Spl-arson.docx

G.R. No. 226679

In its Comment or Opposition dated June 27, 2016, the prosecution moved for the denial of the motion for being contrary to Section 23 of R.A. No. 9165, which is said to be justified by the Congress' prerogative to choose which offense it would allow plea bargaining. Later, in a Comment or Opposition dated June 29, 2016, it manifested that it "is open to the Motion of the accused to enter into plea bargaining to give life to the intent of the law as provided in paragraph 3, Section 2 of [R.A. No.] 9165, however, with the express mandate of Section 23 of [R.A. No.] 9165 prohibiting plea bargaining, [it] is left without any choice but to reject the proposal of the accused." 6

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner, vs. HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City, Albay, and PEOPLE OF THE PHILIPPINES, Respondents. DECISION

7

On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3, Legazpi City, Albay, issued an Order denying Estipona's motion. It was opined:

PERALTA, J.: Challenged in this petition for certiorari and prohibition is the constitutionality of Section 23 of Republic Act (R.A.)No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002, " which provides: 1

2

SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. 3

The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining, encroaches on the exclusive constitutional power of the Supreme Court to promulgate rules of procedure because plea bargaining is a "rule of procedure." Indeed, plea bargaining forms part of the Rules on Criminal Procedure, particularly under Rule 118, the rule on pre-trial conference. It is only the Rules of Court promulgated by the Supreme Court pursuant to its constitutional rule-making power that breathes life to plea bargaining. It cannot be found in any statute.

The facts are not in dispute. Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for violation of Section 11, Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information alleged: That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any regulated drug and without the corresponding license or prescription, did then and there, willfully, unlawfully and feloniously have, in his possession and under his control and custody, one (1) piece heat-sealed transparent plastic sachet marked as VOP 03/21/16- l G containing 0.084 [gram] of white crystalline substance, which when examined were found to be positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug. CONTRARY TO LAW.

Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it, in effect, suspends the operation of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of the mandatory pre-trial conference in criminal cases. The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A. No. 9165, to rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases of use of illegal drugs because plea bargaining is disallowed. However, by case law, the Supreme Court allowed rehabilitation for accused charged with possession of paraphernalia with traces of dangerous drugs, as held in People v. Martinez, G.R. No. 191366, 13 December 2010. The ruling of the Supreme Court in this case manifested the relaxation of an otherwise stringent application of Republic Act No. 9165 in order to serve an intent for the enactment of the law, that is, to rehabilitate the offender.

4

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining Agreement, praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Section 12, Article II of R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-time offender and the minimal quantity of the dangerous drug seized in his possession. He argued that Section 23 of R.A. No. 9165 violates: (1) the intent of the law expressed in paragraph 3, Section 2 thereof; (2) the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution; and (3) the principle of separation of powers among the three equal branches of the government. 5

Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of Sec. 23 of R.A. No. 9165, which bars plea bargaining as unconstitutional because indeed the inclusion of the provision in the law encroaches on the exclusive constitutional power of the Supreme Court. While basic is the precept that lower courts are not precluded from resolving, whenever warranted, constitutional questions, the Court is not unaware of the admonition of the Supreme Court that lower courts must observe a becoming modesty in examining constitutional questions. Upon which admonition, it is thus not for this lower court to declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential ramifications that such declaration might have on the prosecution of illegal drug cases pending before this judicial station. 8

Estipona filed a motion for reconsideration, but it was denied in an Order dated July 26, 2016; hence, this petition raising the issues as follows: 9

Likewise, matters of procedure and technicalities normally take a backseat when issues of substantial and transcendental importance are present. We have acknowledged that the Philippines' problem on illegal drugs has reached "epidemic," "monstrous," and "harrowing" proportions, and that its disastrously harmful social, economic, and spiritual effects have broken the lives, shattered the hopes, and destroyed the future of thousands especially our young citizens. At the same time, We have equally noted that "as urgent as the campaign against the drug problem must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the accused as mandated by the Constitution x x x who, because of excessive zeal on the part of the law enforcers, may be unjustly accused and convicted." Fully aware of the gravity of the drug menace that has beset our country and its direct link to certain crimes, the Court, within its sphere, must do its part to assist in the all-out effort to lessen, if not totally eradicate, the continued presence of drug lords, pushers and users. 12

13

I.

14

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING IN ALL VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.

15

II. WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT ENCROACHED UPON THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE.

16

Bearing in mind the very important and pivotal issues raised in this petition, technical matters should not deter Us from having to make the final and definitive pronouncement that everyone else depends for enlightenment and guidance. When public interest requires, the Court may brush aside procedural rules in order to resolve a constitutional issue. 17

III.

18

WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL. 10

We grant the petition. PROCEDURAL MATTERS The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the petition should be dismissed outright for being procedurally defective on the grounds that: (1) the Congress should have been impleaded as an indispensable party; (2) the constitutionality of Section 23 of R.A. No. 9165 cannot be attacked collaterally; and (3) the proper recourse should have been a petition for declaratory relief before this Court or a petition for certiorari before the RTC. Moreover, the OSG argues that the petition fails to satisfy the requisites of judicial review because: (1) Estipona lacks legal standing to sue for failure to show direct injury; (2) there is no actual case or controversy; and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the case. On matters of technicality, some points raised by the OSG maybe correct. Nonetheless, without much further ado, it must be underscored that it is within this Court's power to make exceptions to the rules of court. Under proper conditions, We may permit the full and exhaustive ventilation of the parties' arguments and positions despite the supposed technical infirmities of a petition or its alleged procedural flaws. In discharging its solemn duty as the final arbiter of constitutional issues, the Court shall not shirk from its obligation to determine novel issues, or issues of first impression, with far-reaching implications.

x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a necessary complement of its power to promulgate the same. Barnes v. Hon. Quijano Padilla discussed the rationale for this tenet, viz. : Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflect this principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself has already declared to be final, x x x. The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities. Time and again, this Court has consistently held that rules must not be applied rigidly so as not to override substantial justice. 19

SUBSTANTIVE ISSUES Rule-making power Court under the 1987 Constitution

of

the

1âwphi1

Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides: Sec. 5. The Supreme Court shall have the following powers:

11

xxxx

Supreme

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and no longer shared with the Executive and Legislative departments. In Echegaray v. Secretary of Justice, then Associate Justice (later Chief Justice) Reynato S. Puno traced the history of the Court's rule-making power and highlighted its evolution and development. 20

authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x x x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:

21

x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as champions of justice." Hence, our Constitutions continuously vested this power to this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides: "Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines." The said power of Congress, however, is not as absolute as it may appear on its surface. In In re: Cunanan Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 which considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71 % in the 1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these departments would be a clear usurpation of its function, as is the case with the law in question." The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other

xxxx "Sec. 5. The Supreme Court shall have the following powers. xxxx (5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights." Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar. The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides: xxxx "Section 5. The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. "

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the .first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. x x x.

The separation of powers among the three co-equal branches of our government has erected an impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this Court. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by the Court. Viewed from this perspective, We have rejected previous attempts on the part of the Congress, in the exercise of its legislative power, to amend the Rules of Court (Rules), to wit:

Just recently, Carpio-Morales v. Court of Appeals (Sixth Division) further elucidated:

1. Fabian v. Desierto -Appeal from the decision of the Office of the Ombudsman in an administrative disciplinary case should be taken to the Court of Appeals under the provisions of Rule 43 of the Rulesinstead of appeal by certiorari under Rule 45 as provided in Section 27 of R.A. No. 6770.

22

23

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design, vested unto Congress, the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs exclusively to this Court.Section 5 (5), Article VIII of the 1987 Constitution reads:

25

26

27

2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. - The Cooperative Code provisions on notices cannot replace the rules on summons under Rule 14 of the Rules. 28

xxxx In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making authority, which, under the 1935 and 1973 Constitutions, had been priorly subjected to a power-sharing scheme with Congress. As it now stands, the 1987 Constitution textually altered the old provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the Framers' vision of institutionalizing a " [ s] tronger and more independent judiciary." The records of the deliberations of the Constitutional Commission would show that the Framers debated on whether or not the Court's rulemaking powers should be shared with Congress. There was an initial suggestion to insert the sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court," right after the phrase "Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word "[under]privileged," place a comma(,) to be followed by "the phrase with the concurrence of the National Assembly." Eventually, a compromise formulation was reached wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the phrase with the concurrence of the National Assembly." The changes were approved, thereby leading to the present lack of textual reference to any form of Congressional participation in Section 5 (5), Article VIII, supra. Theprevailing consideration was that "both bodies, the Supreme Court and the Legislature, have their inherent powers." Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading, practice, and procedure.x x x. 24

3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes; In Re: Exemption of the National Power Corporation from Payment of Filing/Docket Fees; and Rep. of the Phils. v. Hon. Mangotara, et al. - Despite statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from the payment of legal fees imposed by Rule 141 of the Rules. 29

30

31

32

4. Carpio-Morales v. Court of Appeals (Sixth Division) - The first paragraph of Section 14 of R.A. No. 6770, which prohibits courts except the Supreme Court from issuing temporary restraining order and/or writ of preliminary injunction to enjoin an investigation conducted by the Ombudsman, is unconstitutional as it contravenes Rule 58 of the Rules. 33

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion to amend, repeal or even establish new rules of procedure, to the exclusion of the legislative and executive branches of government. To reiterate, the Court's authority to promulgate rules on pleading, practice, and procedure is exclusive and one of the safeguards of Our institutional independence. 34

Plea bargaining in criminal cases Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the 1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated: SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the fiscal, may plead guilty of any lesser offense than that charged which is necessarily included in the offense charged in the complaint or information. When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118 (Pleas). Subsequently, with the effectivity of the 1âwphi1

1985 Rules on January 1, 1985, the provision on plea of guilty to a lesser offense was amended. Section 2, Rule 116 provided:

said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment of the complaint or information is necessary. (4a, R-118)

RULE 118 (Pre-trial):

As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule 118 mandated:

SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan,Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:

SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:

(a) plea bargaining;

(a) Plea bargaining;

(b) stipulation of facts;

(b) Stipulation of facts;

(c) marking for identification of evidence of the parties;

(c) Marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(d) Waiver of objections to admissibility of evidence; and

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(e) Such other matters as will promote a fair and expeditious trial. (n) The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule 116 was modified in 1987. A second paragraph was added, stating that "[a] conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of double jeopardy." When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted, Section 2, Rule 118 of the Rules was substantially adopted. Section 2 of the law required that plea bargaining and other matters that will promote a fair and expeditious trial are to be considered during pre-trial conference in all criminal cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan. 35

36

Currently, the pertinent rules on plea bargaining under the 2000 Rules are quoted below:

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2 & 3, Cir. 38-98) Plea bargaining is a rule of procedure The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation of substantive rights, i.e., the former should not diminish, increase or modify the latter. "Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the right and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtain redress for their invasions." Fabian v. Hon. Desierto laid down the test for determining whether a rule is substantive or procedural in nature. 38

39

40

37

RULE 116 (Arraignment and Plea): SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to

It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. It is admitted that what is procedural and what is substantive is frequently a question of great difficulty. It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure.

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more difficult. The accused may become a fugitive from justice or commit another crime. The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime.

41

In several occasions, We dismissed the argument that a procedural rule violates substantive rights. For example, in People v. Lacson, Section 8, Rule 117 of the Rules on provisional dismissal was held as a special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that its expiration operates to extinguish the right of the State to prosecute the accused. Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined: 42

43

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice. The petitioners failed to show a manifest shortness or insufficiency of the time-bar. The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en banc primarily to enhance the administration of the criminal justice system and the rights to due process of the State and the accused by eliminating the deleterious practice of trial courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused or jointly, either with no time-bar for the revival thereof or with a specific or definite period for such revival by the public prosecutor. There were times when such criminal cases were no longer revived or refiled due to causes beyond the control of the public prosecutor or because of the indolence, apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the accused despite the mandate to public prosecutors and trial judges to expedite criminal proceedings. It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which dominant cases have been known to expire.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of the accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and his family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues to suffer those penalties and disabilities incompatible with the presumption of innocence. He may also lose his witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to defend himself and thus eschew the fairness of the entire criminal justice system. The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. 44

Also, We said in Jaylo, et al. v. Sandiganbayan, et al. that Section 6, Rule 120 of the Rules, which provides that an accused who failed to appear at the promulgation of the judgment of conviction shall lose the remedies available against the judgment, does not take away substantive rights but merely provides the manner through which an existing right may be implemented. 45

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted accused to avail of the remedies under the Rules. It is the failure of the accused to appear without justifiable cause on the scheduled date of promulgation of the judgment of conviction that forfeits their right to avail themselves of the remedies against the judgment. It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the substantive rights of petitioners. It only works in pursuance of the power of the Supreme Court to "provide a simplified and inexpensive procedure for the speedy disposition of cases." This provision protects the courts from delay in the speedy disposition of criminal cases - delay arising from the simple expediency of nonappearance of the accused on the scheduled promulgation of the judgment of conviction. 46

By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy disposition of cases in all courts that the rules on plea bargaining was introduced. As a way of disposing criminal charges by agreement of the parties, plea bargaining is considered to be an "important," "essential," "highly desirable," and "legitimate" component of the administration of justice. Some of its salutary effects include: 47

48

x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious - his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages - the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof. (Brady v. United States, 397 U.S. 742, 752 [1970]) Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. (Santobello v. New York, 404 U.S. 257, 261 [1971]) The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])

proof beyond reasonable doubt, and not to be compelled to be a witness against himself. 55

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than accepting a plea of guilty; the prosecutor need not do so if he prefers to go to trial. Under the present Rules, the acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended party and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily included in the offense charged. The reason for this is that the prosecutor has full control of the prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the evidence on hand can sustain. 56

57

58

59

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such as government enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge. Because these decisions "are not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly hesitant to examine the decision whether to prosecute. " 60

The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead guilty to a lesser offense which is necessarily included in the offense charged. The word may denotes an exercise of discretion upon the trial court on whether to allow the accused to make such plea. Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as a matter of bargaining or compromise for the convenience of the accused. 61

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval." There is give-and-take negotiation common in plea bargaining. The essence of the agreement is that both the prosecution and the defense make concessions to avoid potential losses. Properly administered, plea bargaining is to be encouraged because the chief virtues of the system - speed, economy, and finality - can benefit the accused, the offended party, the prosecution, and the court. 49

62

50

51

52

Considering the presence of mutuality of advantage, the rules on plea bargaining neither create a right nor take away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. 53

The decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. In any case, whether it be to the offense charged or to a lesser crime, a guilty plea is a "serious and sobering occasion" inasmuch as it constitutes a waiver of the fundamental rights to be presumed innocent until the contrary is proved, to be heard by himself and counsel, to meet the witnesses face to face, to bail (except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong), to be convicted by 54

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution already rested its case. As regards plea bargaining during the pre-trial stage, the trial court's exercise of discretion should not amount to a grave abuse thereof. "Grave abuse of discretion" is a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility; it arises when a court or tribunal violates the Constitution, the law or existing jurisprudence. 63

64

65

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution rested its case, the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. The only basis on which the prosecutor and the court could rightfully act in allowing change in the former plea of not guilty could be nothing more and nothing less than the evidence on record. As soon as the prosecutor has submitted a comment whether for or against said motion, it behooves the trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea to the end that the interests of justice and of the public will be served. The ruling on the motion must disclose the strength or 66

67

weakness of the prosecution's evidence. Absent any finding on the weight of the evidence on hand, the judge's acceptance of the defendant's change of plea is improper and irregular. 68

69

On 9165 clause

whether violates

Section

23 the

of equal

R.A.

No. protection

At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the constitutional right to equal protection of the law in order not to preempt any future discussion by the Court on the policy considerations behind Section 23 of R.A. No. 9165. Pending deliberation on whether or not to adopt the statutory provision in toto or a qualified version thereof, We deem it proper to declare as invalid the prohibition against plea bargaining on drug cases until and unless it is made part of the rules of procedure through an administrative circular duly issued for the purpose. WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act No. 9165 is declared unconstitutional for being contrary to the rulemaking authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution.

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 inches in diameter. Rufino fell unconscious as Jesus fled. Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to help but someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had hit him. Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital. Dr. Albert Belleza issued a Medico-Legal Certificate[2] showing that Rufino suffered two lacerated wounds on the forehead, along the hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go home after initial treatment.

SO ORDERED.

ARNEL COLINARES, G.R. No. 182748 vs PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: December 13, 2011 x ---------------------------------------------------------------------------------------- x DECISION ABAD, J.:

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what distinguishes frustrated homicide from attempted homicide; and c) when an accused who appeals may still apply for probation on remand of the case to the trial court. The Facts and the Case The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.[1]

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and hid in his sisters house. On September 4, 2000, he voluntarily surrendered at the Tigaon Municipal Police Station. Diomedes testified that he, Rufino, Jesus, and Ananias attended a prewedding party on the night of the incident. His three companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel. On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in the absence of evidence to support it. [3] Not satisfied, Arnel comes to this Court on petition for review. In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prisioncorreccional, as maximum, he could still apply for probation upon remand of the case to the trial court. Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes out a new penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be entertained once the accused has perfected his appeal from the judgment of conviction. The Issues Presented The case essentially presents three issues: 1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone; 2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and 3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable penalty, whether or not he may still apply for probation on remand of the case to the trial court. The Courts Rulings One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when he hit Rufino back with a stone. When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the victim or inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing evidence. When successful, the otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused. [4]

In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the offender killed or injured committed unlawful aggression; (2) that the offender employed means that is reasonably necessary to prevent or repel the unlawful aggression; and (3) that the person defending himself did not act with sufficient provocation.[5] If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and the other two requisites of selfdefense would have no basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and unexpected attack or an imminent danger of such attack. A mere threatening or intimidating attitude is not enough. The victim must attack the accused with actual physical force or with a weapon.[6] Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated Arnels testimony that it was Rufino who started it. Arnels only other witness, Diomedes, merely testified that he saw those involved having a heated argument in the middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered injuries in the hands of Rufino and his companions.[7] In contrast, the three witnessesJesus, Paciano, and Ananiastestified that Arnel was the aggressor. Although their versions were mottled with inconsistencies, these do not detract from their core story. The witnesses were one in what Arnel did and when and how he did it. Compared to Arnels testimony, the prosecutions version is more believable and consistent with reality, hence deserving credence.[8] Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did not? The main element of attempted or frustrated homicide is the accuseds intent to take his victims life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent.[9] And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim.[10] Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted on his victim, the Court is convinced that he intended to kill him.

xxxx The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v. People,[11] we ruled that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely medical assistance, the crime is frustrated murder or frustrated homicide. If the victims wounds are not fatal, the crime is only attempted murder or attempted homicide. Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victims wounds. While Dr. Belleza testified that head injuries are always very serious,[12] he could not categorically say that Rufinos wounds in this case were fatal. Thus: Q: Doctor, all the injuries in the head are fatal? A: No, all traumatic injuries are potentially treated. Q: But in the case of the victim when you treated him the wounds actually are not fatal on that very day? A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient preferred to go home at that time. Q: The findings also indicated in the medical certificate only refers to the length of the wound not the depth of the wound? A: When you say lacerated wound, the entire length of the layer of scalp. Q: So you could not find out any abrasion? A: It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we always call it lacerated wound, but in that kind of wound, we did not measure the depth.[13] Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that he bled internally as a result of the pounding of his head. The wounds were not so deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza further testified: Q: So, in the medical certificate the wounds will not require surgery? A: Yes, Madam. Q: The injuries are slight? A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus the problem the contusion that occurred in the brain.

Q: What medical intervention that you undertake? A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds. Q: For how many days did he stay in the hospital? A: Head injury at least be observed within 24 hours, but some of them would rather go home and then come back. Q: So the patient did not stay 24 hours in the hospital? A: No, Your Honor. Q: Did he come back to you after 24 hours? A: I am not sure when he came back for follow-up.[14] Taken in its entirety, there is a dearth of medical evidence on record to support the prosecutions claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender. Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the RTC. Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.[15] Since Arnel appealed his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for probation. But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial

judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case. Secondly, it is true that under the probation law the accused who appeals from the judgment of conviction is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court. If the Court chooses to go by the dissenting opinions hard position, it will apply the probation law on Arnel based on the trial courts annulled judgment against him. He will not be entitled to probation because of the severe penalty that such judgment imposed on him. More, the Supreme Courts judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial courts judgmenteven if this has been found in error. And, worse, Arnel will now also be made to pay for the trial courts erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there? The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling of this Court in Francisco v. Court of Appeals[16] that the probation law requires that an accused must not have appealed his conviction before he can avail himself of probation. But there is a huge difference between Francisco and this case. In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral defamation and sentenced him to a prison term of one year and one day to one year and eight months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the acquittal did not come, he wanted probation. The Court would not of course let him. It served him right that he wanted to save his cake and eat it too. He certainly could not have both appeal and probation. The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before he can avail himself of probation. This requirement outlaws the element of speculation on the part of the accusedto wager on the result of his appealthat when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an escape hatch thus rendering nugatory the appellate courts affirmance of his conviction.[17]

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation. He was not in a position to say, By taking this appeal, I choose not to apply for probation. The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this Courts greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit their right to apply for that privilege. Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level where the law would allow him to apply for probation. In a real sense, the Courts finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum. This would have afforded Arnel the right to apply for probation. The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused.Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions.[18] As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to achieve its beneficent purpose.[19] One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed from the trial courts judgment of conviction would not be consistent with the provision of Section 2 that the probation law should be interpreted to provide an opportunity for the reformation of a penitent offender. An accused like Arnel who appeals from a judgment convicting him, it is claimed, shows no penitence. This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did

not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.

PHILIPPINES, Respondent. March 28, 2008

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender, defeating the very purpose of the probation law. At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable.

x--------------------------------------------------x

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when the new penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to probation? WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate penalty from four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, and to pay Rufino P. Buena the amount of P20,000.00 as moral damages, without prejudice to petitioner applying for probation within 15 days from notice that the record of the case has been remanded for execution to the Regional Trial Court of San Jose, Camarines Sur, in Criminal Case T-2213. SO ORDERED.

DANTE BUEBOS and G.R. No. 163938 SARMELITO BUEBOS, Petitioners, Present: AUSTRIA-MARTINEZ,* J., Acting Chairperson, - versus - TINGA,** CHICO-NAZARIO, NACHURA, and REYES, JJ. THE PEOPLE OF THE Promulgated:

DECISION

REYES, R.T., J.:

THE law on arson has always been a constant source of confusion not only among members of the bar, but also among those of the bench. The bewilderment often centers on what law to apply and what penalty to impose. In this case, the Court is again tasked to determine whether petitioners are liable for simple arson or arson of an inhabited house which merits a penalty of up to reclusion perpetua.

Before the Court is a petition to review on certiorari under Rule 45 the Decision[1] of the Court of Appeals (CA), affirming with modification that [2] of the Regional Trial Court in Tabaco, Albay, finding petitioners Dante Buebos and Sarmelito Buebos guilty of arson. The Facts On January 1, 1994 around 3:00 oclock in the morning, Adelina B. Borbe was in her house at Hacienda San Miguel, Tabaco, Albay watching over her sick child.[3] She was lying down when she heard some noise around the house. She got up and looked through the window and saw the four accused, Rolando Buela, Sarmelito Buebos, Dante Buebos and Antonio Cornel, Jr. congregating in front of her hut.[4] When she went out, she saw the roof of her nipa hut already on fire. She shouted for help. Instead of coming to her immediate succor, the four fled.[5] At some distance away, Olipiano Berjuela heard Adelina scream for help. Olipiano was then drinking with Pepito Borbe to celebrate New Years Eve. Olipiano immediately ran to the place and saw a number of people jumping over the fence. When he focused his flashlight on them, he was able to identify Sarmelito Buebos, Dante Buebos and Antonio Cornel, Jr. [6] He also saw Rolando Buela running away.[7] On complaint of Adelina, petitioners Dante and Sarmelito Buebos, together with Rolando Buela and Antonio Cornel, Jr., were indicted for arson in an Information bearing the following accusations:

SO ORDERED.[10] That on or about the 1st day of January, 1994 at 3:00 oclock in the Barangay Hacienda, Island of San Miguel, Municipality of Tabaco, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, with intent to cause damage, did then and there wilfully, unlawfully, feloniously and maliciously set on fire the nipa roof of the house of ADELINA B. BORBE, to the latters damage and prejudice.

Via a notice of appeal, the four accused elevated the matter to the appellate court. In their appeal, they contended that (1) the trial court erred in finding them guilty of the crime of arson; (2) that the trial court erred in finding conspiracy; and (3) the trial court erred in failing to give weight and credence to their defense of denial and alibi.

ACTS CONTRARY TO LAW.[8]

On November 13, 2003, through an eight-page decision penned by Associate Justice Eliezer R. de los Santos, the CA disposed of the appeal in this wise:

The prosecution evidence portraying the foregoing facts was principally supplied by private complainant Adelina Borbe and Olipiano Berjuela. Upon the other hand, denial and alibi were the main exculpating line of petitioners and their co-accused. The trial court summed up the defense evidence in the following tenor: The defense contended that the accused were at different places at the time of the incident; Rolando Buela claimed to be at sitio Tugon, Malictay, San Miguel, Tabaco, Albay as there was a novena prayer at his parents house on occasion of the death anniversary of his late grandfather; Dante Buebos also claimed to have been at Romeo Callejas having gone there in the evening of December 30, 1993 and left the place at 12:00 oclock noontime of January 1, 1994; Sarmelito Buebos asserted that he was at his residence at sitio Malictay, Hacienda, San Miguel, Tabaco, Albay on the day the incident happened and that he never left his house; Antonio Cornel, Jr. likewise claimed to be at his residence at Agas after having visited his in-laws; that he only came to know of the accusation five (5) days after the incident happened when he visited his parents at Malictay; witnesses were likewise presented by the accused to corroborate their testimonies.[9] RTC and CA Dispositions On April 7, 1998, the RTC found all of the accused guilty beyond reasonable doubt of arson. The dispositive part of the judgment of conviction reads:

WHEREFORE, from all the foregoing, this Court finds accused ROLANDO BUELA, DANTE BUEBOS, SARMELITO BUEBOS and ANTONIO CORNEL, JR. GUILTY beyond reasonable doubt for the crime charged; accordingly, each of the accused is hereby sentenced to suffer the indeterminate penalty ranging from six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum; and to pay the cost.

WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED with MODIFICATION. Each of the accused-appellant is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging from six (6) years of prision correccional as minimum to ten (10) years of prision mayor as maximum. SO ORDERED.[11] In downgrading the penalty, the CA opined that the accused could only be convicted of simple arson, punishable by prision mayor, and not for burning of an inhabited house, which is punishable by imprisonment ranging from reclusion temporal to reclusion perpetua. According to the appellate court, the information failed to allege with specificity the actual crime committed. Hence, the accused should be found liable only for arson in its simple form.[12]

Issues Dissatisfied, Dante and Sarmelito Buebos have resorted to the present recourse. The following arguments are now raised for the Courts consideration: I. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE; II. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR.[13] Our Ruling

Overview of the law on arson The confusion surrounding arson has been confounded by the dearth of annotation on this part of our penal law. Certainly, the law on arson is one of the least commented in this jurisdiction. For the guidance of the bench and bar, a brief legislative history of the body of laws on arson is in order. Previously, arson was defined and penalized under nine different articles of the Revised Penal Code: Article 320 (destructive arson), Article 321 (other forms of arson), Article 322 (cases of arson not included in the preceding articles), Article 323 (arson of property of small value), Article 324 (crimes involving destruction), Article 325 (burning ones own property to commit arson), Article 326 (setting fire to property exclusively owned by the offender, Article 326-a (in cases where death resulted as a consequence of arson), and Article 326-b (prima facie evidence of arson).

On March 7, 1979, citing certain inadequacies that impede the successful enforcement and prosecution of arsonists, then President Ferdinand E. Marcos issued Presidential Decree (P.D) No. 1613. P.D. 1613 supplanted the penal code provisions on arson. The pertinent parts of the said presidential issuance read: SECTION 1. Arson. Any person who burns or sets fire to the property of another shall be punished by prision mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another. SECTION 2. Destructive Arson. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed if the property burned is any of the following: 1. Any ammunition factory and other establishments where explosives, inflammable or combustible materials are stored; 2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services; 3. Any church or place of worship or other building where people usually assemble; 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property; 5. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings;

6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building; 7. Any building, whether used as a dwelling or not, situated in a populated or congested area. SECTION 3. Other Cases of Arson. The penalty of reclusion temporal to reclusion perpetua shall be imposed if the property burned is any of the following: 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; 5. Any rice mill, sugar mill, cane mill or mill central; and 6. Any railway or bus station, airport, wharf or warehouse. SECTION 4. Special Aggravating Circumstances in Arson. The penalty in any case of arson shall be imposed in its maximum period: 1. If committed with the intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons. SECTION 5. Where Death Results from Arson. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. SECTION 6. Prima Facie Evidence of Arson. Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building not necessary in the business of the offender nor for household use. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property.

4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 5. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. 6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of other person or property of the victim. SECTION 7. Conspiracy to Commit Arson. Conspiracy to commit arson shall be punished by prision mayor in its minimum period. SECTION 8. Confiscation of Object of Arson. The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on his part. On November 11, 1980, the law on arson was again revisited via P.D. No. 1744. The new law expanded the definition of destructive arson by way of reinstating Article 320 of the Revised Penal Code. The amendatory legislation also paved the way for the reimposition of the capital punishment on destructive arsonists. When Republic Act (R.A.) No. 7659 (An Act to Impose the Death Penalty on Certain Heinous Crimes) was passed on December 13, 1993, Article 320 again underwent a revision. As it now stands, Article 320 of the Revised Penal Code is worded, thus:

said building or edifice at the time it is set on fire and regardless also of whether the building is actually inhabited or not. 3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure. 4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. 5. Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. Irrespective of the application of the above enumerated qualifying circumstances, the penalty of reclusion perpetua to death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy the building or the burning merely constitutes an overt act in the commission or another violation of law. The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn: 1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance, storehouse, archives or general museum of the Government. 2. In an inhabited place, any storehouse or factory of inflammable or explosive materials. If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed. Of course, with the repeal of the Death Penalty Law on June 24, 2006 through R.A. No. 9346, arson is no longer a capital offense.[14] We proceed to the crux of the petition.

Art. 320. Destructive Arson. The penalty of reclusion perpetua to death shall be imposed upon any person who shall burn: 1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, committed on several or different occasions. 2. Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose such as, but not limited to, official governmental function or business, private transaction, commerce, trade, workshop, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyances or stops or terminals, regardless of whether the offender had knowledge that there are persons in

Circumstantial evidence points to petitioners culpability Petitioners score the CA for convicting them of arson based on circumstantial evidence. They argue that the inference that they were responsible for the burning of private complainants hut was not duly proven by the People. Circumstantial evidence is defined as that evidence that indirectly proves a fact in issue through an inference which the fact-finder draws from the evidence established. Resort thereto is essential when the lack of direct testimony would result in setting a felon free.[15] At the outset, We may well emphasize that direct evidence of the commission of a crime is not the only basis on which a court draws its finding

of guilt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction.[16] Verily, resort to circumstantial evidence is sanctioned by Rule 133, Section 5 of the Revised Rules on Evidence.[17] The following are the requisites for circumstantial evidence to be sufficient for a conviction: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been proven; and (c) the combination of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who has committed the crime. Thus, to justify a conviction based on circumstantial evidence, the combination of circumstances must be interwoven in such a way as to leave no reasonable doubt as to the guilt of the accused.[18] After a careful review of the evidence presented by both parties, We find that the circumstantial evidence extant in the records is sufficient to identify petitioners as the authors of the burning of the hut of private complainant Adelina Borbe: 1. Private complainant heard some noise emanating from outside her house at around 3:00 a.m.; 2. When she went out to check the disturbance, private complainant saw petitioners, together with their two other co-accused, standing in front of the house; 3. Moments later, the roof of her house caught fire; 4. Petitioners and their cohorts absconded while private complainant desperately shouted for help. The facts from which the cited circumstances arose have been proved through positive testimony.[19] Evidently, these circumstances form an unbroken chain of events leading to one fair conclusion the culpability of petitioners for the burning of the hut. The Court is convinced that the circumstances, taken together, leave no doubt that petitioner perpetrated the arson. Conspiracy evident from coordinated action of petitioners Petitioners next contend that conspiracy was erroneously appreciated by both the trial and appellate courts. They posit that the finding of conspiracy was premised on speculation and conjecture. The rule is well-entrenched in this jurisdiction that conspiracy exists when two or more persons come to an agreement concerning the commission of a

crime and decide to commit it. Proof of the agreement need not rest on direct evidence, as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. Corollarily, it is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. The rule is that conviction is proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common design. In such a case, the act of one becomes the act of all and each of the accused will thereby be deemed equally guilty of the crime committed. [20]

In the case at bench, conspiracy was evident from the coordinated movements of petitioners Dante and Sarmelito Buebos. Both of them stood outside the house of private complainant Adelina. They were part of the group making boisterous noise in the vicinity. Petitioners also fled together while the roof of Adelinas house was ablaze. These acts clearly show their joint purpose and design, and community of interest. We quote with approval the CA observation along this line: Accused-appellants assertion that conspiracy has not been established is belied by the accounts of the prosecution witness. The manner by which the accused-appellants behaved after the private complainant shouted for help clearly indicated a confederacy of purpose and concerted action on the part of the accused-appellants. Even if there is no direct evidence showing that all of the accused had prior agreement on how to set the roof of the house on fire, the doctrine is well settled that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Very seldom such prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing.[21] Crime committed and the penalty The RTC sentenced all four accused to an indeterminate penalty ranging from six (6) years and one day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. On appeal, the CA reduced the sentence to six (6) years of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. The CA ratiocinated: The information charges accused-appellants with violation of P.D. 1613 without specifying the particular provision breached. The information having failed to allege whether or not the burnt house is inhabited, and not having been established that the house is situated in a populated or congested area, accused-appellants should be deemed to have only been charged with plain

arson under Section 1 of the decree. Under Section 1 of the decree, the offense of simple arson committed is punishable by prision mayor.

There being neither aggravating nor mitigating circumstances in the case at bar accused-appellants should be sentenced to suffer the penalty of prision mayor in its medium period as provided under Article 321, paragraph 1 of the Revised Penal Code, as amended, by Presidential Decree No. 1613. Applying the Indeterminate Sentence Law, the minimum penalty should be anywhere within the range of prision correccional.[22] The legal basis of the trial court in convicting petitioners of arson is Section 3, paragraph 2 of P.D. No. 1613. The said provision of law reads: SECTION 3. Other Cases of Arson. The penalty of reclusion temporal to reclusion perpetua shall be imposed if the property burned is any of the following:

Under the new rules, the information or complaint must state the designation of the offense given by the statute and specify its qualifying and generic aggravating circumstances. Otherwise stated, the accused will not be convicted of the offense proved during the trial if it was not properly alleged in the information.[24] Perusing the information, there was no allegation that the house intentionally burned by petitioners and their cohorts was inhabited. Rather, the information merely recited that accused, conspiring, confederating and helping one another, with intent to cause damage, did then and there wilfully, unlawfully, feloniously and maliciously set on fire the nipa roof of the house of ADELINA B. BORBE, to the latters damage and prejudice.[25] Although the rule took effect only on December 1, 2000, while the petitioners were convicted by the RTC on April 7, 1998, it may be applied retroactively. It is elementary that rules of criminal procedure are given retroactive application insofar as they benefit the accused.[26]

xxxx 2. Any inhabited house or dwelling;

In fine, petitioners can be convicted only of simple arson, under Section 1, paragraph 1 of P.D. No. 1613, punishable by prision mayor.

The elements of this form of arson are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling.[23] Admittedly, there is a confluence of the foregoing elements here. However, the information failed to allege that what was intentionally burned was an inhabited house or dwelling. That is fatal.

This is not a case of first impression. This Court has, on a number of occasions, modified the RTC and CA judgments for having applied the wrong law and penalty on arson. In People v. Soriano,[27] the accused was found guilty of destructive arson, then a capital offense. On automatic review, the Court held that he should be held liable only for simple arson. The explanation:

Sections 8 and 9 of the 2000 Rules of Criminal Procedure state: 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 accusation. 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 for the court to pronounce judgment.

However, we believe that the applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and literally in favor of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar.

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of The Revised Penal Code constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. In the present case, the act committed by accused-appellant neither appears to be heinous nor represents a greater degree of perversity and viciousness as distinguished from those acts punishable under Art. 320 of the Revised Penal Code. No qualifying circumstance was established to convert the offense to Destructive Arson. The special aggravating circumstance that accused-appellant was motivated by spite or hatred towards the owner or occupant of the property burned cannot be appreciated in the present case where it appears that he was acting more on impulse, heat of anger or risen temper rather than real spite or hatred that impelled him to give vent to his wounded ego. Nothing can be worse than a spurned lover or a disconsolate father under the prevailing circumstances that surrounded the burning of the Cimagala house. Thus, accused-appellant must be held guilty of Simple Arson penalized under Sec. 3, par. 2, of PD 1613 for the act of intentionally burning an inhabited house or dwelling.[28]

Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. The classification of this type of crime is known as Destructive Arson, which is punishable by reclusion perpetua to death. The reason for the law is self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. [Emphasis supplied] If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed.

An oversight of the same nature was addressed by this Court in the more recent case of People v. Malngan.[29] Said the Court in Malngan:

On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments. Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied]

The ultimate query now is which kind of arson is accused-appellant guilty of?

To emphasize:

As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson, under Presidential Decree No. 1613. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused, 48 to wit:

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of the Revised Penal Code (as amended) constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent

or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. [Emphasis supplied.] Prescinding from the above clarification vis--vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused-appellant was charged with the crime of Simple Arson for having deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family x x x knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire. [Emphasis supplied] The facts of the case at bar is somewhat similar to the facts of the case of People v. Soriano. The accused in the latter case caused the burning of a particular house. Unfortunately, the blaze spread and gutted down five (5) neighboring houses. The RTC therein found the accused guilty of destructive arson under paragraph 1 of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through Mr. Justice Bellosillo, however, declared that: x x x [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and liberally in favor of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar.

As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa. Said conflagration likewise spread and destroyed seven (7) adjoining houses. Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly, of the crime of simple arson. Such is the case notwithstanding the error in the designation of the offense in the information, the information remains effective insofar as it states the facts constituting the crime alleged therein. What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violate, x x x but the description of the crime charged and the particular facts therein recited. There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is: SEC. 5. Where Death Results from Arson. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied] Accordingly, there being no aggravating circumstance alleged in the Information, the imposable penalty on accused-appellant is reclusion perpetua.[30] Now, to the penalty. Applying the Indeterminate Sentence Law, the maximum of the indeterminate penalty should range from six (6) years and one (1) day to twelve (12) years. Considering that no aggravating or mitigating circumstance attended the commission of the offense, the penalty should be imposed in its medium period [eight (8) years and one (1) day to ten (10) years]. The minimum of the indeterminate sentence is prision correccional, which has a range of six (6) months and one (1) day to six (6) years, to be imposed in any of its periods. The CA sentence is in accord with law and jurisprudence. We sustain it. WHEREFORE, the is AFFIRMED in full. SO ORDERED.

petition

is DENIED. The

appealed

judgment

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 182460 CONTRARY TO LAW.[3]

Present: - versus -

JESSIE VILLEGAS MURCIA, Accused-Appellant.

CARPIO, J., Chairperson, BRION, DEL CASTILLO, ABAD, and PEREZ, JJ.

Promulgated:

March 9, 2010 x------------------------------------------------------- - - - -x

Appellant was also charged in another Information for frustrated homicide, the accusatory portion reads: CRIMINAL CASE NO. 2980-BG That on or about the 24th day of March, 2004, in the Municipality of Bauang, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab with a knife one, Alicia Q. Manlupig inflicting upon the latter stab wounds, thus performing all the acts of execution which would produce the crime of homicide as a consequence, but nevertheless did not produce it be reason of causes independent of the will; that is, by the timely medical attendance rendered to said Alicia Q. Manlupig which prevented her death, all to the damage and prejudice of said offended party. CONTARARY TO LAW.[4]

DECISION

PEREZ, J.: The subject of review is the Decision[1] of the Court of Appeals affirming with modification the Decision[2] of the Regional Trial Court (RTC), which found appellant Jessie Villegas Murcia guilty beyond reasonable doubt of the crimes of arson and frustrated homicide. In an Information dated 6 April 2004, appellant was accused of the crime of arson committed as follows: That on or about the 24th day of March, 2004, in the Municipality of Bauang, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by some evil motive, did then and there willfully, unlawfully and feloniously set fire and burn a residential house knowing the same to be inhabited by one FELICIDAD M. QUILATES burning and killing said FELICIDAD M. QUILATES as well as burning and damaging nine (9) other neighboring houses in the process, to the damage and prejudice of said house-owners in the aggregate amount of THREE MILLION PESOS (Php3,000,000.00), Philippines Currency, as well as to the damage and prejudice of the heirs of FELICIDAD QUILATES. The charge is qualified by the resulting death of Felicidad M. Quilates.

Upon arraignment, appellant pleaded not guilty to both charges. Trial on the merits ensued. Based on the narration of prosecution witnesses, the facts follow. Eulogio Quilates (Eulogio) is the owner of a two-storey house in Paringao, Bauang, La Union. Among the occupants of his house were his sister Felicidad Quilates (Felicidad); another sister Alicia Manlupig (Alicia); and nephew Herminio Manlupig (Herminio). Appellant, who is the adopted son of Felicidad, occupied one room in the house. At around 3:30 p.m. of 24 March 2004, appellant was having a drinking spree with his cousin Herminio and brothers-in-law Joey Viduya and Ricky Viduya (Ricky) in front of their house. Appellant and Herminio were arguing over the matter of caring for Felicidad while the latter was confined in the hospital. Ricky tried to mediate between the two. Appellant was then seen going inside the house to get a bolo. When he emerged from the house ten (10) minutes later, he ran after Herminio but the latter managed to escape unscathed. Appellant again went back to the house. [5] Meanwhile, after pacifying appellant and Herminio, Ricky resumed drinking. A few minutes later, he saw smoke coming from the room of appellant. As Ricky was about to enter the house, he met appellant at the door. Appellant apparently tried to stab Ricky but was unsuccessful. Ricky witnessed appellant stab Felicidad and Alicia.[6]

Herminio, who had since come back to the drinking table, also saw the smoke. He peeped through the small window of the house and witnessed appellant burning some clothes and boxes in the sala. Herminio immediately went inside the house to save his personal belongings. Upon emerging from the house, Herminio saw his mother, Alicia, bloodied.[7] Alicia testifies that she was sitting on a chair near the toilet when she saw smoke coming out of appellants room. Before she could react, appellant came charging at her and stabbed her. She sustained wounds on her upper thigh, arms, below her breast and on her ear. Alicia was still able to ask for help, and her daughter-in-law brought her to the hospital.[8] Eulogio heard a commotion while he was cooking in the second floor of the house. When Eulogio went down, he already saw smoke coming from the room of appellant. He then saw Felicidad near the comfort room located outside the house and was bleeding from her mouth. As he was about to help Felicidad, he met appellant who was then holding a knife. Eulogio immediately ran away.[9] Upon seeing Herminio, appellant immediately attacked him with a knife. However, Herminio and Ricky were able to pin appellant down. Before they could retaliate, the barangaycaptain arrived at the scene.[10] As a result, eight (8) houses were razed. Inspector Ferdinand Formacion responded to the fire incident and saw four (4) houses were already burned. After putting out the fire, he and the arson investigator conducted an ocular investigation and invited witnesses to the police station to submit their sworn statements. SPO2 Rodolfo Lomboy, chief investigator of Philippine National Police Bauang Police Station, was told by witnesses that appellant intentionally set the boxes on fire inside the house.[11] Eulogio estimated the value of his house at P250,000.00,[12] while another sister of Felicidad, Pacita Quilates, presented a receipt covering the burial expenses for Felicidad, amounting to P10,000.00.[13] An autopsy was performed on Felicidad, and it was disclosed that she died from cardio-respiratory arrest secondary to third degree burns involving 90% of body surface to include underlying tissues and organs.[14] Appellant was the lone witness for the defense. He stated that while he was having a drinking spree, he saw Felicidad go inside the house to get a glass of water. He followed her and gave her water. He noticed Felicidad light a gas lamp. He then went back to his friends and resumed drinking. He got into a heated argument with Herminio. The latter struck him in the head.He immediately went inside the house to get a weapon. He was able to get

a bolo, went back outside and hit Herminio. The latter ran away and appellant chased him. Appellant met Alicia and confronted her about the actuations of Herminio. But Alicia cursed him. Appellant thereafter hit her with the knife. Appellant then fell on the ground and lost consciousness because, apparently, he was struck by something in the back.[15] Appellant denied setting the house on fire.[16] On 30 May 2006, decision was rendered by the RTC, finding appellant guilty beyond reasonable doubt of arson and frustrated homicide, thus: WHEREFORE, in Crim. Case No. 2979-Bg., the Court FINDS and DECLARES the accused JESSIE VILLEGAS MURCIA, guilty beyond reasonable doubt of the crime of arson as charged and defined under Art. 320 of the Revised Penal Code, as amended by R.A. No. 7659, and he is hereby sentenced to suffer the extreme penalty of death; to indemnify the heirs of the victim Felicidad Quilates, the amount of Php50,000.00 as moral damages; Php50,000.00 as death indemnity; Php10,000.00 as actual damages and another Php10,000.00 as temperate damages. Further, the accused is ordered to indemnify Eulogio Quilates the amount of P250,000.00, representing the value of the burned house. In Crim. Case No. 2980-Bg., the Court likewise FINDS and DECLARES the accused JESSIE VILLEGAS MURCIA guilty beyond reasonable doubt of the crime of frustrated homicide as charged and he is hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS of prision correccional as minimum, to TEN (10) YEARS of prision mayor as maximum; to pay the victim Alicia Q. Manlupig the amount of Php10,000.00 as temperate damages; and to pay the costs. In the service of his sentence, the accused shall be credited with his preventive imprisonment under the terms and conditions, provided for by Art. 29 of the Revised Penal Code, as amended. Let the record of Crim. Case No. 2979-Bg. be sent to the Court of Appeals for automatic review.[17]

The trial court found that the corpus delicti in arson, as well as the identity of the perpetrator, were established beyond reasonable doubt by the prosecution. While there was no evidence to directly link appellant to the crime, the trial court relied on circumstantial evidence. In view of the penalty imposed, the case was forwarded to the Court of Appeals for automatic review and judgment.

The Court of Appeals affirmed the trial courts findings but reduced the penalty from death to reclusion perpetua. Appellant filed a notice of appeal, which was given due course by the Court of Appeals on 22 January 2008. In a Resolution[18] dated 7 July 2008, this Court required the parties to simultaneously submit their respective supplemental briefs. Appellant and the Office of the Solicitor General (OSG) both filed their manifestations,[19] stating that they would no longer file any supplemental briefs and instead adopt their respective briefs. Appellant admitted to the crime of frustrated homicide, hence the review is limited to the crime of arson. Appellant maintains his innocence of the charge of arson. He questions the credibility of some witnesses and specifically imputes ill-motive on the part of Herminio in testifying against him, especially after their fight. [20] Appellant submits that the testimonies of witnesses, which failed to turn into a coherent whole, did not prove the identity of the perpetrator.[21] On the other hand, the OSG banks on circumstantial evidence, as relied to by the trial court, to prove the guilt of appellant.[22] The OSG vouches for the credibility of the prosecution witnesses and avers that their testimonies have proven the corpus delicti and warrant appellants conviction.[23] In the prosecution for arson, proof of the crime charged is complete where the evidence establishes: (1) the corpus delicti, that is, a fire because of criminal agency; and (2) the identity of the defendant as the one responsible for the crime. In arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused.Even the uncorroborated testimony of a single eyewitness, if credible, is enough to prove the corpus delicti and to warrant conviction.[24] The photographs,[25] evidencing the charred remains of the houses, established the occurrence of the fire. In this case, however, there is no direct evidence to establish the culpability of appellant. At any rate, direct evidence is not the sole means of establishing guilt beyond reasonable doubt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. Indeed, rules on evidence and principles in jurisprudence have long recognized that the accused may be convicted through circumstantial evidence.[26] Section 4 of Rule 133 of the Rules of Court provides: Section 4. Circumstantial evidence, when sufficient.─ Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In order to justify a conviction upon circumstantial evidence, the combination of circumstances must be such as to leave no reasonable doubt in the mind as to the criminal responsibility of the accused.[27] The appellate court considered the following circumstances to establish an unbroken chain of events pointing to the logical conclusion that appellant started the fire: First, accused-appellant Murcia returned inside E. Quilates house after chasing H. Manlupig with a bolo and after being pacified by R. Viduya and J. Viduya; Second, during the resumption of their drinking session, R. Viduya and H. Manlupig saw a thick smoke emanating from E. Quilates house particularly the window of accused-appellant Murcias room in the ground floor; Third, H. Manlupig peeped through the said window and saw accusedappellant Murcia throwing cartons of clothes into the fire. Meanwhile, E. Quilates, who was then cooking at the second floor, went downstairs and saw the fire coming from the room occupied by accused-appellant Murcia in the ground floor; Fourth, R. Viduya saw accused-appellant Murcia stabbing F. Quilates and A. Manlupig, among other persons. E. Quilates saw his sister F. Quilates with blood oozing from her mouth. Accused-appellant Murcia met him at the ground brandishing a knife at him which prevented him from helping the wounded F. Quilates and forced him to run away for safety. E. Quilates other sister, A. Manlupig, was also seen wounded and lying unconscious in the canal; and Fifth, the houses of E. Quilates and his neighbors were razed by fire and the commission of the crime of arson resulted in the demise of F. Quilates whose remains were burned beyond recognition.[28]

Indeed, appellant was last seen inside the house before the fire started. Eulogio and Ricky saw smoke emanating from the room of appellant. Herminio testified that he saw appellant burning clothes in his room. Appellant then went on a stabbing rampage while the house was on fire. While nobody directly saw appellant burn the house, these

circumstances would yield to a logical conclusion that the fire that gutted eight (8) houses was authored by appellant. Necessarily, the issue narrows down to credibility of the witnesses. Worthy of reiteration is the doctrine that on matters involving the credibility of witnesses, the trial court is in the best position to assess the credibility of witnesses since it has observed firsthand their demeanor, conduct and attitude under grilling examination. Absent any showing of a fact or circumstance of weight and influence which would appear to have been overlooked and, if considered, could affect the outcome of the case, the factual findings and assessment on the credibility of a witness made by the trial court remain binding on an appellate tribunal.[29] In this case, We find no cogent reason to depart from the findings of the lower courts. Appellant imputes ill-motive on the part of Herminio. This Court does not discount the fact that there was a fight between appellant and Herminio which preceded the occurrence of the fire. However, it cannot be presumed that Herminio will automatically give a false testimony against appellant. His testimony, having withstood cross-examination, has passed the scrutiny of the lower courts and was held to be credible. The lower courts found appellant liable under Article 320(1) of the Revised Penal Code, as amended by Section 10 of Republic Act No. 7659. It may not be amiss to point out that there are actually two categories of arson, namely: Destructive Arson under Article 320 of the Revised Penal Code and Simple Arson under Presidential Decree No. 1316. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused.[30] Article 320 contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. On the other hand, Presidential Decree No. 1316 covers houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments.[31] A close examination of the records, as well as description of the crime as stated in the information, reveals that the crime committed is in fact simple arson because the burned properties are residential houses. At any rate, the penalty for simple arson resulting to death, under Section 5 of Presidential Decree No. 1613,[32] is reclusion perpetua to death. With the repeal of the death penalty law through Republic Act No. 9346, the appellate court correctly imposed the penalty of reclusion perpetua. This Court, however, takes exception to the trial courts award of damages.

With respect to the heirs of Felicidad, We modify the amount of temperate damages from P10,000.00 to P 25,000.00, and accordingly delete the amount of actual damages, in line with the ruling in People v. Villanueva.[33] In said case, the Court held that when actual damages proven by receipts during the trial amount to less than P25,000.00, the award of temperate damages for P25,000.00 is justified in lieu of actual damages of a lesser amount.[34] Anent the actual damages awarded to Eulogio amounting to P250,000.00, as indemnification for the burned house, We note that said amount representing the value of the burned house was merely given by Eulogio as an estimate. It was not substantiated by any document or receipt. For one to be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and the best evidence obtainable by the injured party.[35] Instead, We award temperate damages in accordance with Art. 2224 of the Civil Code, providing that temperate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proven with certainty.[36] It is thus reasonable to expect that the value of the house burned down amounted to at least P200,000.00. WHEREFORE, the appealed decision finding appellant JESSIE VILLEGAS MURCIA guilty beyond reasonable doubt of the crime of arson and sentencing him to reclusion perpetua is AFFIRMED with MODIFICATIONS: 1. Appellant is ordered to indemnify the heirs of Felicidad Quilates the amount of P50,000.00 as moral damages; P50,000.00 as death indemnity; and P25,000.00 as temperate damages. 2. The award of P10,000.00 as actual damages in favor of the heirs of Felicidad Quilates is deleted. 3. Appellant is ordered to pay Eulogio Quilates the amount of P200,000.00 as temperate damages. The award of P250,000.00 as actual damages in favor of Eulogio Quilates is deleted.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 182061 Present:

- versus -

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

Promulgated: FERDINAND T. BALUNTONG, March 15, 2010 Appellant. x - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO MORALES, J.: Ferdinand T. Baluntong (appellant) appeals from the August 13, 2007 Decision[1] of the Court of Appeals to which the Court had earlier referred the present case for intermediate review following People v. Mateo.[2] In its challenged Decision, the appellate court affirmed appellants conviction by the Regional Trial Court of Roxas, Oriental Mindoro, Branch 43, of Double Murder with Frustrated Murder, following his indictment for such offense in an Information reading:

Gathered from the records of the case is the following version of the prosecution: At around 10:30 p.m. of July 31, 1998, while then 12-year old Jovelyn Santos (Jovelyn) was sleeping in the house of her grandmother Celerina Solangon (Celerina) at Barangay Dangay, Roxas, Oriental Mindoro, she was awakened by heat emanating from the walls of the house. She thus roused her cousin Dorecyll and together they went out of the house. Jovelyn saw appellant putting dry hay (dayami) around the house near the terrace where the fire started, but appellant ran away when he saw her and Dorecyll. Appellants neighbor, Felicitas Sarzona (Felicitas), also saw appellant near Celerinas house after it caught fire, following which, appellant fled on seeing Jovelyn and Dorecyll stepping out of the house, as other neighbors repaired to the scene to help contain the flames. Felicitas also saw Celerina, who was at a neighbors house before the fire started, enter the burning house and resurface with her grandsons Alvin and Joshua. Celerina and Alvin sustained third degree burns which led to their death. Joshua sustained second degree burns. Upon the other hand, appellant, denying the charge, invoked alibi, claiming that he, on his mother Rosalindas request, went to Caloocan City on July 15, 1998 (16 days before the incident) and stayed there until February 1999. Rosalinda corroborated appellants alibi. By Decision of February 28, 2003, the trial court found appellant guilty as charged, disposing as follows: WHEREFORE, judgment is hereby rendered as follows:

That on or about the 31st day of July 1998, at about 10:30 in the evening at Barangay Danggay, Municipality of Roxas, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did, then and there, with malice aforethought and with deliberate intent to kill, set on fire, the house of Celerina Solangon, causing the complete destruction of the said house and the death of Celerina Solangon and Alvin Savarez, and inflicting serious physical injuries on Josua (sic) Savarez, thereby performing all the acts of execution which would produce the crime of murder as a consequance (sic) but which, nevertheless do not produce it by reason of causes independent of the will of the perpetrator.[3] x x x x (underscoring supplied)

(a) The court finds accused Ferdinand Baluntong GUILTY beyond reasonable doubt of the complex crime of Double Murder with Frustrated Murder punishable under Article 248 of the Revised Penal Code as amended by Republic Act 7659 in relation to Article 48 of the Revised Penal Code and is hereby sentenced to suffer the supreme penalty of DEATH to be executed in accordance with the existing law; xxxx (c) Accused Ferdinand Baluntong is also ordered to pay the heirs of Celerina Suba Solangon the sum of P50,000.00 as compensatory damages and the heirs of Elvin [sic] Savariz the following: (I) the sum

of P50,000.00 as compensatory damages (II) the sum of P16,500.00 as actual damages; and (III) the sum of P50,000.00 as moral damages. SO ORDERED.[4] (emphasis in the supplied)

original;

italics

and

underscoring

There should be no doubt on prosecution witnesses Felicitas and Jovelyns positive identification of their neighbor-herein appellant as the person they saw during the burning of the house, given, among other things, the illumination generated by the fire. Consider the following testimonies of Felicitas and Jovelyn:

In affirming the trial courts conviction of appellant, the appellate court brushed aside appellants claim that the prosecution failed to prove his guilt beyond reasonable doubt. The appellate court, however, modified the trial courts decision by reducing the penalty to reclusion perpetua in light of the passage of Republic Act No. 9346,[5] and by additionally awardingexemplary damages to the heirs of the victims (Celerina and Alvin), and temperate damages to Joshua representing his hospitalization and recuperation. Thus the appellate court disposed:

FELICITAS:

WHEREFORE, premises considered, the February 28, 2003 Decision of the Regional Trial Court of Roxas, Oriental Mindoro, Branch 43, is MODIFIED as follows:

A: He was just infront (sic) of the house, sir.

1. Accused-appellant FERDINAND BALUNTONG y TALAGA is found GUILTY beyond reasonable doubt of the complex crime of Double Murder with Frustrated Murder and is hereby sentenced to suffer the penalty of reclusion perpetua.

A: About two (2) meters away, sir.

2. Accused-appellant is further required to pay the heirs of the victims the amount of P25,000.00 as exemplary damages and the amount of P25,000.00 as temperate damages for the hospitalization and recuperation of Joshua Savariz.

A: About two (2) meters, sir.

Q: Which portion of the house was on fire when you saw Balentong (sic) for the first time? A: The fire was at the rear portion going up, sir. Q: How far was Balentong (sic) from that burning portion of the house?

Q: How far from the burning portion of the house?

Q: The two (2) meters from the front portion or two (2) meters from the burning portion?

Q: From the burning portion? A: Yes, sir.[7] (underscoring supplied)

3. In all other respects, the February 28, 2003 Decision of the regional trial court is hereby AFFIRMED.[6] (italics and emphasis in the original; underscoring supplied)

JOVELYN: Q: How big was the fire when according to you, you saw the back of this Ferdinand Balontong (sic)?

In his Brief, appellant raises doubt on prosecution witness Felicitas claim that she saw appellant fleeing away from the burning house, it being then 10:30 p.m. and, therefore, dark. He raises doubt too on Jovelyns claim that she saw appellant, given her failure to ask him to stop putting dried hay around the house if indeed her claim were true. After combing through the records of the case, the Court finds that the trial court, as well as the appellate court, did not err in finding that appellant was the malefactor.

A: It is already considerable size, Your Honor. Q: What effect has this fire in the illumination in that vicinity, regarding visibility of that vicinity? A: The surrounding was Honor.[8] (underscoring supplied)

Appellants alibi must thus fail.

illuminated

by

that

fire,

Your

In determining the Malngan[9] teaches:

offense

committed

by

appellant, People

v.

[I]n cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed homicide/murder and arson. (emphasis and underscoring partly in the original; emphasis partly supplied) Presidential Decree (P.D.) No. 1613, Amending the Law on Arson, reads: Section 3. Other Cases of Arson. ─ The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following:

frustrated murder. This is especially true with respect to the death of Celerina, for even assuming arguendo that appellant wanted to kill her to get even with her in light of her alleged desire to drive him out of the neighboring house, Celerina was outside the house at the time it was set on fire. She merely entered the burning house to save her grandsons. While the above-quoted Information charged appellant with Double Murder with Frustrated Murder, appellant may be convicted of Arson. For the only difference between a charge for Murder under Article 248 (3) of the Revised Penal Code and one for Arson under the Revised Penal Code, as amended by Section 3 (2) of P.D. No. 1613, lies in the intent in pursuing the act. As reflected above, as it was not shown that the main motive was to kill the occupants of the house, the crime would only be arson, the homicide being a mere consequence thereof, hence, absorbed by arson.[12] When there is variance between the offense charged in the complaint or information and that proved, and the offense charged is included or necessarily includes the offense proved, conviction shall be for the offense proved which is included in the offense charged, or the offense charged which is included in the offense proved. [13] Under Section 5 of P.D. 1613, the penalty of reclusion perpetua to death is imposed when death results. In the light of the passage of Republic Act No. 9346,[14] the penalty should be reclusion perpetua. A word on the damages awarded. The appellate court affirmed the award of compensatory damages to the heirs of Celerina. But entitlement thereto was not proven.

xxxx 2. Any inhabited house or dwelling;

The Court finds that there is no showing that appellants main objective was to kill Celerina and her housemates and that the fire was resorted to as the means to accomplish the goal. In her Affidavit executed on August 11, 1998,[10] Felicitas stated that what she knew is that Celerina wanted appellant, who was renting a house near Celerinas, to move out. How Felicitas acquired such knowledge was not probed into, however, despite the fact that she was cross-examined thereon.[11] Absent any concrete basis then to hold that the house was set on fire to kill the occupants, appellant cannot be held liable for double murder with

The appellate court likewise affirmed the award of compensatory damages, actual damages, and moral damages to the heirs of Alvin. Compensatory damages and actual damages are the same, however.[15] Since the trial court awarded the duly proven actual damages of P16,500.00 representing burial expenses, the award of compensatory damages of P50,000.00 does not lie. It is gathered from the evidence, however, that Alvin was hospitalized for five days,[16] hence, an award of P8,500.00 as temperate damages for the purpose would be reasonable. As for the award to Alvin of moral damages, the records do not yield any basis therefor. More. The appellate court awarded exemplary damages to the heirs of the victims, clearly referring to the deceased Celerina and Alvin. Absent proof of the presence of any aggravating circumstances, however, the award does not lie.[17]

PEOPLE OF THE PHILIPPINES, Appellee, v. ALAMADA MACABANDO, Appellant. DECISION When death occurs due to a crime, the grant of civil indemnity requires no proof other than the death of the victim. The heirs of Celerina are thus entitled to an award of P50,000.00 as civil indemnity ex delicto.[18] And so are Alvins. The appellate courts award of temperate damages of P25,000.00 to Joshua is in order. WHEREFORE, the assailed Court of Appeals Decision of August 13, 2007 is REVERSED and SET ASIDE, and a NEW one is rendered as follows: Appellant, Ferdinand T. Baluntong, is found GUILTY beyond reasonable doubt of Simple Arson under Sec. 3(2) of P.D. No. 1613 and is sentenced to suffer the penalty of reclusion perpetua with no eligibility for parole. Appellant is ORDERED to pay the amount of P50,000.00 to the heirs of Celerina Solangon, and the same amount to the heirs of Alvin Savariz, representing civil indemnity. Appellant is likewise ORDERED to pay the amount of P16,500.00 to the heirs of Alvin as actual damages for burial expenses, and P8,500.00 as temperate damages for hospitalization expenses.

Appellant is further ORDERED to pay P25,000.00 as temperate damages to the heirs of Celerina. Finally, appellant is ORDERED to pay P25,000.00 as temperate damages to Joshua Savariz. SO ORDERED.

BRION, J.:

This is an appeal filed by appellant Alamada Macabando assailing the February 24, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 00208-MIN. The CA decision affirmed in toto the August 26, 2002 judgment2 of the Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, finding the appellant guilty beyond reasonable doubt of destructive arson, and sentencing him to suffer the penalty of reclusion perpetua. THE CASE The prosecution’s evidence showed that at around 4:00 p.m. on December 21, 2001, the appellant broke bottles on the road while holding a G.I. pipe, and shouted that he wanted to get even (“manabla ko”).3 Afterwards, he uttered that he would burn his house.4cralaw virtualaw library At 6:35 p.m. of the same day, Cornelio Feliciano heard his neighbors shout that there was a fire. When Cornelio went out of his house to verify, he saw smoke coming from the appellant’s house. He got a pail of water, and poured its contents into the fire.5 Eric Quilantang, a neighbor whose house was just 10 meters from that of the appellant, ran to the barangay headquarters to get a fire extinguisher. When Eric approached the burning house, the appellant, who was carrying a traveling bag and a gun, told him not to interfere; the appellant then fired three (3) shots in the air.6 The appellant also told the people around that whoever would put out the fire would be killed.7cralaw virtualaw library Upon hearing the gunshots, Cornelio hurriedly went home to save his nephews and nieces.8 Eric also returned to his house to save his belongings.9cralaw virtualaw library Fire Officer (FO) II Victor Naive and FOI Reynaldo Maliao conducted a spot investigation of the incident, and concluded, among others, that the fire started in the appellant’s house; and that it had been intentional.10 Barangay Chairman Modesto Ligtas stated that the fire gutted many houses in his barangay, and that he assisted the City Social Welfare and Development Department personnel in assessing the damage.11cralaw virtualaw library

The defense, on the other hand, presented a different version of the events. The appellant declared on the witness stand that he lived in the two-storey house in Barangay 35, Limketkai Drive, which was owned by his sister, Madji Muslima Edemal.12 He admitted that he felt angry at around 2:00 p.m. on December 21, 2001 because one of his radio cassettes for sale had been stolen.13 The appellant claimed that he went to sleep after looking for his missing radio cassette, and that the fire had already started when he woke up. He denied making a threat to burn his house, and maintained that he did not own a gun. He added that the gunshots heard by his neighbors came from the explosion of firecrackers that he intended to use during the New Year celebration.14cralaw virtualaw library Lomantong Panandigan, the appellant’s cousin, stated, among others, that he did not see the appellant carry a revolver or fire a shot on December 21, 2001.15 Dimas Kasubidan, the appellant’s brother-in-law, stated that he and the appellant lived in the same house, and that the latter was asleep in his room at the ground floor before the fire broke out.16cralaw virtualaw library The prosecution charged the appellant with the crime of destructive arson under Article 320 of the Revised Penal Code (RPC), as amended, before the RTC.17 The appellant pleaded not guilty to the charge on arraignment.18 In its judgment dated August 26, 2002, the RTC found the appellant guilty beyond reasonable doubt of the crime charged, and sentenced him to suffer the penalty of reclusion perpetua. On appeal, the CA affirmed the RTC judgment in toto. It gave weight to the RTC’s factual findings since these findings were based on unrebutted testimonial and documentary evidence. The CA held that the totality of the presented circumstantial evidence led to the conclusion that the appellant was guilty of the crime charged. THE COURT’S RULING We deny the appeal, but modify the crime committed by the appellant and the penalty imposed on him. Sufficiency of Prosecution Evidence We point out at the outset that no one saw the appellant set fire to his house in Barangay 35, Limketkai Drive, Cagayan de Oro City. The trial and appellate courts thus resorted to circumstantial evidence since there was no direct evidence to prove the appellant’s culpability to the crime charged. It is settled that in the absence of direct evidence, circumstantial evidence may be sufficient to sustain a conviction provided that: “(a) there is more than

one circumstance; (b) the facts from which the inferences are derived have been proven; and (c) the combination of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who has committed the crime. Thus, to justify a conviction based on circumstantial evidence, the combination of circumstances must be interwoven in such a way as to leave no reasonable doubt as to the guilt of the accused.”19cralaw virtualaw library In the present case, the following circumstances constitute an unbroken chain that leads to an unavoidable conclusion that the appellant, to the exclusion of others, set fire to his house: first, the appellant, while holding an iron lead pipe, acted violently and broke bottles near his house at around 4:00 p.m. of December 21, 2001; second, while he was still in a fit of rage, the appellant stated that he would get even, and then threatened to burn his own house; third, Judith Quilantang saw a fire in the appellant’s room approximately two hours after the appellant returned to his house; fourth, the appellant prevented Cornelio, Eric, and several other people from putting out the fire in his house; fifth, the appellant fired shots in the air, and then threatened to kill anyone who would try to put out the fire in his house; sixth, the appellant carried a traveling bag during the fire; and finally, the investigation conducted by the fire marshals of the Bureau of Fire Protection revealed that the fire started in the appellant’s house, and that it had been intentional. The combination of these circumstances, indeed, leads to no other conclusion than that the appellant set fire to his house. We find it unnatural and highly unusual for the appellant to prevent his neighbors from putting out the fire in his house, and threaten to kill them if they did, if he had nothing to do with the crime. The first impulse of an individual whose house is on fire is to save his loved ones and/or belongings; it is contrary to human nature, reason and natural order of things for a person to thwart and prevent any effort to put out the fire in his burning property. By carrying (and firing) a gun during the fire, the appellant showed his determination to repel any efforts to quell the fire. Important to note, too, is the fact that the appellant carried a traveling bag during the fire which, to our mind, showed deliberate planning and preparedness on his part to flee the raging fire; it likewise contradicted his statement that he was asleep inside his house when the fire broke out, and that the fire was already big when he woke up. Clearly, the appellant’s indifferent attitude to his burning house and his hostility towards the people who tried to put out the fire, coupled with his preparedness to flee his burning house, belied his claim of innocence. Notably, the appellant failed to impute any improper motive against the prosecution witnesses to falsely testify against him; in fact, he admitted that he had no misunderstanding with them prior to the incident. The Crime Committed

The CA convicted the appellant of destructive arson under Article 320 of the RPC, as amended, which reads:cralawlibrary Article 320. Destructive Arson. - The penalty of reclusion perpetua to death shall be imposed upon any person who shall burn: One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, committed on several or different occasions. Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose such as, but not limited to, official governmental function or business, private transaction, commerce, trade, workshop, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyances or stops or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire and regardless also of whether the building is actually inhabited or not. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. xxxx The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn:cralawlibrary Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance, storehouse, archives or general museum of the Government. In an inhabited place, any storehouse or factory of inflammable or explosive materials. In sum, “Article 320 contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons.”20cralaw virtualaw library Presidential Decree (P.D.) No. 1613,21 on the other hand, currently governs simple arson. Section 3 of this law provides:cralawlibrary

Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: Any building used as offices of the government or any of its agencies; Any inhabited house or dwelling; Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; Any rice mill, sugar mill, cane mill or mill central; and Any railway or bus station, airport, wharf or warehouse. [italics and emphasis ours] P.D. No. 1613 contemplates the malicious burning of public and private structures, regardless of size, not included in Article 320 of the RPC, as amended by Republic Act No. 7659.22 This law punishes simple arson with a lesser penalty because the acts that constitute it have a lesser degree of perversity and viciousness. Simple arson contemplates crimes with less significant social, economic, political, and national security implications than destructive arson.23cralaw virtualaw library The elements of simple arson under Section 3(2) of P.D. No. 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. Both these elements have been proven in the present case. The Information alleged that the appellant set fire to his own house, and that the fire spread to other inhabited houses. These allegations were established during trial through the testimonies of the prosecution witnesses which the trial and appellate courts found credible and convincing, and through the report of the Bureau of Fire Protection which stated that damaged houses were residential, and that the fire had been intentional. Moreover, the certification from the City Social Welfare and Development Department likewise indicated that the burned houses were used as dwellings. The appellant likewise testified that his burnt two-story house was used as a residence. That the appellant’s act affected many families will not convert the crime to destructive arson, since the appellant’s act does not appear to be heinous or represents a greater degree of perversity and viciousness when compared to those acts punished under Article 320 of the RPC. The established evidence only showed that the appellant intended to burn his own house, but the conflagration spread to the neighboring houses. In this regard, our ruling in Buebos v. People24 is particularly instructive, thus:cralawlibrary The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts

committed under Art. 320 of The Revised Penal Code constituting Destructive Arson are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. The Proper Penalty Under Section 3, paragraph 2, of P.D. No. 1613, the imposable penalty for simple arson is reclusion temporal, which has a range of twelve (12) years and one (1) day, to reclusion perpetua. Applying the Indeterminate Sentence Law, the penalty imposable should be an indeterminate penalty whose minimum term should be within the range of the penalty next lower in degree, which is prision mayor, or six (6) years and one (1) day to twelve (12) years, and whose maximum should be the medium period of reclusion temporal to reclusion perpetua, or sixteen (16) years and one (1) day to twenty (20) years, taking into account the absence of any aggravating or mitigating circumstances that attended the commission of the crime. Taking these rules into account, we therefore impose on the appellant the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to sixteen (16) years and one (1) day of reclusion temporal, as maximum. As regards the award of damages, we sustain the lower courts’ findings that the records do not adequately reflect any concrete basis for the award of actual damages to the offended parties. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable.25cralaw virtualaw library WHEREFORE, the assailed February 24, 2009 decision of the Court of Appeals in CA-G.R. CR HC No. 00208-MIN is AFFIRMED with the following MODIFICATIONS:cralawlibrary

G.R. No. 169533

March 20, 2013

GEORGE BONGALON, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: Not every instance of the laying of hands on a child constitutes the crime of child abuse under Section 10 (a) of Republic Act No. 7610.1 Only when the laying of hands is shown beyond reasonable doubt to be intended by the accused to debase, degrade or demean the intrinsic worth and dignity of the child as a human being should it be punished as child abuse. Otherwise, it is punished under the Revised Penal Code. The Case On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the petitioner for the crime of child abuse under Section 10 (a) of Republic Act No. 7610. Antecedents On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the petitioner in the Regional Trial Court (RTC) in Legazpi City with child abuse, an act in violation of Section 10(a) of Republic Act No. 7610, alleging as follows: That on or about the 11th day of May 2000, in the City of Legazpi Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously commit on the person of JAYSON DELA CRUZ, a twelve year-old,

(1) appellant Alamada Macabando is found guilty beyond reasonable doubt of simple arson under Section 3(2) of Presidential Decree No. 1613; and (2) he is sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to sixteen (16) years and one (1) day of reclusion temporal, as maximum.

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or maltreatment by striking said JAYSON DELA CRUZ with his palm hitting the latter at his back and by slapping said minor hitting his left cheek and uttering derogatory remarks to the latter’s family to wit: "Mga hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo" (You all animals, you are all strangers here. Bring your father here), which acts of the accused are prejudicial to the child’s development and which demean the intrinsic worth and dignity of the said child as a human being.

SO ORDERED.

CONTRARY TO LAW.3

The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and Roldan, his older brother, both minors, joined the evening procession for the Santo Niño at Oro Site in Legazpi City; that when the procession passed in front of the petitioner’s house, the latter’s daughter Mary Ann Rose, also a minor, threw stones at Jayson and called him "sissy"; that the petitioner confronted Jayson and Roldan and called them names like "strangers" and "animals"; that the petitioner struck Jayson at the back with his hand, and slapped Jayson on the face;4 that the petitioner then went to the brothers’ house and challenged Rolando dela Cruz, their father, to a fight, but Rolando did not come out of the house to take on the petitioner; that Rolando later brought Jayson to the Legazpi City Police Station and reported the incident; that Jayson also underwent medical treatment at the Bicol Regional Training and Teaching Hospital;5 that the doctors who examined Jayson issued two medical certificates attesting that Jayson suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular area, left; and (2) +1x1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm. scapular area, left.6 On his part, the petitioner denied having physically abused or maltreated Jayson. He explained that he only talked with Jayson and Roldan after Mary Ann Rose and Cherrylyn, his minor daughters, had told him about Jayson and Roldan’s throwing stones at them and about Jayson’s burning Cherrylyn’s hair. He denied shouting invectives at and challenging Rolando to a fight, insisting that he only told Rolando to restrain his sons from harming his daughters.7

On appeal, the petitioner assailed the credibility of the Prosecution witnesses by citing their inconsistencies. He contended that the RTC overlooked or disregarded material facts and circumstances in the records that would have led to a favorable judgment for him. He attacked the lack of credibility of the witnesses presented against him, citing the failure of the complaining brothers to react to the incident, which was unnatural and contrary to human experience. The CA affirmed the conviction, but modified the penalty,10 viz: WHEREFORE, premises considered, the decision dated October 20, 2003 of the Regional Trial Court, Branch 9 of Legazpi City is hereby AFFIRMED with MODIFICATION in that accused-appellant George Bongalon is sentenced to suffer the indeterminate penalty of (4) years, two (2) months and one (1) day of prision correccional, as minimum term, to six (6) years, eight (8) months and 1 day of prision mayor as the maximum term. Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the additional amount of ₱5,000 as moral damages. SO ORDERED. Issues

To corroborate the petitioner’s testimony, Mary Ann Rose testified that her father did not hit or slap but only confronted Jayson, asking why Jayson had called her daughters "Kimi" and why he had burned Cherrlyn’s hair. Mary Ann Rose denied throwing stones at Jayson and calling him a "sissy." She insisted that it was instead Jayson who had pelted her with stones during the procession. She described the petitioner as a loving and protective father.8

The petitioner has come to the Court via a petition for certiorari under Rule 65 of the Rules of Court.11

Ruling of the RTC

Ruling of the Court

After trial, the RTC found and declared the petitioner guilty of child abuse as charged, to wit:9

At the outset, we should observe that the petitioner has adopted the wrong remedy in assailing the CA’s affirmance of his conviction. His proper recourse from the affirmance of his conviction was an appeal taken in due course. Hence, he should have filed a petition for review on certiorari. Instead, he wrongly brought a petition for certiorari. We explained why in People v. Court of Appeals:12

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding the accused GEORGE BONGALON @ "GI" GUILTY beyond reasonable doubt of Violation of Republic Act No. 7610, and is hereby ordered to undergo imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor in its minimum period. SO ORDERED. Ruling of the CA

The petitioner asserts that he was not guilty of the crime charged; and that even assuming that he was guilty, his liability should be mitigated because he had merely acted to protect her two minor daughters.

The special civil action for certiorari is intended for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within the parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to lack or excess of jurisdiction. As observed

in Land Bank of the Philippines v. Court of Appeals, et al. "the special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison d’etre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprived it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision–not the jurisdiction of the court to render said decision–the same is beyond the province of a special civil action for certiorari. The proper recourse of the aggrieved party from a decision of the Court of Appeals is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. It is of no consequence that the petitioner alleges grave abuse of discretion on the part of the CA in his petition. The allegation of grave abuse of discretion no more warrants the granting of due course to the petition as one for certiorari if appeal was available as a proper and adequate remedy. At any rate, a reading of his presentation of the issues in his petition indicates that he thereby imputes to the CA errors of judgment, not errors of jurisdiction. He mentions instances attendant during the commission of the crime that he claims were really constitutive of justifying and mitigating circumstances; and specifies reasons why he believes Republic Act No. 7610 favors his innocence rather than his guilt for the crime charged.13 The errors he thereby underscores in the petition concerned only the CA’s appreciation and assessment of the evidence on record, which really are errors of judgment, not of jurisdiction. Even if we were to treat the petition as one brought under Rule 45 of the Rules of Court, it would still be defective due to its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of the petition within 15 days from the notice of judgment to be appealed. However, the petitioner received a copy of the CA’s decision on July 15, 2005,14 but filed the petition only on September 12, 2005,15 or well beyond the period prescribed by the Rules of Court.

instituted first and foremost to ensure justice to every litigant. Indeed, its announced objective has been to secure a "just, speedy and inexpensive disposition of every action and proceeding."16 This objective will be beyond realization here unless the Rules of Court be given liberal construction and application as the noble ends of justice demand. Thereby, we give primacy to substance over form, which, to a temple of justice and equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now awaiting our consideration. The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due process of law unless we shunt aside the rigidity of the rules of procedure and review his case. Hence, we treat this recourse as an appeal timely brought to the Court. Consonant with the basic rule in criminal procedure that an appeal opens the whole case for review, we should deem it our duty to correct errors in the appealed judgment, whether assigned or not.17 The law under which the petitioner was charged, tried and found guilty of violating is Section 10 (a), Article VI of Republic Act No. 7610, which relevantly states: Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other Conditions Prejudicial to the Child’s Development. – (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child’s development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. xxxx Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as follows: Section 3. Definition of terms. –

The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the petition, and instead set ourselves upon the task of resolving the issues posed by the petition on their merits. We cannot fairly and justly ignore his plea about the sentence imposed on him not being commensurate to the wrong he committed. His plea is worthy of another long and hard look. If, on the other hand, we were to outrightly dismiss his plea because of the procedural lapses he has committed, the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been intended to be rigidly enforced at all times. Rather, it has been

xxxx (b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; (3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or (4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. xxxx Although we affirm the factual findings of fact by the RTC and the CA to the effect that the petitioner struck Jayson at the back with his hand and slapped Jayson on the face, we disagree with their holding that his acts constituted child abuse within the purview of the above-quoted provisions. The records did not establish beyond reasonable doubt that his laying of hands on Jayson had been intended to debase the "intrinsic worth and dignity" of Jayson as a human being, or that he had thereby intended to humiliate or embarrass Jayson. The records showed the laying of hands on Jayson to have been done at the spur of the moment and in anger, indicative of his being then overwhelmed by his fatherly concern for the personal safety of his own minor daughters who had just suffered harm at the hands of Jayson and Roldan. With the loss of his self-control, he lacked that specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a human being that was so essential in the crime of child abuse.

The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of imprisonment.20 In imposing the correct penalty, however, we have to consider the mitigating circumstance of passion or obfuscation under Article 13 (6) of the Revised Penal Code,21 because the petitioner lost his reason and self-control, thereby diminishing the exercise of his will power.22 Passion or obfuscation may lawfully arise from causes existing only in the honest belief of the accused.23 It is relevant to mention, too, that in passion or obfuscation, the offender suffers a diminution of intelligence and intent. With his having acted under the belief that Jayson and Roldan had thrown stones at his two minor daughters, and that Jayson had burned Cherrlyn’s hair, the petitioner was entitled to the mitigating circumstance of passion. Arresto menor is prescribed in its minimum period (i.e., one day to 10 days) in the absence of any aggravating circumstance that offset the mitigating circumstance of passion. Accordingly, with the Indeterminate Sentence Law being inapplicable due to the penalty imposed not exceeding one year,24 the petitioner shall suffer a straight penalty of 10 days of arresto menor. The award of moral damages to Jayson is appropriate. Such damages are granted in criminal cases resulting in physical injuries.25 The amount of ₱5,000.00 fixed by the lower courts as moral damages is consistent with the current jurisprudence.26

It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is resolved in favor of the petitioner as the accused. Thus, the Court should consider all possible circumstances in his favor.18

WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a new judgment: (a) finding petitioner George Bongalon GUlLTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES under paragraph 1, Article 266, of the Revised Penal Code; (b) sentencing him to suffer the penalty of 10 days of arresto menor; and (c) ordering him to pay Jayson Dela Cruz the amount of ₱5,000.00 as moral damages, plus the costs of suit.

What crime, then, did the petitioner commit?

SO ORDERED.

Considering that Jayson’s physical injury required five to seven days of medical attention,19 the petitioner was liable for slight physical injuries under Article 266 (1) of the Revised Penal Code, to wit: Article 266. Slight physical injuries and maltreatment. — The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period. xxxx

This was subsequently amended as follows: MICHAEL JOHN Z. MALTO, G.R. No. 164733 Petitioner, Present: PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, - v e r s u s - CORONA, AZCUNA and GARCIA, JJ. PEOPLE OF THE PHILIPPINES, Respondent. Promulgated: September 21, 2007

The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(a), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows: That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously take advantage and exert influence, relationship and moral ascendancy and induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and lascivious conduct for several times with him as in fact said accused has carnal knowledge.

x---------------------------------------------------x DECISION CORONA, J.:

Whereas, mankind owes to the child the best it has to give. (Final preambular clause of the Declaration of the Rights of the Child) This is a petition for review[1] of the decision[2] dated July 30, 2004 of the Court of Appeals (CA) in CA-G.R. CR No. 25925 affirming with modification the decision[3] of Branch 109 of the Regional Trial Court of Pasay City in Criminal Case No. 00-0691 which found petitioner Michael John Z. Malto guilty for violation of paragraph 3, Section 5(a), Article III of RA 7610, [4] as amended. Petitioner was originally charged in an information which read: The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z. MALTO of VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as follows: That on or about and sometime during the month of November 1997 up to 1998, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there willfully, unlawfully and feloniously induce and/or seduce his student at Assumption College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse for several times with him as in fact said accused had carnal knowledge. Contrary to law.[5]

Contrary to law.[6] Petitioner did not make a plea when arraigned; hence, the trial court entered for him a plea of not guilty. After the mandatory pre-trial, trial on the merits proceeded. The prosecution established the following: At the time of the incident, private complainant AAA was 17 years old.[7] She was a college student at the Assumption College in San Lorenzo Village, Makati City. Petitioner, then 28, was her professor in her Philosophy II class in the first semester of the school year 1997 to 1998. On July 18, 1997, AAA was having lunch with her friends when petitioner joined their group. He told them to address him simply as Mike. He handed them his organizer and asked them to list down their names and contact numbers. On October 3, 1997, while AAA and her friends were discussing the movie Kama Sutra, petitioner butted in and bragged that it was nothing compared to his collection of xxx-rated films. To the shock of AAAs group, he lectured on and demonstrated sexual acts he had already experienced. He then invited the group to view his collection. On October 10, 1997, petitioner reiterated his invitation to AAA and her friends to watch his collection of pornographic films. Afraid of offending petitioner, AAA and two of her friends went with him. They rode in his car and he brought them to the Anito Lodge on Harrison St. in Pasay City. They checked in at a calesa room. Petitioner was disappointed when he found out there was neither a video cassette player (on which he could play his video tapes) nor an x-rated show on the closed-circuit television. He suggested that they just cuddle up together. AAA and her friends ignored him but he pulled each of them towards him to lie with him in bed. They resisted until he relented.

AAA and her friends regretted having accepted petitioners invitation. For fear of embarrassment in case their classmates got wind of what happened, they agreed to keep things a secret. Meanwhile, petitioner apologized for his actuations. Thereafter, petitioner started to show AAA amorous attention. He called her on the phone and paged[8] her romantic messages at least thrice a day. When semestral break came, his calls and messages became more frequent. Their conversation always started innocently but he had a way of veering the subject to sex. Young, naive and coming from a broken family, AAA was soon overwhelmed by petitioners persistence and slowly got attracted to him. He was the first person to court her. Soon, they had a mutual understanding and became sweethearts. When AAA secured her class card in Philosophy II at the start of the second semester, petitioner told her that he gave her a final grade of 3. She protested, stating that her mid-term grade was 1.2. He gave her a grade of 1.5 when she promised not to disclose his intimate messages to her to anyone. He also cautioned her not to tell anyone about their affair as it could jeopardize his job. On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch with petitioner outside the premises of the college. Since she was not feeling well at that time, he asked her to lie down in the backseat of his car. She was surprised when he brought her to Queensland Lodge [9] on Harrison St. in Pasay City. Once inside the motel room, he kissed her at the back and neck, touched her breasts and placed his hand inside her blouse. She resisted his advances but he was too strong for her. He stopped only when she got angry at him. On November 26, 1997, petitioner asked AAA to come with him so that they could talk in private. He again brought her to Queensland Lodge. As soon as they were inside the room, he took off his shirt, lay down in bed and told her, halika na, dito na tayo mag-usap. She refused but he dragged her towards the bed, kissed her lips, neck and breasts and unsnapped her brassiere. She struggled to stop him but he overpowered her. He went on top of her, lowered her pants and touched her private part. He tried to penetrate her but she pushed him away forcefully and she sat up in bed. He hugged her tightly saying, Sige na, AAA, pumayag ka na, I wont hurt you. She refused and said, Mike, ayoko. He angrily stood up saying, Fine, hindi na tayo mag-uusap. Dont come to the faculty room anymore. You know I need this and if you will not give in or give it to me, let us end this. She replied, Mike, hindi pa ako ready and it was you who said it will be after my debut on December 3, 1997. He insisted that there was no difference between having sex then and after her debut. He told her, kung hindi ko makukuha ngayon, tapusin na natin ngayon. Pressured and afraid of his threat to end their relationship, she hesitantly replied Fine. On hearing this,

he quickly undressed while commenting ibibigay mo rin pala, pinahirapan mo pa ako and laughed. They had sexual intercourse. In July 1999, AAA ended her relationship with petitioner. She learned that he was either intimately involved with or was sexually harassing his students in Assumption College and in other colleges where he taught. In particular, he was dismissed from the De La Salle University-Aguinaldo for having sexual relations with a student and sexually harassing three other students. His employment was also terminated by Assumption College for sexually harassing two of his students. It was then that AAA realized that she was actually abused by petitioner. Depressed and distressed, she confided all that happened between her and petitioner to her mother, BBB. On learning what her daughter underwent in the hands of petitioner, BBB filed an administrative complaint in Assumption College against him. She also lodged a complaint in the Office of the City Prosecutor of Pasay City which led to the filing of Criminal Case No. 00-0691. In his defense, petitioner proffered denial and alibi. He claimed that the alleged incidents on October 3, 1997 and October 10, 1997 did not happen. He spent October 3, 1997 with his colleagues Joseph Hipolito and AJ Lagaso while he was busy checking papers and computing grades on October 10, 1997. The last time he saw AAA during the first semester was when she submitted her final paper on October 18, 1997. On November 19, 1997, between 10:30 a.m. and 1:00 p.m., he sorted out conflicts of class schedules for the second semester at the Assumption College. On November 26, 1997, he was at St. Scholasticas College (where he was also teaching) preparing a faculty concert slated on December 12, 1997. At lunch time, he attended the birthday treat of a colleague, Evelyn Bancoro. On November 29, 1997, he attended AAAs 18th birthday party. That was the last time he saw her. According to petitioner, AAA became his sweetheart when she was already 19 years old and after he was dismissed from Assumption College. On December 27 and 28, 1998, they spent time together, shared their worries, problems and dreams and kissed each other. On January 3, 1999, he brought her to Queensland Lodge where they had sexual intercourse for the first time. It was repeated for at least 20 times from January 1999 until they broke up in July 1999, some of which were done at either his or her house when no one was around. The trial court found the evidence for the prosecution sufficient to sustain petitioners conviction. On March 7, 2001, it rendered a decision finding petitioner guilty.[10] The dispositive portion read:

In view of the foregoing, the Court finds the accused Michael John Malto y Zarsadias guilty beyond reasonable doubt for violation of Article III, Section 5(a)[,] paragraph 3 of RA 7610[,] as amended and hereby sentences him to reclusion temporal in its medium period or an imprisonment of seventeen (17) years, four (4) months and one (1) day to twenty (20) years and to pay civil indemnity in the amount of Php 75,000.00 and moral and exemplary damages of Php 50,000.00 to minor complainant with subsidiary imprisonment in case of insolvency.[11]

Petitioner questioned the trial courts decision in the CA. In a decision dated July 30, 2004,[12] the appellate court affirmed his conviction even if it found that his acts were not covered by paragraph (a) but by paragraph (b) of Section 5, Article III of RA 7610. It further observed that the trial court failed to fix the minimum term of indeterminate sentence imposed on him. It also ruled that the trial court erred in awarding P75,000 civil indemnity in favor of AAA as it was proper only in a conviction for rape committed under the circumstances under which the death penalty was authorized by law.[13] Hence, the CA modified the decision of the trial court as follows: WHEREFORE, the appealed Decision of conviction is AFFIRMED, with the MODIFICATION that (1) appellant MICHAEL JOHN MALTO y ZARSADIAS is hereby sentenced to 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; and (2) the sum of P75,000.00 as civil indemnity is DELETED.[14] Hence, this petition. Petitioner contends that the CA erred in sustaining his conviction although it found that he did not rape AAA. For him, he should have been acquitted since there was no rape. He also claims that he and AAA were sweethearts and their sexual intercourse was consensual.

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.[17] If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.[18] The acts or omissions 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.[19] The designation of the offense in the information against petitioner was changed from violation of Section 5(b), Article III of RA 7610 to violation of Section 5(a), Article III thereof. Paragraphs (a) and (b) of Section 5, Article III of RA 7610 provide: Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who, for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: 1.

Acting as a procurer of a child prostitute;

2. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;

Petitioner is wrong.

THE OFFENSE STATED WRONGLY DESIGNATED

the approximate date of the commission of the offense and the place where the offense was committed.[16]

IN

THE

INFORMATION

WAS

3. Taking advantage of influence or relationship to procure a child as a prostitute; 4. Threatening or using violence towards a child to engage him as a prostitute; or

In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the accusation against him. [15] Pursuant thereto, the complaint or information against him should be sufficient in form and substance. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party;

5. Giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual

abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, that the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and xxx xxx xxx (emphasis supplied) The elements of paragraph (a) are: 1. the accused engages in, promotes, facilitates or induces child prostitution; 2. the act is done through, but not limited to, the following means: a. acting as a procurer of a child prostitute;

intimidation or influence, engages in sexual intercourse or lascivious conduct.[20] The information against petitioner did not allege anything pertaining to or connected with child prostitution. It did not aver that AAA was abused for profit. What it charged was that petitioner had carnal knowledge or committed sexual intercourse and lascivious conduct with AAA; AAA was induced and/or seduced by petitioner who was her professor to indulge in sexual intercourse and lascivious conduct and AAA was a 17-year old minor. These allegations support a charge for violation of paragraph (b), not paragraph (a), of Section 5, Article III, RA 7610.

THE REAL NATURE OF THE OFFENSE IS DETERMINED BY FACTS ALLEGED IN THE INFORMATION, NOT BY THE DESIGNATION

b. inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. taking advantage of influence or relationship to procure a child as a prostitute; d. threatening or using violence towards a child to engage him as a prostitute or e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution; 3. and 4.

the child is exploited or intended to be exploited in prostitution the child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) are: 1. the accused commits the act of sexual intercourse or lascivious conduct; 2. the 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. Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the child is abused primarily for profit. On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion,

The designation in the information of the specific statute violated is imperative to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly. However, the failure to designate the offense by statute,[21] or to mention the specific provision penalizing the act,[22] or an erroneous specification of the law violated[23] does not vitiate the information if the facts alleged clearly recite the facts constituting the crime charged.[24] What controls is not the title of the information or the designation of the offense but the actual facts recited in the information.[25] In other words, it is the recital of facts of the commission of the offense, not the nomenclature of the offense, that determines the crime being charged in the information.[26] The facts stated in the amended information against petitioner correctly made out a charge for violation of Section 5(b), Article III, RA 7610. Thus, even if the trial and appellate courts followed the wrong designation of the offense, petitioner could be convicted of the offense on the basis of the facts recited in the information and duly proven during trial.

PETITIONER VIOLATED OF RA 7610, AS AMENDED

SECTION

5(B),

ARTICLE

III

The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts committed by the accused. The second element refers to the state or condition of the offended party. The third element corresponds to the minority or age of the offended party.

The first element was present in this case. Petitioner committed lascivious conduct against and had sexual intercourse with AAA in the following instances: (1) on November 19, 1997, when he kissed her at the back and neck, touched her breasts and placed his hand inside her blouse to gratify his lust; (2) on November 26, 1997, when, with lewd designs, he dragged her towards the bed of the motel room and forcibly kissed her on the lips, neck and breasts and (3) when he exerted moral influence on her and pressured her until she surrendered herself to him on November 26, 1997. His acts were covered by the definitions of sexual abuse and lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions of RA 7610, particularly on child abuse:

(g) Sexual abuse includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children; (h) Lascivious conduct means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person. (emphasis supplied) The second element was likewise present pronouncement in People v. Larin[27] is significant:

here.

The

following

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. (emphasis supplied)

On November 19, 1997, due to the influence of petitioner, AAA indulged in lascivious acts with or allowed him to commit lascivious acts on her. This was repeated on November 26, 1997 on which date AAA also indulged in sexual intercourse with petitioner as a result of the latters influence and moral ascendancy. Thus, she was deemed to be a child subjected to other sexual abuse as the concept is defined in the opening paragraph of Section 5, Article III of RA 7610 and in Larin.

The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610 provides: SECTION 3. Definition of Terms. (a) Children refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; (emphasis supplied)

On November 19, 2007 and November 26, 2007, AAA was a child as she was below 18 years of age. She was therefore within the protective mantle of the law. Since all three elements of the crime were present, the conviction of petitioner was proper.

VIOLATION OF SECTION 5(B), ARTICLE III OF RA 7610 AND RAPE ARE SEPARATE AND DISTINCT CRIMES Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610, not rape. The offense for which he was convicted is punished by a special law while rape is a felony under the Revised Penal Code. [28] They have different elements.[29] The two are separate and distinct crimes. Thus, petitioner can be held liable for violation of Section 5(b), Article III of RA 7610 despite a finding that he did not commit rape.

CONSENT OF THE CHILD IS IMMATERIAL IN CRIMINAL CASES INVOLVING VIOLATION OF SECTION 5, ARTICLE III OF RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual intercourse with him. They engaged in these acts out of mutual love and affection. But may the sweetheart theory be invoked in cases of child prostitution and other sexual abuse prosecuted under Section 5, Article III of RA 7610? No. The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.[30]

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. The language of the law is clear: it seeks to punish [t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.

Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed. A child cannot give consent to a contract under our civil laws.[31] This is on the rationale that she can easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to take care of themselves fully.[32] Those of tender years deserve its protection.[33] The harm which results from a childs bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences [34] of her attempts at adult sexual behavior.[35] For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. (Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse.[36] This must be so if we are to be true to the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social wellbeing of the youth.[37] This is consistent with the declared policy of the State [T]o provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation, and discrimination.[38] (emphasis supplied)

as well as to intervene on behalf of the child when the parents, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation, and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same.[39] (emphasis supplied) This is also in harmony with the foremost consideration of the childs best interests in all actions concerning him or her. The best interest of children shall be the paramount consideration in all actions concerning them, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies, consistent with the principles of First Call for Children as enunciated in the United Nations Convention on the Rights of the Child. Every effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life.[40] (emphasis supplied)

PETITIONER MAY ENJOY THE BENEFITS OF THE INDETERMINATE SENTENCE LAW The penalty prescribed for violation of the provisions of Section 5, Article III of RA 7610 is reclusion temporal in its medium period to reclusion perpetua. In the absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law.[41] Notwithstanding that RA 7610 is a special law, petitioner may enjoy the benefits of the Indeterminate Sentence Law.[42] Since the penalty provided in RA 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law. [43] Thus, he is entitled to a maximum term which should be within the range of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the penalty next lower to that prescribed by the law: prision mayor in its medium period to reclusion temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8 months).

THE AWARD OF DAMAGES SHOULD BE MODIFIED

The trial court awarded AAA P75,000 as civil indemnity, P50,000 as moral and exemplary damages. The CA deleted the award for civil indemnity. It correctly reasoned that the award was proper only in a conviction for rape

committed under the circumstances under which the death penalty is authorized by law. Consistent, however, with the objective of RA 7610 to afford children special protection against abuse, exploitation and discrimination and with the principle that every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same,[44] civil indemnity to the child is proper in a case involving violation of Section 5(b), Article III of RA 7610. Every person criminally liable is civilly liable.[45] The rule is that, in crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of.[46] Thus, P50,000 civil indemnity ex delicto shall be awarded in cases of violation of Section 5(b), Article III of RA 7610.[47] Moreover, the CA erred in affirming the grant of P50,000 as moral and exemplary damages. The rule is that, in every case, trial courts must specify the award of each item of damages and make a finding thereon in the body of the decision.[48] Thus, moral damages and exemplary damages should be separate items of award.

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

- versus -

HERACLEO ABELLO Y FORTADA, Accused-Appellant. G.R. No. 151952 Present:

AAA testified that she was emotionally devastated and lost touch of her inner self as a result of what petitioner did to her. Because of the mental anxiety and wounded feelings caused by petitioner to her, she had several sessions with the dean for student affairs[49] and the guidance counselor of Assumption College as well as with a psychiatrist. This was corroborated by her mother and the dean of student affairs of Assumption College. Thus, she is entitled to moral damages of P50,000. However, in the absence of an aggravating circumstance, the grant of exemplary damages is unwarranted.[50]

*QUISUMBING, J., Chairperson, *CARPIO MORALES, **TINGA, VELASCO, JR., and BRION, JJ.

Accordingly, the petition is hereby DENIED. Petitioner Michael John Z. Malto is hereby found guilty of violating Section 5(b), Article III of RA 7610, as amended, for which he is sentenced to 14 years and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. He is further ordered to pay AAA P50,000 as civil indemnity and P50,000 for moral damages.

March 25, 2009

Costs against petitioner.

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]

SO ORDERED.

Promulgated:

x-------------------------------------------------------------------------------------- x DECISION BRION, J.:

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.

who identified Abello as the perpetrator of the rape and sexual abuses against her. Abellos defense was confined to his denial of the accusations.

The following Informations (all dated July 8, 1998) were filed against the appellant: Criminal Case No. 19623-MN

The Background Facts

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.

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.

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]

The RTC summarized the facts as follows:

On June 30, 1998 at around 4:00 oclock (sic) in the early morning, AAA was sleeping in their house in Kalyeng Impiyerno, Navotas, Metro Manila along with her sister-in-law and nephew. She was suddenly awakened when Abello mashed her breast. Come July 2, 1999 at around 3:00 a.m. Abello again mashed the breast of AAA practically under the same previous situation while the latter was sleeping. In these two occasions AAA was able to recognize Abello because of the light coming from outside which illuminated the house. Then on July 8, 1998, at around 2:00 a.m., Abello this time placed his soft penis inside the mouth of AAA. The latter got awaken when Abello accidentally kneeled on her right hand. AAA exclaimed Aray forcing the accused to hurriedly enter his room. He was nevertheless seen by AAA. The victim on the same date reported the incident to her sister-in-law and mother.

CONTRARY TO LAW.

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.

Criminal Case No. 19625-MN

The RTC found Abello guilty under the three Informations. The dispositive portion of the decision states:

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,

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 Abellos 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]

We affirm Abellos conviction on all three charges.

Determining the guilt or innocence of an accused, based solely on the victims 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 AAAs 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 AAAs 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 Abellos hands, as follows:

The Issues

Q: Do you remember any unusual incident that happened on June 30, 1999, inside your mothers house at around 4:00 oclock (sic)? A: I remembered on that date that he hold (sic) my breast, sir.

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 accusedappellant 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 AAAs 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 Abellos conviction on the basis of AAAs positive and candid narration covering the elements constituting the crimes of rape by sexual assault and sexual abuse. Our Ruling

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 3:00 oclock (sic), sir. Q: What did he do to you on July 2 at 3:00 oclock (sic)? A: The same he mashed my breast, sir. Q: Was that repeated? A: On July 8 at around 2:00 oclock in the morning, sir. 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 xxx 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. xxx 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 AAAs testimony to be positive, direct, and categorical, while the RTC found the defenses 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 stepdaughters 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 Abellos 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 partys 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 ones 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 July 8, 1998, he passed by the sala of their house where AAA and her companions were sleeping.[22] This admission shows that he had the opportunity and the means to commit these crimes in terms of his location and close proximity to AAA who, together with her companions, were then sleeping. Second, we flatly reject Abellos 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 AAAs 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]

(b) When a woman is deprived of reason or otherwise unconscious; x x x[27]

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 ones 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 AAAs 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 October 22, 1997 introduced into the Philippine legal system the concept of rape by sexual assault. This amendment not only reclassified rape as a crime against persons, but also expanded the definition of rape from the traditional concept of a sexual intercourse committed by a man against an unwilling woman. 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 persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

AAAs testimony covers the commission of the sexual assault through the insertion of Abellos 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 Abellos 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 Abellos male organ inside her mouth. This variance is not fatal to Abellos 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 Abellos 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:

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 persons mouth or anal orifice; or xxx (3) That the act of sexual assault is accomplished under any of the following circumstances: (a)

By using force or intimidation;

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. xxx (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:

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]

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 partys will.[33] In the present case, the prosecution failed to present any evidence showing that force or coercion attended Abellos 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 Abellos 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 Abellos assault.

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 AAAs polio as a physical disability that rendered her incapable of normal function, no evidence was in fact presented showing the prosecutions 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 AAAs 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 statutes 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 AAAs physical disability prevented her from resisting Abellos 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 AAAs 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

failure to present the marriage contract between Abello and AAAs mother. If the fact of marriage came out in the evidence at all, it was via an admission by Abello of his marriage to AAAs mother. This admission, however, is inconclusive evidence to prove the marriage to AAAs 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.

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 AAAs 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 mothers 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 prosecutions

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]

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.

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.

SO ORDERED.

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 AAAs polio was duly proven during the trial; this matter was not alleged in the Information.[52] These aggravating and qualifying circumstances of dwelling and Abellos knowledge of AAAs 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 January 3, 2002 of the Court of Appeals in CA-G.R. CR No. 23746 is AFFIRMED with the following MODIFICATIONS in that: (1) In Criminal Case No. 19623, we find appellant Heracleo Abello y Fortada GUILTY of rape by sexual assault defined and penalized under Articles 266A 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

MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents. DECISION MENDOZA, J.: Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (an act providing for stronger deterrence and special protection against child abuse, exploitation and discrimination, providing penalties for its violation, and other purposes). His arrest was made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by petitioner for an assignation that night at petitioners room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioners activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-70550. Edp On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the A bove Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged."[1] On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn

Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual intercourse." No bail was recommended. Nonetheless, applications for bail in the nine cases.

petitioner

filed

separate

On May 16, 1997, the trial court issued an order resolving petitioners Omnibus Motion, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that: 1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest having been made in accordance with the Rules. He must therefore remain under detention until further order of this Court; 2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the following conditions: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; 3. Let these cases be set for arraignment on May 23, 1997 at 8:30 oclock in the morning.[2] On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the arraignment scheduled on May 23, 1997.[3] Then on May 22, 1997, he filed a motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment.[4] Misedp

On May 23, 1997, the trial court, in separate orders, denied petitioners motions to reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997. On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing the trial courts order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997, respectively. While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing the total number of cases against him to 12, which were all consolidated. On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads: WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),[5] of the May 23 (should be May 16), 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.[6] Misoedp The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the approval of petitioners bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, 14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable." With respect to the denial of petitioners motion to quash the informations against him, the appellate court held that petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him.

Hence this petition. Petitioner contends that the Court of Appeals erred[7] __ 1.......In ruling that the condition imposed by respondent Judge that the approval of petitioners bail bonds "shall be made only after his arraignment" is of no moment and has been rendered moot and academic by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses; 2.......In not resolving the submission that the arraignment was void not only because it was made under compelling circumstance which left petitioner no option to question the respondent Judges arbitrary action but also because it emanated from a void Order; 3.......In ruling that the denial of petitioners motion to quash may not be impugned in a petition for certiorari; and 4.......In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse allegedly committed against each private complainant by the petitioner. We will deal with each of these contentions although not in the order in which they are stated by petitioner. First. As already stated, the trial courts order, dated May 16, 1997, imposed four conditions for the grant of bail to petitioner: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and Edpmis d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the

trial court which makes petitioners arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his arraignment was also invalid because it was held pursuant to such invalid condition. We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial courts order of May 16, 1997 for the grant of bail because petitioners contention is that his arraignment was held in pursuance of these conditions for bail. In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioners bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, 14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment. This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accuseds constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.[8]

It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial courts order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such case, trial shall proceed in absentia." Jjsc Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt,[9] (b) during trial whenever necessary for identification purposes,[10] and (c) at the promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative.[11] At such stages of the proceedings, his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,[12] in an opinion by Justice, later Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned. Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure petitioners presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioners constitutional rights. Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May 23, 1997 was also invalid. Contrary to petitioners contention, the arraignment did not emanate from the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the arraignment of petitioner could not be omitted. In sum, although the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings against him are valid. Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he argues that this case should be treated as an exception. He contends that the Court of Appeals should not have evaded the issue of whether he should be charged under several

informations corresponding to the number of acts of child abuse allegedly committed by him against each of the complainants. In Tano v. Salvador,[13] the Court, while holding that certiorari will not lie from a denial of a motion to quash, nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is important to petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a child constitutes a separate offense, it will matter whether the other children are presented during the trial. Scjj The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can proceed without further delay. Petitioners contention is that the 12 informations filed against him allege only one offense of child abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of the number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only four informations, corresponding to the number of alleged child victims, can be filed against him. Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides: Sec. 5 Child Prostitution and Other Sexual Abuse. __ Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual

intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: .... (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.

PEOPLE VS ABULON Promulgated: August 17, 2007 x-------------------------------------------------------------------------------- x DECISION TINGA, J.:

The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child,[14] whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate, or group. Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Art. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160, which provides: [t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared void. SO ORDERED. Sjcj

For automatic review is the decision[1] of the Court of Appeals (CA) dated 28 April 2006, affirming with modification the decision[2] of the Regional Trial Court (RTC) of Santa Cruz, Laguna, Branch 28,[3] dated 27 December 2000, finding him guilty beyond reasonable doubt of two (2) counts of qualified rape and one (1) count of acts of lasciviousness. In three (3) separate Informations[4] for Criminal Cases No. SC-7422, SC7423 and SC-7424 all dated 16 June 1999, appellant was indicted before the RTC for three (3) counts of qualified rape against his minor daughter AAA.[5] The accusatory portions in all the Informations are identical, except as regards the date of commission of the crime. The Information in Criminal Case No. SC-7422 reads:

At the instance of the private complainant [AAA] with the conformity of her mother [BBB][6] in a sworn complaint filed with the Municipal Circuit Trial Court of Lumban-Kalayaan (Laguna), the undersigned Assistant Provincial Prosecutor of Laguna hereby accuses ALVIN ABULON Y SALVANIA, of the crime of RAPE, committed as follows: That on or about March 14, 1999, in the Municipality of Kalayaan, Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, with grave abuse of confidence or obvious ungratefulness, and with force and intimidation, did then and there wilfully [sic], unlawfully and feloniously have carnal knowledge of his legitimate minor daughter, [AAA], who at the [sic] time was thirteen (13) years of age, against her will and consent and to her damage and prejudice. CONTRARY TO LAW. After appellant pleaded not guilty, trial ensued with AAA herself, as the first prosecution witness, testifying to the following facts: AAA is the oldest of five (5) legitimate children born to appellant and BBB. On 14, 15, and 16 March 1999, appellant raped AAA. The first rape incident

occurred at around 1:30 in the morning of 14 March 1999. AAA was home, fast asleep next to her brother and sister when she suddenly woke up to the noise created by her father who arrived drunk, but who likewise soon thereafter returned to the wedding festivities he was attending. Abiding by their fathers instructions, AAA and her siblings went back to sleep.[7]

that appellant had raped AAA three (3) times and that he had seen his father on top of his sister during those occasions. BBB then verified the matter with AAA herself, and the latter affirmed the incidents. BBB thus took AAA with her to the barangay and police authorities to report the incidents, and later to the provincial hospital for medical examination.[18]

AAA was next awakened by the weight of her father lying naked on top of her. Appellant had removed her underwear while she slept. He poked a knife on AAAs waist and threatened to kill her and her siblings if she reported the incident to anyone. She begged him to stop but he proceeded to kiss her mouth, vagina, and breast, and to have carnal knowledge of her.[8] Although they witnessed the ongoing ordeal, AAAs siblings could do nothing but cry as appellant likewise poked the knife on them.[9] The following morning, AAA found a whitish substance and blood stains on her panty.[10]

CCC testified that on three (3) separate occasions, he saw his father lying naked on top of AAA, who was likewise naked.[19]

On 15 March 1999, at around 10:30 in the evening, AAA and her siblings were awakened as appellant came home drunk. He told them to eat first as they had not taken their supper yet. After dining together, appellant left and AAA, her brother, and her sister went back to sleep.[11] As in the previous evening, appellant roused AAA in mid-sleep. This time, she woke up with her father holding her hand, covering her mouth and lying on top of her. He undressed AAA, then mounted her. Repeatedly, he inserted his penis into her vagina, and AAA felt pain in her private parts. Appellant also kissed and fondled AAA on different parts of her body.[12] Again, AAAs siblings could only cry as they saw appellant rape their sister. AAAs sister, however, took a pen and wrote her a note which read: Ate, let us tell what father was doing to the police officer. After appellant had raped AAA, the latters sister asked their father why he had done such to AAA. In response, appellant spanked AAAs sister and threatened to kill all of them should they report the incidents to the police.[13] The sisters nonetheless related to their relatives AAAs misfortune, but the relatives did not take heed as they regarded appellant to be a kind man.[14]

The prosecution also presented SPO1 Bayani G. Montesur (SPO1 Montesur) and Dr. Gloria Cabael (Dr. Cabael). SPO1 Montesur identified the Police Blotter of 4 May 1999 which recorded the complaints of rape against appellant and the report of the latters arrest.[20] Dr. Cabael, on the other hand, testified that she examined AAA on 4 May 1999 upon the request of Police Officer Gallarosa. She identified the Rape Case Report she prepared thereafter.[21] Appellant testified as the sole witness on his behalf, proffering denial and alibi as his defenses. According to appellant, he was hired by his aunt, Raquel Masangkay, to deliver hogs and that at 1:30 in the morning of 14 March 1999, he was in Calamba, Laguna pursuant to such employment. He averred that he went home at 7:00 in the morning of the following day and thus could not have raped his daughter as alleged.[22] Likewise denying the second rape charge, appellant testified that on 15 March 1999, he attended a wedding ceremony in Sityo Kalayaan, San Antonio, Kalayaan, Laguna. He went home drunk at 6:00 that evening and promptly went to sleep.[23] Similarly, at 3:00 in the morning of 16 March 1999, appellant claimed to have been asleep with his children and could not have thus committed the rape as charged.[24] Finding that the prosecution had proven beyond reasonable doubt the guilt of appellant of the crime of qualified rape in Criminal Case Nos. SC-7422 and SC-7423 and the crime of acts of lasciviousness in Criminal Case No. SC7424, the RTC rendered a Consolidated Judgment against appellant and sentenced him accordingly, thus:

The third rape episode happened at around 3:30 in the morning of 16 March 1999. Although appellant did not insert his penis into AAAs vagina on this occasion, he took off her lower undergarments and kissed her vagina.[15] On cross-examination, AAA asserted that her father inserted his tongue into the hole of her vagina and she felt pain because of this.[16]

WHEREFORE:

To corroborate AAAs testimony, the prosecution presented BBB and AAAs 6year old brother CCC.[17] BBB testified that she was a stay-in housemaid working in Las Pias on the dates that her daughter was raped by appellant. On 26 March 1999, she went home and stayed with her family. However, it was only on 4 May 1999 that BBB learned of the rape, when CCC told her

Under Criminal Case No. SC-7422, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW, and hereby

sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the offended party [AAA] the following sums:

beyond reasonable doubt of the crime of acts of lasciviousness, are hereby AFFIRMED.

P 75,000.00 - as civil indemnity 50,000.00 - as moral damages; and 50,000.00 - as exemplary damages.

The civil aspect of the case is MODIFIED to read: In Criminal Case Nos. SC7422-7423, the award of exemplary damages in the amount of [P]50,000.00 is reduced to [P]25,000.00. In Criminal Case No. SC-7424, appellant is ordered to pay the victim the amount of [P]30,000.00 as moral damages. We affirm in all other respects.

Under Criminal Case No. SC-7423, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW, and hereby sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the offended party [AAA] the following sums:

Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of Criminal Procedure to Govern Death Penalty Cases), which took effect on October 15, 2004, this case is elevated and certified to the Supreme Court for its automatic review. SO ORDERED.[27]

P 75,000.00 - as civil indemnity 50,000.00 - as moral damages; and 50,000.00 - as exemplary damages. Under Criminal Case No. SC-7424, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of ACTS OF LASCIVIOUSNESS as defined and penalized under Article 336 of the Revised Penal Code and hereby sentences him to suffer the penalty of imprisonment for SIX (6) MONTHS of ARRESTO MAYOR as MINIMUM to SIX (6) YEARS of PRISION CORRECCIONAL as MAXIMUM. The accused is further ordered to pay the costs of the instant three (3) cases. SO ORDERED.[25]

With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. However, pursuant to this Courts ruling in People v. Mateo,[26] the case was transferred to the Court of Appeals. On 28 April 2006, the appellate court rendered its decision affirming appellants conviction, but with modification as to damages awarded to the victim. The dispositive portion of the decision states: WHEREFORE, the decision of the Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case Nos. SC-7422 and SC-7423 finding appellant Alvin S. Abulon guilty beyond reasonable doubt of the crimes of qualified rape, and in Criminal Case No. SC-7424, finding appellant guilty

In his Brief,[28] appellant assails his conviction and imputes grave error to the trial court for giving weight and credence to the testimony of AAA. In particular, he makes capital of AAAs delay in reporting the incidents to her mother. He likewise impugns the trial courts alleged bias in propounding inappropriate leading questions to private complainant AAA. Finally, he maintains that the Informations against him are defective as they failed to allege the key element of force and/or intimidation.[29] We affirm the decision of the Court of Appeals with modifications. The duty to ascertain the competence and credibility of a witness rests primarily with the trial court,[30] because it has the unique position of observing the witnesss deportment on the stand while testifying. Absent any compelling reason to justify the reversal of the evaluations and conclusions of the trial court, the reviewing court is generally bound by the formers findings.[31] In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility of the complainants testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left to testify for herself.[32] Her testimony is most vital and must be received with the utmost caution.[33] When a rape victims testimony, however, is straightforward and marked with consistency despite grueling examination, it deserves full faith and confidence and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.[34] The court a quo found the testimony of AAA in its entirety to be credible, made in a candid, spontaneous, and straightforward manner and never

shaken even under rigid cross-examination.[35] We agree that AAAs narration of her harrowing experience is worthy of credence, thus:

A : He said that if he [sic] report her [sic] to anybody he would kill us, Your Honor.

Criminal Case No. SC-7422

xxxx

Trial Prosecutor: Q : Tell us what happened at around 1:30 in the morning of March 11, [sic] 1999 to you? A : My brother and sister and I were already asleep when my father who was drank [sic] came home. We told him to just sleep. My father told us that he would still return to the wedding celebration (kasalan).

Trial Prosecutor: Q : What else did he do aside from telling you huag kang magsusumbong? A : He also poked the knife on [sic] my brother and sister, sir.

xxxx

Q : What else did he do aside from poking a knife on [sic] you and your brother and sister? A : No more, sir.

Q : What happened next when you continued sleeping? A : I was awakened when I felt my father already on top of me, sir. Q : Tell us exactly what was [sic] your position then at that time you woke up? A : I was still lying straight down, sir. Q : How about your father in relation to you, where was he at the time you woke up? A : He was on top (nakadagan) of me, sir.

Q : They were already awakened at that time? A : Yes, sir.

Court: Q : While your father according to you is [sic] on top of you, what did he do if any? A : Kinayog na po niya ako. Q : What do you mean by telling [sic] kinayog na po niya ako? A : He was moving, Your Honor. Q : While your father was moving, what else was happening at that time? A : I felt pain, Your Honor.

Court: Q : Was he naked? A : Already naked, Your Honor.

Trial Prosecutor: Q : From where did you feel that pain? A : From my private part, sir.

Q : How about you, do [sic] you have your clothes on? A : I have [sic] my lady sando on, Your Honor.

xxxx

Trial Prosecutor: Q : Are [sic] you still wearing your panty when you were awakened? A : No more, sir.

Q : Do you know if you know why you felt the pain on the lower portion of your body? A : Yes, sir.

xxxx Q : What did your father do aside from placing his body on top of you? A : He poked a knife on [sic] me, sir.

Q : Please tell us if you know? A : Something whitish coming out from it, sir.

Court: Q : Did he say something? A : Yes, Your Honor. Q : What did he say?

Court: Q : From where did it come from [sic]? That whitish substance? A : From my fathers private part, Your Honor. Q : Why, what happened to the private part of your father? A : I do not know, Your Honor.

Q : When you felt pain, what was your father doing then? A : He repeated what he told [sic] previously not to tell to [sic] anybody.

xxxx

Q : At that time, did you see the private part of your father? A : Yes, Your Honor.

Criminal Case No. SC-7423

Q : When you felt pain. Do you know what is [sic] happening to the private part of your father? A : Yes, Your Honor.

TP. Arcigal, Jr.: Q : Now, you said that the second incident happened [on] March 15, 1999, am I correct? A : Yes, sir.

Q : What was happening? A : His private part stiffened or hardened (tumirik), Your Honor. Q : Where was it placed if any? A : Into my private part, Your Honor. Q : Did the private part of you father actually penetrate your vagina? A : Yes, Your Honor.

Q : And where and what time said [sic] second incident happened? A : 10:30 in the evening, sir, also in our house, sir. xxxx Q : And what were you doing when your father returned at around 11:00 oclock in the evening? A : We were all asleep, sir.

Q : What did you feel at the time the penis of your father entered your vagina? A : It was painful, Your Honor.

Q : And how did you come to know that he returned at around 11:00 P.M.? A : My father suddenly held my hand, sir.

Q : At that time was your father making any movement? A : Yes, Your Honor.

Q : And because of that, you were awakened? A : Yes, sir.

Q : Will you describe the movement made by your father? A : (Witness demonstrating an upward and downward stroke by placing her right palm over her left hand)

Q : And what happened when you were awakened because your father held your hand? A : He covered my mouth, sir.

Trial Prosecutor: Q : Did he kiss you? A : Yes, sir.

Q : And after covering your mouth, what else did he do? A : He removed the lower portion of my clothes. Hinubuan po niya ako. xxxx

Q : In what part of your body? A : On my mouth, sir.

Q : After removing your lady sando, what else did he do? A : He laid himself on top of me, sir.

Q : Aside from your mouth, what other part or parts of your body did he kiss? A : On my private part, sir.

xxxx

Q : When did he kiss you private part, before inserting his penis or after? A : After he inserted his penis, sir.

Q : Now, what did he do to you when he was already on top of you? A : He was kinakayog niya po ako.

Q : What other part of your body did he kiss? A : On my breast, sir.[36]

Q : Aside from kinakayog, what else did he do? A : He kissed my breast, sir.

Q : Aside from that, what else? A : He likewise touched my private part, sir. Q : When he was on top of you, do you know where was [sic] his penis at that time? A : Yes, sir. Q : Where? A : Into my vagina, sir. Q : How did you come to know that the penis of your father was inside your vagina? A : I felt pain in my private part, sir. Q : And do you know why you felt pain in your private part? A : Yes, sir. Q : Why? A : His private part . (Thereafter witness is crying while uttering words: I am afraid I might be killed by my father.) He held his penis into my vagina. Thereafter, inserted it repeatedly into mine, sir. Q : And you were able to actually feel his penis inside your vagina? A : Yes, sir. [37]

Q : Was your father drunk at that time? A : Yes, sir. Q : How did you come to know? A : His eyes were red and he was laughing at me while telling me: It is your end. (Witness crying while answering the question.) Q : Now, what happened when your father was able to hold your dress? A : He carried me upstairs, sir. Q : Was he able to carry you upstairs? A : Yes, sir. Q : What did he do, if any, when you were upstairs? A : He removed my panty and shortpants, sir. Q : After removing your shorts and panty, what else did he do? A : No more but he kissed my vagina. Q : Which part of your vagina did he kiss? A : That part of my vagina with hold [sic]. Court: Q : What about your upper garments at that time? A : He did not remove it, Your Honor.

xxxx

Q : What else did he do, aside from that? A : Nothing more, just that.

Criminal Case No. SC-7424

Q : After kissing your vagina, what else happened, if any? A : He again poked the knife on us, Your Honor.

TP. Arcigal, Jr.: Q : Now, you said also that you were raped on March 16, 1999, am I correct? A : Yes, sir.

Q : At that time, was your father naked or not? A : Still with his clothes on, Your Honor. xxxx

Q : What time? A : It was 3:30 oclock in the morning, sir. xxxx TP. Arcigal, Jr.: Q Now, how did it happen, that third incident? A I was able to run downstairs but when I was about to open the door, he was able to hold my dress, sir.

Q : For clarification, what else, if any, did your father do after your father kissed your vagina? A : Nothing more, merely that act, Your Honor. Q : You mean your father did not insert his penis to [sic] your vagina anymore? A : No more, Your Honor. xxxx

TP. Arcigal, Jr.: Q : Now, what did he use in kissing your clitoris? A : His tongue, sir. Q : How did you come to know that it was his tongue that he used? A : It is because I saw him put out his tongue, sir.[38]

Verily, it is inconceivable and contrary to human experience for a daughter, who is attached to her father by the natural bond of love and affection, to accuse him of rape, unless he is the one who raped and defoliated her.[39] As we have pronounced in People v. Canoy:[40] It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts, put her life to public scrutiny and expose herself, along with her family, to shame, pity or even ridicule not just for a simple offense but for a crime so serious that could mean the death sentence to the very person to whom she owes her life, had she really not have been aggrieved. Nor do we believe that the victim would fabricate a story of rape simply because she wanted to exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.[41]

In stark contrast with AAAs convincing recital of facts, supported as it was by the testimonies of BBB and CCC, are appellants uncorroborated and shaky defenses of denial and alibi. Nothing is more settled in criminal law jurisprudence than that alibi and denial cannot prevail over the positive and categorical testimony and identification of the complainant.[42] Alibi is an inherently weak defense, which is viewed with suspicion because it can easily be fabricated.[43] Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-culpability to merit credibility.[44] The records disclose that not a shred of evidence was adduced by appellant to corroborate his alibi. Alibi must be supported by credible corroboration from disinterested witnesses, otherwise, it is fatal to the accused.[45] Further, for alibi to prosper, it must be demonstrated that it was physically impossible for appellant to be present at the place where the crime was committed at the time of its commission.[46] By his own testimony, appellant clearly failed to show that it was physically impossible for him to have been present at the scene of the crime when the rapes were alleged to have occurred. Except for the first incident, appellant was within the vicinity of his home and in fact alleged that he was supposedly even sleeping therein on the occasion of the second and third incidents.

Appellants contention that AAAs accusations are clouded by her failure to report the alleged occurrences of rape is unmeritorious. To begin with, AAA categorically testified that she told her fathers niece about the incidents. However, the latter doubted her, believing instead that appellant was not that kind of man. AAAs subsequent attempt to report the incidents to the barangay turned out to be futile as well as she was only able to speak with the barangay driver, who happened to be appellants brother-in-law. She was likewise disbelieved by the latter. Her disclosure of the rapes to a certain Menoy did not yield any positive result either. Fearing for the lives of her grandparents, AAA decided not to tell them about the incidents.[47] A child of thirteen years cannot be expected to know how to go about reporting the crime to the authorities.[48] Indeed, We see how AAA must have felt absolutely hopeless since the people around her were relatives of her father and her attempts to solicit help from them were in vain. Thus, AAAs silence in not reporting the incidents to her mother and filing the appropriate case against appellant for over a month is sufficiently explained. The charge of rape is rendered doubtful only if the delay was unreasonable and unexplained.[49] It is not beyond ken that the child, living under threat from appellant and having been turned away by trusted relatives, even accused by them of lying, would simply opt to just suffer in silence thereafter. In People v. Gutierrez,[50] we held:

Complainants failure to immediately report the rape does not diminish her credibility. The silence of a victim of rape or her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge is baseless and fabricated. It is not uncommon for young girls to conceal for some time the assault on their virtues because of the rapists threat on their lives, more so when the offender is someone whom she knew and who was living with her.[51]

Appellant brands the trial judge as partial against him for propounding leading questions to AAA. According to him, were it not for the lower courts and the prosecutions biased leading questions, AAA would not have proven the elements of the crimes charged.[52] Appellants argument is not well-taken. It is the judges prerogative to ask clarificatory queries to ferret out the truth.[53] It cannot be taken against him if the questions he propounds reveal certain truths which, in turn, tend to destroy the theory of one party.[54] After all, the judge is the arbiter and ought to be satisfied himself as to the respective merits and claims of both parties in accord with the stringent demands of due process.[55] Also, being the arbiter, he may properly intervene in the presentation of evidence to expedite proceedings and prevent unnecessary waste of time.[56]

Besides, jurisprudence explains that allegations of bias on the part of the trial court should be received with caution, especially when the queries by the judge did not prejudice the accused. The propriety of the judges questions is determined by their quality and not necessarily by their quantity and, in any event, by the test of whether the defendant was prejudiced by such questioning or not.[57] In the instant case, the Court finds that on the whole, the questions propounded by the judge a quo were but clarificatory in nature and that, concomitantly, appellant failed to satisfactorily establish that he was prejudiced by such queries. The matter of the purportedly defective Informations was properly addressed by the Court of Appeals, pointing out that a close scrutiny of the Informations would reveal that the words force and/or intimidation are specifically alleged therein.[58] Even if these were not so, well-established is the rule that force or intimidation need not be proven in incestuous cases. The overpowering moral influence of a father over his daughter takes the place of violence and offer of resistance ordinarily required in rape cases where the accused is unrelated to the victim.[59] Now, we turn to the determination of the crime for which appellant under the third charge is liable and the corresponding penalty therefor. In the Brief for the People, the Office of the Solicitor General (OSG) argues that all three (3) charges of rape, including the rape committed on 16 March 1999 subject of Criminal Case No. SC-7424, were proved beyond reasonable doubt. The court a quo held that it was clear from the evidence that appellant merely kissed the vagina of AAA and made no attempt of penetration, meaning penile penetration, and for that reason found him guilty of acts of lasciviousness only.[60] Yet, in affirming the trial court, the Court of Appeals did not find any categorical testimony on AAAs part that appellant had inserted his tongue in her vagina, stressing instead that the mere probability of such insertion cannot take the place of proof required to establish the guilt of appellant beyond reasonable doubt for rape.[61] The automatic appeal in criminal cases opens the whole case for review,[62] as in this case. Thus, this Court is mandated to re-examine the vital facts established a quo and to properly apply the law thereto. The two courts below were both mistaken, as we note that AAA unqualifiedly testified on cross-examination to appellants insertion of his tongue into her vagina, viz:

Court: Q : On the third time you are [sic] allegedly raped, you said it happened at 3:30 in the morning of March 16, 1999. A : Yes, sir.

Q : And you said yesterday that he did not insert his pennies [sic] to [sic] your vagina on March 16? A : Yes, sir. Q : What he did is he kissed your vagina? A : Yes, sir. Q : For how long did he kiss your vagina? A : Two minutes, sir. Q : What did he actually do when he kissed your vagina? A : He kissed my vagina, thereafter he laughed and laughed. Q : You mean to tell the court when he kissed your vagina he used his lips? A : His lips and tongue, sir. Q : What did he do? A : He put out his tongue thereafter he inano the hole of my vagina. Court: Q : What did your father do with his tongue? A : He placed it in the hole of my vagina. Q : Did you feel pain? A : Yes, sir. Q : By just kissing your vagina you felt pain? A : Yes, Your Honor.[63]

Notwithstanding the explicit testimony of AAA on the matter, this Court cannot find appellant guilty of rape as proved, but of acts of lasciviousness only. In reaching this conclusion, we take a route different from the ones respectively taken by the courts below. With the enactment of Republic Act No. 8353 (R.A. No. 8353), otherwise known as the Anti-Rape Law of 1997,[64] the concept of rape was revolutionized with the new recognition that the crime should include sexual violence on the womans sex-related orifices other than her organ, and be expanded as well to cover gender-free rape.[65] The transformation mainly consisted of the reclassification of rape as a crime against persons and the introduction of rape by sexual assault[66] as differentiated from the traditional rape through carnal knowledge or rape through sexual intercourse. Section 2 of the law provides:

Sec. 2. Rape as a Crime Against Persons. The crime of rape shall hereafter be classified as a Crime Against Persons under Title Eight of Act No. 9815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as follows:

(3) In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by inserting the penis into another persons mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) The penalty for rape under the first mode is higher than that under the second.

Article 266-A. Rape; When And How Committed. Rape Is Committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: (a) Through force, threat, or intimidation; (b) When the offended party is deprived of reason or otherwise is unconscious; (c) By means of fraudulent machination or grave abuse of authority; and (d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Paragraph 1 under Section 2 of R.A. No. 8353, which is now Paragraph 1 of the new Article 266-A of the Revised Penal Code, covers rape through sexual intercourse while paragraph 2 refers to rape by sexual assault. Rape through sexual intercourse is also denominated as organ rape or penile rape. On the other hand, rape by sexual assault is otherwise called instrument or object rape,[67] also gender-free rape,[68] or the narrower homosexual rape.[69] In People v. Silvano,[70] the Court recognized that the fathers insertion of his tongue and finger into his daughters vaginal orifice would have subjected him to liability for instrument or object rape had the new law been in effect already at the time he committed the acts. Similarly, in People v. Miranda,[71] the Court observed that appellants insertion of his fingers into the complainants organ would have constituted rape by sexual assault had it been committed when the new law was already in effect. The differences between the two modes of committing rape are the following: (1) In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman; (2) In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a woman;

In view of the material differences between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the accusation against him. However, following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure, appellant can be found guilty of the lesser crime of acts of lasciviousness. Said provisions read: SEC. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.

Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.[72] In light of the passage of R.A. No. 9346, entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines,[73] the penalty of death can no longer be imposed. Accordingly, the penalty meted out to appellant for rape through sexual intercourse in Criminal Cases No. SC-7422 and SC7423 is reduced in each case from death to reclusion perpetua without eligibility for parole.[74] We affirm the conviction of appellant in Criminal Case No. SC-7424 for acts of lascivousness but modify the penalty imposed by the Court of Appeals instead to an indeterminate sentence of imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum as neither

mitigating nor aggravating circumstances attended the commission of the crime.

PEOPLE OF THE PHILIPPINES, G.R. No. 177752 Vs.

With respect to the civil liability of appellant, we modify the award in Criminal Cases No. SC-7422 and SC-7423 in light of prevailing jurisprudence. Therefore, appellant is ordered to indemnify AAA, for each count of qualified rape, in the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages.[75] The award of damages in Criminal Case No. SC-7424 is affirmed.

ROBERTO ABAY y TRINIDAD, Appellee. Promulgated: February 24, 2009 x--------------------------------------------------x DECISION

WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 01926 is AFFIRMED WITH MODIFICATIONS. In Criminal Cases No. SC7422 and SC-7423, appellant is found guilty beyond reasonable doubt of the crime of qualified rape and sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the victim, AAA, in the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages plus costs. In Criminal Case No. SC7424, appellant is found guilty of the crime of acts of lasciviousness and sentenced to suffer the indeterminate penalty of imprisonment for six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and to pay AAA moral damages in the amount of P30,000.00 plus costs. SO ORDERED.

CORONA, J.:

On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 4[1] under the following Information: That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and whole body, lying on top of her and inserting his penis into her vagina, thus succeeded in having carnal knowledge of her, against her will and consent thereafter threatening to kill her should she report the incident, thereby gravely endangering her survival and normal growth and development, to the damage and prejudice of [AAA]. CONTRARY TO LAW.

Appellant pleaded not guilty during arraignment. During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses. AAA testified that appellant, her mothers live-in partner, had been sexually abusing her since she was seven years old. Whenever her mother was working or was asleep in the evening, appellant would threaten her with a bladed instrument[2] and force her to undress and engage in sexual intercourse with him. BBB corroborated AAAs testimony. She testified that she knew about appellants dastardly acts. However, because he would beat her up and accuse AAA of lying whenever she confronted him, she kept her silence. Thus, when she caught appellant in the act of molesting her daughter on

December 25, 1999, she immediately proceeded to the police station and reported the incident. According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing her for six years. This was confirmed by AAAs physical examination indicating prior and recent penetration injuries. The defense, on the other hand, asserted the incredibility of the charge against appellant. Appellants sister, Nenita Abay, and appellants daughter, Rizza, testified that if appellant had really been sexually abusing AAA, the family would have noticed. The rooms of their house were divided only by inch thick plywood walls that did not even reach the ceiling. Thus, they should have heard AAAs cries. Moreover, Nenita and Rizza claimed that they often caught AAA and her boyfriend in intimate situations. According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here, appellant kept his silence which was contrary to human nature. On the other hand, AAA straightforwardly narrated her horrifying experience at the hands of appellant. The RTC concluded that appellant had indeed sexually abused AAA. A young girl would not have exposed herself to humiliation and public scandal unless she was impelled by a strong desire to seek justice.[3] In a decision dated November 25, 2003,[4] the RTC found appellant guilty beyond reasonable doubt of the crime of rape: WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5, Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty,[5] and to pay private complainant moral damages in the amount of Fifty Thousand (P50,000) Pesos. SO ORDERED. The Court of Appeals (CA), on intermediate appellate review,[6] affirmed the findings of the RTC but modified the penalty and award of damages. In view of the enactment of RA 8353[7] and RA 9346,[8] the CA found appellant guilty only of simple rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil indemnity ex delicto (which is mandatory once the fact of rape is proved)[9] granted by the RTC, it awarded P50,000 as moral damages and P25,000 as exemplary damages. Moral damages are automatically granted in rape cases without need of proof other than the commission of the crime[10] while exemplary damages are awarded by way of example and in order to protect young girls from sexual abuse and exploitation.[11]

We affirm the decision of the CA with modifications. Under Section 5(b), Article III of RA 7610[12] in relation to RA 8353,[13] if the victim of sexual abuse[14] is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266A(1)(d) of the Revised Penal Code[15] and penalized with reclusion perpetua.[16] On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse[17] under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes[18] for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act.[19] Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes),[20] a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.[21] In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecutions evidence only established that appellant sexually violated the person of AAA through force and intimidation[22] by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established.[23] Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape under Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua. Furthermore, to conform with existing jurisprudence, he is ordered to pay AAA P75,000 as civil indemnity ex-delicto[24] and P75,000 as moral damages.[25] WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CAG.R. CR-H.C. No. 01365 is hereby AFFIRMED WITH MODIFICATION. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA P75,000 as civil indemnity ex-delicto, P75,000 as moral damages and P25,000 as exemplary damages. Costs against appellant. SO ORDERED.