RICHARD ESCALANTE, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

FACTS: Escalante was charged with the crime of child abuse committed against AAA,
who was then a twelve (12) year old minor. When arraigned, he pleaded "not guilty."

The prosecution presented private complainant, AAA, and Leonora Abrigo Mariano
(Mariano), Records Custodian of Fatima Medical Center. Their combined testimonies
tended to prove that at around midnight of December 24, 2006, AAA accompanied his
classmate Mark in going home. On his way back from Mark's house, AAA was called by
Escalante and was pulled into a comfort room at the Divine School in Parada,
Valenzuela City. Once inside, Escalante pulled down AAA's shorts and sucked the
latter's penis for about ten (10) minutes. Shortly thereafter, he forcibly inserted AAA's
penis into his anus.

Four (4) days after the incident, AAA complained to his mother that he was experiencing
pain in his penis and had difficulty in urinating. He divulged the incident to his mother,
who then brought him to the Fatima Medical Center for examination. In the course of the
examination, it was determined that he was afflicted with gonorrhoea, a sexually-
transmitted disease and urinary tract infection.

The defense presented Escalante, his father Nicomedes Escalante, and their neighbor
Josephine Salada (Salada). Their combined testimonies tended to establish that at
around midnight of December 24, 2006, Escalante was in Salada's house celebrating
Christmas Eve; that the celebration started at 10:00 o'clock in the evening and lasted
between 1:00 o'clock and 3:00 o'clock the following morning; that he could not have
been in the school because he never left Salada's house as he was tasked with passing
around shots of liquor; and that Salada's house was only a thirty (30)-minute ride away
from the place where the incident occurred.

In its May 22, 2013 Decision, the RTC found Escalante guilty of violating Section 10 (a)
of R.A. No. 7610. It ruled that the totality of the prosecution's evidence was sufficient to
establish that he physically and sexually abused AAA. The RTC did not give credence
to Escalante's alibi as it found AAA's identification of the accused as his assailant
credible. It added that Escalante's alibi was not convincing enough to prove that it was
physically impossible for him to be at the location of the crime.

Escalante appealed before the CA. In his Appellant's Brief, 6 he contended that he was
not positively identified by AAA as his abuser; that AAA could not readily recognize him
as the former testified that the place where he was abused was dark; that more than
three (3) years had passed when AAA testified in court, making his recollection doubtful;
and that AAA only identified the supposed culprit by a mere photograph which had not
been authenticated and its origins as well as its processing were never established.
ISSUE: WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE REGIONAL TRIAL COURT FINDING HEREIN PETITIONER
GUILTY DESPITE REASONABLE DOUBT OWING TO THE FACT THAT THE
PETITIONER WAS NOT REALLY POSITIVELY IDENTIFIED BY THE PRIVATE
COMPLAINANT.

RULING:

Although Escalante admits that his petition presents questions of fact, he insists that his
case is an exception to the general rule because the factual findings of the lower courts
are not supported by the records. A scrutiny thereof, however, shows that none of the
exceptions are present to warrant a review.

Granting that exceptional circumstances exist warranting the Court to entertain the
present petition, the merits of the case still fail to convince.

In the case at bench, there is no reason to doubt AAA's identification of Escalante. It is

noteworthy that the identification was done in open court.1âwphi1 Further, the trial court
adopted a similar manner with out-of-court identifications through photographs. As
culled from the records, AAA was presented with several pictures in open court from
which he was asked to pinpoint who was his abuser. He was able to identify Escalante
without any leading question which clearly suggests that the picture identified was that
of the latter.

Thus, AAA's identification was objective enough to be credible because it was done
under court supervision and with the added parameters usually observed in out-of-court
identifications. Significantly, no objections were raised over the manner in which
Escalante was identified, which, it must be noted, was only resorted to because he
failed to appear in court for identification.

Child Abuse under Section 5(b) of R.A. No. 7610, not Section 10(a) thereof

It is axiomatic that when an accused appeals his judgment of conviction, he waives his
constitutional guarantee against double jeopardy and throws the entire case open for
appellate review. 17 The Court is tasked to render such judgment as law and justice
dictate in the exercise of its concomitant authority to review and sift through the whole
case and correct any error, even if unassigned. 18 This authority includes modifying the
penalty imposed- either increasing or decreasing the same.

As can be gleaned from the above-mentioned provisions, Section S(b) of R.A. No. 7610
specifically applies in case of sexual abuse committed against children; whereas,
Section l0(a) thereof punishes other forms of child abuse not covered by other
provisions of R.A. No. 7610. Parenthetically, the offense will not fall under Section l0(a)
of R.A. No. 7 610 if the same is specifically penalized by a particular provision of the law
such as Section 5(b) for sexual abuse.
In People v. Larin, 19 the Court stated that the elements of sexual abuse under Section
S(b) of R.A. 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 other sexual abuse; and (3) the child, whether male or
female, is below 18 years of age.

All of the foregoing elements are present in the case at bench.

First, in forcibly sucking AAA's penis and thereafter inserting it in his anus, Escalante,
without question exposed AAA to lascivious conduct. Second, AAA is a child subjected
to other sexual abuse. In Caballo v. People (Caballo),21 the Court ruled that a child who
engages in sexual or lascivious conduct due to the coercion or influence is a child
subjected to other sexual abuse, viz:

As it is presently worded, Section 5, Article III of RA 7610 provides that when a child
indulges in sexual intercourse or any lascivious conduct due to the coercion or influence
of any adult, the child is deemed to be a "child exploited in prostitution and other sexual
abuse." In this manner, the law is able to act as an effective deterrent to quell all forms
of abuse, neglect, cruelty, exploitation and discrimination against children, prejudicial as
they are to their development. 22

In addition, the Court, in Caballo considered the age disparity between an adult and a
minor as indicia of coercion or influence. In the case at bench, AAA was only twelve
(12) years old at the time of the sexual abuse. The records, on the other hand,
disclosed that Escalante was twenty (20) years old at the time of the commission of the
crime. The disparity of eight (8) years between them placed Escalante in a stronger
position over AAA to exert his will upon the latter. In addition, AAA testified in open court
that he could not resist because he feared Escalante as the latter was taller and bigger
than him.

Third, AAA's minority was sufficiently established. As shown by his birth certificate, he
was only twelve (12) years old at the time the alleged sexual assault occurred. All in all,
it is clear that Escalante, an adult with all his influence and power over the minor AAA,
coerced the latter into satiating his sexual urges at the expense of his youth, innocence
and purity. Surely, such perverse actions warrant the harsher penalty under R.A. No.
7610 in consonance with the State's policy to protect children from all forms of abuse or
exploitation.

Finally, even if the Information does not categorically state that Escalante was being
charged with child abuse under Section 5(b) of R.A. No. 7610, he may still be convicted
for the said crime. It is doctrinal that it is not the title of the complaint or information
which is controlling but the recital of facts contained therein. The information must
sufficiently allege the acts or omissions complained of to inform a person of common
understanding what offense he is being charged with-in other words the elements of the
crime must be clearly stated.24 A closer perusal of the allegation under the Information
discloses that it is sufficient to charge Escalante with sexual abuse under the Section
5(b) of R.A. No. 7610

In the present case, the Information alleged that Escalante kissed AAA's neck down to
his sex organ and forcibly inserted AAA's penis into his anus. Further, the evidence on
record proves that AAA was coerced into submitting to Escalante's will as he was
unable to put up any resistance out of fear. As earlier stated, AAA's minority was
satisfactorily established.

In the case at bench, both the Information and the evidence on record spell out a case
of sexual abuse punishable under Section 5(b) of R.A. No. 7610. Hence, the penalty
imposed against Escalante should be modified accordingly.

To recapitulate, Section 10(a), Article VI ofR.A. No. 7610, wherein a penalty of prision
mayor in its minimum period is prescribed, contemplates any other acts of child abuse,
cruelty or exploitation or other conditions prejudicial to the child's development. In
contrast, Section 5(b) thereof specifically applies to the commission of the act of sexual
intercourse or lascivious conduct to a child subjected to other sexual abuse.

Based on the foregoing, Escalante should suffer the penalties imposed in Section 5(b),
not Section 10(a), of R.A. No. 7610. In Pinlac v. People (Pinlac),26 the Court
categorically enumerated the penalties and damages to be imposed on accused
convicted under Section S(b) of R.A. No. 7610,

In the case at bench, the imposition of a penalty similar to Pinlac is warranted. In both
cases, the accused performed oral sex on the victim minor. In Pinlac, the accused had
oral sex with the minor for two successive days. On the other hand, Escalante had oral
sex with AAA first and then inserted the latter's penis to his anus.

WHEREFORE, the October 13, 2014 Decision of the Court of Appeals in CA-G.R. CR
No. 35771 is hereby MODIFIED, in that, petitioner Richard Escalante, is found guilty of
Child Abuse punishable under Section 5(b) of Republic Act No. 7610 and sentenced to
suffer an indeterminate penalty of Eight (8) years and One (1) day of prision mayor, as
minimum, to Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as maximum. He is also ordered to pay AAA the amounts of ₱20,000.00 as
civil indemnity; ₱15,000.00 as moral damages; ₱15,000.00 as exemplary damages, and
₱15,000.00 fine plus interest on all damages awarded at the rate of 6% per annum from
the date of finality of this decision until the same have been fully paid.
RALPH P. TUA, Petitioner,
vs.
HON. CESAR A. MANGROBANG, Presiding Judge, Branch 22, Regional Trial
Court, Imus, Cavite; and ROSSANA HONRADO-TUA, Respondents.

FACTS: On May 20, 2005, respondent Rossana Honrado-Tua (respondent) filed with
the Regional Trial Court (RTC) of Imus, Cavite a Verified Petition2 for herself and in
behalf of her minor children, Joshua Raphael, Jesse Ruth Lois, and J ezreel Abigail, for
the issuance of a protection order, pursuant to Republic Act (RA) 9262 or the Anti-
Violence Against Women and their Children Act of 2004, against her husband, petitioner
Ralph Tua.

Respondent claimed that she and her children had suffered from petitioner’s abusive
conduct; that petitioner had threatened to cause her and the children physical harm for
the purpose of controlling her actions or decisions; that she was actually deprived of
custody and access to her minor children; and, that she was threatened to be deprived
of her and her children’s financial support.

there was a time when petitioner went to her room and cocked his gun and pointed the
barrel of his gun to his head as he wanted to convince her not to proceed with the legal
separation case she filed; she hid her fears although she was scared; there was also an
instance when petitioner fed her children with the fried chicken that her youngest
daughter had chewed and spat out; in order to stop his child from crying, petitioner
would threaten him with a belt; when she told petitioner that she felt unsafe and
insecure with the latter's presence and asked him to stop coming to the house as often
as he wanted or she would apply for a protection order, petitioner got furious and
threatened her of withholding his financial support and even held her by the nape and
pushed her to lie flat on the bed; and, on May 4, 2005, while she was at work, petitioner
with companions went to her new home and forcibly took the children and refused to
give them back to her.

On May 23, 2005, the RTC issued a Temporary Protection Order (TPO),

In his Comment6 to respondent's Petition with Urgent Motion to Lift TPO, petitioner
denied respondent’s allegations and alleged, among others, that he had been
maintaining a separate abode from petitioner since November 2004; that it was
respondent who verbally abused and threatened him whenever their children's stay with
him was extended; that respondent had been staying with a certain Rebendor Zuñiga
despite the impropriety and moral implications of such set-up; that despite their written
agreement that their minor children should stay in their conjugal home, the latter
violated the same when she surreptitiously moved out of their conjugal dwelling with
their minor children and stayed with said Zuñiga; and, that respondent is mentally,
psychologically, spiritually and morally unfit to keep the children in her custody.
Petitioner contended that the issuance of the TPO on May 23, 2005 is unconstitutional
for being violative of the due process clause of the Constitution.
ISSUE: 1. whether or not Ra 9262 is constitutional?

2. whether or not there is a invalid delegation of legislative power to the

court and barangay officials to issue protection orders?

RULING:

1. Section 15 of RA 9262 provides:

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs)

refers to the protection order issued by the court on the date of filing of the application
after ex parte determination that such order should be issued. A court may grant in a
TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty
(30) days. The court shall schedule a hearing on the issuance of a [Permanent
Protection Order] PPO prior to or on the date of the expiration of the TPO. The court
shall order the immediate personal service of the TPO on the respondent by the court
sheriff who may obtain the assistance of law enforcement agents for the service. The
TPO shall include notice of the date of the hearing on the merits of the issuance of a
PPO.

A protection order is an order issued to prevent further acts of violence against women
and their children, their family or household members, and to grant other necessary
reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability to regain control of
their life. The scope of reliefs in protection orders is broadened to ensure that the victim
or offended party is afforded all the remedies necessary to curtail access by a
perpetrator to the victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or household member safety in
the family residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent
their abduction by the perpetrator and to ensure their financial support.

The rules require that petitions for protection order be in writing, signed and verified by
the petitioner thereby undertaking full responsibility, criminal or civil, for every allegation
therein. Since "time is of the essence in cases of VAWC if further violence is to be
prevented," the court is authorized to issue ex parte a TPO after raffle but before notice
and hearing when the life, limb or property of the victim is in jeopardy and there is
reasonable ground to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence, which is about to
recur.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to
due process. Just like a writ of preliminary attachment which is issued without notice
and hearing because the time in which the hearing will take could be enough to enable
the defendant to abscond or dispose of his property, in the same way, the victim of
VAWC may already have suffered harrowing experiences in the hands of her tormentor,
and possibly even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of protecting vital public interests,
among which is protection of women and children from violence and threats to their
personal safety and security.

2. Section 2 of Article VIII of the 1987 Constitution provides that "the Congress shall
have the power to define, prescribe, and apportion the jurisdiction of the various courts
but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof." Hence, the primary judge of the necessity, adequacy, wisdom,
reasonableness and expediency of any law is primarily the function of the legislature. 15
The act of Congress entrusting us with the issuance of protection orders is in pursuance
of our authority to settle justiciable controversies or disputes involving rights that are
enforceable and demandable before the courts of justice or the redress of wrongs for
violations of such rights.16

As to the issuance of protection order by the Punong Barangay, Section 14 pertinently

provides:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay
Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay
ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of
this Act. A Punong Barangay who receives applications for a BPO shall issue the
protection order to the applicant on the date of filing after ex parte determination of the
basis of the application. If the Punong Barangay is unavailable to act on the application
for a BPO, the application shall be acted upon by any available Barangay Kagawad. If
the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the
time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay
Kagawad shall personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.

Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance
of his duty under the Local Government Code to "enforce all laws and ordinances," and
to "maintain public order in the barangay

In this case, the alleged acts of petitioner among others, i.e., he cocked the gun and
pointed the same to his head in order to convince respondent not to proceed with the
legal separation case; feeding his other children with the food which another child spat
out; and threatening the crying child with a belt to stop him from crying which was
repeatedly done; and holding respondent by her nape when he got furious that she was
asking him not to come often to their conjugal home and hold office thereat after their
agreed separation and threatening her of withholding half of the financial support for the
kids, while not conclusive, are enough bases for the issuance of a TPO. Petitioner's
actions would fall under the enumeration of Section 5, more particularly, paragraphs a,
d, e (2), f, h, and i.

We find that the CA did not err when it found no grave abuse of discretion committed by
the RTC in the issuance of the TPO.

PETITION IS DENIED.