THE PEOPLE OF THE
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G.R. No. 151952
Present: *QUISUMBING, J., Chairperson, *carpio MORALES, **TINGA, VELASCO, JR., and BRION, JJ. Promulgated: March 25, 2009 |
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D E C I S I O N
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BRION, J.: |
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We
review in this appeal the decision of the Court of Appeals in CA-G.R. CR No.
23746,[1]
which affirmed with modification the joint decision of the Regional Trial Court
(RTC), Branch 170, Malabon City, in Criminal Case Nos. 19623-MN, 19624-MN and
19625-MN.[2]
Appellant
Heracleo Abello y Fortada (Abello)
stands convicted of one (1) count of violation of paragraph 2, Article 266-A of
the Revised Penal Code (RPC), as amended;[3] and
two (2) counts of violation of sexual abuse under Republic Act (R.A.) No. 7610
(Child Abuse Law). For these crimes, he was sentenced to suffer imprisonment
of twelve (12) years of prision mayor,
as minimum, to twenty (20) years of reclusion
temporal, and two reclusion perpetuas,
respectively.
The
following Informations (all dated
Criminal Case No. 19623-MN
That on or about the 8th
day of July 1998, in Navotas, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, being a step-father (sic) of victim
AAA,[4]
with lewd design and by means of force and intimidation, did then and there
willfully, unlawfully and feloniously putting his penis inside the mouth of
said AAA, against her will and without her consent.
CONTRARY TO LAW.[5]
Criminal
Case No. 19624-MN
That on or about the 30th
day of June 1998, in Navotas, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, being a step-father (sic) of victim
AAA, a (sic) years old, and Polio Striken (sic), with lewd design by
means of violence and intimidation, did then and there willfully, unlawfully
and feloniously mashing her breast, against her will and without her consent.[6]
CONTRARY TO LAW.
Criminal Case No. 19625-MN
That on or about the 2nd
day of July 1998, in Navotas, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, being a step-father (sic) of victim
AAA, a (sic) 21 years old, and Polio Striken (sic), with lewd design by
means of violence and intimidation, did then and there willfully, unlawfully
and feloniously mashing her breast, against her will and without her consent.[7]
CONTRARY TO LAW.
Abello, with the assistance of counsel, pleaded not guilty
to these charges. The cases were jointly tried since they arose from similar
incidents involving the same parties.[8]
The prosecution relied on testimony of the victim, AAA, who identified Abello
as the perpetrator of the rape and sexual abuses against her. Abello’s defense was confined to his denial
of the accusations.
The Background Facts
The RTC summarized the facts as follows:
The victim in these cases is
twenty-one (21) year old AAA. She contracted polio when she was seven (7)
months old. She was not able to study on account of her difficulty in walking.
Hence, she could only read and write her name including that of her friends.
On
Amidst the accusation of raping and
twice sexually abusing AAA, Abello interposed the defense of denial. In all of
the instances, Abello claimed that he merely stepped on the victim at the sala
on his way to his room after retiring home.
The RTC found Abello guilty under the three Informations.
The dispositive portion of the decision states:
WHEREFORE,
premises considered, judgment is hereby rendered as follows:
1.
In Criminal Case No. 19623-MN, the
Court finds accused Heracleo Abello y
Fortada guilty beyond reasonable doubt of the crime of Violation of Paragraph 2, Article 226-A, Republic Act
[No.] 8353 and hereby sentences him to suffer an indeterminate penalty of Seven (7) Years of prision mayor, as minimum, to Thirteen (13) Years of reclusion temporal, as maximum;[9]
2.
In Criminal Case Nos. 19624-MN and
19625-MN, the Court finds accused Heracleo
Abello y Fortada guilty beyond reasonable doubt of two (2) counts of
Violation of Section 5, Article III
of Republic Act [No.] 7610 and
hereby sentences him in each of the two cases to suffer an indeterminate
penalty of Four (4) Years of prision correctional (sic), as minimum, to Twelve (12) Years and One
(1) Day of prision mayor, as maximum.[10]
[Emphasis theirs]
The CA affirmed Abello’s conviction on appeal but modified
the penalties imposed. The dispositive
portion of its decision reads:
WHEREFORE,
the appealed judgement (sic) is hereby AFFIRMED
subject to the following MODIFICATIONS:
1.In
Criminal Case No. 19623-MN, appellant is hereby sentenced to suffer an
indeterminate penalty of twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum;
Appellant is further ordered to pay complainant, AAA, moral damages in the
amount of P50,000.00
2.
In Criminal Case Nos. 19624-MN and 19625-MN, appellant is hereby sentenced to
suffer the penalty of reclusion perpetua in
each of the two cases.[11]
The Issues
Abello
contends in his Brief that:[12]
1. The
court a quo erred in not absolving
the accused-appellant of the crime of violation of paragraph 2, Article 266-A
of the Revised Penal Code, as amended;
2. The
court a quo has committed an error in
not exculpating the accused-appellant of the crime of violation of Section 5,
Article III of R.A. No. 7610.[13]
He
emphasizes that it was impossible for him to have committed these crimes considering
that: (a) he is AAA’s stepfather who has a healthy sexual relationship with her
mother; (b) AAA was not alone during these alleged incidents; and (c) AAA admitted
that she was asleep when these incidents happened making it likely that she
could have just dreamed of them.
The
Office of the Solicitor General maintains the correctness of Abello’s
conviction on the basis of AAA’s positive and candid narration covering the
elements constituting the crimes of rape by sexual assault and sexual abuse.
Our Ruling
We affirm Abello’s conviction on all three
charges.
Determining
the guilt or innocence of an accused, based solely on the victim’s testimony,
is not an easy task in reviewing convictions for rape and sexual abuse cases. For
one, these crimes are usually committed in private so that only the two direct
parties can attest to what happened; thus, the testimonies are largely
uncorroborated as to the exact details of the rape, and are usually in conflict
with one another. With this in mind, we
exercise utmost care in scrutinizing the parties’ testimonies to determine who of
them is believable. Oftentimes, we rely
on the surrounding circumstances as shown by the evidence, and on common human
experience.
We
carefully reviewed AAA’s testimony in light of the issues Abello raised in his
appeal, and in light of matters he did not raise but which materially affect
his innocence or culpability. After due
consideration, we find no reason to doubt the veracity of AAA’s testimony and
her version of the events that led to the filing of the present charges.
In
her testimony, AAA positively and unequivocally narrated the details of her
rape and sexual abuse she suffered in Abello’s hands, as follows:
Q: Do you remember any unusual incident
that happened on
A: I remembered on that date that he hold
(sic) my breast, sir.
Q: Who hold (sic) your breast?
A: He is the one, sir. (Witness pointed to
the accused.)
Q: What else did he do to you at that time?
A: That was again repeated on July 2 more
or less
Q: What did he do to you on July 2 at
A: The same he mashed my breast, sir.
Q: Was that repeated?
A: On July 8 at around
Q: What happened then?
A: He placed his penis on (sic) my
mouth, sir.
Q: While his penis was inside your mouth,
what else was he doing to you?
A: He suddenly entered the room of my
mother because I saw him and I was sure that it was him who was doing that to
me, sir.
Q: When was that when the accused placed
his penis inside your mouth?
A: I was sleeping at that time, sir.
Q: Were you awaken (sic)?
A: Yes, sir.
Q: When you were awakened, what did you
see?
A: His organ was in my mouth while I was
sleeping, I got awaken (sic) because I felt pain after he accidentally kneeled
on my right hand and because of that I cried “aray,” x x x
x x x
Q: So, it cannot take one minute or thirty
seconds that the penis of the accused was inserted on (sic) your mouth
open?
A: I notice that my mouth was open, Your
Honor.
Q: So, you were not sure whether it lasted
for one second or one minute?
A: It lasted for one second, Your Honor.
Q: And you were awakened?
A: Yes, Your Honor.
Q: How do you know that it was the penis of
the accused?
A: I saw it, Your Honor.
Q: Whom did you see?
A: Him, you honor.
Q: While the penis was inside your mouth,
were you sleeping or awaken already?
A: I got awaken because of the placement
of his penis on (sic) my mouth, sir.
Q: Was his penis soft or hard?
A: I got hold of it, Your honor.
x x x
Q: How were you able to hold the penis?
A: I hold (sic) the penis to push it out
on (sic) my mouth, Your honor.[14]
We note that both the RTC and CA
found AAA’s testimony to be positive, direct, and categorical, while the RTC found the defense’s
version too strained to be believed for
being contrary to human experience; the RTC refused to accept the claim that
Abello was prosecuted for rape and sexual abuse simply because he stepped with
his knees on her stepdaughter’s hand.[15] A material point we noted is that Abello
could not say why AAA would falsely accuse him.[16]
The substance and tenor of the testimony and the element of motivation are
critical points for us since a straightforward, categorical and candid
narration by the victim deserves credence if no ill motive can be shown driving
her to falsely testify against the accused.[17]
Our
consideration of Abello’s defense of denial and his other arguments lead us to
reject them for the following reasons:
First,
the issue of his credibility is reduced to a choice between the offended
party’s positive testimony and the denial of the accused. In this case, AAA
categorically and unmistakably identified Abello as her rapist and sexual
abuser;[18]
the identification was positive because the scene was illuminated by a light
coming from outside the parties’ house at the time of the incidents.[19]
She also testified that during the rape, she saw Abello suddenly enter the room
of her mother after she yelped in pain when he stepped with his knee on her
hand.[20] Settled jurisprudence tells us that the mere
denial of one’s involvement in a crime cannot take precedence over the positive
testimony of the offended party.[21]
Abello
likewise admitted that in the wee hours of the mornings of June 30, July 2, and
Second,
we flatly reject Abello’s argument that his relationship with AAA insulates him
from the crimes charged. Our judicial
experience tells us that in handling these types of cases, the relationship between
the offender and the offended party has never been an obstacle to the
commission of the crime against chastity.
Although alarming to admit, this kind and degree of relationship is now quite
common in these types of crimes. Studies show a rising incidence of family and
domestic violence where 98.8% of the victims are women; an estimated 26.7% of
these cases involve sexual abuse, while 33% involve incest committed against
children.[23] In these cases, the male spouse, the father of
the victim, or close male relatives, have been identified as frequent abusers. [24]
Third,
we find the claim that AAA could have just dreamed of the incidents complained
of, to be preposterous. It is highly
unlikely that a woman in her right mind would expose and declare herself a
victim of rape and sexual abuse, when she would thereby open herself to the
humiliating experience of a public trial and to the possible social stigma of
being a victim of rape and sexual abuse. In the normal course, a woman will not
expose herself to these risks unless she is certain of what happened and she seeks
to obtain justice against the perpetrator.
We note in this regard AAA’s categorical testimony that she filed the
criminal charges because she did not know what to do; she thus reported the incidents
to her mother and sister-in-law who thereafter sought police assistance.[25]
The
record also shows that AAA lived a sheltered life cared for by her relatives
because of her polio.[26] Unless the contrary is shown, it is highly
unusual for her to have the worldly sophistication to invent or fabricate the
charges she made, particularly one made against her stepfather. A charge against one’s stepfather, too, is
unusual in our socio-cultural context because of the respect we give our
elders, and is only understandable if there is a deeply felt cause for
complaint. We particularly note that no imputation has been made at any time in
the case that AAA is not normal, save for her physical disability, or has a
strained relationship with her stepfather prior to the acts charged.
Based on these
considerations and in the absence of clear indications of errors in giving
credence to AAA’s testimony, we find no reason to disturb the factual findings of
the RTC and the CA.
Rape
by sexual assault
R.A.
No. 8353 which took effect on
The
second paragraph of Article 266-A of the RPC, as amended defines rape by sexual
assault as committed by any person who,
under any of the circumstance mentioned in paragraph 1 … shall commit an act of
sexual assault by inserting his penis into another person’s mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of
another person.
The elements of
rape by sexual assault are:
(1)That the offender
commits an act of sexual assault;
(2)That
the act of sexual assault is committed by
any of the following means:
(a) By
inserting his penis into another person’s mouth or anal orifice; or
x x x
(3) That the act of
sexual assault is accomplished under
any of the following circumstances:
(a) By using
force or intimidation;
(b) When a
woman is deprived of reason or otherwise unconscious;
x x x[27]
AAA’s
testimony covers the commission of the sexual assault through the insertion of Abello’s
male organ into her mouth; AAA also consistently identified Abello as the
perpetrator of the sexual assault. These
statements satisfy the first and second elements of the rape.
Her testimony that she was roused from sleep
with Abello’s male organ inserted in her mouth, goes into the third element of
the crime.[28] In this respect, we observe that both the RTC
and the CA failed to notice the variance between the allegations in the Information
for rape and that proven at the trial on the mode of committing the offense. The
Information alleges “force and intimidation” as the mode of commission, while AAA
testified during the trial that she was asleep at the time it happened and only
awoke to find Abello’s male organ inside her mouth.
This variance is not fatal to Abello’s
conviction for rape by sexual assault. In People
v. Corpuz, [29]
we ruled that a variance in the mode of commission of the offense is binding
upon the accused if he fails to object to evidence showing that the crime was
committed in a different manner than what was alleged. In
the present case, Abello did not object to the presentation of evidence showing
that the crime charged was committed in a different manner than what was stated
in the Information. Thus, the variance is
not a bar to Abello’s conviction of the crime charged in the Information.
Acts
of lasciviousness
Abello was convicted of two (2)
counts of sexual abuse under Section 5 (b), Article III of R.A. No. 7610, which
defines and penalizes acts of lasciviousness committed against a child:
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.
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 victims is under twelve (12) years of age, the perpetrators shall
be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act
No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct,
as the case may be: Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its
medium period; and
The
essential elements of this provision are:
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. [30]
Paragraph (h), Section 2 of the
Implementing Rules and Regulations of R.A. 7610[31] (implementing rules) defines lascivious
conduct as a crime committed through the intentional touching, either directly
or through the clothing of the
genitalia, anus, groin, breast, inner thigh or buttocks with the intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person, among others. Records show
that AAA duly established this element when she positively testified that Abello
fondled her breasts on two separate occasions while she slept.
The second element requires that the
lascivious conduct be committed on a child who is either exploited in
prostitution or subjected to other sexual abuse. This second element requires
evidence proving that: (a) AAA was either exploited in prostitution or subjected
to sexual abuse and (b) she is a child as defined under R.A. No. 7610.
In Olivarez v. Court of Appeals,[32]
we explained that the phrase, “other sexual abuse” in the above provision covers
not only a child who is abused for profit, but also one who engages in
lascivious conduct through the coercion
or intimidation by an adult. In the latter case, there must be some form of
compulsion equivalent to intimidation which subdues the free exercise of the
offended party’s will.[33]
In the present case, the prosecution
failed to present any evidence showing that force or coercion attended Abello’s
sexual abuse on AAA; the evidence reveals that she was asleep at the time these
crimes happened and only awoke when she felt her breasts being fondled. Hence,
she could have not resisted Abello’s advances as she was unconscious at the
time it happened. In the same manner, there was also no evidence showing that
Abello compelled her, or cowed her into silence to bear his sexual assault,
after being roused from sleep. Neither is there evidence that she had the time
to manifest conscious lack of consent or resistance to Abello’s assault.
More importantly, AAA cannot be
considered a child under Section
3(a) of R.A. No. 7610 which reads:
(a) “Children” refers to person 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; [Emphasis supplied]
The implementing rules elaborated on
this definition when it defined a
“child” as one who is below 18 years of age or over said age who, upon evaluation of a qualified physician,
psychologist or psychiatrist, is found to be incapable of taking care of herself
fully because of a physical or mental disability or condition or of protecting
herself from abuse.
While the records show that the RTC, the
CA and the investigating prosecutor who filed the corresponding Informations, considered
AAA’s polio as a physical disability that
rendered her incapable of normal function, no evidence was in fact presented
showing the prosecution’s compliance with the implementing rules. Specifically,
the prosecution did not present any evidence, testimonial or documentary, of any
medical evaluation or medical finding from a qualified physician, psychologist
or psychiatrist attesting that AAA’s physical condition rendered her incapable
of fully taking care of herself or of protecting herself against sexual abuse. Under
the circumstances, we cannot consider AAA a child under Section 3(a) of R.A.
No. 7610.
In
arriving at this conclusion, we consider that since R.A. No. 7610 is a special law
referring to a particular class in society, the prosecution must show that the
victim truly belongs to this particular class to warrant the application of the
statute’s provisions. Any doubt in this
regard we must resolve in favor of the accused.
From another perspective, we also note
that no evidence has been adduced showing that AAA’s physical disability
prevented her from resisting Abello’s attacks; the evidence only reveals that
Abello took advantage of the opportunity presented to him (i.e., that AAA and
her companions who were then asleep) to commit the sexual abuses; this
inference is supported by the fact that he
stopped his sexual assault when AAA started to awaken. It can also be
reasonably deduced from these circumstances that Abello sought to commit the
sexual abuses with impunity -- without AAA’s knowledge and without any interference
on her part.
In light of these conclusions, we
cannot hold Abello liable under R.A. No. 7610.
However, we still find him liable for acts of lasciviousness under
Article 336 of the RPC, as amended.
In Olivarez, we emphasized that the character of the crime is not
determined by the caption or preamble of the information or from the
specification of the provision of law alleged to have been violated; the crime
committed is determined by the recital of the ultimate facts and circumstances
in the complaint or information.[34] In the present case, although the two
Informations wrongly designated R.A. No. 7610 as the law violated; the
allegations therein sufficiently constitute acts punishable under Article 336
of the RPC whose elements are:
1.
That the offender commits any act of lasciviousness;
2.
That the offended party is another person of either sex;
and
3. 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 or is demented.[35]
The
presence of the first and second elements of the offense has been earlier
discussed, albeit in the consideration of a charge under R.A. No. 7610. The prosecution established these elements
through AAA’s testimony that her breasts were fondled while she was
asleep. While she did not actually see
Abello fondling her (as the fondling was done while she was asleep and stopped
when she awakened), she related that she identified Abello because she saw him
enter her mother’s room immediately after she felt her breasts fondled and
after he stepped with his knees on her hand.[36]
AAA also testified that Abello was illuminated by a light coming from outside
their house.[37] Further, the perpetrator could only be Abello
as the only other occupants of the house at the time were her mother, her
sister-in-law and her young nephew who were all asleep.[38] The third element was proven by her testimony
that, on two occasions, Abello mashed her breasts while she was sleeping.[39]
As we discussed above, the
Informations alleged the element of violence and intimidation as the mode of
committing the sexual abuses, contrary
to what the prosecution established during the trial that AAA was asleep on the
two occasions when the offenses were committed. Pursuant to our above discussions
citing Corpuz,[40] the deficiencies in the allegations
will not relieve Abello of liability under the circumstances of this case.
The Penalty
The three Informations all alleged the
stepfather-stepdaughter relationship between AAA and Abello. Relationship as an
alternative circumstance under Article 15 of the RPC, as amended, and is an aggravating
circumstance in crimes against chastity and in rape.[41] This
modifying circumstance, however, was not duly proven in the present case due to
the prosecution’s failure to present the marriage contract between Abello and
AAA’s mother. If the fact of marriage came out in the evidence at all, it was via an admission by Abello of his
marriage to AAA’s mother. This
admission, however, is inconclusive evidence to prove the marriage to AAA’s
mother,[42] as
the marriage contract still remains the best evidence to prove the fact of
marriage.[43] This
stricter requirement is only proper as relationship is an aggravating
circumstance that increases the imposable penalty, and hence must be proven by
competent evidence.
Rape
by sexual assault is penalized by prision
mayor which has a range of six (6) years and one (1) day to twelve (12)
years. Applying the Indeterminate
Sentence Law, the minimum of the indeterminate penalty shall be within the full
range of the penalty that is one degree lower than prision mayor, in this case, prision
correccional which has a range of penalty from six (6) months and one (1)
day to six (6) years. In the absence of
any mitigating or aggravating circumstance, the maximum of the indeterminate
penalty shall be taken within the medium period of prision mayor, or eight (8) years and one (1) day to ten (10) years.[44]
Hence, Abello may be sentenced to suffer
an indeterminate penalty ranging from six
(6) months and one (1) day to six (6) years of prision correccional, as minimum, to eight (8) years and one (1) day to ten (10) years, as maximum,
for the crime of rape.
The imposable penalty for acts of lasciviousness under
Article 336 of the RPC, as amended, is prision
correccional. Under Scale No. 1
of Article 71 of this law, one degree lower from prision correccional is arresto
mayor which has a range of penalty from one (1) month and one (1) day to
six (6) months. Applying the Indeterminate Sentence Law, the minimum of the
indeterminate penalty shall be taken from the full range of arresto mayor. Absent any mitigating or
aggravating circumstance in the case, the maximum of the indeterminate penalty
shall be taken from the medium period of prision
correccional or two (2) years, four (4) months and one (1) day to four (4)
years and two (2) months. Accordingly,
Abello may be meted an indeterminate penalty ranging from one (1) month and one
(1) day to six (6) months of arresto
mayor, as minimum, to two (2) years, four (4) months and one (1) day to
four (4) years and two (2) months of prision
correccional, as maximum, for each count of acts of lasciviousness.
The Civil Liability
A victim of rape by sexual assault is
entitled to an award of P30,000 as civil indemnity and P30,000 as
moral damages.[45] Civil indemnity is separate and distinct from the award of
moral damages which is automatically granted in rape cases.[46]
Moral damages are additionally awarded without need of further pleading or
proof; it is presumed that the victim necessarily suffered injury due to the odiousness
of the crime.[47]
For acts of lasciviousness, AAA is
awarded P20,000 as civil indemnity and P30,000 as moral damages
for each count in line with existing jurisprudence.[48]
The Court further awards exemplary
damages in the amount of P25,000 for the rape through sexual assault
committed upon AAA and P2,000 for each count of acts of lasciviousness.[49] Article
2230 of the Civil Code allows an award of exemplary damages when the crime is
committed with one or more aggravating circumstances.
Although
not alleged in the Informations (as now required by Sections 8 and 9, Rule 110
of the 2000 Revised Rules of Criminal Procedure),[50]
the aggravating circumstance of dwelling was nonetheless proven during the
trial when AAA testified that she was sexually abused by Abello while she was
asleep in their house.[51]
Additionally,
Article 266-B of the RPC, as amended, recognizes knowledge by the offender of the mental disability, emotional disorder and/or physical handicap
of the offended party at the time of the commission of the crime, as a
qualifying circumstance. Again, this knowledge
by Abello of AAA’s polio was duly proven during the trial; this matter was not
alleged in the Information.[52]
These
aggravating and qualifying circumstances of dwelling and Abello’s knowledge of
AAA’s physical disability may be appreciated in awarding the victim exemplary
damages in line with our ruling in People
v. Catubig[53]
where we held that the presence of an aggravating circumstance, whether
ordinary or qualifying, entitles the offended party to an award of exemplary damages.
WHEREFORE,
premises considered, the decision dated
(1)
In Criminal Case
No. 19623, we find appellant Heracleo Abello y Fortada GUILTY of
rape by sexual assault defined and penalized under Articles 266-A and 266-B of
the Revised Penal Code, as amended. We sentence
him to suffer an indeterminate prison term of six (6) years of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum. He is ORDERED to pay AAA P30,000.00 as civil
liability; P30,000.00 as moral damages and P25,000.00 as
exemplary damages;
(2)
In Criminal Case Nos. 19624-MN and 19625-MN,
we find appellant Heracleo Abello y Fortada GUILTY of acts of
lasciviousness, defined and penalized under Article 336 of the Revised Penal
Code, as amended. For each count, he is sentenced to an indeterminate prison
term of six (6) months of arresto mayor,
as minimum, to four (4) years and two (2) months of prision correccional, as maximum. He is further ORDERED to pay
AAA the amounts of P20,000.00 as civil indemnity; P30,000.00 as
moral damages and P2,000.00 as exemplary damages, in each case.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE
CONCUR:
|
DANTE O. TINGA Associate Justice Acting Chairperson |
|
|
MA.
ALICIA AUSTRIA-MARTINEZ Associate Justice |
RENATO C. CORONA Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
DANTE O. TINGA
Associate Justice
Acting Chairperson
CERTIFICATION
REYNATO
S. PUNO
Chief Justice
* On official leave.
* On official leave.
** Designated
Acting Chairperson of the Second Division per Special Order No. 592 dated
[1] Dated January 3, 2002; CA rollo, pp. 80-92; penned by Associate Justice Oswaldo D. Agcaoili (ret.) with Associate Justice Jose L. Sabio, Jr. and Associate Justice Mariano C. del Castillo, concurring.
[2] Dated
[3] Republic Act No. 8353 (New Rape Law) .
[4] The real name of the victim as well as those of her immediate family members are withheld per Republic Act (R.A.) No. 7610 (An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes) and R.A. No. 9262 (An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes).
[5] I Records, p. 1.
[6] II Records, p. 1.
[7]
[8] In Criminal Case No. 19623-MN, the defense
stipulated on the marking of the prosecution’s exhibits, i.e. Sworn Statement of AAA (Exhibit
“A”) and a Referral Slip issued by the Navotas Police Department (Exhibit “B”).
These markings were adopted in Criminal Case Nos. 19624-MN and 19625-MN per
Joint Order dated
[9] This should be Article 266-A of R.A. No. 8353.
[10] CA rollo, p. 15.
[11]
[12]
[13]
[14]
TSN,
[15] Rollo, pp. 14 - 15 and 84.
[16]
TSN,
[17] People v. Espino, G.R. No. 176742,
[18]
TSN,
[19]
[20]
[21] People v. Bon, G.R. No. 166401. October 30, 2006, 506 SCRA 168, 185; See People v. Supnad, G.R. Nos. 133791-94, August 8, 2001, 362 SCRA 346, 357, and People v. Nazareno, G.R. No. 167756, April 8, 2008.
[22]
TSN,
[23] Violence and Abusive Behavior (National Objective for Health), http://www2.doh.gov.ph/noh/197-199 as of February 26, 2009; Filipino Women and Sexual Violence: Speaking Out and Providing Services by Dee Dicen Hunt and Cora Sta. Ana-Gatbonton (paper),http: // cpcabrisbane.ord/CPCA/IWSSForum.htm as of February 23, 2009, citing Women in Development Inter-Agency Committee Fourth Country Programme for Children, University of the Philippines Center for Women’s Studies Foundation, Inc., and U.N. International Children’s Fund, Breaking the Silence, September 1996.
[24] Ibid.
[25]
TSN,
[26]
[27] II Reyes, The Revised Penal Code/Criminal Law, p. 557 [2008 edition].
[28]
TSN,
[29] G.R.
No. 168101,
[30] People
v. Larin, G.R. No. 128777,
[31]
On the Reporting and Investigation of Child Abuse Cases adopted on
[32] Supra note 30, p. 475, citing People v. Larin, supra note 30, p. 319, and Amployo v. People, supra note 30, p. 295.
[33] Amployo v. People, id., p. 296.
[34] Olivarez v. Court of Appeals, supra note 30 , p. 482.
[35] Amployo v. People, supra note 30, p. 296.
[36] TSN,
[37]
[38] Id , p. 7.
[39]
[40] Supra note 29.
[41] People v. Orilla, G.R. Nos. 148939-40,
[42]
TSN,
[43] People v. Victor, G.R. No. 127904,
[44] Article 64 (1) of the Revised Penal Code, as amended.
[45] People v. Bunagan, G.R. No. 177161, June 30, 2008; People v. Hermocilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296, 306; People v. Olaybar, G.R. No. 150630-31, October 1, 2003, 412 SCRA 490, 502; and People v. Soriano, G.R. No. 142779-95, August 29, 2002, 388 SCRA 140, 172.
[46] People v. Hermocilla, id., p. 305
[47] Ibid.
[48] People v. Ortoa, G.R. No. 174484, February 23, 2009, citing People v. Magbanua, G.R. No. 176265, April 30, 2008 and People v. Palma, 418 SCRA 365, 378 (2003).
[49] People v. Hermocilla, supra note 44, p. 306; People v. Ceballos, Jr., G.R. No. 169642, September 14, 2007, 533 SCRA 493, 515, and People v. Ortoa, supra note 47.
[50] 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.
Sec.
9. Cause of the accusations. - The
acts or omissions complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient
to enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the
court to pronounce judgment.
[51] People v. Blancaflor, G.R. No. 130586,
[52] TSN, July 26, 1999, p. 4; and as now required in Sections 8 and 9, Rule 110 of the 2000 Revised Rules of Criminal Procedure.
[53] G.R.
No. 137842,