed the crimes ISSUE: Whether or not the testimonies of AAA and BBB are credible RULING: It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States vs. Buncad, this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point, says: "But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated." (Wigmore on Evidence, vol. I, p. 638) While on the same subject, Underhill declares: 257. Children on the witness stand. - Under the common law, competency of a child under the age of fourteen years to testify must be shown to the satisfaction of the court. He is presumptively incompetent, but if he is shown to be competent it is immaterial how young he may be when he testifies. He is competent if he possesses mental capacity and memory sufficient to enable him to give a reasonable and intelligible account of the transaction he has seen, if he understands and has a just appreciation of the difference between right and wrong, and comprehends the character, meaning and obligation of an oath. If the witness fulfills these requirements, it is immaterial as bearing upon his

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(R.A. No. 7610)

competency that he is unable to define the oath or to define testimony. In the wise discretion of the court, a child four, five, six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. It may not be said that there is any particular age at which as a matter of law all children are competent or incompetent. x xx The requirements then of a childs competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination.

The legal doctrine that the assessment of the credibility of witnesses is left to the judgment of the trial court is well-established.Its findings of facts, when affirmed by the Court of Appeals, are deemed conclusive on this Court. In this case, both the trial court and the Court of Appeals found the prosecution witnesses credible. Both the trial court and the CA found these defenses of denial and alibi incredible. The testimony of the accused was riddled with obvious inconsistencies. He denied knowing the victims, but eventually identified AAA as his grandniece. His own testimony contradicted his alibi, since he testified that from 2000 to 2002, he was residing in his brothers house. This was where one of the rape incidents happened, and was even near the house of the victims. On this point, we have stated previously: To establish alibi, the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.Physical impossibility "refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places." On its part, the prosecution was able to show the existence of the elements of rape under the amended Revised Penal Code, effectuated by R.A. No. 8353, or the AntiRape Law of 1997, which states: Art. 266-A. Rape: When and how committed Rape is committed:

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(R.A. No. 7610)

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 persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. Before and after the violations, the intimidation took the form of threats that the victims family would be killed by the accused. The accused also employed trickery and took advantage of his authority over his grandnieces. Under these circumstances, the accused was able to have carnal knowledge of BBB and commit a series of sexual assaults against both her and AAA. The two incidents of rape against AAA happened before she reached 12 years of age, she being 9 and 10 then. For those incidents, proof of threats, force or intimidation, is not necessary.

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(R.A. No. 7610)

i. Salvador Flordeliz y Abenojar v. People of the Philippines | G.R. No. 186441 | March 3, 2010 | J. Nachura FACTS: Sometime in March 1995, ABC, the wife of petitioner and the mother of private complainants AAA and BBB, left for Malaysia as an overseas worker. AAA and BBB were left under the care and custody of petitioner.In April 1995, while sleeping with BBB and AAA, who was then eleven (11) years old, petitioner touched AAAs vagina, then played with it. AAA cried and told petitioner that it was painful. The latter stopped, but warned AAA not to tell anyone about it. Petitioner allegedly committed the same acts against AAA repeatedly. Not long after, petitioner was convicted of homicide and imprisoned in Muntinlupa City. In 2001, petitioner was released on parole. Petitioner allegedly started molesting BBB in May 2002. The petitioner inserts his 2 fingers into BBBs vagina whenever BBB visits petitioner, New Years Day, day before AAAs birthday, and All Saints Day. Notwithstanding the repeated incidents of sexual abuse committed against her, BBB did not reveal her experiences to anybody because of fear for her life and that of her mother. AAA and BBB had the chance to reveal the abuse when their mother ABC arrived for a vacation. AAA immediately told ABC what petitioner did to her. When confronted by ABC, BBB likewise admitted the repeated abuses committed by petitioner. ABC reported the incidents to the NBI. After conducting medical examinations on AAA and BBB, the attending physician remarked that there was a "disclosure of sexual abuse and she noted the presence of hymenal notch in posterior portion of hymenal rim that may be due to previous blunt force or penetrating trauma suggestive of abuse."With these findings, petitioner was charged with the crimes of Acts of Lasciviousness, committed against AAA, and nine (9) counts of Qualified Rape through Sexual Assault, committed against BBB, before the RTC. ISSUE: Whether petitioner be charged of Acts of Lasciviousness in relation to R.A. 7610 without stating in the information RULING: Section 32, Article XIII of the Implementing Rules and Regulations of R.A. No. 7610 defines lascivious conduct as follows: 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.

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(R.A. No. 7610)

Based on the foregoing definition, petitioners act of touching AAAs vagina and playing with it obviously amounted to lascivious conduct. Considering that the act was committed on a child less than twelve years old and through intimidation, it is beyond cavil that petitioner is guilty under the aforesaid laws. The Court is aware that the Information specifically charged petitioner with Acts of Lasciviousness under the RPC, without stating therein that it was in relation to R.A. No. 7610. However, the failure to designate the offense by statute or to mention the specific provision penalizing the act, or an erroneous specification of the law violated, does not vitiate the information if the facts alleged therein clearly recite the facts constituting the crime charged. The character of the crime is not determined by the caption or preamble of the information or by the specification of the provision of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information. In the instant case, the body of the Information contains an averment of the acts alleged to have been committed by petitioner and unmistakably describes acts punishable under Section 5(b), Article III of R.A. No. 7610. It is also undisputed that petitioner is the father of AAA. The RTC did not appreciate the alternative circumstance of relationship, because it was not alleged in the Information. We do not agree. The resolution of the investigating prosecutor, which formed the basis of the Information, a copy of which is attached thereto, stated that petitioner is the victims biological father. There was, therefore, substantial compliance with the mandate that an accused be informed of the nature of the charge against him.

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(R.A. No. 7610)

III. Original Cases PEOPLE OF THE PHILIPPINES, PlaintiffAppell ee, G.R. No. 182526 Present:

CORONA,C.J., Chairperson, VELASCO, JR., LEONARDO-DE CASTRO, - versus DELCASTILLO,and PEREZ, JJ.

Promulgated: August 25, 2010 LEONARDO DEGAY Y UNDALOS CALDO, Accused-Appellant. x -----------------------------------------------------x DECISION

PEREZ, J.: This is an appeal from the Decision[1] dated 27 September 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 02176 affirming the Decision[2] dated 24 March 2006of the Regional Trial Court (RTC) of Bontoc Mountain Province, Branch 35. The RTC found accused-appellant Leonardo Degay guilty beyond reasonable doubt of three counts of statutory rape under Articles 266-A[3] and 266-B[4] of the Revised Penal Code and sentenced him to suffer the penalty of reclusion perpetua and to pay each of the victimsP50,000.00 as civil indemnity and P50,000.00 as moral damages. Appellant was charged with three counts of statutory rape in three Informations all dated 16 June 2004, which read: Criminal Case No. 1849

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(R.A. No. 7610)

The undersigned Provincial Prosecutor of Mt. Province, hereby accuses LEONARDO DEGAY, alias CALDO, of the crime of STATUTORY RAPE, defined and penalized under Arts. 266-A and 266-B of the Revised Penal Code, as amended, committed as follows: That on or about March 25, 2004, in the afternoon thereof, inside the at-atowan, XXX, barangay XXX, XXX, Mt. Province and within the jurisdiction of the Honorable Court, the above-name (sic) accused, with lewd design and with the use of force and intimidation, did then and there[,] willfully, unlawfully and feloniously remove the pant (sic) and panty of AAA[5] who is nine (9) years old, and thereafter have carnal knowledge of the latter, without the consent of and against her will, to the damage and prejudice of the said victim.[6] Criminal Case No. 1850 The undersigned Provincial Prosecutor of Mt. Province, hereby accuses LEONARDO DEGAY, alias CALDO, of the crime of STATUTORY RAPE, defined and penalized under Arts. 266-A and 266-B of the Revised Penal Code, as amended, committed as follows: That on or about and sometime [in] the second (2nd) week of March 2004, at just past mid-day, at Sitio XXX, barangay XXX, XXX, Mt. Province and within the jurisdiction of this Honorable Court, the abovenamed accused, with lewd design, and with the use of force and intimidation, [brought] to his house AAA who is nine (9) years old and once inside, accused removed his pant and brief and thereafter forcibly remove[d] the pant (sic) and panty of the victim, then touch and mash the vagina and breast of the latter several times and afterwards laid the victim on the sofa and, did then and there willfully, unlawfully and feloniously have carnal knowledge of AAA without her consent and against her will, to the damage and prejudice of the latter.[7] Criminal Case No. 1851 The undersigned Provincial Prosecutor of Mt. Province, hereby accuses LEONARDO DEGAY, alias CALDO, of the crime of STATUTORY RAPE, defined and penalized under Arts. 266-A and 266-B of the Revised Penal Code, as amended, committed as follows: That on or about May 8, 2004, in the afternoon thereof at XXX, barangay XXX, XXX, Mt. Province and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, and with

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(R.A. No. 7610)

the use of force and intimidation, called for and then h[e]ld the hand of BBB who is four (4) years old and afterwards brought her to a room inside his house where accused undressed himself, display (sic) his penis, then remove (sic) the pant (sic) and panty of BBB and then placed himself on top of her at the same time telling the victim that she (sic) will buy candies later on coupled with the threat upon the latter not to tell anybody and immediately thereafter did there and then willfully, unlawfully and feloniously have carnal knowledge of BBB without her consent and against her will, to the damage and prejudice of the latter.
[8]

When arraigned on the 28 July 2000, the accused pleaded not guilty to the three charges against him.[9] Thereafter, a joint trial of the three cases ensued. The prosecution presented as witnesses Marivic Jacob Agaled, Corazon Panisoc, GGG, Myrna Isilen, BBB, Dr. Alma Lusad, SPO4 Norma Gut-Omen, Primitiva Tumayab, Lonjean Valdez and AAA. Their version[10] of the facts is as follows: Private complainant AAA is the first child of the spouses CCC and DDD. She was born to the couple on 22 September 1994. The family resides at Sitio XXX, XXX, XXX, where the accused is a neighbour with only five houses separating them. AAA was 9 years old and a grade III pupil at the XXX Central School at the time of the rapes complained of. One afternoon between the hours of 12:00 oclock and 1:00 oclock p.m. during the second week of March, 2004, AAA was on her way to school when she met the accused. The accused kissed AAA on the forehead several times, held her hand, and brought her inside his house. He removed his pants and brief and then forcibly removed the pants and underwear of AAA. He laid her on the sofa, mounted her, and inserted his hard penis into her vagina. AAA felt pain in her vagina. After satisfying himself, the accused gave AAAP5.00 and warned her not to tell her mother about what happened. On 25 March 2004, in the afternoon thereof, the accused again sexually abused AAA. He brought AAA inside the at-atoan and after undressing her and himself, he mounted her. He pushed his erect penis into the girls vagina after which the latter felt pain and something sticky in her private organ. The accused then put on his clothes and threatened AAA with harm if she would tell her mother about the incident. CCC, AAAs mother, came to know of what happened to her child from her neighbour, Primitiva Tumayab, to whom AAA revealed that the accused had sexually molested her. CCC also received related information from Leticia Bondad and Lonjean Valdez (Valdez). Valdez testified that sometime on the second week of March, 2004, while she was at their rooftop terrace harvesting sili, she saw the

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accused and AAA enter the house of the accused through the backdoor. The accuseds house is only 1 meters from Valdezs house. On 15 May 2004, CCC confronted her daughter AAA about the information she received and AAA confirmed that the accused raped her. The following day, CCC reported the matter to the police who took her and AAAs sworn statements. On 17 May 2004, AAA and one BBB who would turn out to be another complainant, were examined at the Bontoc General Hospital by Dr. Alma T. Lusad (Dr. Lusad). Regarding her findings on AAA, Dr. Lusad explained that there was erythema or redness at the area of the labia majora and labia minora but there were no hymenal lacerations. According to the doctor, the erythema or redness could have been caused by an erect penis that touched the labia. With regard to her findings on BBB, Dr. Lusad testified that there was likewise no hymenal laceration but there was erythema of the perihymenal area at the 3:00 oclockand 9:00 oclock positions. The physician explained that the erythema could have been caused by a hard object including an erect penis. BBB, the other complainant, is the four-year old daughter of the spouses EEE and FFF. She is the youngest of their six children. BBBs mother, EEE, is blind. The family resides at XXX, XXX, XXX, XXX. In the afternoon of 8 May 2004, BBB and her neighbour, Myrna Isilen, were playing in the house of a certain Lola Pelaw when the accused whom BBB calls as LoloCaldo came and told BBB to come with him so he will give her money to buy candy. The accused took BBB by the hand and brought her to the bedroom on the second floor of the house. He undressed himself and likewise removed BBBs shorts and panties. He laid her down on the bed and went on top of her. BBB felt pain when the accused put his hard penis on her vagina. Afterwards, the accused told BBB not to tell her parents about what he did. He got up and dressed himself when he heard a loud knocking on his door. When BBBs playmate, Myrna Isilen (Myrna) saw the accused bring BBB inside his house, she went to tell Lola Pelaw about it. Myrna also relayed the information to BBBs mother, EEE, who was then washing dishes at their house. Myrna and EEE proceeded immediately to the house of the accused. GGG, BBBs sister followed them. They knocked loudly on the door of the accused but the latter did not open the door. It was only when GGG told Myrna to call the police that the accused opened the door, whereupon she entered the house and fetched BBB from the second floor. There was nobody in the house except BBB and the accused. GGG asked BBB what happened and the child replied that the accused removed her clothes, undressed himself, went on top of her, and inserted his penis inside her vagina. When GGG, who was carrying BBB, came out of the house, EEE asked BBB what the accused did to her. BBB replied that the accused removed her shorts and

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that the latter undressed himself and went on top of her. Upon hearing this, EEE went to report the matter to the police who took her and BBBs sworn statements. The defense presented seven witnesses: Antonio Bolinget, Asuncion Galleo, Eugenia L. Roux, Nenita Daling, Felomina Gonzaga, Pablo Gogo (Gogo) and the accused himself. Based on their testimonies, the defense version[11] of the facts is as follows: On the last week of February, 2004, the accused went to Caboan, Capangdanan, Sabangan and stayed there up to the first week of April, 2004, before he returned to Poblacion, Sabangan. The accused worked on his ricefields, preparing them for planting. He called fifteen people to help him work thereon. The accused stayed in his house which was made of wood and G.I. sheets. Pablo Gogo (Gogo) testified that he stayed at his farm in Caboan from 2 March 2004 to 4 April 2004, and likewise stayed in his ab-abong which is five meters from the shanty of the accused. Gogo declared that the shanties were made of cogon and not G.I. sheets. Caboan is about three kilometers from Poblacion, Sabangan, and it can be hiked in less than an hour. The testimony of Gogo likewise shows that some farmers work in their fields and then go back home to Sabangan at days end. They do not spend the night there. Gogo avers that the accused was one of those who stayed at Caboan. On 8 May 2004, the accused was at Kaaligan, Sabangan from 8:00 oclock in the morning until 11:00 oclock in the evening. He was there with many others to wait for the cadaver of one Rodrigo Galeo to be brought home from Cervantes, Ilocos Sur. Antonio Bolinget and Nenita Daling testified that indeed the accused was at Kaaligan on aforesaid date, and that the accused was one of those who brought Galeos body to his house at Dogo, Sabangan at about 11:00 oclock at night. Eugenia L. Roux testified that she was the teacher of complainant AAA in grade III at the XXX Central School during the school year 2003-2004. She claimed that AAA was present during the entire second week of March 2004 and on 25 March 2004 as per her record. She further testified that she has not observed any behavioral changes in or unusual behavior of her pupil. The accused denied knowing the complainants and avers he came to know them only when he was detained at the Bauko Municipal Jail. On 24 March 2006, the RTC rendered a consolidated judgment finding the accused guilty of three counts of statutory rape as follows: WHEREFORE, finding the accused Leonardo Degay alias Caldo guilty beyond reasonable doubt of three (3) counts of STATUTORY RAPE, a Consolidated Judgment is hereby rendered sentencing him to suffer 1. The penalty of reclusion perpetua and ordering him to pay AAA the sum of Fifty Thousand (P50, 000.00) PESOS as civil indemnity and

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another Fifty Thousand (P50,000.00) PESOS as moral damages for each count of STATUTORY RAPE in Crim. Cases No. 1849 and 1850. 2. The penalty of reclusion perpetua and ordering him to pay the private complainant BBB, the sum of Fifty Thousand (P50, 000.00) PESOS as indemnity ex delicto and another Fifty Thousand (P50,000.00) PESOS as moral damages in Crim. Case No. 1851 for Statutory Rape.[12] On 27 September 2007, the Court of Appeals affirmed the decision of the RTC.
[13]

Before this Court now on appeal, the parties opted to no longer file supplemental briefs, manifesting that they had exhaustively discussed their arguments in the briefs they filed before the Court of Appeals.[14] In his Brief,[15] the accused assigns the following errors: I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT FOR THREE (3) COUNTS OF STATUTORY RAPE. II. THE COURT A QUO, OVERWHELMED BY THE NUMBER OF PROSECUTION WITNESSES GRAVELY ERRED IN FINDING THE ACCUSED CULPABLE FOR THREE (3) COUNTS OF STATUTORY RAPE. III. THE COURT A QUO, GRAVELY ERRED IN FINDING THE PLAUSIBLE ALIBI OF THE ACCUSED-APPELLANT NOT WORTHY OF CREDENCE.
[16]

Did the Court of Appeals err in affirming the RTC decision convicting the accused of three counts of statutory rape? The accused argues that his acts of showing his penis to BBB and the touching of AAAs vagina, mashing of her breasts and letting his penis touch her vagina constitute lascivious conduct and not statutory rape, citing Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, Republic Act No. 7610,[17]which defines lascivious conduct 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,

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harass, degrade or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals on pubic area of a person. He cites that the lascivious conduct is supported by the medico-legal findings on AAA and BBB, when it was found that there was no hymenal laceration on their organs. The accused further faults the RTC for not giving credence to his plausiblealibi that he was in another place on 8 May 2004 and it was impossible for him to have brought BBB to his house and raped her. On the other hand, the prosecution, through the Office of the Solicitor General, in its brief[18] argues that it had proven beyond reasonable doubt that the accused committed statutory rape and not just acts of lasciviousness. It cited the categorical and straightforward testimonies of AAA and BBB as corroborated by the medical findings showing both victims suffered erythema or redness in the areas of their labias minora and majora. It pointed out that this Court had held in People v. De la Cuesta,[19] that absence of hymenal lacerations on the private organs of the victims does not negate rape. It stressed that the RTC correctly convicted the accused of three counts of statutory rape since the accused had sexual intercourse with the victims who are both under 12 years of age. It finally argued that the accused cannot exculpate himself from liability by alleging that from the last week of February, 2004 to the first week of April, 2004, he was in Caboan, Capangdanan because Caboan is only three kilometers away from Sabangan and could be traversed in an hour or less. It was therefore not physically impossible for the accused to be at the crime scenes. After review, we uphold the rulings of the appellate court and the RTC. As correctly assessed by the Court of Appeals: Dr. Alma Lusad testified that erythema or redness of the labia minora and labia majora shows that there is an inflammation or infection in said areas, as the normal color thereof is pinkish, which could have been caused by the rubbing of [a] hard object, like an erect penis, on the area. In People v. Pruna,[20] it was held that the absence of hymenal laceration does not preclude the finding of rape, especially when the victim is of tender age. Rape is consummated by the slightest penile penetration of the labia or pudendum of the female. The presence of hyperemia in the vaginal opening is a clear indication that the penis of the accused indeed touched the labia or pudendum of the complainants. As explained in People v. Boromeo:[21] Proof of hymenal laceration is not an element of rape. An intact hymen does not negate a finding that the victim was raped. To sustain a conviction for rape, full penetration of the female genital organ is not necessary. It is enough that there is proof of entry of the male organ

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into the labia of the pudendum of the female organ. Penetration of the penis by entry into the lips of the vagina, even without laceration of the hymen, is enough to constitute rape, and even the briefest of contact is deemed rape. As long as the attempt to insert the penis results in contact with the lips of the vagina, even without rupture or laceration of the hymen, the rape is consummated. x x x. The defense of alibi interposed by accused-appellant cannot prevail over the positive identification by AAA and BBB that he was the one who raped them. Accused-appellant admitted that Caboan, Capangdanan, where he allegedly stayed from the last week of February 2004 until the first week of April, 2004, is only about three (3) kilometers away from Sabangan, while Kaaligan, where he stayed from morning until evening of May 8, 2004, is only one (1) kilometer away from Sabangan. Pablo Gogo, who was allegedly with accused-appellant in Caboan from March 2, 2004 to April 4, 2004, stated that the distance of three (3) kilometers from said place to Sabangan could be negotiated in less than one hour. It was not, therefore, physically impossible for accused-appellant to be in Sabangan on the dates and time of the incidents complained of by AAA and BBB. As between the accusedappellants denial and his positive identification by AAA and BBB as the person who raped them, the court a quo did not err in according weight to the latter.[22] In line with recent jurisprudence, however, the awards of moral and exemplary damages are increased to P75,000.00 and P30,000.00, respectively.[23] WHEREFORE, the Decision dated 27 September 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 02176 affirming the Decision dated 24 March 2006 of theRegional Trial Court of Bontoc Mountain Province, Branch 35 is AFFIRMED with MODIFICATION. This Court finds appellant guilty beyond reasonable doubt of three counts of statutory rape and sentences him to suffer the penalty of reclusion perpetua for each rape and to indemnify the victims the sums of P75,000.00 as civil indemnity,P75,000.00 as moral damages, and P30,000.00 as exemplary damages for each count of rape. No pronouncement as to costs. SO ORDERED.

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SECOND DIVISION [G.R. No. 182521, February 09, 2011] PEOPLE OF THE PHILIPPINES, APPELLEE VS. ERNESTO FRAGANTE Y AYUDA, APPELLANT. DECISION CARPIO, J.: The Case On appeal is the 28 September 2007 Decision [1] of the Court of Appeals in CA-G.R. CR H.C. No. 01980, affirming with modification the 4 July 2003 Decision [2] of the Regional Trial Court, Paraaque City, Branch 260, convicting appellant Ernesto Fragante y Ayuda of nine (9) counts of acts of lasciviousness and one (1) count of rape, all committed against his minor daughter, AAA.[3] The Facts In ten (10) Informations filed on 14 July 1998, appellant was charged with nine (9) counts of acts of lasciviousness and one (1) count of rape all committed against his own minor daughter AAA. The Informations[4] read: CRIMINAL CASE NO. 98-651 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That in between the period of April-May 1993, in Paraaque, Metro Manila, and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then ten (10) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) the breast of [AAA]. CRIMINAL CASE NO. 98 - 652 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in May 1993, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then ten (10) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) the breasts of [AAA], touched (sic) and inserted (sic) his finger into the vagina of said minor-victim. CRIMINAL CASE NO. 98 - 653 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in between the period commencing in June 1993 until August 1993, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, abovenamed accused, by taking advantage of his then ten (10) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously

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fondled (sic) the breasts of [AAA], touched (sic) and inserted (sic) his finger into the vagina of said minor-victim. CRIMINAL CASE NO. 98 - 654 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in between the period of October to December 1993 at Shaolin Chinese Restaurant located at Sucat Road, Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then eleven (11) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) and sucked the breasts of [AAA], and thereafter touched the vagina of said minor-victim. CRIMINAL CASE NO. 98 - 655 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in December 1993 at Shaolin Chinese Restaurant located at Sucat Road, Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then eleven (11) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) and sucked the breasts of [AAA], and thereafter touched the vagina of said minor-victim. CRIMINAL CASE NO. 98 - 656 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in between the period commencing in January 1994 to August 1994, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, abovenamed accused, by taking advantage of his then eleven (11) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim. CRIMINAL CASE NO. 98 - 657 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in between the period commencing in August 1994 until September 1995, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then twelve (12) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim. CRIMINAL CASE NO. 98 - 658 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in September 1997, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then fifteen (15) year old biological daughter, [AAA], and with lewd designs, did

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then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim. CRIMINAL CASE NO. 98 - 659 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in (sic) October 25, 1997, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then fifteen (15) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim. CRIMINAL CASE NO. 98 - 660 for Violation of Article 335 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows: That sometime in September 1995, in Paraaque, Metro Manila and within the jurisdiction of this Honorable Court, above named accused, by taking advantage of his then thirteen (13) year old biological daughter [AAA], and with lewd designs, did then willfully, unlawfully and feloniously, lie and had carnal knowledge with the said minor victim, against her will.[5] The Court of Appeals narrated the facts as follows: Ernesto A. Fragante (Ernesto hereafter) married CCC on October 6, 1975, in Sta. Cruz Manila, and such marriage was ratified on December 7, 1995 celebrated in San Sebastian Parish Church. That union, produced three offsprings. [AAA], the victim herein, is their third child. She was born on August 23, 1982. x x x Sometime in April 1993 to May 1993, three or four months before her eleventh (11) birthday, [AAA] woke up one early morning to prepare for the driving lessons which her father Ernesto, promised to teach them that day. [AAA] was the first to wake up. She was in her room when her father entered and lay on her bed. He then asked [AAA] to lie beside him to which [AAA] obeyed. While lying beside her, Ernesto was talking to her about a lot of things, and as he talked he started to fondle her breast and suck her nipples. xxxx The incident was repeated sometime between June 1993 and August 1993. Ernesto told [AAA] to get inside his room, then he would lock the door. Once inside the room, he would scold [AAA] for reasons unknown to her. When she would start to cry, her father would start to touch her breast, then he would suck her nipples while he was rubbing her vagina. On two occasions, between October 1993 and December 1993, at Shaolin Chinese Restaurant located in Sucat, Paraaque, which the Fragante family owned, there was a small back room used as an office which later was converted into a room where

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they could rest. [AAA] was told by her father to rest in that room and once inside, while talking to her, he covered the windows with manila paper. He lay down beside her in the folding bed. He fondled her breast, squeezed them and then later inserted his hand under her shirt as he pull it up and put his mouth on her breast to suck it alternately. He started stroking her genitals with her shorts on. She did not do anything as she was in shock at that time. In December 1993, [AAA] and her father bought food from Jollibee. She was instructed to eat it at the back room of their Shaolin Chinese Restaurant so that other employees would not see it. After eating, Ernesto asked her to lie down in the folding bed and he again lay down beside her and massaged her breast and sucked her nipples while continuously rubbing her vagina by inserting his hand inside her shorts. Sometime in January 1994, around 10 o'clock in the evening, while [AAA] was sleeping in another room, Ernesto entered her room. He lay beside her, and started sucking her breast. He removed her shorts and then touched her vagina. He then inserted his finger inside her vagina. In August-September 1994, she was around twelve (12) years old, Ernesto molested her again inside his room, by massaging her private parts and sucking her nipples while continuously rubbing her vagina and afterwards inserting his finger inside it. In September 1995, at the age of thirteen (13), [AAA] was raped by her father Ernesto. She was told to get inside his room and was scolded by him before she was made to lie down in his bed. Her shirt was removed, and her breast and vagina were fondled by him. Thereafter, he sucked her nipples while continuously touching her vagina. He removed her shorts and panty, then spreaded her legs and inserted his penis in her vagina. She struggled and begged him to remove his penis. She said she could not recall the exact details of what her father was doing. He stayed on top of her despite her pleas. x x x Ernesto was not able to find time to molest [AAA] in September 1995-1996, because he was hardly home and was busy with his bookstore business in Visayas and Mindanao. xxxx In the evening of October 25, 1997, Irma, together with their brother Marco accompanied their mother Gaudencia to a wake of their mother's friend. [AAA] wanted to go with them but she was left home alone with Ernesto who refused to allow [AAA] to go with them. x x x xxxx Her father started massaging her breast and [AAA] removed his hands and stood up but she was bitten and pushed towards the bed. Her father strangled her and asked whether she preferred to be strangled first and she answered no. He started touching her private parts again and this time she continued warding off his hands and when she heard their car entering their garage, she told her father that her mother had arrive. That was the only time she was allowed to leave but was stopped by her father

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and warned not tell her mother what happened. x x x They later proceeded to the NBI, Taft Ave. Manila to report the incidents and where [AAA] executed her complaint-affidavit. Her mother and siblings also executed their affidavits.[6] xxxx During arraignment on April 26, 1999, the accused entered separate pleas of "Not Guilty" to all the crimes charged. Joint trial ensued thereafter. Prosecution presented the following witnesses: [AAA], BBB, CCC, and Dr. Bernadette Madrid. The defense presented Ernesto Fragante as the sole witness.[7] The Ruling of the Trial Court On 4 July 2003, the trial court rendered a Decision convicting appellant for the crimes charged. The dispositive portion of the trial court's decision reads: WHEREFORE, after careful perusal of the evidence presented, this Court finds as follows: for (sic) Criminal Case No. 98-651 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-652 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-653 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-654 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-655 For Violation of Art. 336 of the RPC, as amended, in relation

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to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-656 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-657 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS. Criminal Case No. 98-658 for Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of SIX (6) MONTHS and ONE (1) DAY to SIX (6) YEARS. Criminal Case No. 98-659 for Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of SIX (6) MONTHS and ONE (1) DAY to SIX (6) YEARS. Criminal Case No. 98-660 for RAPE this court finds the accused ERNESTO AYUDA FRAGANTE GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to DEATH. He is ordered to pay the complainant P50,000.00 as civil liability and P50,000.00 as moral damages. SO ORDERED.[8] The Ruling of the Court of Appeals The Court of Appeals found appellant guilty beyond reasonable doubt for the crimes charged. In upholding appellant's conviction, the Court of Appeals gave credence to AAA's testimony narrating how appellant sexually abused her repeatedly. The Court of Appeals junked appellant's contentions that (1) AAA's testimony lacked specific details such as the actual date of commission of the acts of lasciviousness, and was inconsistent with respect to the charge of rape; (2) AAA was ill motivated in filing the criminal complaints; (3) the charge of rape was unsubstantiated by medical findings; and (4) the delay in reporting the incidents to the proper authorities renders the charges dubious. On 28 September 2007, the Court of Appeals rendered a Decision the dispositive portion of which reads:

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(R.A. No. 7610)

WHEREFORE, the decision of the Regional Trial Court, of Paraaque City, Branch 260, dated July 4, 2003 is AFFIRMED with MODIFICATION as follows: 1. In Criminal Cases Nos. 98-651, 98-652, 98-653, 98-654, 98-655, 98-656, 98657, accused-appellant Ernesto A. Fragante is hereby sentenced to suffer Indeterminate Penalty, the minimum of which is fourteen (14) years and eight (8) months of reclusion temporal minimum and the maximum of which is seventeen (17) years and four (4) months of reclusion temporal medium, for acts of lasciviousness under Article III, Section 5 (b) of Republic Act No. 7610, and is also ordered to pay [AAA] the amount of P50,000.00 as moral damages for each count of acts of lasciviousness; 2. In pursuant with Section 31(f), Article XII, of Republic Act No. 7610, a FINEin the amount of Thirty Thousand (Php30,000.00) Pesos for each count of the nine (9) counts of lascivious conduct is hereby imposed; 3. The penalty imposed in Criminal Case No. 98-658 and Criminal Case No. 98659 by the trial court is hereby AFFIRMED without modification; 4. In Criminal Case No. 98-660, the penalty imposed is hereby reduced to reclusion perpetua by virtue of R.A. No. 9346, which prohibits the imposition of death penalty. 5. In view of the jurisprudential trend, the amount of moral damages for Criminal Case No. 98-660 is hereby INCREASED to Seventy Five Thousand (Php 75,000.00) Pesos and the civil indemnity is likewise increased to Seventy Five Thousand (Php 75,000.00) and an additional amount of Twenty Five Thousand (Php 25,000.00) as exemplary damages. SO ORDERED.[9] The Issue The sole issue in this case is whether the Court of Appeals erred in affirming appellant's conviction for nine (9) counts of acts of lasciviousness and one (1) count of rape. The Ruling of this Court We sustain appellant's conviction for seven (7) counts of acts of lasciviousness and one (1) count of rape. We acquit appellant for two (2) counts of acts of lasciviousness on the ground of reasonable doubt. Criminal Case No. 98-660 for Rape Appellant contends that the Court of Appeals erred in convicting him for the crime of rape since the prosecution failed to overthrow the presumption of innocence. Appellant alleges that (1) AAA's testimony was full of inconsistencies and

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(R.A. No. 7610)

improbabilities which cast serious doubts on the truthfulness of her account; (2) the medical findings do not support the charge of rape; (3) AAA's delayed reporting of the incident renders the charges dubious; and (4) AAA and her mother harbored a grudge against appellant.[10] We are not persuaded. The prosecution sufficiently established appellant's guilt beyond reasonable doubt for the crime of rape. Article 335 of the Revised Penal Code [11] provides: Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 4. By using force or intimidation; 5. When the woman is deprived of reason or otherwise unconscious; and 6. When the woman is under twelve years of age or is demented. As correctly found by the Court of Appeals, all the essential elements of rape are present in this case. The evidence on record clearly proves that appellant had carnal knowledge of his own minor daughter AAA. We reject appellant's contention that AAA's testimony was full of inconsistencies. On the contrary, AAA's testimony that she was raped by appellant was very consistent and straightforward. Notably, appellant did not point out the supposed inconsistencies, and proceeded in arguing that his moral ascendancy over his daughter was insufficient to intimidate AAA. It must be stressed that the gravamen of rape is sexual congress with a woman by force and without consent.[12] In People v. Orillosa,[13] we held that actual force or intimidation need not be employed in incestuous rape of a minor because the moral and physical dominion of the father is sufficient to cow the victim into submission to his beastly desires.[14] When a father commits the odious crime of rape against his own daughter, his moral ascendancy or influence over the latter substitutes for violence and intimidation.[15] The absence of violence or offer of resistance would not affect the outcome of the case because the overpowering and overbearing moral influence of the father over his daughter takes the place of violence and offer of resistance required in rape cases committed by an accused who did not have blood relationship with the victim.[16] In this case, AAA's testimony clearly showed how appellant took advantage of his relationship with and his moral ascendancy over his minor daughter when he had carnal knowledge of her. As found by the Court of Appeals, appellant instilled fear on AAA's mind every time he sexually molested her, thus: [AAA] also admitted that after accused-appellant has started sexually molesting her until she was raped, she was so frightened of him. In fact she could not tell her mother of her ordeal, mindful of the serious threats on her life and of the chaos it would cause their family.[17]

48

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(R.A. No. 7610)

We likewise find appellant's claim that the medical findings do not support the charge of rape untenable. Aside from AAA's positive, straightforward, and credible testimony, the prosecution presented the medical certificate issued by Dr. Bernadette Madrid[18] and the latter's testimony which corroborate AAA's claim that appellant raped her. The Court is not impressed with appellant's claim that AAA's failure to immediately report the incidents to the proper authorities affected her credibility.[19] Delay could be attributed to the victim's tender age and the appellant's threats.[20] A rape victim's actions are oftentimes influenced by fear, rather than reason.[21] In incestuous rape, this fear is magnified because the victim usually lives under the same roof as the perpetrator or is at any rate subject to his dominance because of their blood relationship.[22] We also find appellant's imputation of ill-motive on the part of the victim, including his wife and AAA's sister, in filing the criminal charges devoid of merit. Suffice it to state that the resentment angle, even if true, does not prove any ill motive on AAA's part to falsely accuse appellant of rape or necessarily detract from her credibility as witness.[23] Motives, such as those arising from family feuds, resentment, or revenge, have not prevented the Court from giving, if proper, full credence to the testimony of minor complainants who remained consistent throughout their direct and crossexaminations.[24] For appellant's guilt for the crime of rape committed against his own minor daughter AAA, we sustain the penalty of reclusion perpetua imposed on appellant. While the Court of Appeals correctly reduced the penalty of death[25] to reclusion perpetua, the Court of Appeals failed to indicate that the reduction of the penalty to reclusion perpetua is without eligibility for parole in accordance with Sections 2 and 3 of Republic Act No. 9346.[26] As regards appellant's civil liability, we affirm the award of moral damages and civil indemnity, which are automatically granted without need of proof or pleading,[27] each in the sum of P75,000. However, we increase the award of exemplary damages from P25,000 to P30,000 consistent with prevailing jurisprudence.[28] Criminal Case Nos. 98-651, 98-652, 98-653, 98-654, 98-655, 98-656, 98-657, 98-658, and 98-659 for Acts of Lasciviousness Appellant argues that the Court of Appeals erred in convicting him for nine counts of acts of lasciviousness since the prosecution failed to establish with particularity the date of the commission of the offense. Appellant contends that AAA's testimony was a "sweeping generalization of the crimes committed."[29] According to appellant, AAA's statement "that the said acts were allegedly committed so many times on certain occasions is clearly inadequate and grossly insufficient" to sustain a conviction.[30] We are not convinced.

49

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(R.A. No. 7610)

Appellant was charged with violation of Article 336 of the Revised Penal Code, as amended, in relation to Section 5(b), Article III of Republic Act No. 7610. These provisions state: 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. 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. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxxx (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 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 bereclusion temporal in its medium period; x x x The elements of sexual abuse under Section 5, Article III of Republic Act No. 7610 are as follows: 4. The accused commits the act of sexual intercourse or lascivious conduct. 5. The said act is performed with a child exploited in prostitution or subjected to sexual abuse. 6. The child, whether male or female, is below 18 years of age.[31] As correctly found by the Court of Appeals, all the elements of sexual abuse under Section 5, Article III of RA 7610 are present here. First, appellant's repeated touching, fondling, and sucking of AAA's breasts and inserting his finger into AAA's vagina with lewd designs undoubtedly constitute lascivious conduct under Section 2(h) of the Implementing Rules and Regulations of Republic Act No. 7610, to wit: (h) "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 public area of a person.

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(R.A. No. 7610)

Second, appellant, as a father having moral ascendancy over his daughter, coerced AAA to engage in lascivious conduct, which is within the purview of sexual abuse. In People v. Larin,[32] we held: 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. Third, AAA is below 18 years old at the time of the commission of the offense, based on her testimony which was corroborated by her Birth Certificate[33] presented during the trial. Section 3(a), Article I of Republic Act No. 7610 provides: SECTION 3. Definition of Terms. (a) "Children" refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; Since all three elements of the crime were present, the conviction of appellant for acts of lasciviousness was proper. As to the alleged failure of the prosecution to establish with particularity the date of the commission of the acts of lasciviousness, suffice it to state that the date and time of the commission of the offense are not material ingredients of such crime. Section 11, Rule 110 of the Rules of Court provides: Sec. 11. Time of the commission of the offense. -- It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as to the actual date at which the offense was committed as the information or complaint will permit. In People v. Losano,[34] the Court held: Thus, as early as 1903, this Court has ruled that while the complaint must allege a specific time and place when and where the offense was committed, the proof need not correspond to this allegation, unless the time and place is material and of the essence of the offense as necessary ingredient in its description. Evidence so presented is admissible and sufficient if it shows 1) that the crime was committed at any time within the period of the statute of limitations; and 2) before or after the time stated in the complaint or indictment and before the action is commenced. We agree with the Court of Appeals in debunking appellant's claim that AAA's testimony was overly generalized and lacked specific details on when appellant sexually abused the victim. The records are replete with details on when and how appellant sexually abused her. AAA testified that appellant habitually molested her whenever he had the opportunity to do so, to wit:

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(R.A. No. 7610)

Atty. Rosanna Elepao-Balauag: How many times[,] because the witness answered that his father was sexually abusing her. Court: Witness may answer. Atty. Rosanna Elepao-Balauag: How many times if you remember? A: xxxx Q: A: When was (sic) [did] the incident happened? Sa bahay po namin at madaling araw po iyon dahil nagpapaturo kami ng driving at ako po iyong unang nagising at sabi ko nga po magdriving na turuan niya akong magmaneho at tapos po pinahiga niya ako sa tabi nya at tapos po kinausap po niya ako at habang kinakausap niya ako, he started touching my private parts and later on he sucked my nipple, mam. What else did he do? That's all mam. And what happened after that? He did you (sic) it again, mam. Many times.

Q: A: Q: A: xxxx Q: What she did you to? [sic] A: Ganoon pa rin po, he sucked my breast at tapos po niyon, papasukin niya ako sa kanyang room at ila-lock niya iyong pinto; minsan po naman, pagagalitan niya ako na walang kabagay bagay at hindi ko naman po alam kung ano iyon; ganoon po lagi, hinawakan niya iyong breast, papagalitan ako, iyon paulit ulit na lang po, mam. Q: After he scolded you what happened next? A: Iyon pag umiiyak na po ako, uumpisahan po niyang hawakan muli iyong mga private parts. xxxx Q: And after that incident what transpired next? A: Paulit ulit po niyang ginagawa, lagi po niya akong hinhahawakan ang breast ko at vagina and then nira-rub po nang kamay niya.[35] However, in Criminal Case Nos. 98-652 and 98-658, we agree with the Office of the Solicitor General, representing the People that the prosecution failed to prove appellant's guilt for acts of lasciviousness beyond reasonable doubt. While AAA testified that appellant habitually molested her, there was no specific evidence supporting the charge that appellant committed acts of lasciviousness in May 1993 and September 1997, or on or about those dates. Hence, we find appellant not guilty for two counts of acts of lasciviousness (Criminal Case Nos. 98-652 and 98-658) on the ground of reasonable doubt.

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(R.A. No. 7610)

As regards the other criminal cases for acts of lasciviousness, where appellant's guilt was proved beyond reasonable doubt, we affirm appellant's conviction. In these cases, the alternative circumstance of relationship under Article 15 of the Revised Penal Code should be considered against appellant.[36] In People v. Fetalino,[37] the Court held that, "in crimes against chastity, like acts of lasciviousness, relationship is considered aggravating." In that case, the Court considered relationship as an aggravating circumstance since the informations mentioned, and the accused admitted, that the complainant is his daughter. In the instant case, the informations expressly state that AAA is appellant's daughter, and appellant openly admitted this fact.[38] Accordingly, we modify the penalty imposed in Criminal Case Nos. 98-657 and 98-659. Section 5, Article III of Republic Act No. 7610 prescribes the penalty of reclusion temporal in its medium period to reclusion perpetua.[39] Since there is an aggravating circumstance and no mitigating circumstance, the penalty shall be applied in its maximum period - reclusion perpetua.[40] Besides, Section 31 of Republic Act No. 7610 expressly provides that "The penalty provided herein shall be imposed in its maximum period when the perpetrator is [a] x x x parent, x x x. In People v. Montinola[41] and People v. Sumingwa,[42] where the accused is the biological father of the minor victim,[43] the Court appreciated the presence of the aggravating circumstance of relationship and accordingly imposed the penalty of reclusion perpetua. Thus, appellant herein is sentenced to suffer the penalty of reclusion perpetua in Criminal Case Nos. 98-657 and 98-659. In Criminal Case Nos. 98-651,[44] 98-653,[45] 98-654,[46] 98-655,[47] and 98-656,[48] where AAA was still below 12 years old at the time of the commission of the acts of lasciviousness, the imposable penalty is reclusion temporal in its medium period in accordance with Section 5(b), Article III of Republic Act No. 7610. This provision specifically states "[t]hat the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period."[49]Considering the presence of the aggravating circumstance of relationship, as explained, the penalty shall be imposed in its maximum period. In People v. Velasquez,[50] which involved a two year old child sexually abused by her grandfather, the Court imposed the indeterminate sentence of 12 years and 1 day of reclusion temporal as minimum to 17 years of reclusion temporal as maximum. Accordingly, appellant herein is sentenced to suffer the indeterminate penalty of 12 years and 1 day ofreclusion temporal as minimum to 17 years of reclusion temporal as maximum. Also, we modify the amount of moral damages and fine awarded by the Court of Appeals. We reduce the amount of moral damages from P50,000 to P15,000 and the amount of fine from P30,000 to P15,000 for each of the seven (7) counts of acts of lasciviousness.[51] In addition, we award civil indemnity in the amount of P20,000, and exemplary damages in the sum of P15,000, in view of the presence of the aggravating circumstance of relationship,[52] for each of the seven (7) counts of acts of lasciviousness. WHEREFORE, we AFFIRM the 28 September 2007 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01980 with MODIFICATIONS. We find appellant Ernesto Fragante y Ayuda:

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(R.A. No. 7610)

1. GUILTY of RAPE in Criminal Case No. 98-660. He is sentenced to suffer the penalty ofreclusion perpetua without eligibility for parole and ordered to pay AAA P75,000 as civil indemnity, P75,000 as moral damages, and P30,000 as exemplary damages. 2. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case Nos. 98-657 and 98-659, with relationship as an aggravating circumstance. He is sentenced to suffer the penalty of reclusion perpetua and ordered to pay AAA (1) moral damages of P15,000; (2) a fine of P15,000; (3) civil indemnity of P20,000; and (4) exemplary damages of P15,000 for each count. 3. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case Nos. 98-651, 98-653, 98654, 98-655, and 98-656, with relationship as an aggravating circumstance. He is sentenced to suffer the indeterminate penalty of 12 years and 1 day of reclusion temporal as minimum to 17 years of reclusion temporal as maximum and ordered to pay AAA (1) moral damages of P15,000; (2) a fine of P15,000; (3) civil indemnity of P20,000; and (4) exemplary damages of P15,000 for each count. 4. NOT GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case Nos. 98-652 and 98658 on the ground of reasonable doubt. SO ORDERED. Peralta, Abad, Perez,* and Mendoza, JJ., concur.

PEOPLE OF THE PHILIPPINES, Petitioner,

G.R. No. 183090

Present: VELASCO, JR., J., Chairperson, PERALTA, -versusABAD, PEREZ,* and MENDOZA, JJ.

BERNABE PANGILINAN Y CRISOSTOMO,

Promulgated:

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(R.A. No. 7610)

Respondent.

November 14, 2011

x-----------------------------------------------------------------------------------------x DECISION PERALTA, J.: Before us is an appeal filed by appellant Bernabe Pangilinan which seeks to reverse and set aside the Decision[1] dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00197. The CA decision affirmed the judgment[2] of the Regional Trial Court (RTC) of Tarlac City, Branch 63, convicting appellant of the crimes of rape under Article 266-A of the Revised Penal Code, as amended, and sexual abuse under Section 5 (b) of Republic Act (RA) No. 7610[3] with modification as to the amount of damages awarded to the offended party. Consistent with our ruling in People v. Cabalquinto,[4] we withhold the real name of the victim and her immediate family members, as well as any information which tends to establish or compromise her identity. The initials AAA represent the victim, the initials BBB stand for her aunt, appellant's wife, and the initials CCC refer to one of her relatives. On October 3, 2001, the prosecution filed two (2) Informations charging appellant of the crimes of Rape[5] and Child Sexual Abuse under Section 5 (b) of RA No. 7610. The Informations respectively read: Criminal Case No. 11768 That on or about July 27, 2001, at around 10:00 oclock in the evening at Brgy. Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force, threat and intimidation did then and there willfully, unlawfully and feloniously have sexual intercourse with [his] stepdaughter AAA, a minor, 13 years of age, against her will and consent. Contrary to law.[6] Criminal Case No. 11769 That on or about 1995 up to about June 2001, at Barangay Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and criminally

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(R.A. No. 7610)

commit acts of lasciviousness upon the person of AAA, a minor subjected to sexual abuse. That accused is the stepfather of AAA, who was born on January 29, 1988. Contrary to law.[7] Upon his arraignment on February 21, 2002,[8] appellant, duly assisted by counsel, entered a plea of Not Guilty in both cases. Trial on the merits thereafter ensued. The prosecution presented the testimonies of Dr. Marissa M. Mascarina, the attending physician, and the victim, AAA. Dr. Mascarina testified that she examined AAA, as the latter was allegedly raped by appellant.[9] She made physical as well as internal examinations on AAA. Based on her examination, she issued a Medical Certificate,[10] which stated, among others, that there was no hymenal laceration. AAA testified that she was born on January 20, 1988.[11] She had lived with her Aunt BBB, first cousin of her father, and her husband, herein appellant, since she was two years old until July 27, 2001.[12] At around 10 p.m. of July 27, 2001, while her aunt was working in Angeles, Pampanga, and she was watching television in their house, appellant arrived and ordered her to cook chicken adobo which she did. Suddenly, appellant approached her and pointed a samurai at her. Appellant then kissed her neck and mashed her breast.[13] It was not the first time that appellant did that to her.
[14]

AAA further testified that she remembered three incidents wherein appellant abused her. The first time was when appellant kissed her and touched her private parts.[15] The second time was when appellant pointed a samurai at her, took her to a room and removed her clothes and kissed her on her lips and touched her private organ. He then laid on top of her and tried to insert his penis to her private organ. His organ touched her vagina; that she felt pain in her vagina but there was no blood. [16] And the third time was when appellant kissed her and mashed her breast.[17] She did not tell her aunt of appellant's sexual molestations, because he threatened to kill her and her aunt.[18] She intimated that her aunt BBB and appellant treated her like their own daughter.[19]

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(R.A. No. 7610)

On redirect examination, AAA testified that appellant inserted his penis to her vagina and that it was painful when he did it.[20] On the other hand, the defense presented appellant himself, his wife, BBB, and their two neighbors. BBB testified that she and appellant have treated AAA as their real daughter by providing her with all her needs for which reason her relatives envied AAA.[21] She was able to talk with AAA while the latter was in the custody of the Department of Social Welfare and Development (DSWD), Tarlac City, and AAA told her that it was her cousin CCC who molested her.[22] BBB intimated that her relatives were mad at appellant because he was jobless and she was the one working for her family.[23] For his part, appellant denied the accusations that he raped or molested AAA. He testified that on July 27, 2001, he was at his neighbors house dressing chickens. When he went home at around 10 p.m., AAA told him that CCC, a cousin, molested her.[24] Appellant and AAA were on their way to file a complaint against CCC when they met CCC's mother who forcibly took AAA by beating her with an umbrella. [25] Appellant insinuated that AAA was just forced by his wife's relatives to file the charges against him since they were against their relationship.[26] Appellant's testimony was corroborated by his two neighbors. On February 19, 2003, the RTC rendered its Judgment, the dispositive portion of which reads: WHEREFORE, from the foregoing evidence, the Court hereby finds the accused Guilty Beyond Reasonable Doubt on both cases (Criminal Case No. 11768 and Criminal Case No. 11769) for Rape and Sexual Abuse, respectively, and he is hereby sentenced as follows: I. Under Criminal Case No. 11768 1. to suffer the penalty of Reclusion Perpetua; and 2. to indemnify the private complainant in the amount of P50,000.00 as actual damages, P50,000.00 as moral damages, and P20,000.00 as fine to answer for the private complainants rehabilitation at the DSWD, Tarlac City. II. Under Criminal Case No. 11769

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(R.A. No. 7610)

1. to suffer the penalty of imprisonment of six (6) months and one (1) day of Prision Correccional medium, as the minimum to seven (7) years of Prision Mayorminimum, as the maximum; and

2. to indemnify the private complainant in the amount of P30,000.00 as damages. SO ORDERED.[27] Appellant's motion for reconsideration was denied in an Order[28] dated March 19, 2003. Appellant filed a Notice of Appeal.[29] On January 14, 2004, we accepted the appeal.[30] However, pursuant to the Court's ruling in People v. Mateo, [31] we transferred the case to the Court of Appeals.[32] On January 25, 2008, the CA rendered its decision which affirmed the RTC Decision, finding the appellant guilty of the crimes charged, but modifying the award of damages, the dispositive portion of which reads: WHEREFORE, the instant appeal is hereby DISMISSED for lack of merit. Accordingly, the appealed Decision dated 19 February 2003 of Branch 63, Regional Trial Court (RTC), Tarlac City, Third Judicial Region, in Criminal Cases Nos. 11768 and 11769, finding the accused guilty beyond reasonable doubt in both cases imposing the sentence of Reclusion Perpetua for the crime of Rape and the penalty of imprisonment of SIX (6) MONTHS and ONE (1) DAY of Prision Correccional medium, as the minimum to SEVEN (7) YEARS of Prision Mayor minimum, as the maximum for the crime of Sexual Abuse, is hereby AFFIRMED with the following modifications as to the award of damages: 1. In Criminal Case No. 11768, to indemnify the offended party the amount of FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages; civil indemnity of SEVENTY-FIVE THOUSAND PESOS (P75,000.00) and moral damages of SEVENTY-FIVE THOUSAND (P75,000.00), instead of FIFTY THOUSAND PESOS (P50,000.00); and In Criminal Case No. 11769, to pay the offended party the amount of TWENTY-FIVE THOUSAND PESOS (P25,000.00) as exemplary damages.[33]

2.

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(R.A. No. 7610)

In so ruling, the CA found unmeritorious appellant's argument that the allegation of on or about 1995 up to about June 2001 was unconscionably spacious which violated his right to be informed of the nature and cause of the accusation against him. The CA ruled that the precise time of the commission of the offense need not be alleged in the complaint or information unless time is an essential element of the crime charged which is not so in the crime of acts of lasciviousness; and that since appellant did not move for a bill of particulars or quashal of the Information, he could no longer question on appeal the alleged defect in the Information. As to appellant's claim that there was no evidence showing that he had carnal knowledge of AAA on July 27, 2001, the CA found that AAA was only 14 years old and had been subjected to abuse by appellant since she was seven years old; thus, she could not remember the details and the dates when she was abused; however, it was established that she was raped which happened before the Information was filed. The findings of Dr. Mascarina that there was no hymenal laceration did not categorically discount the commission of rape and full penetration was not required to convict appellant for rape. The CA found no reason for AAA to fabricate lies as she considered appellant her father who treated her like his own daughter. The CA did not give probative value to the alleged written statement of AAA filed with it which seemed to exonerate appellant from the offense charged against him. A Notice of Appeal[34] was subsequently filed by appellant. In a Resolution[35] dated July 23, 2008, we accepted the appeal and ordered the parties to file their respective supplemental briefs if they so desire. Appellee filed a Manifestation[36] to be excused from filing a supplemental brief as the brief filed with the CA had adequately addressed the issues and arguments raised in the appellants brief dated June 20, 2005. Appellant filed a Supplemental Brief[37] wherein he alleged that assuming appellant raped AAA, the RTC gravely erred in imposing the penalty of reclusion perpetua. He claims that he should have been prosecuted for rape under RA 7610 since AAA was already more than 12 years old on that fateful day, thus, the penalty should have beenreclusion temporal in its medium period to reclusion perpertua. In his Appellant's Brief, he presented the following assignment of errors, to wit: I

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(R.A. No. 7610)

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF ACTS OF LASCIVIOUSNESS DESPITE THE FAILURE OF THE PROSECUTION TO ALLEGE AND ESTABLISH WITH PARTICULARITY THE DATE OF THE COMMISSION OF THE OFFENSE. II THE COURT A QUO GRAVELY ERRED IN FINDING THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIMES CHARGED DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. [38] It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.[39] In this case, appellant was charged under two separate Informations for rape under Article 266-A of the Revised Penal Code and sexual abuse under Section 5 (b) of RA No. 7610, respectively. However, we find the Information in Criminal Case No. 11769 for sexual abuse to be void for being violative of appellant's constitutional right to be informed of the nature and cause of the accusation against him. We again quote the charging part of the Information for easy reference, thus: That on or about 1995 up to about June 2001 at Barangay Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and criminally commit acts of lasciviousness upon the person of AAA, a minor subjected to sexual abuse. That accused is the stepfather of AAA who was born on January 29, 1988. Contrary to law. Under Section 8, Rule 110 of the Rules of Criminal Procedure, it provides: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

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Special Penal Laws

(R.A. No. 7610)

A reading of the allegations in the above-quoted Information would show the insufficiency of the averments of the acts alleged to have been committed by appellant. It does not contain the essential facts constituting the offense, but a statement of a conclusion of law. Thus, appellant cannot be convicted of sexual abuse under such Information. In People v. Dela Cruz,[40] wherein the Information in Criminal Case No. 15368-R read: That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW.[41] We dismissed the case after finding the Information to be void and made the following ratiocinations: The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), "either by raping her or committing acts of lasciviousness. It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: xxxx The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellants

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constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. [42] The right to be informed of the nature and cause of the accusation against an accused cannot be waived for reasons of public policy.[43] Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed.[44] The next question to be addressed is whether the prosecution was able to prove all the elements of the crime of rape under Article 266-A of the Revised Penal Code, as amended, which provides: Art. 266-A Rape; When And How Committed Rape is Committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. We find that AAA remained steadfast in her assertion that appellant raped her through force and intimidation with the use of a samurai. And even after the incident, appellant threatened AAA that he would kill her and her aunt, i.e., appellant's wife, should AAA report the incident. Thus, AAA's testimony on the witness stand: Q. What did the accused do to you? A. He aimed the samurai at me and he took me inside the room, sir. Q. And what happened when he took you inside the room? ATTY. MARTINEZ: Q. What date are you referring to? A. I can no longer remember, sir. FISCAL DAYAON:

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Q. And what happened when you were in the room? A. He aimed the samurai at me and directed me to remove my clothes, sir. Q. Did you remove your clothes? A. No, sir. Q. Because you did not take off your clothes, what happened? A. He was forcing me to remove my clothes. He was able to remove my clothes, sir. Q. After undressing you, what happened? A. He kissed me, sir. Q. Where did he [kiss] you? A. On my lips, sir. Q. Where else? A. He was [mashing] my breast. Q. What else? A. On my genitals. Q. Aside from kissing you and mashing your breast and holding your vagina, what else did he do? A. He lay on top of me. Q. When he laid on top you, was the accused on his dress (sic) or what was his condition then? A. He was naked, sir. Q. Was he wearing a shirt? A. No, sir. Q. Was he wearing pants? A. No, sir. Q. What happened when he laid on top of you? A. He was trying to insert his penis to my vagina. FISCAL DAYAON: Q. Was he able to insert his organ to your vagina? A. No, sir. Q. Could you tell us if his organ touched your vagina? A. Yes, sir. Q. What part of your vagina was touched by his organ? A. I do not know. Q. How many times did [the] accused try to insert his organ to your vagina?

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A. Many times, sir. Q. Did you not tell your aunt about this incident that the accused was trying to insert his organ to your vagina. A. No, sir. Q. Why did you not tell her? A. No, sir because he was threatening to kill me and my aunt, sir. Q. How did he tell you? A. The samurai was pointed at me, sir. Q. Could you tell us how did he tell you [that he will kill] you and your aunt? A. Don't tell the truth or else I will kill you and your aunt. [45] On clarification made by the Court after the direct examination, AAA testified, to wit: Q. Did you feel anything when he was trying to insert his penis to your private organ? A. There was, sir. Q. Where were you hurt? A. My vagina, sir.[46] The Court made further clarification after the redirect examination, thus: Q. Was there any occasion that your uncle inserted his penis to your vagina? The witness A. Yes, sir. xxxx Q. What did you feel when he did that to you. A. It was painful, sir.[47] Indeed, AAA testified in her redirect examination that appellant had inserted his organ into her vagina and that it was painful when appellant did it. It was the penetration that caused the pain. We held that rape is committed on the victims testimony that she felt pain.[48] This, at least, could be nothing but the result of penile penetration sufficient to constitute rape.[49] Rape is committed even with the slightest penetration of the woman's sex organ.[50]

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(R.A. No. 7610)

A finding that the accused is guilty of rape may be based solely on the victim's testimony if such testimony meets the test of credibility.[51] We held that no woman, much less a child of such tender age, would willingly submit herself to the rigors, the humiliation and the stigma attendant upon the prosecution of rape, if she were not motivated by an earnest desire to put the culprit behind bars.[52] Appellant argues that he could not be convicted of rape since based on the medical examination report, AAA's genitalia had no hymenal laceration which corroborated AAA's testimony that appellant merely kissed her and touched her breast on July 27, 2001. Proof of hymenal laceration is not an element of rape.[53] An intact hymen does not negate a finding that the victim was raped. Penetration of the penis by entry into the lips of the vagina, even without laceration of the hymen, is enough to constitute rape, and even the briefest of contact is deemed rape.[54] In People v. Bohol,[55] we explained the treatment of medical evidence as not essential in proving rape cases, thus, There is no gainsaying that medical evidence is merely corroborative, and is even dispensable, in proving the crime of rape. In child sexual abuse cases particularly, normal physical findings are common due to several factors, such as delay in seeking medical examination, the rapid healing of injuries, washing, urinating or defecating after the sexual assault, the elasticity of the hymen, changes in the hymenal tissue due to estrogen effect when the victim is at the pubertal stage, or the type of sexual molestation involved, such as fondling, oral sodomy, or cunnilingus, which leaves no physical marks. The child's disclosure is the most important evidence of the sexual abuse she has gone through.[56] While it appears from AAA's testimony that she was not raped precisely on July 27, 2001 as what appellant did was kiss her lips and mash her breast on that day, however, her entire testimony in the witness stand positively shows that appellant with the use of force and intimidation had carnal knowledge of her at some other time. She testified that appellant violated her since she was seven years old. The first time was when they were still staying in Angeles City where appellant touched her private parts; the second time was when they were already in Gerona, Tarlac, where appellant pointed a samurai at her and raped her; and the third time happened on July 27, 2001 when appellant kissed her lips and mashed her breast. Indeed, appellant may be convicted for rape in the light of AAA's testimony. For in rape cases, the date of the commission is not an essential element of the offense; what is material is its occurrence.[57]

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Notably, the information alleges that the crime of rape was committed on or about July 27, 2001, thus the prosecution may prove that rape was committed on or about July 27, 2001, i.e., few months or years before, and not exactly on July 27, 2001. In People v. Lizada,[58] wherein accused-appellant averred that the prosecution failed to adduce the requisite quantum of evidence that he raped the private complainant precisely on September 15, 1998 and October 22, 1998, we ruled: The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996, when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to her. Although private complainant did not testify that she was raped on September 15, 1998 and October 22, 1998, nevertheless accusedappellant may be convicted for two counts of rape, in light of the testimony of private complainant. It bears stressing that under the two Informations, the rape incidents are alleged to have been committed on or about September 15, 1998 and on or about October 22, 1998. The words on or about envisage a period, months or even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged was committed on or about September 15, 1998 and on or about October 22, 1998.[59] Appellant's main defense is denial. He claims that the charge was instigated by his wife's relatives who are against their relationship. Such defense remains unsubstantiated. Moreover, it would be the height of ingratitude for AAA, who was not even shown to have any improper motive, to falsely accuse appellant of sexual abuses especially that appellant and his wife treated her like their own daughter and the fact that appellant might go to jail. In fact, AAA suffered in silence out of fear for her and her aunt's lives if not for her cousin who saw appellant in the act of kissing her and touching her private parts. It was when she was brought to the DSWD that she made known appellant's abuses done to her. Anent the alleged letter of AAA filed with the CA which sought to exonerate appellant from the charges filed against him, we find the same not worthy of belief. We quote with approval what the CA said in not giving probative value to such letter, to wit:

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x x x We cannot consider the same as it has no probative value considering that it appears not to be the genuine signature of the private complainant AAA herself as compared to her signatures in the original complaint and her sworn statement. More so, it also appears that the said document is not the original one as required by the best evidence rule in criminal procedure. Lastly, it is worth noticeable that the execution of the said letter was not assisted by a counsel and it was not also notarized.[60] In his Supplemental Brief, appellant claims that he should have been prosecuted for rape under RA No. 7610 since AAA was already more than 12 years old when the alleged rape was committed which carries the penalty of reclusion temporal in its medium period to reclusion perpetua. We do not agree. In People v. Dahilig,[61] wherein the question posed was whether the crime committed was rape (Violation of Article 266-A, par. 1, in relation to Article 266-B, 1st paragraph of the Revised Penal Code, as amended by RA No. 8353), or is it Child Abuse, defined and penalized by Section 5, (b), RA No. 7610, we said: As elucidated by the RTC and the CA in their respective decisions, all the elements of both crimes are present in this case. The case of People v. Abay, however, is enlightening and instructional on this issue. It was stated in that case that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1 [d] of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Specifically, Abay reads: Under Section 5 (b), Article III of RA 7610 in relation to RA 8353,if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1) (d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised Penal Code (on

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(R.A. No. 7610)

complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1 [d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established. Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction. As in the present case, appellant can indeed be charged with either Rape or Child Abuse and be convicted therefor. The prosecution's evidence established that appellant had carnal knowledge of AAA through force and intimidation by threatening her with a samurai. Thus, rape was established. Considering that in the resolution of the Assistant Provincial Prosecutor, he resolved the filing of rape under Article 266-A of the Revised Penal Code for which appellant was convicted by both the RTC and the CA, therefore, we merely affirm the conviction. However, we need to modify the damages awarded for the crime of rape committed on AAA. The CA awarded the amount of P75, 000.00 as civil indemnity for the crime of rape, saying that rape was qualified by the circumstance of minority. It also awarded moral damages in the amount of P75,000.00 and exemplary damages of P50,000.00. While the Information for rape mentioned AAA's minority, as well as the fact that she was a stepdaughter of appellant, it was only AAA's minority which was proven by a copy of a birth certificate issued by the Office of the City Civil Registrar of Angeles City. Conformably with the ruling in People v. Esperanza,[62] when either one of the qualifying circumstances of relationship or minority is omitted or lacking, that which is pleaded in the Information and proved by the evidence may be considered as

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an aggravating circumstance. As such, AAA's minority may be considered as an aggravating circumstance. However, it may not serve to raise the penalty, because in simple rape by sexual intercourse, the imposable penalty is reclusion perpetua which is single and indivisible.[63] Hence, the civil indemnity and moral damages awarded by the CA must be reduced from P75, 000.00 to P50,000.00 each in line with prevailing jurisprudence.[64] Moreover, when a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code.[65]. The CAs award of P50, 000.00 must also be reduced to P30, 000.00, in accordance with prevailing jurisprudence.[66] WHEREFORE, the Decision dated January 25, 2008 of the Court of Appeals, finding appellant Bernabe Pangilinan guilty beyond reasonable doubt of rape under Article 266-A of the Revised Penal Code, as amended, and sentencing him to suffer the penalty of reclusion perpetua in Criminal Case No. 11768, is hereby AFFIRMED with MODIFICATION as to the award of damages. Appellant is ordered to pay the offended party, private complainant AAA, the amounts of P50, 000.00 as civil indemnity,P50,000.00 as moral damages, and P30,000.00 as exemplary damages, pursuant to prevailing jurisprudence. The Information in Criminal Case No. 11769 is declared null and void for being violative of the appellant's constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. The case for Child Sexual Abuse under Section 5 (b) of RA No. 7160 against appellant is therefore DISMISSED. SO ORDERED.

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(R.A. No. 7610)

SPO1 LEONITO ACUZAR, Petitioner,

G.R. No. 177878 Present:

PUNO, C.J., Chairperson, - versus CARPIO MORALES, LEONARDO-DE CASTRO, BERSAMIN, and VILLARAMA, JR., JJ.

APRONIANO JOROLAN and HON. EDUARDO A. APRESA, PEOPLES LAW ENFORCEMENT BOARD (PLEB) Chairman, New Corella, Davao del Norte, Respondents.

Promulgated: April 7, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.: Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, filed by petitioner SPO1 Leonito Acuzar assailing theMarch 23, 2007 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 77110. The assailed decision reversed and set aside the October 15, 2002 Decision[2] of the Regional Trial Court (RTC) of Tagum City, Branch 31, which had annulled the Decision[3] of the Peoples Law Enforcement Board (PLEB) of the Municipality of New Corella, Davao del Norte, finding petitioner guilty of Grave Misconduct and ordering his dismissal from service. The facts are as follows:

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(R.A. No. 7610)

On May 2, 2000, respondent Aproniano Jorolan filed Administrative Case No. 2000-01[4] against petitioner before the PLEB charging the latter of Grave Misconduct for allegedly having an illicit relationship with respondents minor daughter. On May 11, 2000, respondent also instituted a criminal case against petitioner before the Municipal Trial Court of New Corella, docketed as Criminal Case No. 1712, for Violation of Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Child Abuse Act. On May 15, 2000, petitioner filed his Counter-Affidavit[5] before the PLEB vehemently denying all the accusations leveled against him. In support thereof, petitioner attached the affidavit of complainants daughter, Rigma A. Jorolan, who denied having any relationship with the petitioner or having kissed him despite knowing him to be a married person. On July 24, 2000, petitioner filed a motion to suspend the proceedings before the PLEB pending resolution of the criminal case filed before the regular court. The PLEB denied his motion for lack of merit and a hearing of the case was conducted. The PLEB also denied petitioners motion for reconsideration on August 9, 2000 for allegedly being dilatory. On August 17, 2000, after due proceedings, the PLEB issued a decision, the decretal portion of which reads: WHEREFORE, premises considered, the Board finds the respondent, SPO1 Leonito Acuzar, PNP New Corella, Davao del Norte Police Station GUILTY of GRAVE MISCONDUCT (Child Abuse) which is punishable by DISMISSAL effective immediately. SO ORDERED.[6] Immediately upon receipt of the decision, petitioner filed a Petition for Certiorari with Prayer for Preliminary Mandatory Injunction and Temporary Restraining Order[7] with the RTC of Tagum City, Branch 31, docketed as Special Civil Case No. 384. Petitioner alleged that the subject decision was issued without giving him an opportunity to be heard. He likewise averred that the respondent Board acted without jurisdiction in proceeding with the case without the petitioner having been first convicted in the criminal case before the regular court. Petitioner pointed out that under the PLEB Rules of Procedure, prior conviction was required before the Board may act on the administrative case considering that the charge was actually for violation of law, although denominated as one (1) for grave misconduct.

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On September 16, 2000, petitioner was ordered dismissed from the Philippine National Police (PNP) by the Chief Regional Directorial Staff of the PNP, Police Regional Office 11, effective September 7, 2000. On October 15, 2002, the trial court rendered a Decision annulling the Decision of the PLEB. The trial court noted: xxxx But nothing in the record would show that the Board scheduled a hearing for the reception of the evidence of the petitioner. In a nutshell, the petitioner was not given his day in Court. The Board could have scheduled the hearing for the reception of petitioners evidence and if he failed to appear, then the Board could have considered the nonappearance of the petitioner as a waiver to present his evidence. It was only then that the decision could have been rendered. xxxx The hearing at the Peoples Law Enforcement Board, although administrative in nature, has penal sanction of dismissal and for forfeiture of benefits of the petitioner. It is along this context that the petitioner should be afforded all the opportunities of hearing which principally includes the reception of his evidence consistent with our established rules. Due process of law embraces not only substantive due process, but also procedural due process. xxxx While this Court does not tolerate any form of misconduct committed by members of the Philippine National Police, yet it equally considers the right of the petitioner enshrined under the Bill of Rights and the deprivation of petitioners gainful employment which is the economic life blood of the family, especially the innocent dependents.[8] Respondent thereafter elevated the case to the CA. On March 23, 2007, the CA rendered its Decision reversing and setting aside the trial courts decision. The CA found merit in respondents argument that the petition for certiorari filed by petitioner before the RTC was not the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law but both questions of law and fact. According to the CA, the existence and availability of the right of appeal proscribes resort to certiorari because one (1) of the requirements for its

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availment is the absence of the remedy of appeal or any other plain, speedy or adequate remedy. The CA ruled that petitioner should have appealed the decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court. The CA added that while it is true that there are instances where the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warrant immediate resort to it. Thus, it held that the trial court erred in giving due course to the petition. Petitioner now assails the Decision of the CA in this recourse raising the following assigned errors: 1. The Honorable Court of Appeals erred in ruling that Certiorari was not a proper remedy [to assail] the Decision of the RespondentPeoples Law Enforcement Board (PLEB), New Corella, Davao del Norte, because (1) appeal was available; and (2) the issue raised were not pure questions of law but both questions of law and fact. And that herein Petitioner failed to exhaust administrative remedies. The Honorable Court of Appeals erred in ruling that Petitioner was accorded with due process before the Respondent-Peoples Law Enforcement Board (PLEB), New Corella, Davao del Norte, and was given his day in court for his defense.[9]

2.

In essence, the issue is whether or not the CA erred in ruling that petitioners resort to certiorari was not warranted as the remedy of appeal from the decision of the PLEB was available to him. Petitioner contends that the petition he filed before the trial court was appropriate because the instant case falls under the exceptions to the rule on exhaustion of administrative remedies, the decision being patently illegal. Petitioner maintains that a conviction should have been first obtained in the criminal case filed against him for child abuse before the PLEB can acquire jurisdiction over his administrative case. He also maintains that the Boards decision was reached without giving him an opportunity to be heard and his right to due process was violated. The Boards decision having been rendered without jurisdiction, appeal was not an appropriate remedy. We affirm the appellate courts ruling.

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Special Penal Laws

(R.A. No. 7610)

To reiterate, petitioner opted to file a petition for certiorari before the trial court on the pretext that the PLEB had no jurisdiction to hear the administrative case until petitioner is convicted before the regular court. According to petitioner, although the case filed before the PLEB was captioned as Grave Misconduct, the offense charged was actually for Violation of Law, which requires prior conviction before a hearing on the administrative case can proceed. Thus, petitioner insists that the PLEB should have awaited the resolution of the criminal case before conducting a hearing on the administrative charge against him. The contention however is untenable. A careful perusal of respondents affidavit-complaint against petitioner would show that petitioner was charged with grave misconduct for engaging in an illicit affair with respondents minor daughter, he being a married man, and not for violation of law, as petitioner would like to convince this Court. Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated, obstinate or intentional purpose.[10] It usually refers to transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or criminal intention but implies wrongful intention and not to mere error of judgment. [11] On the other hand, violation of law presupposes final conviction in court of any crime or offense penalized under the Revised Penal Code or any special law or ordinance.[12] The settled rule is that criminal and administrative cases are separate and distinct from each other.[13] In criminal cases, proof beyond reasonable doubt is needed whereas in administrative proceedings, only substantial evidence is required. Verily, administrative cases may proceed independently of criminal proceedings. [14] The PLEB, being the administrative disciplinary body tasked to hear complaints against erring members of the PNP, has jurisdiction over the case. Moreover, Section 43 (e) of Republic Act No. 6975,[15] is explicit, thus: SEC. 43. Peoples Law Enforcement Board (PLEB). - x x x xxxx (e) Decisions The decision of the PLEB shall become final and executory: Provided, that a decision involving demotion or dismissal from the service may be appealed by either party with the regional appellate board within ten (10) days from receipt of the copy of the decision. It is apparent from the foregoing provision that the remedy of appeal from the decision of the PLEB to the Regional Appellate Board was available to petitioner. Since appeal was available, filing a petition for certiorari was inapt. The existence and availability of the right of appeal are antithetical to the availment of the special civil action of certiorari.[16] Corollarily, the principle of exhaustion of administrative

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(R.A. No. 7610)

remedies requires that before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of the means of administrative processes afforded to him. If a remedy is available within the administrative machinery of the administrative agency, then this alternative should first be utilized before resort can be made to the courts. This is to enable such body to review and correct any mistakes without the intervention of the court. Moreover, for a special civil action for certiorari to prosper, the following requisites must concur: (1) it must be directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (2) the tribunal, board or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.[17] For sure, petitioners bare allegation that appeal from the judgment of the Board may not be adequate does not justify immediate resort to certiorari. Moreover, the extraordinary writ of certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.[18] Here, not only was an appeal available to petitioner as a remedy from the decision of the PLEB, petitioner also failed to sufficiently show any grave abuse of discretion of the Board which would justify his immediate resort to certiorari in lieu of an appeal. Contrary to petitioners claim that he has not been afforded all the opportunity to present his side, our own review of the records of the proceedings before the PLEB reveals otherwise. The PLEB summarized its proceedings as follows: The Board issued a summon to SPO1 Leonito Acuzar on May 03, 2000 informing him of the case filed against him. On May 4, 2000, the respondents wife Mrs. Arcella Acuzar made an informal letter addressed to the Chairman of the PLEB that the respondent cannot answer the summon because he was still in a critical condition in the hospital as alleged. After three days, May 9, 2000 the respondent through his legal counsel filed a motion for extension of time to submit counter affidavit. The Board received the sworn statement of the respondent on May 16, 2000. Subpoenas were sent to both parties informing them of the first hearing which was set on June 01, 2000; 8:00 a.m. at the SB session hall, New Corella, Davao del Norte. Then the Board set for a second hearing on June 15, 2000; 8:30 a.m. but the respondents counsel moved for a postponement because he was slated to appear before the Regional Trial Court Branch 1, Tagum City of the same date and time; the third hearing on June 21, 2000; 8:30 a.m.; the fourth

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Special Penal Laws

(R.A. No. 7610)

hearing on July 13, 2000, 8:30 a.m.; the fifth hearing on July 19, 2000, 9:00 a.m.; [and] the sixth hearing on July 26, 2000 [were] postponed because the respondents counsel filed motions for postponement and to suspend proceedings pending resolution of criminal case before the regular court and the final hearing was set on August 03, 2000; 9:00 a.m. of the same place but the respondent walked out during the hearing because of the non-appearance of his legal counsel but the PLEB Members continued to hear the case without the respondent and legal counsels presence based on sworn affidavit in the hands of the PLEB Members.[19] In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.
[20]

In the instant case, petitioner was notified of the complaint against him and in fact, he had submitted his counter-affidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and even asked for several postponements. Petitioner therefore cannot claim that he had been denied of due process. Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Here, we note that petitioner had more than enough opportunity to present his side and adduce evidence in support of his defense; thus, he cannot claim that his right to due process has been violated. WHEREFORE, the petition is DENIED. The Decision dated March 23, 2007 of the Court of Appeals in CA-G.R. SP No. 77110 is hereby AFFIRMED. Costs against petitioner. SO ORDERED.

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Special Penal Laws

(R.A. No. 7610)

JOJIT GARINGARAO, Petitioner,

G.R. No. 192760 Present:

CARPIO, J., Chairperson, - versus CASTRO,* BRION, PERALTA,** and PEREZ, JJ. PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: July 20, 2011 LEONARDO-DE

DECISION CARPIO, J.: The Case Before the Court is a petition for review1 assailing the 26 November 2009 Decision2 and 22 June 2010 Resolution3 of the Court of Appeals in CA-G.R. CR No. 31354. The Court of Appeals affirmed with modifications the decision of the Regional Trial Court of San Carlos City, Pangasinan, Branch 56 (trial court), finding Jojit Garingarao(Garingarao) guilty beyond reasonable doubt of the crime of acts of lasciviousness in relation to Republic Act No. 7610 (RA 7610).4 The Antecedent Facts The facts of the case, as can be gleaned from the decision of the Court of Appeals, are as follows: On 28 October 2003, AAA5 was brought to the Virgen Milagrosa Medical Center by her father BBB and mother CCC due to fever and abdominal pain. Dr. George Morante(Dr. Morante), the attending physician, recommended that AAA be confined at the hospital for further observation. AAA was admitted at the hospital and confined at a private room where she and her parents stayed for the night.

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On 29 October 2003, BBB left the hospital to go to Lingayen, Pangasinan to process his daughters Medicare papers. He arrived at Lingayen at around 8:00 a.m. and left the place an hour later. CCC also left the hospital that same morning to attend to their store at Urbiztondo, Pangasinan, leaving AAA alone in her room. When BBB returned to the hospital, AAA told him that she wanted to go home. Dr. Morante advised against it but due to AAAs insistence, he allowed AAA to be discharged from the hospital with instructions that she should continue her medications. When AAA and her parents arrived at their house around 11:30 a.m., AAA cried and told her parents that Garingarao sexually abused her. They all went back to the hospital and reported the incident to Dr. Morante. They inquired from the nurses station and learned that Garingarao was the nurse on duty on that day. On 20 January 2004, the City Prosecutor filed an Information against Garingarao for acts of lasciviousness in relation to RA 7610, as follows: That on or about the 29th day of October 2003, at Virgen Milagrosa University Hospital, San Carlos City, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there, willfully, unlawfully and feloniously touched the breast of AAA, 16 years of age, touched her genitalia, and inserted his finger into her vagina, to the damage and prejudice of said AAA who suffered psychological and emotional disturbance, anxiety, sleeplessness and humiliation. Contrary to Article 336 of the Revised Penal Code in relation to RA 7610.6 During the trial, AAA testified that on 29 October 2003, between 7:00 a.m. and 8:00 a.m., Garingarao, who was wearing a white uniform, entered her room and asked if she already took her medicines and if she was still experiencing pains. AAA replied that her stomach was no longer painful. Garingarao then lifted AAAs bra and touched her left breast. Embarrassed, AAA asked Garingarao what he was doing. Garingarao replied that he was just examining her. Garingarao then left the room and returned 15 to 30 minutes later with a stethoscope. Garingarao told AAA that he would examine her again. Garingarao lifted AAAs shirt, pressed the stethoscope to her stomach and touched her two nipples. Garingarao then lifted AAAs pajama and underwear and pressed the lower part of her abdomen. Garingarao then slid his finger inside AAAs private part. AAA instinctively crossed her legs and again asked Garingarao what he was doing. She asked him to stop and informed him she had her monthly period. Garingarao ignored AAA and continued to insert his finger inside her private part. Garingarao only stopped when he saw that AAA really had her monthly period. He went inside the bathroom of the private room, washed his hands, applied alcohol and left. When BBB arrived at the hospital, AAA insisted on going home. She only narrated the incident to her parents when they got home and they went back to the hospital to report the incident to Dr. Morante. Dr. Morante testified on AAAs confinement to and discharge from the hospital. The prosecution presented the following documents before the trial court:

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(a) AAAs birth certificate to establish that she was 16 years old at the time of the incident; (b) AAAs medical records establishing her confinement to and discharge from Virgen Milagrosa Medical Center; (c) the schedule of duties of the nurses at the hospital showing that Garingarao was on duty from 12:00 a.m. to 8:00 a.m. on 29 October 2003; (d) a certificate from the Department of Education Division Office showing that BBB was present at the office from 8:00 a.m. to 9:00 a.m. on 29 October 2003; (e) AAAs Medical Payment Notice; (f) the incident report filed by AAAs parents with the police; and (g) a letter from the hospital administrator requiring Garingarao to explain why no administrative action should be filed against him in view of the incident. For the defense, Garingarao gave a different version of the incident. Garingarao alleged that on 29 October 2003, he and his nursing aide Edmundo Tamayo (Tamayo) went inside AAAs room to administer her medicines and check her vital signs. BBB then accused them of not administering the medicines properly and on time. Garingarao told BBB that they should not be told how to administer the medicines because they knew what they were doing and that they would be accountable should anything happen to AAA. A heated argument ensued between BBB and Garingarao. BBB told Garingarao he was an arrogant nurse. Garingarao replied that if BBB had any complaint, he could report the matter to the hospital. Garingarao denied that he inserted his finger into AAAs private part and that he fondled her breasts. Garingarao alleged that the filing of the case was motivated by the argument he had with BBB. Tamayo testified that he was with Garingarao when they went to AAAs room between 7:00 a.m. and 8:00 a.m. of 29 October 2003. He alleged that BBB was present and he accused Garingarao of not administering the medications properly. Tamayo alleged that Garingarao and BBB had an argument. Tamayo stated that he would always accompany Garingarao whenever the latter would visit the rooms of the patients. The Decision of the Trial Court In its Decision7 dated 5 November 2007, the trial court found Garingarao guilty as charged. The trial court gave credence to the testimony of AAA over Garingaraos denial. The trial court ruled that Garingarao was positively identified by AAA as the person who entered her room, touched her breasts and inserted his finger into her private part. The trial court also found that the prosecution was able to establish that BBB and CCC were not in the room when Garingarao went inside.

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The trial court found as baseless Garingaraos defense that the case was only motivated by the argument he had with BBB. The trial court ruled that it was illogical for BBB to convince his daughter to fabricate a story of sexual abuse just to get even at Garingarao over a heated argument. The dispositive portion of the trial courts Decision reads: WHEREFORE, premises considered, judgment is hereby rendered finding the accused Jojit Garingarao GUILTY beyond reasonable doubt of the crime of acts of lasciviousness in relation to Republic Act 7610, and sentencing him to suffer the penalty of imprisonment ranging from 12 years to 1 day of Reclusion Temporal as minimum to 14 years and 8 months of Reclusion Temporal as maximum. The accused is ordered to pay to the minor victim [AAA] P20,000.00 as moral damages and P10,000.00 as fine. SO ORDERED.8 Garingarao appealed from the trial courts Decision. The Decision of the Court of Appeals In its 26 November 2009 Decision, the Court of Appeals affirmed the trial courts decision with modifications. The Court of Appeals ruled that while Garingarao was charged for acts of lasciviousness in relation to RA 7610, he should be convicted under RA 7610 because AAA was 16 years old when the crime was committed. The Court of Appeals ruled that under Section 5(b) of RA 7610, the offender shall be charged with rape or lascivious conduct under the Revised Penal Code (RPC) only if the victim is below 12 years old; otherwise, the provisions of RA 7610 shall prevail. The Court of Appeals ruled that based on the evidence on record and the testimony of AAA, the decision of the trial court has to be affirmed. The Court of Appeals ruled that under Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, the introduction of any object into the genitalia of the offended party as well as the intentional touching of her breasts when done with the intent to sexually gratify the offender qualify as a lascivious act. AAAs testimony established that Garingarao committed the lascivious acts. The Court of Appeals found no reason for AAA or her family to fabricate the charges against Garingarao. The Court of Appeals ruled that Garingaraos claim that the case was filed so that BBB could get even with him because of the argument they had was too shallow to be given consideration. The Court of Appeals likewise rejectedGaringaraos defense of denial which could not prevail over the positive testimony of AAA.

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The Court of Appeals modified the penalty imposed by the trial court. The Court of Appeals ruled that the duration of reclusion temporal in its maximum period should be 17 years, 4 months and 1 day to 20 years and not 14 years and 8 months as imposed by the trial court. The Court of Appeals also raised the award of moral damages and fine, which was deemed as civil indemnity, to conform with recent jurisprudence. The dispositive portion of the Court of Appeals Decision reads: WHEREFORE, in view of the foregoing, the Decision dated November 5, 2007 of the Regional Trial Court of San Carlos City, Pangasinan in Criminal Case No. SCC-4167 is hereby AFFIRMED with the following MODIFICATIONS: 1. The penalty imposed on the accused-appellant is 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum[;] The award of moral damages is raised from P20,000.00 to P50,000.00; and The award of indemnity is raised from P10,000.00 to P50,000.00.

2. 3.

SO ORDERED.9 Garingarao filed a motion for reconsideration. In its 22 June 2010 Resolution, the Court of Appeals denied the motion. Hence, the petition before this Court. The Issue The only issue in this case is whether the Court of Appeals committed a reversible error in affirming with modifications the trial courts decision. The Ruling of this Court The petition has no merit. Garingarao alleges that the Court of Appeals erred in affirming the trial courts decision finding him guilty of acts of lasciviousness in relation to RA 7610. Garingarao insists that it was physically impossible for him to commit the acts charged against him because there were many patients and hospital employees around. He alleges that AAAs room was well lighted and that he had an assistant when the incident allegedly occurred. Garingarao further alleges that, assuming the charges were correct, there was only one incident when he allegedly touched AAA and as such, he should have been convicted only of acts of lasciviousness and not of violation of RA 7610.

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We do not agree. Credibility of Witnesses The Court has ruled that in case of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.10 In this case, both the trial court and the Court of Appeals found the testimony of AAA credible over Garingaraos defense of denial and alibi. It is a settled rule that denial is a weak defense as against the positive identification by the victim.11 Both denial and alibi are inherently weak defenses and constitute self-serving negative evidence which cannot be accorded greater evidentiary weight than the positive declaration by a credible witness.12 Garingaraos defense of denial and alibi must fail over the positive and straightforward testimony of AAA on the incident. Further, like the trial court and the Court of Appeals, we find incredible Garingaraos defense that the case was an offshoot of a heated argument he had with AAAs father over the manner Garingarao was giving AAAs medications. It is hard to believe that AAAs parents would expose her to a public trial if the charges were not true.13 In addition, the prosecution was able to establish that, contrary to Garingaraos allegation, both BBB and CCC were not in AAAs room at the time of the incident. Violation of RA 7610 Section 5, Article III of RA 7610 provides: 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. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) x x x (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That 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) yeas of age shall be reclusion temporal in its medium period, x x x (c) x x x The elements of sexual abuse under Section 5, Article III of RA 7610 are the following:

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1. 2.

The accused commits the act of sexual intercourse or lascivious conduct; 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.14 Under Section 32, Article XIII of the Implementing Rules and Regulations of RA 7610, lascivious conduct is defined as follows: [T]he 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 the 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.15 In this case, the prosecution established that Garingarao touched AAAs breasts and inserted his finger into her private part for his sexual gratification. Garingarao used his influence as a nurse by pretending that his actions were part of the physical examination he was doing. Garingarao persisted on what he was doing despite AAAs objections. AAA twice asked Garingarao what he was doing and he answered that he was just examining her. The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult.16 In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended partys free will.17 In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her. Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he should not be convicted of violation of RA 7610 because the incident happened only once. Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610. Garingaraos argument has no legal basis. The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once.18 Section 3(b) of RA 7610 provides that the abuse may be habitual or not.19 Hence, the fact that the offense occurred only once is enough to hold Garingarao liable for acts of lasciviousness under RA 7610. Indemnity and Moral Damages In view of recent jurisprudence, we deem it proper to reduce the amount of indemnity to P20,00020 and moral damages awarded by the Court of Appeals to P15,000.21 We also impose on Garingarao a fine of P15,000.22

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WHEREFORE, we DENY the petition. We AFFIRM the 26 November 2009 Decision and 22 June 2010 Resolution of the Court of Appeals in CA-G.R. CR No. 31354 with MODIFICATIONS. The Court finds Jojit Garingarao GUILTY beyond reasonable doubt of acts of lasciviousness in relation to Republic Act No. 7610. He is sentenced to suffer the penalty of 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum and ordered to pay AAAP20,000 as civil indemnity, P15,000 as moral damages and a fine of P15,000. SO ORDERED. SECOND DIVISION [G.R. No. 188897, June 06, 2011] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. IRENO BONAAGUA Y BERCE, APPELLANT. DECISION PERALTA, J.: Ireno Bonaagua (Ireno) seeks the reversal of the Decision [1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03133 convicting him with three (3) counts of Statutory Rape under Paragraph 2, Article 266-A of the Revised Penal Code (RPC), as amended, in relation to Republic Act No. 7610 (R.A. No. 7610) and Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610. The factual and procedural antecedents are as follows: In four (4) separate Informations, Ireno was charged by the Office of the City Prosecutor of Las Pias City with four (4) counts of Rape under Paragraph 2, Article 266-A of the RPC, as amended, in relation to R.A. No. 7610, for inserting his tongue and his finger into the genital of his minor daughter, AAA. [2] The accusatory portion of the Information in Criminal Case No. 03-0254 against Ireno reads: That on or about the month of December 1998 in the City of Las Pias and within the jurisdiction of this Honorable Court, the above-named accused, with abuse of influence and moral ascendancy, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously insert his tongue and finger into the genital of his daughter, [AAA], a minor then eight (8) years of age, against her will and consent. CONTRARY TO LAW and with the special aggravating/qualifying circumstance of minority of the private offended party, [AAA], being then only eight (8) years of age and relationship of the said private offended party with the accused, Ireno Bonaagua y Berce, the latter being the biological father of the former. [3] The Information in Criminal Case No. 03-0255 [4] has the same accusatory allegations while the Informations in Criminal Case Nos. 03-0256 [5] and Criminal Case Nos. 030257 [6] are similarly worded, except for the date of the commission of the crime and

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the age of AAA, which are December 2000 and ten (10) years old, respectively. The cases were later consolidated [7] and upon his arraignment, Ireno pleaded not guilty to the four (4) counts of rape with which he was charged. Consequently, trial on the merits ensued. At the trial, the prosecution presented the testimonies of the victim, AAA; the victim's mother; and Dr. Melissa De Leon. The defense, on the other hand, presented the lone testimony of the accused as evidence. Evidence for the Prosecution The prosecution established that in 1998, AAA and her mother left their house in Candelaria, Quezon to spend the Christmas with accused-appellant in Las Pias City. They stayed in the house of a certain Lola Jean, the godmother in the wedding of her parents, at Sta. Cecilia Subdivision, Las Pias City. AAA was inside a room lying in bed one afternoon while her younger brothers were playing outside the house and her mother was not home. Accused-appellant entered the room. He approached her, rolled her shirt upward, and removed her shorts and panty. She tried to resist by putting her clothes back on, but her father's strength prevailed. Thereafter, accused-appellant touched and caressed her breasts. He licked her vagina then inserted his finger into it. In the evening of the same day, the accused-appellant raped AAA again in the same manner and under the same circumstances. AAA did not tell her mother that she was raped because accused-appellant threatened to kill her mother by placing the latter's body in a drum and have it cemented if she would report the incidents. She returned to Quezon with her mother before the end of the Christmas season. In December 1999, AAA was raped by accused-appellant for the third time when he went to Candelaria, Quezon. In December 2000, AAA and her mother spent the Yuletide season with accused-appellant in Pulanglupa, Las Pias City. In a single day, AAA was raped for the fourth and fifth time. While spending the afternoon inside her father's room at the car-wash station, he removed her shorts and panty then proceeded to touch and insert his finger into her vagina. Accused-appellant repeated the same sexual assault shortly thereafter. AAA again did not report these incidents for fear that her mother would be killed and cemented inside a drum. On January 26, 2001, AAA complained of severe abdominal pain which prompted her mother to take her to Gregg Hospital in Sariaya, Quezon. AAA was transferred to the Quezon Memorial Hospital in Lucena City where Dr. Melissa De Leon performed on her a physical examination. The results revealed that there was a healed superficial laceration at the 9 o'clock position on the hymen of AAA. This medical finding forced AAA to reveal to her mother all the incidents of rape committed by accused-appellant. After being discharged from the hospital, AAA's mother took her to the Police Headquarters of Sariaya, Quezon to file a complaint for rape against accusedappellant. AAA's mother also took her to the office of the National Bureau of

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Investigation in Legaspi City where she executed a sworn statement against accusedappellant. [8] Evidence for the Defense Accused-appellant denied committing the charges of rape hurled against him. He claimed to be working in Las Pias City while AAA, her mother and siblings where (sic) in Sariaya, Quezon at the time the alleged rapes occurred. While he admitted that there were times when AAA and her mother would visit him in Las Pias City, he nonetheless averred that they would leave on the same day they arrived after he gives them money. Accused-appellant asserted further that the charges of rape against him were fabricated by AAA's mother, who suspected him of having an affair with another woman in Las Pias City. [9] On August 6, 2007, the Regional Trial Court (RTC), after finding the evidence for the prosecution overwhelming against the accused's defense of denial and alibi, rendered a Decision [10] convicting Ireno with four (4) counts of Rape, the dispositive portion of which reads: WHEREFORE, premises considered, there being proof beyond reasonable doubt that accused IRENO BONAAGUA, has committed four (4) counts of RAPE under par. 2 of Article 266-A of the Revised Penal Code, as amended, in relation to R.A. 7610, as charged, the Court hereby pronounced him GUILTY and sentences him to suffer the penalty of RECLUSION PERPETUA for each case and to pay private complainant [AAA], the amount of Php50,000 for each case, or a total of Php200,000, by way of civil indemnity plus Php50,000 for each case or a total of Php200,000 as moral damages. Costs against the accused. SO ORDERED. [11] Aggrieved, Ireno appealed the Decision before the CA, which appeal was later docketed as CA-G.R. CR-H.C. No. 03133. On March 31, 2009, the CA rendered a Decision [12] affirming the decision of the RTC with modifications on the imposable penalty in Criminal Case Nos. 03-0254, 03-0256, and 03-0257, and finding Ireno guilty of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610, instead of Rape, in Criminal Case Nos. 03-0255, the decretal portion of which reads: WHEREFORE, the Decision of the Regional Trial Court of Las Pias City, Branch 254, finding Ireno Bonaagua y Berce guilty beyond reasonable doubt of the crime of rape is AFFIRMED with MODIFICATIONS: 1. Ireno Bonaagua y Berce is hereby sentenced to suffer the indeterminate penalty of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, for each rape in Criminal Case Nos. 03-0254, 03-0256 and 03-0257 and is ordered to pay AAA the amount of P25,000.00 as exemplary damages in each case, apart from the civil indemnity and moral damages that have already been awarded

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by the trial court; 2. Ireno Bonaagua y Berce is hereby held guilty beyond reasonable doubt of the crime of acts of lasciviousness in Criminal Case No. 03-0255, with relationship as an aggravating circumstance. He is, accordingly, sentenced to suffer the indeterminate penalty of 12 years and 1 day to 17 years and 4 months of reclusion temporal in its minimum and medium periods and ordered to pay AAA the amount of PhP15,000 as moral damages and a fine of PhP15,000.00. SO ORDERED.
[13]

In fine, the CA found Ireno's defense of denial and alibi inherently weak against the positive identification of AAA that he was the culprit of the horrid deed. Thus, aside from modifying the imposable penalty in Criminal Case Nos. 03-0254, 03-0256 and 03-0257, the CA affirmed the decision of the RTC finding Ireno guilty of the crime of Rape Through Sexual Assault. In Criminal Case No. 03-0255, however, after a diligent review of the evidence adduced by the prosecution, the CA only found Ireno guilty of the crime of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610. The CA opined that since the prosecution failed to establish the act of insertion by Ireno of his finger into the vagina of AAA, Ireno could only be found guilty of Acts of Lasciviousness, a crime which is necessarily included in the Information filed against him in Criminal Case No. 03-0255. Ireno now comes before this Court for relief. In a Resolution [14] dated December 16, 2009, the Court informed the parties that they may file their respective supplemental briefs if they so desire. In their respective Manifestations, [15] the parties waived the filing of their supplemental briefs and, instead, adopted their respective briefs filed before the CA. Hence, Ireno raises the lone error: I The COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME OF RAPE DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. [16] Simply put, Ireno maintains that the testimony of AAA was replete with inconsistencies and was extremely unbelievable. Ireno insists that the allegation that he inserted his tongue and finger into the genital of AAA was manifestly incredible as the deed is physiologically impossible. Moreover, the medical findings are grossly inconclusive to prove that AAA was raped, since it only established that there was only one healed superficial laceration. This Court, however, finds the arguments raised by Ireno untenable. To determine the innocence or guilt of the accused in rape cases, the courts are guided by three well-

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entrenched principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the accused, though innocent, to disprove; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. [17] After perusing the testimony of the victim, AAA, the prosecution has indubitably established that Ireno was the one who sexually assaulted her. AAA categorically narrated that Ireno sexually abused her on several occasions and even threatened AAA that he would kill her mother if she would report the incidents. Time and again, this Court has consistently held that in rape cases, the evaluation of the credibility of witnesses is best addressed to the sound discretion of the trial judge whose conclusion thereon deserves much weight and respect because the judge had the direct opportunity to observe them on the stand and ascertain if they were telling the truth or not. Generally, appellate courts will not interfere with the trial court's assessment in this regard, absent any indication or showing that the trial court has overlooked some material facts of substance or value, or gravely abused its discretion. [18] It is well entrenched in this jurisdiction that when the offended parties are young and immature girls, as in this case, courts are 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. [19] A young girl would not usually concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the examination of her private parts; and undergo all the trouble and inconvenience, not to mention the trauma and scandal of a public trial, had she not in fact been raped and been truly moved to protect and preserve her honor, and motivated by the desire to obtain justice for the wicked acts committed against her. [20] Moreover, the Court has repeatedly held that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction. [21] Moreover, contrary to Ireno's contention, the medical findings of Dr. Melissa De Leon did not refute AAA's testimony of defilement, but instead bolstered her claim. The RTC correctly concluded: It is true that Dr. Melissa De Leon, when called to the witness stand to substantiate the same medical certification, did not rule out the possibility that the laceration might have been inflicted through some other causes and that there could have been only one instance of finger insertion into the vagina of private complainant. However, it is equally true that Dr. De Leon also did not rule out the possibility that finger insertion might have been the cause of the laceration (pp. 7-12, TSN, January 31, 2006). Dr. De Leon also clarified that only one laceration may be inflicted although a finger is inserted into the vagina on separate instances (pp. 19-26, supra). According to Dr. De Leon, this instance depends on the force exerted into the vagina and on whether or not the hymen is membranous or firm and thick. A membranous hymen is

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easily lacerated and so when a force is exerted into it on several occasions, several lacerations may occur. A thick and firm hymen is not easily lacerated and so a force exerted into it on several occasions may cause only one laceration. Private complainant has thick and firm hymen and this may explain why there is only (sic) laceration on her hymen although she claimed her father inserted into her vagina his finger several times (pp. 19-29, supra). This non-categorical stance of Dr. De Leon is nonetheless understandable because Dr. De Leon has no personal knowledge of what actually happened to private complainant that she (complainant) suffered hymenal laceration. However, there is one thing very certain though in the testimony of Dr. De Leon - that she medically examined [AAA], herein private complainant, because of the information that [AAA] was sexually abused by her [AAA's] own father (pp. 5-6, supra). And indeed, as already discussed lengthily above, there is no reason to doubt the veracity of AAA's allegation. [22] The same conclusion was also arrived at by the CA, to wit: While the medico-legal findings showed a single healed superficial laceration on the hymen of AAA, Dr. De Leon clarified that it is not impossible for a hymen to sustain only one laceration despite the fact that a finger had been inserted into the vagina on several accounts. This situation may arise depending on the force extended into the vagina and on whether or not the hymen of the victim is membranous or firm and thick. A membranous hymen is easily lacerated; thus, when a force is exerted into it on several occasions, several lacerations may occur. On the other hand, a thick and firm hymen is not easily lacerated; a force exerted into it on several occasions may cause only one laceration. According to Dr. De Leon, AAA has thick and firm hymen and this may explain why it has only one laceration despite her claim that accusedappellant inserted his finger inside her vagina several times. [23] Even Ireno's contention that the charges against him were merely fabricated by his wife because she suspects that he is having an affair with another woman deserves scant consideration. Aside from the fact that the said allegation was not proved, it must be emphasized that no member of a rape victim's family would dare encourage the victim to publicly expose the dishonor to the family unless the crime was in fact committed, especially in this case where the victim and the offender are relatives. [24]It is unnatural for a mother to use her daughter as an engine of malice, especially if it will subject her child to embarrassment and lifelong stigma. [25] Also, Ireno cannot likewise rely on the Affidavit of Desistance stating that AAA and her mother are no longer interested in pursuing the case filed against him. Rape is no longer a crime against chastity for it is now classified as a crime against persons. [26] Consequently, rape is no longer considered a private crime or that whichcannotbeprosecuted,exceptupona complaint filed by the aggrieved party. Hence, pardon by the offended party of the offender in the crime of rape will not extinguish the offender's criminal liability. Moreover, an Affidavit of Desistance ? even when construed as a pardon in the erstwhile "private crime" of rape ? is not a ground for the dismissal of the criminal cases, since the actions have already been instituted.

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To justify the dismissal of the complaints, the pardon should have been made prior to the institution of the criminal actions. [27] As correctly concluded by the CA, the said affidavit was executed in connection with another accusation of rape which Ireno committed against AAA in Candelaria, Quezon and not the four cases of rape subject of this appeal. In addition, AAA's mother testified that she executed the said affidavit to regain custody of her children who were brought to Bicol by Ireno's siblings. [28] It has been repeatedly held by this Court that it looks with disfavor on affidavits of desistance. As cited in People v. Alcazar, [29] the rationale for this was extensively discussed in People v. Junio: [30] x x x We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having the [appellant] arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, [the rape victim] would suddenly turn around and declare that [a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution. Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule [would] make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable. [31] Amidst the overwhelming evidence against him, Ireno offered nothing but his bare denial of the accusations against him and that he was someplace else when the dastardly acts were committed. No jurisprudence in criminal law is more settled than that alibi is the weakest of all defenses, for it is easy to contrive and difficult to disprove, and for which reason it is generally rejected. [32] It has been consistently held that denial and alibi are the most common defenses in rape cases. Denial could not prevail over complainant's direct, positive and categorical assertion. As between a positive and categorical testimony which has the ring of truth, on one hand, and a bare denial, on the other, the former is generally held to prevail. [33] All said, as found by the CA, the prosecution has convincingly proved and more than sufficiently established that: (1) Ireno committed the accusations of Rape Through Sexual Assault against AAA in Criminal Cases Nos. 03-0254, 03-0256, and 03-0257; (2) that AAA was a minor when Ireno committed the sexual assault against her; [34] and (3) that Ireno was the biological father of AAA. [35] Verily, in criminal cases, an examination of the entire records of a case may be explored for the purpose of arriving at a correct conclusion, as an appeal in criminal cases throws the whole case open for review, it being the duty of the court to correct such error as may be found in the judgment appealed from. [36] Since the CA found

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Ireno guilty of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610 in Criminal Case No. 03-0255 instead of rape, the Court should thus determine whether the evidence presented by the prosecution was sufficient to establish that the intentional touching of the victim by Ireno constitutes lascivious conduct and whether the CA imposed the appropriate penalties. As aptly found by the CA: A diligent review of the evidence adduced by the prosecution, however, shows that accused-appellant cannot be held guilty as charged for the crime of rape in Criminal Case No. 03-0255. The prosecution failed to establish insertion by accused-appellant of his finger into the vagina of AAA, who testified on direct examination that accusedappellant "touched my private part and licked it but he did not insert his finger inside my vagina." In fact, even the trial court asked AAA if accused-appellant inserted his finger inside her vagina. She answered in the negative and averred that he licked her vagina and touched her breasts. In reply to the prosecution's query if accusedappellant did anything else aside from licking her organ, she said he also touched it. During cross-examination, AAA testified that accused-appellant "merely touched her vagina but did not insert his finger." [37] Section 5 (b), Article III of R.A. No. 7610, defines and penalizes acts of lasciviousness committed against a child as follows: 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. xxxx (b) Those who commit the act of sexual intercourse or 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. [38] Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation where a child is abused for profit, but also where one through coercion, intimidation or influence engages in sexual intercourse or lascivious conduct with a child. [39] However, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct committed against a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of R.A. No. 7610. [40]

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Acts of Lasciviousness, as defined in Article 336 of the RPC, has the following elements: (1) That the offender commits any act of lasciviousness or lewdness; (2) That it is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) That the offended party is another person of either sex. [41] In addition, the following elements of sexual abuse under Section 5, Article III of R.A. No. 7610 must be established: 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. 3. The child, whether male or female, is below 18 years of age. [42] Corollarilly, Section 2 (h) of the rules and regulations [43] of R.A. No. 7610 defines "Lascivious conduct" as: [T]he 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. [44] Undeniably, all the afore-stated elements are present in Criminal Case No. 03-0255. Ireno committed lascivious acts against AAA by touching her breasts and licking her vagina and the lascivious or lewd acts were committed against AAA, who was 8 years old at the time as established by her birth certificate. [45] Thus, the CA correctly found Ireno guilty of the crime of Acts of Lasciviousness under Section 5 (b) of R.A. No. 7610. It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or thelabia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused

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must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault. Penalties and Award of Damages Having found Ireno guilty beyond reasonable doubt of Rape Through Sexual Assault in Criminal Case Nos. 03-0254, 03-0256, and 03-0257 and Acts of Lasciviousness in Criminal Case No. 03-0255, We shall proceed to determine the appropriate penalties imposable for each offense. Criminal Case Nos. 03-0254, 03-0256, and 03-0257 Under Article 266-B of the RPC, the penalty for rape by sexual assault is reclusion temporal "if the rape is committed by any of the 10 aggravating/qualifying circumstances mentioned in this article." [46] In Criminal Case Nos. 03-0254, 03-0256, and 03-0257, the aggravating/qualifying circumstance of minority and relationship are present, considering that the rape was committed by a parent against his minor child. Reclusion temporal ranges from twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the RPC. Other than the aggravating/qualifying circumstances of minority and relationship which have been taken into account to raise the penalty to reclusion temporal, [47] no other aggravating circumstance was alleged and proven. Hence, the penalty shall be imposed in its medium period, [48] or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. On the other hand, the minimum term of the indeterminate sentence should be within the range of the penalty next lower in degree than that prescribed by the Code which is prision mayor or six (6) years and one (1) day to twelve (12) years. [49] Thus, Ireno should be meted the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. It must be clarified, however, that the reasoning expounded by the Court in the recent case of People v. Armando Chingh y Parcia, [50] for imposing upon the accused the higher penalty provided in Section 5 (b), Article III of R.A. No. 7610, has no application in the case at bar. In the said case, the Court, acknowledging the fact that to impose the lesser penalty would be unfair to the child victim, meted upon the accused the higher penalty of reclusion temporal in its medium period as provided in Section 5 (b), Article III of R.A. No. 7610, instead of the lesser penalty of prision mayor prescribed by Article 266-B for rape by sexual assault under paragraph 2, Article 266-A of the RPC. The Court elucidated: In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under Art. 266-A, par. 2 of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty

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prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando's act of inserting his finger in VVV's private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period. The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Art. 366 in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault, which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of RA No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those "persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition." In the present case, the factual milieu was different since the offender, Ireno, is the father of the minor victim. Hence, the offenses were committed with the aggravating/qualifying circumstances of minority and relationship, attendant circumstances which were not present in the Chingh case, which in turn, warrants the imposition of the higher penalty of reclusion temporal prescribed by Article 266-B of the RPC. Considering that the RPC already prescribes such penalty, the rationale of unfairness to the child victim that Chingh wanted to correct is absent. Hence, there is no more need to apply the penalty prescribed by R.A. No. 7610. As to civil liabilities, the damages awarded in the form of civil indemnity in the amount of P50,000.00 and moral damages, also in the amount of P50,000.00, for each count of Rape must be both reduced to P30,000.00, respectively, in line with current jurisprudence. [51] Also, the amount of exemplary damages awarded in the amount of P25,000.00 must be increased to P30,000.00 for each count of Rape. [52] Criminal Case No. 03-0255 It is beyond cavil that when the sexual abuse was committed by Ireno, AAA was only eight (8) years old. Hence, the provisions of R.A. No. 7610, or The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, should be applied. Thus, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. As the crime was committed by the father of the offended party, the alternative circumstance of relationship should be appreciated. In crimes against chastity, such as Acts of Lasciviousness, relationship is always aggravating. [53]Therefore, Ireno should be meted the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as

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minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal, as maximum. Moreover, the award in the amount of P15,000.00 as moral damages and a fine in the amount of P15,000.00, is proper in line with current jurisprudence. [54] However, civil indemnity ex delicto in the amount of P20,000.00 should also be awarded. [55] In view of the presence of the aggravating circumstance of relationship, the amount of P15,000.00 as exemplary damages should likewise be awarded. [56] WHEREFORE, premises considered, the Decision of the Court of Appeals, dated March 31, 2009 in CA-G.R. CR-H.C. No. 03133, is AFFIRMED with MODIFICATIONS: 1. In Criminal Case Nos. 03-0254, 03-0256, and 03-0257, IRENO BONAAGUA y BERCE is hereby sentenced to suffer the indeterminate penalty of ten (10) years ofprision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for each count. He is likewise ordered to pay AAA the amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages for each count of Qualified Rape Through Sexual Assault or a total of P90,000.00 for each count. 2. In Criminal Case No. 03-0255, IRENO BONAAGUA y BERCE is meted to suffer the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal, as maximum. In addition to moral damages and fine, he is likewise ordered to pay P20,000.00 as civil indemnity and P15,000.00 as exemplary damages. SO ORDERED.

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SECOND DIVISION [G.R. No. 187083, June 13, 2011] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EDUARDO DAHILIG Y AGARAN, ACCUSED-APPELLANT. DECISION MENDOZA, J.: This is an appeal from the October 29, 2008 Decision [1] of the Court of Appeals (CA)in CA G.R. CR-H.C. No. 01488, which modified the July 19, 2005 Decision [2] of the Regional Trial Court, Branch 159, Pasig City (RTC), in Criminal Case No. 121472-H, by finding the accused guilty of child abuse, defined and penalized in Sec. 5(b) of Republic Act (R.A.) No. 7610, instead of the crime of rape. The Information, dated August 6, 2001, indicting the accused for rape reads: Criminal Case No. 121472-H The undersigned 2nd Assistant Provincial Prosecutor accuses EDUARDO DAHILIG Y AGARAN, of the crime of Rape (Violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by RA 8353 and in further relation to Section 5(a) of RA 8369), committed as follows: That on or about the 17th day of December 2000, in the municipality of San Juan, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, by means of force and intimidation, and taking advantage of night time and in the dwelling of complainant, did, then and there, wilfully, unlawfully and feloniously have carnal knowledge with one AAA, [3]sixteen (16) year old minor at the time of the commission of the offense, against her will and consent. CONTRARY TO LAW. [4] [Underscoring supplied] During the trial, the prosecution presented AAA, the private complainant; and Police Senior Inspector Bonnie Y. Chua, the medico-legal officer, as its witnesses. The defense, on the other hand, presented the accused himself, Eduardo Dahilig(accused), as its sole witness. Accused and AAA were both employed as house helpers by a certain Karen Gomez. AAA was only sixteen (16) years old at the time of the commission of the act, having been born on August 17, 1984. Their respective versions of the incident, as expected, were diametrically opposed. Version of the Prosecution

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On December 17, 2000, at around 4:00 o'clock in the morning, AAA was lying in bed with her fellow helper, Roxanne. As it was hot and humid that morning, AAA moved to the floor. While on the floor, she felt someone touching her. At that instant, she found out it was the accused. She tried to resist his advances, but he succeeded in pinning her down with his weight and he told her not to move. She shouted for help from Roxanne but to no avail because the latter was sound asleep. Eventually, the accusedwas able to remove her shirt, shorts and undergarments and afterwards was able to get on top of her. Then, he forced his penis into her vagina which caused her pain. After he was done with her, he returned to his quarters on the third floor. The following day, AAA angrily confronted the accused and asked him why he did such an act against her. He reacted by getting all his belongings and immediately left their employer's house. AAA then informed her employer what the accused did to her. Their employer immediately assisted her in filing a case against him. This caused the arrest of the accused and, at this point, he offered to marry her. His offer, however, was rejected because AAA was determined to seek justice for the ordeal she suffered in his hands. A few days after the incident, AAA was medically examined. The medico-legal examination disclosed that there was a healing laceration in her hymen although no spermatozoa was found. It was also stated in the medico-legal report that AAA could have lost her virginity on or about December 17, 2000. Version of the Accused Accused denied having raped AAA. According to him, the sexual congress that transpired between them was consensual as she was then his girlfriend. He related that he came to know AAA sometime in July 2000 and after a month of courtship, they became sweethearts. In fact, on November 10, 2000, at around 9:00 o'clock in the evening, she went up to the floor where he was sleeping and had sex with him. Afterwards, she returned to her room which was located on the second floor. It was also in the same month that his former girlfriend, Roxanne, arrived and demanded that he choose between her and AAA. On the day of the incident, he was very tired and decided to lie down on the floor where AAA and Roxanne were sleeping. AAA noticed him and moved beside him. At around 4:00 o'clock in the morning, they made love. He noticed during that time Roxanne was awake because her eyes were open. When their employer arrived at around 5:00 o'clock in the morning, she asked him to go upstairs to his room. At around 8:00 o'clock of that same morning, the accused was fetched by her sister to attend a birthday party. When he returned at around 5:00 o'clock in the afternoon, AAA and Roxanne were quarrelling about their love making. The latter threatened to report the incident to their employer. He tried to ease the tension between the two but both refused to be pacified. In fact, Roxanne threatened to stab both of them. This prompted him to flee by taking his personal belongings and leaving their employer's premises. AAA wanted to join him but he told her that he would just return for her.

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Accused went to Bulacan and stayed there for two (2) months. He then proceeded to Ilocos where he requested his grandfather and mother to fetch AAA because he wanted to marry her. She, however, refused to go with the two insisting that he personally fetch her. Three weeks later, the accused returned to Manila together with his mother and grandfather to fetch AAA but again they failed. Instead, their employer sought the help of the police who invited him to the station to discuss the intended marriage. He was given two weeks to settle this matter. AAA said that she needed to call her parents first. In the meantime, he was allowed to go home to Ilocos. Subsequently, he received a call from their employer, telling him that her parents had already arrived in Manila. He could not, however, go to Manila because he had no money for transportation. Sometime thereafter, he received a subpoena from the Office of the Prosecutor informing him that he had been charged with the crime of rape against AAA. For lack of funds, he was also not able to attend the hearings at the prosecutors' office either. Finally, after several months, he was arrested by virtue of a warrant of arrest issued against him. Ruling of the Regional Trial Court In convicting the accused, the RTC reasoned out that, in its observation, AAA never wavered in her assertion that the accused sexually molested her against her will. According to the trial court, her narration bore the earmarks of truth and was consistent throughout. As to his "sweetheart defense," the accused failed to prove it by clear and convincing evidence. What he laid before the court for its consideration was a mere self-serving claim of their relationship. It fell short of the rule that a sweetheart defense cannot be given credence in the absence of corroborative proof like love notes, mementos, and pictures, to name a few. Bolstering AAA's story was the medico-legal finding that there was a deep-healing laceration which was consistent with the charge that she had been raped. Thus, the dispositive portion of the RTC decision reads: WHEREFORE, in view of the foregoing, the Court finds the accusedEDUARDO DAHILIG Y AGARAN GUILTY beyond reasonable doubt for the crime of Rape (Violation of Article 266-A par. 1 in rel. to Article 266-B, 1st par. of the Revised Penal Code, as amended by RA 8353 and in further relation to Section 5(a) of R.A. No. 8369) and the accused is hereby sentenced to suffer imprisonment of reclusion perpetua. Accused EDUARDO DAHILIG Y AGARAN is hereby adjudged to payAAA the amount of FIFTY THOUSAND PESOS (P50,000.00), as moral damages and FIFTY THOUSAND PESOS (P50,000.00), as civil indemnity. SO ORDERED. [5] [Underscoring supplied] Ruling of the Court of Appeals On appeal, the CA affirmed the findings of fact of the RTC but clarified that the crime

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charged should have been "Child Abuse" as defined and penalized in Sec. 5 (b) of R.A. No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act." Its conclusion was based on the fact that the complainant was a minor, being 16 years of age at the time of the commission of the offense and, as such, was a child subject of sexual abuse. R.A. No. 7610 defines children as persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation, or discrimination because of her age. Considering that AAA was 16 years old at the time of the commission of the crime, having been born on August 17, 1984 and the accused had admitted having sexual intercourse with her, all the elements of child abuse were present. Thus, the decretal portion of the CA decision reads: WHEREFORE, the DECISION DATED JULY 19, 2005 is MODIFIED,finding EDUARDO DAHILIG Y AGARAN guilty of child abuse as defined and penalized by Sec. 5, (b), Republic Act No. 7610, and, accordingly, sentencing him to suffer the indeterminate penalty of 11 years of prision mayor, as minimum, to 17 years, 4 months and 1 day of reclusion temporal, as maximum; and to pay to AAA P50,000.00 as moral damages and P50,000.00 as civil indemnity. The total period of the preventive detention of the accused shall be credited to him provided he has satisfied the conditions imposed in Art. 29, Revised Penal Code, as amended. SO ORDERED. [6] [Underscoring supplied] In this forum, both the prosecution and the accused opted not to file any supplemental briefs and manifested that they were adopting their arguments in their respective briefs filed before the CA. In his Appellant's Brief, the accused presented the following: ASSIGNMENT OF ERRORS I THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCREDIBLE TESTIMONIES OF THE PROSECUTION'S WITNESSES. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WHEN THE LATTER'S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. [7] In advocacy of his position, the accused argues that the testimony of AAA was beclouded with inconsistencies and implausibility. He goes on to say that it was highly improbable for their co-worker, Roxanne, not to have been awakened despite AAA's shouts. He further argues that if the sex was not consensual, he would not have bothered removing her clothes considering that during the alleged time of commission, as recounted by AAA, she was shouting and struggling. With respect to the medico-legal's finding on forcible intercourse, it was not conclusive because he

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precisely admitted having consensual sex with her. The accused insists that he and AAA were sweethearts and the sexual congress that took place between them on the evening of December 17, 2000 was but the result of their love for one another. Roxanne's threat to stab him with a knife and to report the love making that transpired the previous night, was actually the result of jealousy since she was his ex-girlfriend. This forced him to leave his employer's house. He further averred that the filing of the case was but an afterthought by AAA on her mistaken belief that he had abandoned her. The Court finds no merit in the appeal. Well-settled the rule that the assessment of the credibility of witnesses and their testimonies is best undertaken by a trial court, whose findings are binding and conclusive on appellate courts. [8] Matters affecting credibility are best left to the trial court because of its unique opportunity to observe the elusive and incommunicable evidence of that witness' deportment on the stand while testifying, an opportunity denied to the appellate courts which usually rely on the cold pages of the silent records of the case. [9] In this case, the trial court observed that AAA never wavered in her assertion that she was molested by the accused. It even further wrote that "her narrations palpably bear the earmarks of truth and are in accord with the material points involved." [10] There is no dispute that the accused had sexual intercourse with AAA, a fact which he clearly acknowledged. Contrary to his claim, however, the act was not consensual as proven by the convincing testimony of AAA who replied as follows: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Let's start from the beginning Miss witness. You said that you went down to the floor from the bed? Yes, ma'am. Was there anybody in the floor when you went down? None. When you went down and there was no person there in the floor, what did you do? I continued sleeping on the floor. Were you awakened by anything while you were sleeping on the floor? Yes ma'am. What awakened you? I felt that somebody was lying beside me on the floor. What was this person doing, if any? "Pinaghihipuan po ako." xxx xxx xxx

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Q: A:

What did you do when you were awakened when you felt that somebody was touching your breast, your face, and your legs? I struggled. [11] xxx xxx xxx

Q: A: Q: A: Q: A: Q: A: Q: A:

When you were undressed, what did the accused do? He kissed me on the face and on my lips. And while he was doing that, what were you doing? I was resisting him ma'am. What happened after that? He inserted his penis in my vagina. While he was inserting his organ in your vagina, what were you doing? I was pleading to him and begging him not to continue. What was the position of your hands at that time When he was inserting his organ to my vagina, he was holding my both hands very tightly. [12]

Moreover, the accused argues that AAA should not be believed because her narration of facts was inconsistent and highly improbable. The points he has raised, however, have no controlling significance and do not seriously affect the findings of the courts below. The fact that Roxanne was not awakened by the cries for help of AAA does not negate her categorical and consistent assertion that the accused forcibly defiled her. It is not unnatural that some persons are simply deep sleepers who cannot easily be awakened even by loud noises. The sweetheart defense proffered by the accused likewise deserves scant consideration. For the said theory to prosper, the existence of the supposed relationship must be proven by convincing substantial evidence. Failure to adduce such evidence renders his claim to be self-serving and of no probative value. For the satisfaction of the Court, there should be corroboration by their common friends or, if none, a substantiation by tokens of such a relationship such as love letters, gifts, pictures and the like. [13] Clearly, the accused sexually abused AAA. The question now is what crime has been committed? Is it Rape (Violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353), or is it Child Abuse, defined and penalized by Sec. 5, (b), R.A. No. 7610? As elucidated by the RTC and the CA in their respective decisions, all the elements of

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both crimes are present in this case. The case of People v. Abay, [14] however, is enlightening and instructional on this issue. It was stated in that case that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. [15] A person cannot be subjected twice to criminal liability for a single criminal act. [16]Specifically, Abay reads: Under Section 5(b), Article III of RA 7610in relation to RA 8353,if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610orrapeunderArticle 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established. Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction. For said reason, the Court sets aside the October 29, 2008 CA decision and reinstates the July 19, 2005 RTC Decision. In line with prevailing jurisprudence, however, the accused should also be made to pay the victim exemplary damages in the amount of P30, 000.00. [17] WHEREFORE, the October 29, 2008 Decision of the Court of Appeals is SET ASIDE and the July 19, 2005 Decision of the Regional Trial Court is REINSTATED with MODIFICATION in that the accused is also ordered to pay AAA the amount of ? 30,000.00 as exemplary damages. SO ORDERED.

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Carpio, (Chairperson), Leonardo-De Castro,* Peralta, and Abad, JJ., concur.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G. R. No. 191065 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, VILLARAMA, JR., and SERENO, JJ.

- versus -

Promulgated: JONIE DOMINGUEZ, June 13, 2011 Accused-Appellant. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION SERENO, J.: The appeal before us assails the 20 August 2009 Decision of the Court of Appeals (CA) in CA-G.R. CR HC No. 03130[1] affirming the conviction of Appellant Jonie Dominguez [2] for eight counts of the crime of rape. The present appeal stems from nine (9) criminal Informations filed with the Regional Trial Court, Branch 65, Bulan, Sorsogon, docketed as Criminal Case Nos. 02582 to 02-590. In the Informations, Jonie Dominguez was accused of committing multiple counts of the crime of rape -- under Republic Act (R.A.) No. 8353 in relation to R.A. No. 7610 -- against two minor female relatives, hereinafter called AAA and BBB. The aggravating circumstance of relationship was also alleged in the Informations -- the accused was allegedly the victims grandfather.[3] In Criminal Case No. 02-583, the Information alleged that in committing the crime, the accused was armed with a knife -- an aggravating circumstance. AAA was allegedly raped twice: first in 2001 when she was only nine years old, and second on 12 July 2002. The first instance of rape was allegedly done by the accuseds insertion of his two fingers into AAA's sex organ under the circumstance of intimidation with a knife,[4] described in the Information[5] docketed as Criminal Case No. 02-583, as follows:

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That sometimes (sic) in the year 2001, at Barangay XXX, municipality of YYY, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, while armed with a knife, taking advantage of the youthfulness of the victim and his moral ascendancy over her, with lewd designs, did then and there, willfully, unlawfully and feloniously inserted his two (2) fingers to the sex organ of AAA, a minor, 9 years of age, against her will and without her consent, to her damage and prejudice. The generic aggravating circumstance of relationship is present considering that the accused is the grandfather of the victim being the brother of the mother of the victims father. The second instance of rape was allegedly committed by the accused by inserting his fingers into AAAs vagina and having carnal knowledge of her afterwards. The accused did not use a deadly weapon, but was able to perpetrate the crime through threats and the use of moral ascendancy over AAA.[6] The Information, docketed as 02-582, reads: That on or about July 12, 2002, in the afternoon, at Barangay XXX, municipality of YYY, province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, taking advantage of the youthfulness of the victim and his moral ascendancy over her, did then and there, willfully, unlawfully and feloniously inserted his fingers to the sex organ of victim and then have carnal knowledge of the victim, AAA, a minor, 10 years of age, against her will and without her consent, to her damage and prejudice. The generic aggravating circumstance of relationship is present considering that the accused is the grandfather of the victim being the brother of the mother of the victims father. BBB, on the other hand, was allegedly raped seven times: first on 15 June 2000 when she was 12 years old; and again on 20 April 2001, 1 June 2001, 13 April 2001; and finally on 2, 8, and 12 June 2002. The first instance of rape was allegedly by carnal knowledge through force, violence and intimidation, and moral ascendancy. [7] The subsequent instances of rape were allegedly committed by the insertion of a finger into BBB's sex organ, also through force, violence and intimidation, and moral ascendancy.[8] These accusations are contained in the following Informations: Criminal Case No. 02-584[9]

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That on or about June 15, 2000, at more or less 10:00 oclock (sic) in the morning at barangay XXX, municipality of YYY, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation and taking advantage of the youthfulness of the victim and also his moral ascendancy over the latter, did then and there, willfully, unlawfully and feloniously had carnal knowledge of BBB, a minor, 12 years of age, against her will and without her consent, which acts likewise constitute child abuse and exploitation, as it demeans, debases and degrades the integrity of the child as a person, to her damage and prejudice. The generic aggravating circumstance of relationship is present, the accused being the brother of the other of the victims father. Criminal Case No. 02-585[10] That on or about midnight of April 20, 2001, at barangay XXX, municipality of YYY, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, taking advantage of the youthfulness and his moral ascendancy over the victim did then and there, willfully, unlawfully and feloniously with lewd designs inserted his fingers to the sex organ of the victim BBB, a minor, 13 years of age, against her will and without her consent, which acts likewise constitute child abuse and exploitation as it debases, demeans and degrades the integrity of the victim as a person, to her damage and prejudice. The generic aggravating circumstance of relationship is present, the accused is the grandfather of the victim being the brother of the mother of the victims father. Criminal Case Nos. 02-586, 02-587, 02-588 and 02-590, were also couched in the same language as Criminal Case No. 02-585, except for the dates of commission and the age of BBB. AAA and BBB chose to stay silent about the instances of rape, until their mother accidentally discovered the commission of the crimes from the accused himself. Overhearing Dominguez in one of his drinking sessions, boasting that the children's vaginas were already wide, she confronted her daughters and asked them about the remark. The children reluctantly confided to her what had happened. As a result, the girls were brought to a doctor for examination.[11] The examining physician, Dr. Estrella Payoyo, found AAAs hymen intact, but did not discount the fact that the child could have been molested.[12] In contrast, BBB was found to have old hymenal lacerations.[13]

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The Informations, filed on 21 October 2001, were subsequently amended to state that the aggravating circumstance of relationship was a special qualifying circumstance. The accused, when arraigned, pleaded not guilty to the charges against him. Thereafter trial ensued. During the trial, AAA and BBB testified against Dominguez by narrating the lascivious acts he had done to them. According to their testimonies, the accused had employed trickery so that either AAA or BBB would be left alone with him and thereafter raped, with threats of harm to her person or her family.[14] It should be noted that as to the second rape, AAA was silent on the alleged sexual intercourse. She in fact did not mention it, but merely testified that the accused inserted his fingers into her vagina on two occasions.[15] The main theory of the defense was one of denial and alibi. The accused insisted that he was in the mountains on the dates that he was alleged to have committed the crimes.[16] The trial court, after receiving the evidence, convicted the accused. It gave credence to the testimonies of the two child-victims, who had positively identified him and candidly narrated the sexual acts he had perpetrated against them. The court observed that he had failed to rebut the said allegations. The fallo of the Decision reads: WHEREFORE, premises considered, accused JONIE DOMINGUEZ having been found GUILTY of two (2) counts of Statutory Rape under par. (2) of Article 266-A in relation to Article III, Sec. 5(b) of RA 7610 and six (6) other counts of Simple Rape under pars. (1) and (2) pf Article 266-A in relation to Article III, Sec. 5(b) of RA 7610, is hereby sentenced as follows: 1) In Criminal Case No. 92-582 (Statutory Rape), he is sentenced to suffer the indeterminate penalty of 4 years 2 months and 1 day of Prision Correccional Maximum, as minimum, to 10 years of Prision Mayor medium, as maximum; to indemnify the offended party AAA in the amounts of Php50,000.00 as civil indemnity and another Php50,000.00 as moral damages; 2) In Criminal Case No. 02-583 (Statutory Rape), he is sentenced to suffer the indeterminate penalty of 4 years 2 months and 1 day of Prision Correccional Maximum, as minimum, to 12 years of Prision Mayor maximum as maximum, present the generic aggravating circumstance of USE OF DEADLY WEAPON (Article 266-B in relation to par. (2) of Article 266-A); to indemnify AAA the amounts of

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Php50,000.00 as civil indemnity, another Php50,000.00 as moral damages and Php20,000.00 as exemplary damages; 3) In Criminal Case No. 02-584 (Rape), he is sentenced to suffer the indivisible penalty of RECLUSION PERPETUA (Article 266-B in relation to par. (1) of Article 266-A, RPC as amended); to indemnify BBB the amounts of Php50,000.00 as civil indemnity and another Php50,000.00 as moral damages; 4) In Criminal Cases Nos. 02-585; 586; 587; 588 and 590 (Rape), he is sentenced to suffer the indeterminate penalty of 4 years 2 months and 1 day of Prision Correccional maximum, as minimum, to 10 years or Prision Mayor medium, as maximum, for EACH COUNT of RAPE; to indemnify BBB the amounts of Php50,000.00 civil indemnity and another Php50,000.00 as moral damages; and to pay the costs; 5) In Criminal Case No. 02-589 (Rape), accused is ACQUITTED for insufficiency of evidence and for failure of the prosecution to establish his GUILT beyond reasonable doubt. The period of preventive imprisonment already served by the accused shall be credited in the service of his sentence pursuant to Article 29 of the Revised Penal Code as amended. In the service of the sentences above-mentioned, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible pursuant to the provision of Article 70 of the Revised Penal Code as amended. SO ORDERED.[17] The accused thereafter resorted to the CA for a review of the court a quos Decision. The assailed Decision was affirmed by the appellate court, which disposed as follows: WHEREFORE, premises considered, the appeal interposed by Jonie Dominguez is DENIED, and accordingly his convictions as pronounced under the herein assailed November 5, 2007 Decision of the trial court is AFFIRMED together with the appropriate prison penalty, but with modification only as to the awards for civil indemnity and moral damages, for which appellant is hereby ordered to pay: 1) Php75,000.00 for civil indemnity, and Php75,000.00 by way of moral damages in Crim. Case No. 02-584. 2) Php30,000.00 for civil indemnity and Php30,000.00 by way of moral damages for each of appellants convictions

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in Crim. Case Nos. 02-582, 02-583, 02-585, 02-586, 02587, 02-588, and 02-590. 3) Php20,000.00 as exemplary damages in Crim. Case No. 02-583. SO ORDERED.[18] The accused timely filed a notice of appeal to elevate the case to this Court. He did not submit a Supplemental Brief, and instead filed a Manifestation that the case be deemed submitted for decision.[19] The Office of the Solicitor General, on behalf of the People, had earlier filed a similar Manifestation in Lieu of Supplemental Brief. [20] We thus refer to the Appellants Brief filed with the CA, wherein the accusedappellant advanced this lone assignment of error: THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIMES CHARGED DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[21] We sustain the conviction. Accused-appellant argues that the prosecutors evidence was doubtful. The charges against him, he says, were just fabricated, since the parents of the victims had an axe to grind against him. He claims that he had loaned an amount to the victims aunt, who is the sister of the victims father. When he demanded the return of the money, the victims parents got mad at him. He insinuates that these ill feelings were the reason why he was falsely charged by AAA and BBB.[22] We disregard this allegation for being irrelevant to the question of whether the crime as charged did take place. To introduce reasonable doubt on his criminal culpability, the accused highlights the testimony of Dr. Payoyo that BBBs old lacerations could also have been caused by infection from scratching her vagina or by injury from accidents. He also emphasizes Dr. Payoyos finding that BBBs vagina could admit only one finger with resistance. As to Dr. Payoyos report that AAAs hymen was intact, the accused-appellant relies on it to bolster his defense that there was no sexual intercourse or sexual abuse. Jurisprudence is clear on this matter. The absence of a laceration in BBBs hymen does not overturn the testimonies of the child-victims. As the Court held in People v. Gabayron:[23]

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Accused-appellant draws attention to the fact that based on the medico-legal findings, there is no showing that his daughters hymen was penetrated, nor there was any evidence of injuries inflicted. However, jurisprudence is well-settled to the effect that for rape to be consummated, rupture of the hymen is not necessary, nor it is necessary that the vagina sustained a laceration especially if the complainant is a young girl. ... The fact that there was no deep penetration of the victims vagina and that her hymen was intact does not negate rape, since this crime is committed even with the slightest penetration of a womans sex organ. Presence of a laceration in the vagina is not (sic) essential prerequisite to prove that a victim has been raped. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been reported in women with unruptured hymen.(emphasis supplied)[24] Another point being raised by the accused-appellant concerns the consistency of AAA's testimony. He argues that the inconsistencies in her testimony taint her credibility. In effect, he claims that since rape is a traumatic event for the victim, there was no way AAA could have forgotten or been mistaken about it, including its place of occurrence, had rape really happened. Specifically, the accused is arguing that since AAA mentioned two places -- their house and the back of the school her testimony was not credible. In rebuttal, the Office of the Solicitor General states that AAA indeed testified that she was violated in their house and that, immediately prior to that incident, she was playing at the back of the school when the accusedappellant called her to come inside the house. AAA's house, where the second rape was committed, was at the back of the school.[25] She herself clarified this detail during the redirect examination. The relevant portion of the Transcript of Stenographic Notes is reproduced below:[26] Q: AAA, during the last time that you were here in court, you declared that you were sexually molested by Jonie Dominguez at the house of your uncle Rogelio, is that correct? A: Yes, Maam. Q: And the other sexual molestation happened at the back of your school in Butag Elementary School, is that also correct? A: No, Maam. Q: What do you mean no, Maam? A: At the house of Uncle Rogelio and at our house. Q: But during the last time when you were asked by Atty. Gojar, you said that you were also molested at the back of the elementary school, Barangay XXX, so which is correct now? A: The truth is that I was sexually molested at the house of my Uncle Rogelio and at our house. Q: And why did you say that you were molested at the back of the elementary school in Barangay XXX, if not true?

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A: the the

I was confused thinking that the question of Atty. Gojar is location of our house and our house is situated at the back of elementary school.

There was therefore no inconsistency to speak of. We find AAA's testimony credible on this point and disregard the accused's attack on the same. The accused also cites AAAs testimony that after each incident of molestation, she told her parents about it. According to him, her testimony was discrepant with that of her mother. Recall that the mother had alleged that the discovery of the crime was due to his utterance regarding the state of her daughters vaginas.[27] We reject the claim of the accused. It can clearly be deduced from AAAs answer during the cross-examination that when she told her parents about the molestations, she was referring to the time immediately before the filing of the Complaint and not immediately after the rape.[28] It should be pointed out that she was consistent and unwavering in her claim that the accused inserted his two fingers into her organ on two occasions. The trial court observed AAAs consistency in her testimony and ruled that she was a credible witness.[29] We respect the trial courts ruling on this matter. This Court recognizes that: Ample margin of error and understanding is accorded to young witnesses who, much more than adults, would naturally be gripped with tension due to the novelty of the experience of testifying before a court.[30] We have reviewed the records and find no cogent reason to disturb the conviction. A reading of the TSN of the hearing of the case convinces us that the CA did not commit any reversible error. The victims were still minors at the time they testified. Nevertheless, they were able to narrate the incidents, albeit not exactly with the same coherence as a fully capacitated adult witness would. Leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse. Relevant to this, we quote the following discussion by retired Chief Justice Hilario G. Davide, Jr.: It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States vs. Buncad, this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point, says: "But this much may be taken as

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settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated." (Wigmore on Evidence, vol. I, p. 638) While on the same subject, Underhill declares: 257. Children on the witness stand. - Under the common law, competency of a child under the age of fourteen years to testify must be shown to the satisfaction of the court. He is presumptively incompetent, but if he is shown to be competent it is immaterial how young he may be when he testifies. He is competent if he possesses mental capacity and memory sufficient to enable him to give a reasonable and intelligible account of the transaction he has seen, if he understands and has a just appreciation of the difference between right and wrong, and comprehends the character, meaning and obligation of an oath. If the witness fulfills these requirements, it is immaterial as bearing upon his competency that he is unable to define the oath or to define testimony. In the wise discretion of the court, a child four, five, six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. It may not be said that there is any particular age at which as a matter of law all children are competent or incompetent. x x x The requirements then of a childs competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. As held in United States vs. Buncad, quoting from Wheeler vs. United States, and reiterated in People vs. Raptus and People vs. Libungan: The decision of (sic) this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. (citations omitted).[31] We find that AAA and BBB were able to candidly answer the questions propounded to them during the examination in court and to communicate the ordeal they suffered in the hands of the accused. They were credible witnesses. The legal doctrine that the assessment of the credibility of witnesses is left to the judgment of the trial court is well-established.[32] Its findings of facts, when affirmed by the Court of Appeals, are deemed conclusive on this Court.[33] In this case,

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both the trial court and the Court of Appeals found the prosecution witnesses credible. The narrated facts disprove the alibi of the accused-appellant that he was up in the mountains on the dates that he allegedly molested the victims. BBB testified that the accused was staying with another relative, their Tia Cita, whose husband is his brother. He invited BBB and her two siblings to go to the house of their TiaCita. He then ordered the two siblings of BBB to go to the seashore and pull the crab catcher. BBB was left alone with appellant, who then perpetrated his lewd acts on her. BBB likewise testified that appellant lived with them, thus making it possible for him to be near her and to molest her even at night while she was sleeping. She also testified that she was threatened by the accused who warned her not to tell anyone, or else her family would be killed.[34] Both the trial court and the CA found these defenses of denial and alibi incredible. The testimony of the accused was riddled with obvious inconsistencies. He denied knowing the victims, but eventually identified AAA as his grandniece. His own testimony contradicted his alibi, since he testified that from 2000 to 2002, he was residing in his brothers house. This was where one of the rape incidents happened, and was even near the house of the victims. On this point, we have stated previously: To establish alibi, the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.Physical impossibility "refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places."[35] On its part, the prosecution was able to show the existence of the elements of rape under the amended Revised Penal Code, effectuated by R.A. No. 8353, or the Anti-Rape Law of 1997, which states: Art. 266-A. Rape: When and how committed Rape is committed: 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; b) When the offended party is deprived of reason or otherwise unconscious;

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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 persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. Before and after the violations, the intimidation took the form of threats that the victims family would be killed by the accused. The accused also employed trickery and took advantage of his authority over his grandnieces. Under these circumstances, the accused was able to have carnal knowledge of BBB and commit a series of sexual assaults against both her and AAA. The two incidents of rape against AAA happened before she reached 12 years of age, she being 9 and 10 then. For those incidents, proof of threats, force or intimidation, is not necessary. As to damages, there is a need to modify the award of civil indemnity in Criminal Case No. 02-584. Contrary to the claim of the prosecution, the accuseds relationship to the victims cannot be considered as an aggravating circumstance. For relationship to aggravate or qualify the crime of rape committed against a minor, the accused must be a relative of the victim within the third civil degree.[36] As a brother of the victim's paternal grandmother, he is but a relative within the fourth civil degree. This relationship cannot qualify the crime as to merit the punishment of reclusion perpetua to death under Article 266-B of the Revised Penal Code as amended. Thus, the rape of BBB by means of carnal knowledge was simple rape, and the amount of civil indemnity should be decreased from P75,000 to P50,000. With respect to the manner of rape committed against AAA twice and against BBB six times, which was rape by digital insertion, jurisprudence from 2001 up to the present yields the information that the prevailing amount awarded as civil indemnity to victims of simple rape committed by means other than penile insertion is P30,000.[37] We adhere to these precedents. We note that prior to the amendment of the law on rape, the act of inserting the finger, with lewd designs, into the genital orifice of a girl or a non-consenting woman falls under acts of lasciviousness. The victim was awarded civil indemnity likewise in the amount of P30,000.[38] In amending the law and renaming the act as rape, there is a recognition that the same evil, as that of conventional rape, is sought to be

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prevented. This was recognized in People v. Jalosjos[39] when the Court awarded civil indemnity, for each digital insertion committed by the accused against the victim, in the amount of P50,000 similar to conventional rape. Subsequent decisions, however, reverted to P30,000 the civil indemnity for the commission of rape under Art. 266-A (2) of the Revised Penal Code.[40] We follow the latter in the present case. An award of exemplary damages to AAA and BBB for all the instances of rape committed by the accused against them is also warranted. In People v. Alfredo[41], the Court reiterated an earlier decision held that exemplary damages may be awarded not only in the presence of an aggravating circumstance, but also where the circumstances of the case show a highly reprehensible conduct.[42] In the present case, the circumstances show the higher degree of perversity of the accused. Instead of showing any remorse in abusing children of tender age, he repeatedly committed the crime against the victims. Worse, he even degraded them before other people by making fun of the fact that their private parts were already non-virginal, something that society sees as outrageous and uncommon for their age. Surely, only a person who is outrageously perverse can brag about his vulgarities to others with seeming impunity. These are conducts and dispositions that are abhorrent to the norms of a civilized society and should be curtailed and discouraged. We apply the Courts rationale in People v. Rayos[43], wherein we held that Article 2229 of the Civil Code sanctions the grant of exemplary or correction damages in order to deter the commission of similar acts in the future and to allow the courts to mould behaviour that can have grave and deleterious consequences to society. In People v. Alfredo[44], the Court clarified that the basis of awarding exemplary damages on account of a crime is not exclusively Article 2230 of the Civil Code, which provides that in criminal offenses, exemplary damages as a part of civil liability may be imposed when the crime was committed with one or more aggravating circumstances. The Court held as that: In much the same way as Article 2230 prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. Recently, in People of the Philippines v. Cristino Caada, People of the Philippines v. Pepito Neverio and The People of the Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse.

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It must be noted that, in the said cases, the Court used as basis Article 2229, rather than Article 2230, to justify the award of exemplary damages. Indeed, to borrow Justice Carpio Morales words in her separate opinion in People of the Philippines v. Dante Gragasin y Par, "[t]he application of Article 2230 of the Civil Code strictissimi juris in such cases, as in the present one, defeats the underlying public policy behind the award of exemplary damages to set a public example or correction for the public good."[45] The records reveal the accuseds perversity and moral corruption, which should not be replicated in our society. To deter such behavior, exemplary damages must be imposed on the accused as a warning to those persons who are similarly disposed. Regarding the penalty of imprisonment, we find that a modification thereof is in order. Article 266-B of the Revised Penal Code, as amended, reads: Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. ...

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. The trial court failed to apply the proper penalty in Criminal Case No. 02583, for rape by sexual assault aggravated by the use of a knife, in imposing a maximum of only 12 years of prision mayor instead of prision mayor to reclusion temporal with a duration of six (6) years and one (1) day to twenty (20) years. We impose fifteen (15) years and four (4) months of reclusion temporal. As to the minimum penalty required by the Indeterminate Sentence Law, the RTCs Decision was appropriate. Article 61 paragraph 2 of the Revised Penal Code states that the penalty next lower in degree to a prescribed penalty of one or more divisible penalties imposed to their full extent is that immediately following the lesser of the penalties. The minimum of the penalty to be imposed is to be taken from within the entire period of prision correccional, or six (6) months and one (1) day to six (6) years. Considering the abhorrent character of the crime committed and the innocence of the victim in Criminal Case No. 02-583, we peg the minimum penalty at six (6) years of prision correccional.

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The sentence of imprisonment imposed in Criminal Case Nos. 02-582, 02584 to 02-588 and 02-590 will remain undisturbed. IN VIEW OF THE FOREGOING, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATION. Accused JONIE DOMINGUEZ is sentenced to suffer the following: a) In Criminal Case No. 02-583, the indeterminate penalty of six (6) years of prision correccional as minimum, to fifteen (15) years and four (4) months of reclusion temporal as maximum. b) In Criminal Case Nos. 02-582, 02-585, 02-586, 02-587, 02-588 and 02-590, the indeterminate penalty of four (4) years of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum for each count of rape; and

c) In Criminal Case No. 02-584, the indivisible penalty of reclusion perpetua. Accused JONIE DOMINGUEZ is further ordered to pay the following civil liabilities: a) To AAA: 1) P30,000 as civil indemnity for each count of rape in Criminal Case Nos. 02-582 and 02-583; 2) P30,000 as moral damages for each count of rape in Criminal Case Nos. 02-582 and 02-583; and 3) P30,000.00 exemplary damages for each count of rape in Criminal Case Nos. 02-582 and 02-583. b) To BBB: 1) P50,000 as civil indemnity in Criminal Case No. 02-584; 2) P50,000 as moral damages in Criminal Case No. 02-584; 3) P30,000 as civil indemnity for each count of rape in Criminal Case Nos. 02-585, 02-586, 02-587, 02-588 and 02-590; 4) P30,000 as moral damages for each count of rape in Criminal Case Nos. 02-585, 02-586, 02-587, 02-588 and 02-590; 5) P30,000 as exemplary damages for each count of rape in Criminal Case Nos. 02-584, 02-585, 02-586, 02-587, 02-588 and 02590.

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SO ORDERED.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 186441 : March 3, 2010 SALVADOR FLORDELIZ y ABENOJAR, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION NACHURA, J.: For review are the Court of Appeals (CA) Decision1cacalw and Resolution2cacalw dated July 29, 2008 and February 16, 2009, respectively, in CAG.R. CR No. 30949. The assailed decision affirmed the Regional Trial Courts3cacalw (RTCs) Joint Judgment4cacalw dated March 9, 2007, convicting petitioner Salvador Flordeliz y Abenojar of nine (9) counts of Rape and one (1) count of Acts of Lasciviousness, with a modification of the award of damages, while the assailed resolution denied petitioners motion for reconsideration. The case stemmed from the following facts: Sometime in March 1995, ABC, the wife of petitioner and the mother of private complainants AAA and BBB, left for Malaysia as an overseas worker. AAA and BBB were left under the care and custody of petitioner. They resided in a small house in Quezon Hill, Baguio City.5 In April 1995, while sleeping with BBB and AAA, who was then eleven (11) years old, petitioner woke up AAA, touched her vagina, then played with it. AAA cried and told petitioner that it was painful. The latter stopped, but warned AAA not to tell anyone about it; otherwise, she would be harmed.6cacalw Petitioner allegedly committed the same acts against AAA repeatedly. Petitioner and his daughters later transferred residence and lived with the formers siblings. Not long after, petitioner was convicted of homicide and imprisoned in Muntinlupa City. Consequently, AAA and BBB lived with their grandparents in La Trinidad, Benguet.7cacalw While petitioner was incarcerated, AAA and BBB visited him and sent him two greeting cards containing the following texts, among others: "happy valentine"; "ur the best dad in the world"; "I love you papa, love BBB, Love BJ"; "till we meet again"; portrait of Jesus Christ with a heart, "this is for you dad"; "flordeliz, AAA P., love AAA and Iyos."8 In 2001, petitioner was released on parole. He would frequently fetch AAA and BBB from their grandparents house during weekends and holidays and they would stay with him in Gabriela Silang, Baguio City.9

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Unsatisfied with the abuses committed against AAA, petitioner allegedly started molesting BBB in May 2002.10cacalw In 2003, BBB spent New Years Day with her father. On January 3, 2003, while they were sleeping, petitioner inserted his two (2) fingers into BBBs vagina.11cacalw BBB did not attempt to stop petitioner because of fear. Thereafter, they slept beside each other.12cacalw BBB suffered the same ordeal the following night.13 On February 8, 2003, BBB visited petitioner. Again, petitioner held her vagina, played with it and inserted his fingers, which caused her pain.14 The same incident allegedly took place on August 3, 2003.15cacalw On October 26, 2003, a day before AAAs birthday, while BBB was with petitioner, the latter committed the same dastardly act. This time, it was for a longer period.16 During All Saints Day of 2003, BBB spent two nights with her father and, during those nights (November 1 and 2), she experienced the same sexual abuse. The same thing happened on December 28, 2003.18 Notwithstanding the repeated incidents of sexual abuse committed against her, BBB did not reveal her ordeal to anybody because of fear for her life and that of her mother.19 AAA and BBB had the chance to reveal their horrifying experiences when their mother ABC arrived for a vacation. AAA immediately told ABC what petitioner did to her. When confronted by ABC, BBB likewise admitted the repeated abuses committed by petitioner. ABC forthwith reported the incidents to the National Bureau of Investigation.20cacalw After conducting medical examinations on AAA and BBB, the attending physician remarked that there was a "disclosure of sexual abuse and she noted the presence of hymenal notch in posterior portion of hymenal rim that may be due to previous blunt force or penetrating trauma suggestive of abuse."21 With these findings, petitioner was charged with the crimes of Acts of Lasciviousness,22cacalw committed against AAA, and nine (9) counts of Qualified Rape through Sexual Assault,23cacalw committed against BBB, before the RTC. The crime of acts of lasciviousness was allegedly committed as follows: That sometime in the month of April 1995 up to 1996 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and deliberate intent to cause malice and satisfy his lascivious desire, did then and there willfully, unlawfully and feloniously touched and play the private part of the offended party AAA, a minor 14 years of age against her will and consent which act debased (sic), demeaned and degraded the intrinsic worth and dignity of the minor as a human being. CONTRARY TO LAW.24

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On the other hand, except for the dates of the commission of the crime, each Information for Rape reads: That on or about the 8th day of February 2003, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation and taking advantage of his moral ascendancy over the private offended party he being the biological father of said offended party, did then and there remove the pants and underwear of said offended party and thereupon fondles her private part and forcibly inserted his finger into the vagina of the offended party BBB, a minor, 11 years of age against her will and consent, which acts constitute Rape as defined under Republic Act 8353 and which acts demeaned, debased and degraded the intrinsic worth and dignity of the minor as a human being. CONTRARY TO LAW.25 Upon arraignment, petitioner pleaded "Not guilty" to all the charges. During trial, he interposed the defense of denial and insisted that the charges against him were fabricated by his wife to cover up the infidelity she committed while working abroad.26cacalw Petitioner also relied on the testimonies of Florabel Flordeliz, Levy Hope Flordeliz and Roderick Flordeliz, whose testimonies consisted mainly of the alleged infidelity of ABC; and petitioner, being a good father, was often visited by his daughters at his residence, where the rooms they occupied were only separated by see-through curtains.27 On March 9, 2007, the RTC rendered a Joint Judgment28cacalw finding petitioner guilty as charged, the dispositive portion of which reads: WHEREFORE, premises all duly considered [,] the court finds that the prosecution has established the guilt of the accused beyond reasonable doubt and hereby imposes upon him the following penalties: 1. In Criminal Case No. 23145-R for Acts of Lasciviousness, the Indeterminate Penalty of 6 months of Arresto Mayor as the minimum penalty to 6 years of Prision Correccional as the maximum penalty and to indemnify the victim AAA the amount of P20,000.00 as moral damages and to pay the costs. The penalty shall also carry the accessory penalty of perpetual special disqualification from the right of suffrage (Art. 43, Revised Penal Code)[.] 2. In Criminal Cases Nos. 23072-R to 23080-R, the Indeterminate Penalty of twelve (12) years of Prision Mayor as the minimum penalty to twenty (20) years of Reclusion Temporal as the maximum penalty for each case or nine (9) counts of sexual assault considering the aggravating/qualifying circumstance of relationship against the accused and to indemnify BBB the amount of P75,000.00 as moral damages and to pay the costs. The penalties shall carry with them the accessory penalties of civil interdiction for life and perpetual absolute disqualification (Art. 41, Revised Penal Code).

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The accused shall be credited with 4/5 of his preventive imprisonment in the service of his sentences. In the service of his sentences, the same shall be served successively subject to the provisions of Article 70 of the Revised Penal Code or the Three-Fold Rule. SO ORDERED.29 On appeal, the CA affirmed petitioners conviction with a modification of the amount of his civil liabilities. Petitioner now comes before us, raising the following errors: ACTS OF LASCIVIOUSNESS The Honorable Court A Quo gravely erred in affirming the judgment of conviction of the Honorable Regional Trial Court for the crime charged despite the fact that the guilt of the petitioner has not been proven beyond reasonable doubt with moral certainty. RAPES THROUGH SEXUAL ASSAULT 1. The Honorable Court A Quo gravely erred in affirming the judgments of conviction of the Honorable Regional Trial Court in Criminal Cases Nos. 23075R (alleged rape through sexual assault sometime in May, 2002) and 23078-R (alleged rape through sexual assault on August 3, 2003) respectively, despite thecomplete absence of evidence to show how the alleged incidents of rape through sexual assault were committed by petitioner on said particular dates. 2. The Honorable Court A Quo gravely erred in affirming the judgments of conviction of the Honorable Regional Trial Court in the other alleged counts of rape through sexual assault despite the fact that the guilt of the petitioner has not been proven beyond reasonable doubt with moral certainty.30 Simply put, petitioner assails the factual and legal bases of his conviction, allegedly because of lack of the essential details or circumstances of the commission of the crimes. Petitioner, in effect, questions the credibility of the witnesses for the prosecution and insists that the charges against him were designed to conceal ABCs infidelity. We have repeatedly held that when the offended parties are young and immature girls, as in this case, courts are 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.31 It is not uncommon in incestuous rape for the accused to claim that the case is a mere fabrication, and that the victim was moved by familial discord and influence,

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hostility, or revenge. There is nothing novel about such defense, and this Court had the occasion to address it in the past. In People v. Ortoa,32 we held that: Verily, no child would knowingly expose herself and the rest of her family to the humiliation and strain that a public trial surely entails unless she is so moved by her desire to see to it that the person who forcibly robbed her of her cherished innocence is penalized for his dastardly act. The imputation of ill motives to the victim of an incestuous rape [or lascivious conduct] becomes even more unconvincing as the victim and the accused are not strangers to each other. By electing to proceed with the filing of the complaint, the victim risks not only losing a parent, one whom, before his moral descent, she previously adored and looked up to, but also the likelihood of losing the affection of her relatives who may not believe her claim. Indeed, it is not uncommon for families to be torn apart by an accusation of incestuous rape. Given the serious nature of the crime and its adverse consequences not only to her, it is highly improbable for a daughter to manufacture a rape charge for the sole purpose of getting even with her father. Thus, the alleged ill motives have never swayed the Court against giving credence to the testimonies of victims who remained firm and steadfast in their account of how they were ravished by their sex offenders.33 Neither can we sustain petitioners claim that the charges against him were products of ABCs fabrication to cover up the infidelity she committed while working abroad. No matter how enraged a mother may be, it would take nothing less than psychological depravity for her to concoct a story too damaging to the welfare and well-being of her own daughter. Courts are seldom, if at all, convinced that a mother would stoop so low as to expose her own daughter to physical, mental and emotional hardship concomitant to a rape prosecution.34 We now proceed to discuss the specific crimes with which petitioner was charged. Criminal Case Nos. 23072-R, 23073-R, 23074-R, 23076-R, 23077-R, 23079-R, and 23080-R for Rape Through Sexual Assault The RTC, affirmed by the CA, correctly convicted petitioner of Rape in Criminal Case Nos. 23072-R, 23073-R, 23074-R, 23076-R, 23077-R, 23079-R, and 23080-R. In her direct testimony, BBB clearly narrated that, on seven (7) separate occasions, petitioner woke her up, held her vagina, played with it, and inserted his fingers. During trial, the prosecutor presented a small doll where BBB demonstrated how petitioner inserted his forefinger and middle finger, making an up and down motion between the dolls legs.35 The insertion of petitioners fingers into the victims vagina constituted the crime of Rape through sexual assault36 under Republic Act (R.A.) No. 8353, or "The Anti-Rape Law of 1997," which in part provides: Art. 266-A. Rape: When And How Committed. - Rape is committed:

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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 persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.37 Aside from proving the fact that Rape was committed, the prosecution also established that petitioner is the biological father of BBB and that the latter was less than twelve (12) years old at the time of the commission of the crimes. Under Article 266-B of the Revised Penal Code (RPC), rape by sexual assault, if attended by any of the aggravating circumstances under paragraph 138 of Article 266-B, would carry the penalty of reclusion temporal, ranging from twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the RPC. Other than the aggravating/qualifying circumstances of minority and relationship (which are already taken into account to raise the penalty from prision mayor to reclusion temporal),39 no other aggravating circumstance was alleged and proven. Hence, the penalty shall be imposed in its medium period, or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. On the other hand, the minimum term of the indeterminate sentence should be within the range of the penalty next lower in degree than that prescribed by the Code which is prision mayor or six (6) years and one (1) day to twelve (12) years. For each count of sexual assault, petitioner should be meted the indeterminate sentence of ten (10) years of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum. In line with prevailing jurisprudence, the victim of Rape through sexual assault is entitled to recover civil indemnity in the amount of P30,000.00 for each count. This is mandatory upon a finding of the fact of Rape.40Moreover, the award of moral damages is automatically granted without need of further proof, it being assumed that a rape victim has actually suffered moral damages entitling her to such award.

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She is, thus, entitled to recover moral damages ofP30,000.00 for each count.41 In addition, the presence of the aggravating circumstances of minority and relationship entitles her to an award of exemplary damages. The amount of P30,000.00 for each count is appropriate under the circumstances. Criminal Case Nos. 23075-R and 23078-R In Criminal Case No. 23075-R, it was alleged that petitioner sexually abused BBB on August 3, 2003. Indeed, the RTC and the CA stated in their narration of facts that on that particular date, while BBB was visiting her father, the incident happened. A perusal of the transcript of the prosecution witnesss testimonies, however, reveals that no such incident took place. No details were related by BBB herself as to the circumstances surrounding the alleged incident. In Criminal Case No. 23078-R, it was also stated in the Information that, from May 2002 to December 2003, petitioner committed the crime of Rape through sexual assault against BBB. The Court notes, however, that the RTC decision is silent as to the sexual abuse allegedly committed in May 2002. The RTCs narration of facts started only with the incident that occurred in January 2003. While the CA stated that, in May 2002, petitioner started sexually abusing BBB, the statement was merely a conclusion unsupported by proof of how the crime was committed. Assuming that acts of Rape were indeed committed in 2003 (which is within the period from May 2002 to December 2003 as stated in the Information), those instances could very well be the same incidents covered by the other Informations discussed earlier. Absent specific details of how and when the sexual abuses were committed, petitioner should be acquitted in Criminal Case Nos. 23075-R and 23078-R. Criminal Case No. 23145-R for Acts of Lasciviousness In Criminal Case No. 23145-R, petitioner was charged with and convicted of Acts of Lasciviousness and sentenced to suffer the penalty prescribed by Article 336 of the RPC. While we sustain petitioners conviction of acts of lasciviousness, we modify the assailed Decision in order to give the proper designation to the crime committed and the law violated, and eventually to impose the proper penalty. It is undisputed that at the time of the commission of the sexual abuse, AAA was eleven (11) years old.42 This calls for the application of R.A. No. 7610 or "The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," which defines sexual abuse of children and prescribes the penalty therefor in its Article III, Section 5, to wit: 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.

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The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxxx (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, That 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.43 Paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution, but also with a child subjected to other sexual abuses. It covers not only a situation where a child is abused for profit, but also where one -through coercion, intimidation or influence -- engages in sexual intercourse or lascivious conduct with a child.44 However, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct committed against a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of R.A. No. 7610.45 The crime of Acts of Lasciviousness, as defined in Article 336 of the RPC, has the following elements: (1) That the offender commits any act of lasciviousness or lewdness; (2) That it is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) That the offended party is another person of either sex.46 In addition, the following elements of sexual abuse under Section 5, Article III of R.A. No. 7610 must be proven: (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

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(3) The child, whether male or female, is below 18 years of age.47 Section 32, Article XIII of the Implementing Rules and Regulations of R.A. No. 7610 defines lascivious conduct as follows: T]he 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.48 Based on the foregoing definition, petitioners act of touching AAAs vagina and playing with it obviously amounted to lascivious conduct. Considering that the act was committed on a child less than twelve years old and through intimidation, it is beyond cavil that petitioner is guilty under the aforesaid laws. We are aware that the Information specifically charged petitioner with Acts of Lasciviousness under the RPC, without stating therein that it was in relation to R.A. No. 7610. However, the failure to designate the offense by statute or to mention the specific provision penalizing the act, or an erroneous specification of the law violated, does not vitiate the information if the facts alleged therein clearly recite the facts constituting the crime charged. The character of the crime is not determined by the caption or preamble of the information or by the specification of the provision of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information.49 In the instant case, the body of the Information contains an averment of the acts alleged to have been committed by petitioner and unmistakably describes acts punishable under Section 5(b), Article III of R.A. No. 7610. It is also undisputed that petitioner is the father of AAA. The RTC did not appreciate the alternative circumstance of relationship, because it was not alleged in the Information. We do not agree. The resolution50 of the investigating prosecutor, which formed the basis of the Information, a copy of which is attached thereto, stated that petitioner is the victims biological father. There was, therefore, substantial compliance with the mandate that an accused be informed of the nature of the charge against him.51 In crimes against chastity, like acts of lasciviousness, relationship is considered aggravating.52 Considering that AAA was less than twelve (12) years old at the time the crime was committed, petitioner should be meted the penalty of reclusion temporal in its medium period, or fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, petitioner should be meted the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal as maximum.

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With respect to the lascivious conduct amounting to child abuse under Section 5(b) of R.A. No. 7610 committed by petitioner, we impose a fine of P15,000.00.53 Civil indemnity ex delicto in the amount of P20,000.00 shall be awarded.54 Additionally, upon a finding of guilt of the accused for acts of lasciviousness, the amount of P15,000.00 as moral damages may be awarded to the victim in the same way that moral damages are awarded to victims of rape even without need of proof because it is assumed that they suffered moral injury. In view of the presence of the aggravating circumstance of relationship, the amount of P15,000.00 as exemplary damages should likewise be awarded. WHEREFORE, premises considered, the Court of Appeals July 29, 2008 Decision and February 16, 2009 Resolution in CA-G.R. CR No. 30949 are AFFIRMED with MODIFICATIONS. The Court finds petitioner Salvador Flordeliz y Abenojar: 1. GUILTY of seven (7) counts of RAPE Through Sexual Assault in Criminal Case Nos. 23072-R, 23073-R, 23074-R, 23076-R, 23077-R, 23079-R, and 23080-R. He is sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for each count. Petitioner is ordered to indemnify BBB P30,000.00 as civil indemnity; P30,000.00 as moral damages; and P30,000.00 as exemplary damages, for each count; 2. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case No. 23145-R. He is sentenced to suffer the indeterminate penalty of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16) years, five (5) months and ten (10) days of reclusion temporal, as maximum. He is likewise ordered to pay a fine of P15,000.00 and to indemnify AAA P20,000.00 as civil indemnity, P15,000.00 as moral damages, andP15,000.00 as exemplary damages; 3. NOT GUILTY in Criminal Case Nos. 23075-R and 23078-R. SO ORDERED.

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