Republic of the
Supreme Court
THIRD DIVISION
|
PEOPLE OF THE Plaintiff-Appellee, - versus - AVELINO SUBESA y MOSCARDON, Accused-Appellant. |
|
G.R. No. 193660 Present: VELASCO, JR., J., Chairperson, BERSAMIN,* ABAD, MENDOZA, JJ. Promulgated: November 16, 2011 |
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D E C I S I O
N
MENDOZA, J.:
The perpetuation by a father of his lecherous passion on his
four (4) guileless daughters can be considered the most perverted form of
sexual felony a man can commit. In committing incestuous rape, man reduces
himself into a creature lower than the lowliest beast.[1]
For final review is the
October 19, 2009 Decision[2] and the April 14, 2010 Resolution[3] of the Court
of Appeals (CA) in CA-G.R. CR H.C. No. 03406, affirming with
modification the April 30, 2008 Joint
Decision[4]
of the Regional Trial Court, Angeles City, Pampanga, Branch 60 (RTC), which
found accused Avelino Subesa y Moscardon (Subesa) guilty beyond reasonable doubt of
having committed dastardly perversions against his four (4) daughters: AAA,
BBB, CCC, and DDD.[5]
On
CRIMINAL
CASE NO. 01-246:
(Acts
of Lasciviousness in Relation to R.A. No. 7610)
That on several occasions in the
year 1999, in the City of Angeles, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with lewd designs and by means
of force and intimidation did then and there willfully, unlawfully and
feloniously commit acts of lasciviousness upon the person of AAA, an 8-year old
minor, by touching the private organs of the said complainant and by inserting
his finger into the vagina of the complainant, AAA, by means of force and
against the will of the said complainant. That accused is the father of the
complainant.
ALL CONTRARY TO LAW.
CRIMINAL
CASE NO. 01-247:
(Rape
in Relation to R.A. No. 7610)
That sometime in the year 1996, in
the City of Angeles, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs and taking advantage of the
innocence and tender age of the victim, did, then and there willfully,
unlawfully and feloniously by means of threats and intimidation have carnal
knowledge with one BBB, being then 9 years old, by inserting his penis into the
vagina of the complainant BBB, against her will and consent. That accused is
the father of the complainant.
ALL CONTRARY TO LAW.
CRIMINAL
CASE NO. 01-248:
(Acts
of Lasciviousness in Relation to R.A. No. 7610)
That sometime in the year 1995, in
the City of Angeles, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs and by means of force and
intimidation did then and there willfully, unlawfully and feloniously commits
acts of lasciviousness upon the person of BBB, a (sic) 8 year old minor, by
touching the private parts of the complainant BBB, by means of force and
against the will of the said complainant. That accused is the father of the
complainant.
ALL CONTRARY TO LAW.
CRIMINAL
CASE NO. 01-249:
(Rape
in Relation to R.A. No. 7610)
That sometime in the year 1993, in
the City of Angeles, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs and taking advantage of the
innocence and tender age of the victim, did, then and there willfully,
unlawfully and feloniously by means of threats and intimidation have carnal
knowledge with one CCC, being then 11 years old, by inserting his penis into
the vagina of the complainant CCC, against her will and consent. That accused
is the father of the complainant.
ALL CONTRARY TO LAW.
CRIMINAL
CASE NO. 01-250:
(Rape
in Relation to R.A. No. 7610)
That on or about the 4th day of
October, 1998, in the City of Angeles, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, with lewd designs and taking
advantage of the innocence and tender age of the victim, did, then and there
willfully, unlawfully and feloniously by means of threats and intimidation have
carnal knowledge with one DDD, a girl of 9 years of age, by inserting his penis
into the vagina of the complainant DDD, against her will and consent. That
accused is the father of the complainant.
ALL CONTRARY TO LAW.
Upon arraignment, Subesa, assisted by counsel, pleaded not
guilty to all the charges. The criminal
actions were then jointly tried. In the
course of the trial, the prosecution presented the testimonies of the private
complainants AAA, BBB, CCC, DDD, their mother, EEE, and Dr. Josiah Joma
Espanta. For its part, the defense presented the sole testimony of Subesa.
The respective versions
of the prosecution and the defense, as summarized by the CA in its assailed
Decision read:
CCC was seventeen (17) years old and
in first year college at the time she testified. She narrated that in 1993, she
was then eleven (11) years old and living with his father, mother, sisters and
brothers. They are nine (9) in the family, four (4) boys and five (5) girls
including herself. When their mother was out working as a laundrywoman, she was
left with her younger sisters while her brothers were in school. Sometime in
1993, she was outside when her father, accused-appellant Avelino Subesa, called
her inside the room. He closed the door and took off his pants. She got scared
but did not do anything because she was still young then. She was standing when
her father removed her shorts and panty. He went on top of her. He threatened
to kill her mother if she told anybody about him raping her. She could not
remember whether it was during that time when he was able to insert his penis
or on the subsequent incidents. Her father did it to her every time he had a
chance, especially when her brothers and mother were out of the house. He
either embraced or raped her. She felt pain when his penis touched her vagina.
She could not remember if her vagina bled during the first time. She did not
tell her mother because of fear that her mother, who was always being mauled by
her father, would be killed.
In the year 2000, she found out that
her father was also raping her three (3) sisters, DDD, BBB and AAA. That was
the time she decided to tell her mother what her father was doing to her.
One time, her father did not know that
she saw him call her younger sister to the bedroom. She went to her older sister and told her what
their father was doing to them. When she was in Grade VI, she stayed outside
and ran away whenever he called her. Their father inflicted injuries on them
whenever they commit even slight mistakes. She was examined by a doctor and was
issued a medical certificate. She executed a Sinumpaang Salaysay dated
AAA was already eleven (11) years
old and in Grade V when she testified on
In another occasion, she was alone
in her old room playing with her doll when accused-appellant went inside and
sat beside her. She was told to stand up and he pulled her shorts and panty
down to her knees. He was standing behind slightly bent forward when he placed
his hand on her private part and inserted his finger into her vagina. She felt
pain but she did not tell her father because he would get angry. He said he would
kill them all if she told anyone of what he did to her. When someone knocked on
the door, her father stopped and told her to put on her shorts and left the
room. She saw her brother but they did not say anything to each other.
One day, she was alone in the room
of her sister CCC playing with her doll. Accused-appellant entered and told her
to stop playing. He also told her to remove her shorts and panty. While her
father was seated on a wooden bed, he inserted his finger (right hand) into her
vagina. Her father did not say anything. She felt the pain but did not tell her
father because she was afraid that he would get mad at her. When her brother
knocked at the door, her father stopped and told her to put on her shorts back.
There were also times when her father beat her using his belt whenever he
called them and they did not immediately approach him. They were afraid of
their father because he also beat up their mother by kicking and slapping her.
She was examined by a doctor who submitted a medical certificate indicating
that there were lacerations of her hymen. She also executed Sinumpaang
Salaysay which she identified in open court.
BBB was already sixteen (16) years
old when she testified. The first time she was touched by accused-appellant was
in 1993 when she was in Grade III but she could not recall where. In 1995, she
was eight (8) years old when her father touched her again for the second time.
She was in the bedroom with CCC when he touched her private parts. She could
not recall how many times she was touched but she remembered that he went
inside their bedroom when her mother was working. They were lying down while
their father was seated between them with his clothes on. In 1996, he was in
the bathroom naked and he removed her clothes. He then inserted his penis into
her vagina. The bathroom was closed and she did not shout because her father
threatened to kill them. On
DDD was already twelve (12) years
old when she testified. On
The mother of the victims testified
that the first time she was informed of the rape was on
Dr. Josiah Joma Espanta testified
that on
For his part, accused Avelino Subesa
testified that prior to the filing of the cases, he was a security guard from
the years 1998 to 2000. He has nine (9) children. He has a son living in Sta.
Rita,
After the trial, the RTC found the testimonies of the
private complainants to be straightforward as they lacked any ill motive to
testify against their very own father.[6] Taking
into consideration the aggravating circumstances of relationship and minority without
any mitigating circumstance, the trial court disposed of the cases against Subesa
in the following manner:
WHEREFORE, finding the guilt of the
accused Avelino Subesa to have been proved beyond reasonable doubt and there
being aggravating circumstances of relationship (accused being the father of the
victims) and minority without the presence of any mitigating circumstance to
offset the same, the Court hereby sentences said accused:
1. In Crim. Case No.
01-246 for Acts of Lasciviousness in relation to RA 7610, to a penalty of
reclusion temporal in its medium period.
2. In Crim. Case No.
01-247 for Rape (Violation of Art. 334, RPC, as amended by RA 7659 in relation
to RA 7610) to a penalty of reclusion perpetua.
3. In Crim. Case No.
01-248 for Acts of Lasciviousness in relation to RA 7610 to a penalty of
reclusion temporal in its medium period.
4. In Crim. Case No. 01-249
for Rape (Violation of Art. 334, RPC, as amended by RA 7659 in relation to RA
7610) to a penalty of reclusion perpetua.
5. In Crim. Case No.
01-250 for Rape (Violation of Art. 334, RPC, as amended by RA 7659 in relation
to RA 7610) to a penalty of reclusion perpetua.
Accused is ordered to indemnify each
victim in each case the amount of ₱75,000.00 and moral
damages in the amount of ₱75,000.00.
SO
ORDERED.
As the RTC did, the CA[7] found Subesa
guilty of sexually abusing his daughters. With respect to Criminal Case No.
01-246, however, the CA stated that the crime committed by the accused was
Rape through Sexual Assault under Article 266-A (2) of the Revised Penal Code
(RPC) when he inserted his finger into AAAs vagina. According to the CA, it is of no moment that
the designation of the offense was Acts of Lasciviousness in Relation to R.A.
No. 7610, since the recital of facts in the Information sufficiently apprised Subesa
of the nature of the charge against him. The CA also modified the penalty imposed by
the RTC on Subesa in the said case. Thus, affirming with modification the Joint
Decision of the RTC, the CA disposed:
WHEREFORE, the Joint Decision of the Regional
Trial Court of Angeles City, Pampanga, Branch 60, dated April 30, 2008 and
promulgated on May 21, 2008 is hereby AFFIRMED with MODIFICATIONS as follows: 1) In Criminal Case No. 01-246, accused-appellant
is found guilty beyond reasonable doubt of Rape through Sexual Assault under
paragraph 2 of Article 266-A of the Revised Penal Code, as amended, and he is
hereby sentenced to suffer the indeterminate penalty of twelve (12) years of prision
mayor, as minimum, to twenty (20) years of reclusion temporal, as
maximum; and 2) In Criminal Case No. 01-248, accused-appellant is hereby
sentenced to suffer the indeterminate
penalty of twelve (12) years and one (1) day of reclusion temporal minimum,
as minimum, to seventeen (17) years of reclusion temporal medium, as
maximum.
In its Resolution[8] dated
After carefully going over the
records of the case, the Court sustains the
assailed Decision of the CA, albeit with modification as to the penalties
imposed.
In almost all cases of sexual abuse, the
credibility of the victims testimony is crucial in view of the intrinsic
nature of the crime where only the persons involved can testify as to its
occurrence. In
this case, the Court finds no reason to disturb the findings of the RTC, as affirmed
by the CA. Time and
again, the Court has emphasized that the manner of assigning values to
declarations of witnesses at the witness stand is best and most competently
performed by the trial judge who has the unique and unmatched opportunity to
observe the demeanor of witnesses and assess their credibility. In essence,
when the question arises as to which of the conflicting versions of the
prosecution and the defense is worthy of belief, the assessment of the trial
court is generally given the highest degree of respect, if not finality. The assessment made by the trial court is
even more enhanced when the CA affirms the same, as in this case.[11]
The Court finds that the prosecution successfully proved
beyond reasonable doubt the charges of rape and acts of lasciviousness against Subesa.
All his four children positively identified him as their molester. In rape cases, the accused may be convicted solely
on the testimony of the victim, provided it is credible, convincing, and
consistent with human nature and the normal course of things.[12] Its examination of the records shows no
indication that the Court should view the testimony of the private complainants
in a suspicious light.
The defense
of denial interposed by Subesa cannot prevail over the positive testimony of
his children. Denial is one of the weakest of all defenses
because it is easy to concoct and fabricate.[13] To be believed,
denial must be supported by a strong evidence of innocence; otherwise, it is regarded
as purely self-serving. In this regard, the Court notes the ratiocination
by the trial court. Thus:
Accused did not refute
these charges by any independent evidence other than his mere denial. Other than
his assertion in reference to what happened to his children CCC and DDD where
he wanted to show that something may have happened to them and his verbal
denial of the charges, accused failed to show any convincing proofs that he did
not commit these acts charged against him by his own daughters. Though he
asserted that something may have happened to CCC sometime in 1996, he did not
categorically state what particularly happened to her. He declared that he
allegedly told his wife to report the matter to the police or for her daughter to
submit to the doctor for examination, but he did not state what his suspicions
were which would require the attention or help of the police or doctor. He did
not make any move to actually bring his daughter CCC to a doctor on his
suspicion that something may have happened to her. To the mind of the Court,
this is just a weak attempt on his part to exculpate himself from the charges
filed against him by his daughters. He wanted to project himself as a caring
and protective father who almost always quarrelled with his wife as the latter
did not take care of their children. Yet, in this instance, he did not do
anything except to tell his wife to talk with their daughter CCC on why she was
missing on that one morning and arriving at home late in the afternoon and as
if in a state of shock. He also admitted inflicting physical injuries against his
wife allegedly in defense of his children who had no food on the table prepared
by his wife. He declared that his suggestions were not heeded or followed by
his wife who allegedly just told him to just concentrate on their work. All
these are mere attempts of the accused to evade answering the charges filed
against him by his daughter.
Accused failed to refute
the charges of sexual molestations filed against him by his four (4) daughters.
He failed to state any ill motive on the part of their daughters which made
them file these cases. On the contrary, his children even kept to themselves
the sexual abuses committed against them by their father for fear that he would
carry out his threat to kill them once they told their mother or anybody about
his vicious acts. In fact, CCC was willing to keep to herself the harrowing
experience she had with her father until she learned that she was not the only
one being abused by her father. It was only when CCC saw h[er] sister DDD
entering the room, upon being summoned by the accused, that her suspicion was
confirmed that her other sister was also being sexually abused by the accused.
It was also during that fateful day of confrontation when CCC and her mother
came to know that DDD, BBB and AAA were also victims of sexual abuses by their
very own father. xxx
It
has been repeatedly held that a young girls revelation that she had been
raped, coupled with her voluntary submission to a medical examination and
willingness to undergo public trial where she could be compelled to give out
the details of an assault on her dignity, cannot be so easily dismissed as mere
concoction.[14] When a woman or a girl-child says that she
was raped, she says in effect all that is necessary to show that rape has
indeed been committed.[15]
In imposing the penalty of reclusion perpetua in
Criminal Case Nos. 01-247, 01-249 and 01-250, however, the courts below failed to qualify
that the penalty of reclusion
perpetua is without eligibility for parole as held in the case of People v. Antonio Ortiz.[16] This should be rectified.
As regard Criminal Case No. 01-246, the
Court agrees with the CA in its ruling that the crime committed was Rape
through Sexual Assault under Article 266-A (2) of the RPC and not Acts of
Lasciviousness in relation to R.A. No. 7610. The very definition of Rape
through Sexual Assault under Article 266-A (2) or the Anti-Rape Law of 1997,
specifically includes the insertion of any instrument into the genital orifice
of another person. It has also been settled that 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.[17]
The Court, however, modifies the
penalty imposed in Criminal Case No. 01-246. Under Article 266-B of the RPC, the penalty for rape by sexual assault is reclusion temporal. In Criminal Case No.
01-246, the aggravating/qualifying circumstances of minority and relationship
are present, considering that the rape was committed by a parent against his
minor child. The penalty of 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, no other aggravating
circumstance was alleged and proven. Hence, the penalty shall be imposed in its
medium period, or from fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months. [18]
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. Thus, the Court modifies the penalty and deems as proper the
indeterminate penalty of imprisonment ranging from ten (10) years of prision
mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum.[19]
As for the civil liabilities imposed in
the said case, Subesa must pay civil indemnity of P30,000.00, moral damages of P30,000.00 and exemplary damages of P30,000.00.
As for Criminal Case No. 01-248, the
penalty imposed must likewise be modified. The appropriate imposable penalty
should be that provided in Section 5 (b), Article III of Republic Act (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. Therefore, Subesa
should be meted the indeterminate penalty of imprisonment ranging from thirteen
(13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen (16)
years and five (5) months and ten (10) days of reclusion temporal, as maximum.[20]
The same must be said with respect to the
civil liabilities of the accused in the said case. For Acts of Lasciviousness
in relation to R.A. 7610, jurisprudence[21]
dictates that the following civil liabilities should be imposed: (1) a fine of P15,000.00; (2) civil indemnity of P20,000.00; (3) moral damages of P15,000.00; and (4) exemplary damages
of P15,000.00.
WHEREFORE,
the October 19, 2009 Decision of the Court of Appeals in CA-G.R. CR. H.C. No.
03406 is AFFIRMED WITH MODIFICATIONS. The accused, Avelino Subesa y
Moscardon, is hereby found:
1) GUILTY of Rape in Criminal
Case Nos. 01-247, 01-249 and 01-250. He is hereby sentenced, in each case, to
suffer the penalty of reclusion perpetua without eligibility for parole and
ordered to pay each victim civil indemnity of P75,000.00, moral damages of
P75,000.00 and exemplary damages
of P30,000.00.
2) GUILTY of Rape Through
Sexual Assault in Criminal Case No. 01-246. He is hereby sentenced to suffer
the indeterminate penalty of imprisonment ranging from ten (10) years prision mayor,
as minimum, to seventeen (17) years, four (4) months of reclusion temporal,
as maximum, and ordered to pay his victim civil indemnity of P30,000.00,
moral damages of P30,000.00 and exemplary damages of P30,000.00.
3) GUILTY of Acts of
Lasciviousness in relation to R.A. 7610 in Criminal Case No. 01-248. He is
hereby sentenced to suffer the indeterminate penalty of
imprisonment ranging from thirteen (13) years, nine (9) months and eleven (11)
days of reclusion temporal, as
minimum, to sixteen (16) years and five (5) months and ten (10) days of reclusion
temporal, as maximum, and ordered to pay his victim a fine of P15,000.00, civil indemnity of P20,000.00,
moral damages of P15,000.00, and exemplary damages of P15,000.00.
SO
ORDERED.
JOSE CATRAL
Associate Justice
WE CONCUR:
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson
LUCAS P.
BERSAMIN ROBERTO A. ABAD
Associate
Justice Associate Justice
JOSE
PORTUGAL PEREZ
Associate Justice
A T T E S T A T I O N
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 Courts Division.
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson,
Third Division
C E R T I F I C A T I O N
Pursuant to Section 13,
Article VIII of the Constitution and the Division Chairpersons Attestation, I
certify 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
Courts Division.
RENATO
C. CORONA
Chief Justice
* Designated as additional member in lieu of
Associate Justice Diosdado M. Peralta, per Raffle dated
**
Designated as additional member in lieu of Associate Justice Estela M.
Perlas-Bernabe, per Special Order No. 1152 dated
[1] See People v. Sangil, Sr., 342 Phil. 499, 502 (1997).
[2] Penned by Associate Justice Martin S. Villarama, Jr. (now an Associate Justice of the Court), with Associate Justice Magdangal M. De Leon and Associate Justice Ricardo R. Rosario, concurring; rollo, pp. 2-23.
[3] Rollo, p. 28.
[4] CA rollo, pp. 14-28.
[5] The Court shall use fictitious initials in lieu of the real names and circumstances of the victim and the latter's immediate family members other than accused-appellant. See People v. Gloria, G.R. No. 168476, September 27, 2006, 503 SCRA 742; citing Sec. 29 of Republic Act (R.A.) No. 7610, Sec. 44 of R.A. No. 9262, and Sec. 40 of the Rule on Violence Against Women and Their Children; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
[6] CA rollo, p. 26.
[7] Supra, note 2.
[8] Rollo, p. 30.
[9]
[10]
[11]
People v. Espino, Jr., G.R. No. 176742,
[12]
People v. Glivano, G.R. No. 177565,
[13]
People v. Ayade, G.R. No. 188561,
[14]People v. Cabillan, 334 Phil. 912 (1997); People v. Gaban, 331 Phil. 87 (1996); People v. Derpo, 250 Phil. 447 (1988); and People v. Molas, 350 Phil. 333 (1998).
[15]People v. Diaz, 338 Phil. 219, 230 (1997).
[16]G. .R.
No. 179944,
[17]
Flordeliz v. People, G.R. No. 186441,
[18]
People v. Bonaagua, G.R. No.
188897,
[19]
[20]
[21]
People v. Fragante, G.R. No. 182521,