FIRST DIVISION
|
PO3 BENITO
SOMBILON, JR., Petitioner, - versus - PEOPLE OF THE PHILIPPINES, Respondent. |
G.R.
No. 175528
Present: PUNO,
C.J., Chairperson, CARPIO, CORONA, LEONARDO-DE
CASTRO, and BERSAMIN, JJ. Promulgated: September 30,
2009 |
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D
E C I S I O N
LEONARDO-DE
CASTRO, J.:
This resolves the
petition for review which seeks to annul and set aside the following rulings of
the Court of Appeals (CA) in C.A. C.R.
No. 27729: a) the Decision[1]
dated July 28, 2005 which affirmed with modification the decision[2]
dated May 13, 2003 of the Regional Trial Court of Davao City (RTC), convicting
petitioner of acts of lasciviousness; and b) the Resolution[3]
dated September 22, 2006 denying petitioner’s Motion for Reconsideration of the
aforesaid Decision.
The facts found during
trial, as succinctly stated by the CA, are as follows:
The facts
found during the trial reveal that on or about August 15, 1998, AAA, a fifteen
(15)-year old minor, was investigated by Appellant at the Calinan Police
Station, Davao City in connection with a complaint for Theft filed by a certain
Aileen Dagoc.
AAA
alleged that Appellant, in conducting the investigation, took her inside a room
and locked it. She testified that the
room had no window but had a cot, a table, and a clothesline where some clothes
were hanged. She claimed that Appellant
pointed a gun at her, with the end of the barrel touching her forehead and
pushed her with it, causing her head to violently bang against the wall, and
asked her: “Did you steal the necklace?”
She answered that she did not.
Appellant then took an electric wire from a drawer and inserted its male
plug to a socket. She was ordered to
place her two hands on top of the table where her fingers were electrocuted
with the end of the wire. She was again
asked the same question, which she kept answering in the negative. Subsequently, she was asked: “Dalaga ka na ba?’ (Are you a woman now?),
and was told: “I am single too.”
Simultaneously, she was touched all over her body including her breasts,
her belly, and her private parts. She
was also kissed on her cheek. She
struggled to resist the sexual advances but Appellant prevailed. She claimed that they were inside the room
for more than one (1) hour.
Thereafter,
they went out of the room where Appellant announced to P03 Danilo Mendez and
Aileen Dagoc that she had already admitted having stolen the necklace. Pale, AAA was trembling and crying; her hair
disheveled, her dress wet. She also had
bruises on her forehead.
The police officers
allowed AAA and her mother to go home on the condition that they would pay the
value of the necklace. Because of AAA’s
condition, AAA’s mother brought her daughter to the Medical Clinic of St. Luke where AAA was examined by Dr. Manuel
Garcia, Sr.[4] Dr. Garcia gave AAA a tranquilizer to calm
down the latter who was trembling and incoherent.[5] At first, AAA could not answer the doctor when
she was asked what happened to her.
Later, upon regaining her composure, she revealed that she was
electrocuted and sexually molested by petitioner.[6] The Medical Certificate[7]
issued by Dr. Garcia disclosed the following injuries:
1. Slight contusion over occiput
region.
2. Slight contusion over center area
of forehead.
3. Multiple slight contusions of
fingers of bilateral hands.
4. Multiple slight contusions of
bilateral breast areas.
5. Slight body tremors.
Diagnosis: Slight Physical
Injuries
In an Information[8]
dated August 23, 1999, petitioner was charged with the crime of Acts of
Lasciviousness committed as follows:
The
undersigned accuses the above-named accused of the crime of Acts of
Lasciviousness, under Art. 336, in relation to Art. 344 of the Revised Penal
Code, upon the instance of the complainant AAA, who is 15 years old, whose
affidavit is hereto attached to form part of this Information. The crime is committed as follows:
That on
or about August 14, 1998, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, motivated by
lewd design, willfully, unlawfully, and feloniously upon the person of AAA, by
then and there embracing, mashing the breast, and touching the private part,
against her will.
CONTRARY
TO LAW.
Upon arraignment,
petitioner pleaded “not guilty.” Trial ensued thereafter.
On May 13, 2003, after
trial on the merits, the RTC rendered a decision finding petitioner guilty of
acts of lasciviousness with the aggravating circumstance of petitioner’s taking
advantage of his public position and sentenced him to six (6) months of arresto mayor, as minimum, to five (5)
years, four (4) months and twenty-one (21) days of prision correccional, as maximum.
The dispositive portion of the Decision reads:
For the
foregoing judgment is hereby rendered, finding accused P03 Benito Sombilon,
GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness, under
Article 366 of the Revised Penal Code, and is hereby sentenced to suffer
imprisonment under the Indeterminate Sentence Law from Six (6) months of
Arresto Mayor, as minimum to Five (5) years, Four (4) months and Twenty-one
(21) days of Prision Correccional, as maximum and directed to pay private
complainant AAA the following:
a.)
by
way of moral Damages, the amount of Ten Thousand Pesos (PhP10,000.00); and
b.)
by
way of Exemplary Damages, the amount of ten Thousand Pesos (Php10,000.00).[9]
From the above decision,
petitioner interposed an appeal to the CA, which was docketed as CA-G.R. CV No.
40419.
On July 28, 2005, the CA
rendered the herein challenged Decision affirming with modification the RTC’s
judgment of conviction. Appreciating the aggravating circumstance of taking
advantage of public position which was adequately established during the trial,
the CA increased the maximum penalty imposed against petitioner to its maximum
period of six years of prision
correccional. The dispositive
portion of the Decision reads:
WHEREFORE,
the Decision of the Regional Trial Court, Br. 8,
With
costs.
SO
ORDERED.[10]
Thus, petitioner filed
the instant petition, with the following allegations:
I
THE HONORABLE COURT
OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT THAT THE ACCUSED IS GUILTY OF THE
CRIME CHARGED BEYOND REASONABLE DOUBT;
II
ASSUMING BUT NOT
ADMITTING, THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE APPRECIATION
OF THE AGGRAVATING CIRCUMSTANCE OF
TAKING ADVANTAGE OF HIS PUBLIC POSITION FOR FAILURE TO ALLEGE IN THE
INFORMATION;
III
THE HONORABLE
COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF DAMAGES.[11]
Petitioner contends
that the CA erred in affirming his conviction for acts of lasciviousness. Even as he admits having merely touched the victim, petitioner argues that the act of
touching did not constitute lewdness. At
most, he could only be convicted of unjust vexation. Petitioner likewise asserts that while the
victim was being touched, the latter tried to cover her body with her arms. Lastly petitioner posits that the police
station does not favor the perpetration of the crime of acts of lasciviousness.
Petitioner’s contention
deserves scant consideration.
The crime of acts of
lasciviousness as punished under Article 336 of the Revised Penal Code
provides:
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.
For an accused to be
convicted of acts of lasciviousness under the foregoing provision, the
prosecution is burdened to prove the confluence of the following essential
elements: (1) that the offender commits any act of lasciviousness or lewdness; and
(2) that it is done under any of the following circumstances: (a) by using
force or intimidation; (b) when the offended woman is deprived of reason or
otherwise unconscious; or (c) when the offended party is under twelve (12)
years of age.[12]
In the case of Amployo v. People,[13]
the Court expounded on the definition of the term lewd, thus:
The
term “lewd” is commonly defined as something indecent or obscene; it is
characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the
existence of which can be inferred by overt acts carrying out such intention,
i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is
inferred from the nature of the acts themselves and the environmental circumstances. What is or what is not lewd conduct, by its
very nature, cannot be pigeonholed into a precise definition. As early as U.S. v. Gomez we had already
lamented that –
It would be somewhat difficult to lay down
any rule specifically establishing just what conduct makes one amenable to the
provisions of article 439 of the Penal Code.
What constitutes lewd or lascivious conduct must be determined from the
circumstances of each case. It may be
quite easy to determine in a particular case that certain acts are lewd and
lascivious, and it may be extremely difficult in another case to say just where
the line of demarcation lies between such conduct and the amorous advances of
an ardent lover.
Undoubtedly, petitioner
committed acts which fall within the above described lascivious conduct. It cannot be viewed as mere unjust vexation as
petitioner would have the Court do. The
intention of petitioner was intended neither to merely annoy or irritate the
victim nor to force her to confess the theft.
He could have easily achieved that when he electrocuted the latter. Petitioner intended to gratify his sexual
desires.
As found by the RTC and
affirmed by the CA, petitioner’s acts of kissing the victim, fondling her
breasts and touching her private parts constitute lascivious conduct intended
to quench his salacious desire. Petitioner’s lewd intent was betrayed when he asked
AAA, “Dalaga ka na ba?” as a prelude to his lustful advances on the
victim, and thereafter conveyed to her that “I am single too.” We quote
with approval the CA’s ratiocination:
Undeniably,
appellant committed lewd acts against AAA.
“Lewd” is defined as obscene, lustful, indecent, and lecherous. It signifies that form of immorality which
has relation to moral impurity; or that which is carried on a wanton
manner. The evidence shows that
appellant committed lewd acts against AAA when he touched her “all over her
body” which includes mashing her breasts, touching her private parts, and
kissing her on the cheek. These acts
were clearly done with lewd designs as appellant even previously asked AAA, as
if it was a prelude for things to come, “Dalaga ka na ba?” and thereafter
conveyed to her that “he is single too.”[14]
The fact that the
victim tried to cover her body with her arms does not negate petitioner’s lascivious
conduct. Petitioner succeeded in
fondling the victim’s breasts intense enough to cause multiple slight contusions
of bilateral breast areas.
As aptly observed by
the CA, petitioner employed force and intimidation against AAA:
Moreover,
appellant employed force and intimidation when he committed these acts on AAA.
In fact, as found by the trial court, appellant pointed a gun at the forehead
of AAA as evidenced by the bruises on her forehead. Further, the medical Certificate shows that AAA
suffered slight physical injuries which include “multiple slight contusion of
bilateral breast areas” which supports AAA’s claim.[15]
In People v. Victor,[16] the
Court held that in cases of acts of lasciviousness, it is not necessary
that intimidation be irresistible. It being sufficient that some compulsion
equivalent to intimidation annuls or subdues the free
exercise of the will of the offended party.
Here, the victim was locked inside a windowless room together with her
aggressor who poked a gun at her forehead.
Even a grown man would be paralyzed with fear if threatened at gunpoint,
what more the hapless victim who was only 15 years old when she was subjected
to such atrocity.
Petitioner’s assertion
that the locus criminis i.e., the police
station makes it unlikely for him to commit the crime of acts of lasciviousness
is specious. The presence of other
policemen on duty and of the victim’s mother outside the room where the
incident took place does not render commission of the offense impossible. It has been shown that there was a room in the
precinct which, except for two doors which could be locked, was totally
enclosed.[17] During the commission of the acts of
lasciviousness, petitioner and AAA were the only persons inside the room. Lust, as we have often held, is no respecter
of either place or time.[18]
As to the appreciation
of the aggravating circumstance of taking advantage of public position,
petitioner points out that said circumstance was not alleged in the information. The Solicitor General shares the same
view.
Sections 8 and 9 of
Rule 110 of the Revised Rules of Criminal Procedure, which took effect on
December 1, 2000, provide:
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.
Clearly, it is now a requirement that
the aggravating as well as the qualifying circumstances be expressly and
specifically alleged in the complaint or information. Otherwise, they cannot be considered by the
trial court in its judgment, even, if they are subsequently proved during
trial.[19] A reading of the Information shows that there
was no allegation of any aggravating circumstance.
In People v. Buayaban,[20]
the crime was committed and the Information was filed in 1990. Still, the Court gave the 2000 Rules of
Criminal Procedure retroactive application since it benefited the accused and disregarded
the generic aggravating circumstance of band because it was not alleged in the
Information. The Court explained, viz:
Section
8 simply provides that the information or complaint must state the designation
of the offense given by the statute and specify its qualifying and generic
aggravating circumstances. With regard
to Section 9, we held in People vs. Nerio
Suela that the use of the word “must” in said Section 9 indicates that the
requirement is mandatory and therefore, the failure to comply with sec. 9, Rule
110, means that generic aggravating circumstances, although proven at the
trial, cannot be appreciated against the accused if such circumstances are not
stated in the information.
In this
case, we cannot properly appreciate the ordinary aggravating circumstance of
band in the commission of the crime since there was no allegation in the
information that “more than three armed malefactors acted together in the
commission of the crime.
Here, the crime was
committed in 1998, the generic aggravating circumstance of taking advantage of
public position was not alleged in the information. As such, it cannot be appreciated as an
aggravating circumstance. Consequently,
the penalty imposed must be modified.
Section 1 of the Indeterminate
Sentence Law[21] (ISL)
states that (i)n imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall
be within the range of the penalty next lower to that prescribed by the Code
for the offense. Under Article 366
of the Revised Penal Code, the penalty for acts of lasciviousness is prision correccional. Since no aggravating or mitigating
circumstance attended the commission of the offense in this case, the penalty
should be applied in its medium period, the duration of which is two (2) years,
four (4) months and one (1) day to four (4) years and two months, as
maximum. The minimum shall be within the
range of the penalty next lower in degree which is arresto mayor, with the duration of one (1) month and one (1) day
to six (6) months.
Applying the ISL, the
proper penalty would be imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum.[22]
As to the damages
awarded, Article 2230 of the Civil Code provides that in criminal offenses,
exemplary damages as part of the civil liability may be imposed when the crime
was committed with one or more aggravating circumstances. Since the generic aggravating circumstance of
taking advantage of public position was not alleged in the Information against
petitioner it cannot be appreciated in the imposition of the penalty. But as
regards the award of exemplary damages, in the case of People v. Catubig,[23]
the Court declined retroactive application of the 2000 Rules of Criminal
Procedure, to wit:
The
retroactive application of procedural rules, nevertheless, cannot adversely
affect the rights of the private offended party that have become vested prior
to the effectivity of said rules. Thus,
in the case at bar, although relationship has not been alleged in the
information, the offense having been committed, however, prior to the
effectivity of the new rules, the civil liability already incurred by appellant
remains unaffected thereby.
Thus, in accordance with the
foregoing pronouncement, the Court affirms the CA’s award of exemplary damages
to the victim in the amount of P10,000.00.
With regard to the
awarded moral damages in the amount of P10,000.00, the same should be
increased to P30,000.00. In People v. Solmoro[24]
we declared that upon a finding of guilt of the accused for acts of
lasciviousness, the amount of P30,000.00 as moral damages may be further
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. Considering the
immeasurable pain and anguish that the victim had to suffer in the hands of the
petitioner; the trauma that she had to endure even after the incident; and the
sexual perversity of petitioner, who is a police officer, the award of moral
damages in the amount of P30,000.00 is proper.
WHEREFORE, the petition
is hereby denied and the Decision dated July 28, 2005 of the Court of Appeals
finding petitioner P03 Benito Sombilon GUILTY of the crime of acts of
lasciviousness under Article 336 of the Revised Penal Code is AFFIRMED with Modification that he is sentenced to suffer an indeterminate
penalty of imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and to
pay the victim the amount of P30,000 as moral damages and P10,000.00
as exemplary damages.
.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate
Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice Chairperson |
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ANTONIO T. CARPIO Associate
Justice |
RENATO C. CORONA Associate
Justice |
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LUCAS P. BERSAMIN Associate
Justice |
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Chief Justice
[1] Penned by Associate Justice Normandie B. Pizarro, with Associate Justices Arturo G. Tayag and Rodrigo F. Lim, Jr., concurring; rollo, pp. 18-31.
[2] Id. at 49-57.
[3]
[4] TSN, May 22, 2000, p. 11.
[5] TSN, July 5, 2000, p. 8.
[6] TSN, November 13, 2000, p. 7.
[7] Record, p. 15.
[8] Id at 1.
[9] Supra note 2 at 56-57.
[10] Supra note 1 at 30-31.
[11] Rollo, p. 7.
[12] People
v. Victor, G.R. No. 127904, December 5, 2002, 393 SCRA 472, 485.
[13]
G.R. No. 157718, April 26, 2005, 457
SCRA 282, 292.
[14] Supra note 1 at 27.
[15]
[16] Supra note 12.
[17] Record, p. 114; TSN, July 19, 2000, pp. 6, 15-16.
[18] People v. Candaza, G.R. No. 170474, June 16, 2006, 491 SCRA 282, 298.
[19] People v. Casitas, Jr., 445 Phil. 407, 427 (2003).
[20] G.R. No. 112459, March 28, 2003, 400 SCRA
48, 65.
[21] Act No. 4103, as amended.
[22]
People v.
Castillo,
G.R. No. 131200, February 15, 2002, 377 SCRA 99, 115.
[23] G.R. No. 137842, August 23, 2001, 363 SCRA 621,636.
[24] G.R. Nos. 139187-94 (140427-34), November 27, 2002, 393 SCRA 100, 111-112.