Other Cases-Acts of Lasciviousness

SECOND DIVISION
PEOPLE OF THE PHILIPPINES, G.R. No. 182521
Appellee,
Present:
CARPIO, J.,
Chairperson,
PERALTA,
- versus - ABAD, and
PEREZ,* and
MENDOZA, JJ.
ERNESTO FRAGANTE y AYUDA, Promulgated:
Appellant. February 9, 2011
x-----------------------------------------------------------------------------------------x
DECISION
CARPIO, J.:
The Case
On appeal is the 28 September 2007 Decision1 of the Court of Appeals in CA-G.R.

CR H.C. No. 01980, affirming with modification the 4 July 2003 Decision2 of the
Regional Trial Court, Paraaque City, Branch 260, convicting appellant
Ernesto Fragante y Ayuda of nine (9) counts of acts of lasciviousness and one (1)
count of rape, all committed against his minor daughter, AAA.3
The Facts
In ten (10) Informations filed on 14 July 1998, appellant was charged with nine (9)
counts of acts of lasciviousness and one (1) count of rape all committed against his
own minor daughter AAA. The Informations4 read:
CRIMINAL CASE NO. 98-651 for Violation of Art. 336 of the RPC, as
amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as
follows:
That in between the period of April-May 1993, in Paraaque, Metro Manila, and
within the jurisdiction of this Honorable Court, above-named accused, by
taking advantage of his then ten (10) year old biological daughter, [AAA], and
with lewd designs, did then willfully, unlawfully and feloniously fondled (sic)
the breast of [AAA].
CRIMINAL CASE NO. 98 652 for Violation of Art. 336 of the RPC, as
follows:
That sometime in May 1993, in Paraaque, Metro Manila and within the
jurisdiction of this Honorable Court, above-named accused, by taking
advantage of his then ten (10) year old biological daughter, [AAA], and with
lewd designs, did then willfully, unlawfully and feloniously fondled (sic) the
breasts of [AAA], touched (sic) and inserted (sic) his finger into the vagina of
said minor-victim.
follows:
That sometime in between the period commencing in June 1993 until August
1993, in Paraaque, Metro Manila and within the jurisdiction of
this Honorable Court, above-named accused, by taking advantage of his then
ten (10) year old biological daughter, [AAA], and with lewd designs, did
then willfully, unlawfully and feloniously fondled (sic) the breasts of [AAA],
touched (sic) and inserted (sic) his finger into the vagina of said minor-victim.
follows:
That sometime in between the period of October to December 1993
at Shaolin Chinese Restaurant located at Sucat Road, Paraaque, Metro Manila
and within the jurisdiction of this Honorable Court, above-named accused, by
taking advantage of his then eleven (11) year old biological daughter, [AAA],
and with lewd designs, did then willfully, unlawfully and feloniously fondled
(sic) and sucked the breasts of [AAA], and thereafter touched the vagina of said
minor-victim.
follows:
That sometime in December 1993 at Shaolin Chinese Restaurant located

at Sucat Road, Paraaque, Metro Manila and within the jurisdiction of
eleven (11) year old biological daughter, [AAA], and with lewd designs, did
then willfully, unlawfully and feloniously fondled (sic) and sucked the breasts
of [AAA], and thereafter touched the vagina of said minor-victim.
follows:
That sometime in between the period commencing in January 1994 to August

1994, in Paraaque, Metro Manila and within the jurisdiction of
eleven (11) year old biological daughter, [AAA], and with lewd designs, did
then willfully, unlawfully and feloniously touched (sic) and sucked the breasts
of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private
part of said minor-victim.
follows:
That sometime in between the period commencing in August 1994 until

September 1995, in Paraaque, Metro Manila and within the jurisdiction of
twelve (12) year old biological daughter, [AAA], and with lewd designs, did
then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the
breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the
private part of said minor-victim.
follows:
That sometime in September 1997, in Paraaque, Metro Manila and within the
jurisdiction of this Honorable Court, above-named accused, by taking
advantage of his then fifteen (15) year old biological daughter, [AAA], and
with lewd designs, did then willfully, unlawfully and feloniously touched (sic)
and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic)
his finger into the private part of said minor-victim.
follows:
That sometime in (sic) October 25, 1997, in Paraaque, Metro Manila and within
the jurisdiction of this Honorable Court, above-named accused, by taking
advantage of his then fifteen (15) year old biological daughter, [AAA], and
with lewd designs, did then willfully, unlawfully and feloniously touched (sic)
and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic)
his finger into the private part of said minor-victim.
CRIMINAL CASE NO. 98 660 for Violation of Article 335 of the RPC, as
follows:
That sometime in September 1995, in Paraaque, Metro Manila and within the
jurisdiction of this Honorable Court, above named accused, by taking
advantage of his then thirteen (13) year old biological daughter [AAA], and
with lewd designs, did then willfully, unlawfully and feloniously, lie and had
carnal knowledge with the said minor victim, against her will.5
The Court of Appeals narrated the facts as follows:
Ernesto A. Fragante (Ernesto hereafter) married CCC on October 6, 1975, in

Sta. Cruz Manila, and such marriage was ratified on December 7, 1995
celebrated in San Sebastian Parish Church. That union, produced
three offsprings. [AAA], the victim herein, is their third child. She was born on
August 23, 1982. x x x
Sometime in April 1993 to May 1993, three or four months before her eleventh
(11) birthday, [AAA] woke up one early morning to prepare for the driving
lessons which her father Ernesto, promised to teach them that day. [AAA] was
the first to wake up. She was in her room when her father entered and lay on
her bed. He then asked [AAA] to lie beside him to which [AAA] obeyed. While
lying beside her, Ernesto was talking to her about a lot of things, and as he
talked he started to fondle her breast and suck her nipples.
xxxx
The incident was repeated sometime between June 1993 and August 1993.
Ernesto told [AAA] to get inside his room, then he would lock the door. Once
inside the room, he would scold [AAA] for reasons unknown to her. When she
would start to cry, her father would start to touch her breast, then he would
suck her nipples while he was rubbing her vagina.
On two occasions, between October 1993 and December 1993,

at Shaolin Chinese Restaurant located in Sucat, Paraaque, which
the Fragante family owned, there was a small back room used as an office
which later was converted into a room where they could rest. [AAA] was told
by her father to rest in that room and once inside, while talking to her, he
covered the windows with manila paper. He lay down beside her in the folding
bed. He fondled her breast, squeezed them and then later inserted his hand
under her shirt as he pull it up and put his mouth on her breast to suck it
alternately. He started stroking her genitals with her shorts on. She did not do
anything as she was in shock at that time.
In December 1993, [AAA] and her father bought food from Jollibee. She was
instructed to eat it at the back room of their Shaolin Chinese Restaurant so that
other employees would not see it. After eating, Ernesto asked her to lie down in
the folding bed and he again lay down beside her and massaged her breast and
sucked her nipples while continuously rubbing her vagina by inserting his hand
inside her shorts.
Sometime in January 1994, around 10 o'clock in the evening, while [AAA] was
sleeping in another room, Ernesto entered her room. He lay beside her, and
started sucking her breast. He removed her shorts and then touched her vagina.
He then inserted his finger inside her vagina.
In August-September 1994, she was around twelve (12) years old, Ernesto
molested her again inside his room, by massaging her private parts and sucking
her nipples while continuously rubbing her vagina and afterwards inserting his
finger inside it.
In September 1995, at the age of thirteen (13), [AAA] was raped by her father
Ernesto. She was told to get inside his room and was scolded by him before she
was made to lie down in his bed. Her shirt was removed, and her breast and
vagina were fondled by him. Thereafter, he sucked her nipples while
continuously touching her vagina. He removed her shorts and panty,
then spreaded her legs and inserted his penis in her vagina. She struggled and
begged him to remove his penis. She said she could not recall the exact details
of what her father was doing. He stayed on top of her despite her pleas. x x x
Ernesto was not able to find time to molest [AAA] in September 1995-1996,
because he was hardly home and was busy with his bookstore business
in Visayas and Mindanao.
xxxx
In the evening of October 25, 1997, Irma, together with their brother Marco
accompanied their mother Gaudencia to a wake of their mother's friend. [AAA]
wanted to go with them but she was left home alone with Ernesto who refused
to allow [AAA] to go with them. x x x
xxxx
Her father started massaging her breast and [AAA] removed his hands and
stood up but she was bitten and pushed towards the bed. Her father strangled
her and asked whether she preferred to be strangled first and she answered no.
He started touching her private parts again and this time she continued warding
off his hands and when she heard their car entering their garage, she told her
father that her mother had arrive. That was the only time she was allowed to
leave but was stopped by her father and warned not tell her mother what
happened.
x x x They later proceeded to the NBI, Taft Ave. Manila to report the incidents
and where [AAA] executed her complaint-affidavit. Her mother and siblings
also executed their affidavits.6
xxxx
During arraignment on April 26, 1999, the accused entered separate pleas of
Not Guilty to all the crimes charged.
Joint trial ensued thereafter.
Prosecution presented the following witnesses: [AAA], BBB, CCC, and Dr.
Bernadette Madrid. The defense presented Ernesto Fragante as the sole
witness.7
The Ruling of the Trial Court

On 4 July 2003, the trial court rendered a Decision convicting appellant for the crimes
charged. The dispositive portion of the trial court's decision reads:
WHEREFORE, after careful perusal of the evidence presented, this Court finds
as follows: for (sic)
Criminal Case No. 98-651 For Violation of Art. 336 of the RPC, as amended,
in relation to Section 5(b), Art. III of RA 7610 finds the accused
Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is
hereby sentenced to suffer an imprisonment of reclusion temporal of
FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to
FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-658 for Section 5(b), Art. III of RA 7610 finds the
accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE
DOUBT and is hereby sentenced to suffer an imprisonment of SIX (6)
MONTHS and ONE (1) DAY to SIX (6) YEARS.
Criminal Case No. 98-659 for Section 5(b), Art. III of RA 7610 finds the
accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE
DOUBT and is hereby sentenced to suffer an imprisonment of SIX (6)
MONTHS and ONE (1) DAY to SIX (6) YEARS.
Criminal Case No. 98-660 for RAPE this court finds the accused ERNESTO
AYUDA FRAGANTE GUILTY BEYOND REASONABLE DOUBT and is
hereby sentenced to DEATH. He is ordered to pay the
complainant P50,000.00 as civil liability and P50,000.00 as moral damages.
SO ORDERED.8
The Ruling of the Court of Appeals
The Court of Appeals found appellant guilty beyond reasonable doubt for the crimes
charged. In upholding appellant's conviction, the Court of Appeals gave credence to
AAA's testimony narrating how appellant sexually abused her repeatedly. The Court
of Appeals junked appellant's contentions that (1) AAA's testimony lacked specific
details such as the actual date of commission of the acts of lasciviousness, and was
inconsistent with respect to the charge of rape; (2) AAA was ill motivated in filing the
criminal complaints; (3) the charge of rape was unsubstantiated by medical findings;
and (4) the delay in reporting the incidents to the proper authorities renders the
charges dubious.
On 28 September 2007, the Court of Appeals rendered a Decision the dispositive

portion of which reads:
WHEREFORE, the decision of the Regional Trial Court, of Paraaque City,
Branch 260, dated July 4, 2003 is AFFIRMED with MODIFICATION as
follows:
1. In Criminal Cases Nos. 98-651, 98-652, 98-653, 98-654, 98-655, 98-656, 98-
657, accused-appellant Ernesto A. Fragante is hereby sentenced to suffer
Indeterminate Penalty, the minimum of which is fourteen (14) years and eight
(8) months of reclusion temporal minimum and the maximum of which is
seventeen (17) years and four (4) months of reclusion temporal medium, for
acts of lasciviousness under Article III, Section 5 (b) of Republic Act No.
7610, and is also ordered to pay [AAA] the amount of P50,000.00 as moral
damages for each count of acts of lasciviousness;
2. In pursuant with Section 31(f), Article XII, of Republic Act No.

7610, a FINE in the amount of Thirty Thousand (Php30,000.00) Pesos for each
count of the nine (9) counts of lascivious conduct is hereby imposed;
3. The penalty imposed in Criminal Case No. 98-658 and Criminal Case No. 98-
659 by the trial court is hereby AFFIRMED without modification;
4. In Criminal Case No. 98-660, the penalty imposed is hereby reduced

to reclusion perpetua by virtue of R.A. No. 9346, which prohibits the
imposition of death penalty.
5. In view of the jurisprudential trend, the amount of moral damages for Criminal
Case No. 98-660 is hereby INCREASED to Seventy Five Thousand
(Php 75,000.00) Pesos and the civil indemnity is likewise increased to Seventy
Five Thousand (Php 75,000.00) and an additional amount of Twenty Five
Thousand (Php 25,000.00) as exemplary damages.
SO ORDERED.9
The Issue
The sole issue in this case is whether the Court of Appeals erred in affirming
appellant's conviction for nine (9) counts of acts of lasciviousness and one (1) count
of rape.
The Ruling of this Court
We sustain appellant's conviction for seven (7) counts of acts of lasciviousness and
one (1) count of rape. We acquit appellant for two (2) counts of acts of lasciviousness
on the ground of reasonable doubt.
Criminal Case No. 98-660 for Rape
Appellant contends that the Court of Appeals erred in convicting him for the crime of
rape since the prosecution failed to overthrow the presumption of innocence.
Appellant alleges that (1) AAA's testimony was full of inconsistencies and
improbabilities which cast serious doubts on the truthfulness of her account; (2) the
medical findings do not support the charge of rape; (3) AAA's delayed reporting of
the incident renders the charges dubious; and (4) AAA and her mother harbored a
grudge against appellant.10
We are not persuaded. The prosecution sufficiently established appellant's guilt
beyond reasonable doubt for the crime of rape.
Article 335 of the Revised Penal Code11 provides:
Art. 335. When and how rape is committed. - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
As correctly found by the Court of Appeals, all the essential elements of rape are
present in this case. The evidence on record clearly proves that appellant had carnal
knowledge of his own minor daughter AAA.
We reject appellant's contention that AAA's testimony was full of inconsistencies. On

the contrary, AAA's testimony that she was raped by appellant was very consistent
and straightforward. Notably, appellant did not point out the supposed inconsistencies,
and proceeded in arguing that his moral ascendancy over his daughter was insufficient
to intimidate AAA.
It must be stressed that the gravamen of rape is sexual congress with a woman by
force and without consent.12 In People v. Orillosa,13 we held that actual force or
intimidation need not be employed in incestuous rape of a minor because the moral
and physical dominion of the father is sufficient to cow the victim into submission to
his beastly desires.14 When a father commits the odious crime of rape against his own
daughter, his moral ascendancy or influence over the latter substitutes for violence
and intimidation.15 The absence of violence or offer of resistance would not affect the
outcome of the case because the overpowering and overbearing moral influence of the
father over his daughter takes the place of violence and offer of resistance required in
rape cases committed by an accused who did not have blood relationship with the
victim.16
In this case, AAA's testimony clearly showed how appellant took advantage of his
relationship with and his moral ascendancy over his minor daughter when he had
carnal knowledge of her. As found by the Court of Appeals, appellant instilled fear on
AAA's mind every time he sexually molested her, thus:
[AAA] also admitted that after accused-appellant has started sexually molesting
her until she was raped, she was so frightened of him. In fact she could not tell
her mother of her ordeal, mindful of the serious threats on her life and of the
chaos it would cause their family.17
We likewise find appellant's claim that the medical findings do not support the charge
of rape untenable. Aside from AAA's positive, straightforward, and credible
testimony, the prosecution presented the medical certificate issued by Dr. Bernadette
Madrid18 and the latter's testimony which corroborate AAA's claim that appellant
raped her.
The Court is not impressed with appellant's claim that AAAs failure to immediately
report the incidents to the proper authorities affected her credibility.19 Delay could be
attributed to the victim's tender age and the appellant's threats.20 A rape victim's
actions are oftentimes influenced by fear, rather than reason.21 In incestuous rape, this
fear is magnified because the victim usually lives under the same roof as the
perpetrator or is at any rate subject to his dominance because of their blood
relationship.22
We also find appellant's imputation of ill-motive on the part of the victim, including
his wife and AAA's sister, in filing the criminal charges devoid of merit. Suffice it to
state that the resentment angle, even if true, does not prove any ill motive on AAAs
part to falsely accuse appellant of rape or necessarily detract from her credibility as
witness.23 Motives, such as those arising from family feuds, resentment, or revenge,
have not prevented the Court from giving, if proper, full credence to the testimony of
minor complainants who remained consistent throughout their direct and cross-
examinations.24
For appellant's guilt for the crime of rape committed against his own minor daughter
AAA, we sustain the penalty of reclusion perpetua imposed on appellant. While the
Court of Appeals correctly reduced the penalty of death25 to reclusion perpetua, the
Court of Appeals failed to indicate that the reduction of the penalty
to reclusion perpetua is without eligibility for parole in accordance with Sections 2
and 3 of Republic Act No. 9346.26
As regards appellant's civil liability, we affirm the award of moral damages and civil
indemnity, which are automatically granted without need of proof or pleading,27 each
in the sum of P75,000. However, we increase the award of exemplary damages
from P25,000 to P30,000 consistent with prevailing jurisprudence.28
Criminal Case Nos. 98-651, 98-652, 98-653, 98-654,
98-655, 98-656, 98-657, 98-658,
and 98-659 for Acts of Lasciviousness
Appellant argues that the Court of Appeals erred in convicting him for nine counts of
acts of lasciviousness since the prosecution failed to establish with particularity the
date of the commission of the offense. Appellant contends that AAA's testimony was
a sweeping generalization of the crimes committed.29 According to appellant, AAA's
statement that the said acts were allegedly committed so many times on certain
occasions is clearly inadequate and grossly insufficient to sustain a conviction.30
We are not convinced.

Appellant was charged with violation of Article 336 of the Revised Penal Code, as
amended, in relation to Section 5(b), Article III of Republic Act No. 7610. These
provisions state:
Art. 336. Acts of lasciviousness. Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional.
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:
xxxx
(b) Those who commit the act of sexual intercourse of lascivious conduct with
a child exploited in prostitution or subject 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; x x x
The elements of sexual abuse under Section 5, Article III of Republic Act No. 7610
are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct.
2. The said act is performed with a child exploited in prostitution or

subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age.31
As correctly found by the Court of Appeals, all the elements of sexual abuse under
Section 5, Article III of RA 7610 are present here.
First, appellant's repeated touching, fondling, and sucking of AAA's breasts and
inserting his finger into AAA's vagina with lewd designs undoubtedly constitute
lascivious conduct under Section 2(h) of the Implementing Rules and Regulations of
Republic Act No. 7610, to wit:
(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.
Second, appellant, as a father having moral ascendancy over his daughter, coerced
AAA to engage in lascivious conduct, which is within the purview of sexual abuse.
In People v. Larin,32 we held:
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.
Third, AAA is below 18 years old at the time of the commission of the offense, based
on her testimony which was corroborated by her Birth Certificate33 presented during
the trial. Section 3(a), Article I of Republic Act No. 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;
Since all three elements of the crime were present, the conviction of appellant for acts
of lasciviousness was proper.
As to the alleged failure of the prosecution to establish with particularity the date of
the commission of the acts of lasciviousness, suffice it to state that the date and time
of the commission of the offense are not material ingredients of such crime. Section
11, Rule 110 of the Rules of Court provides:
Sec. 11. Time of the commission of the offense. It is not necessary to state in
the complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense, but the act
may be alleged to have been committed at any time as to the actual date at
which the offense was committed as the information or complaint will permit.
In People v. Losano,34 the Court held:
Thus, as early as 1903, this Court has ruled that while the complaint must
allege a specific time and place when and where the offense was committed,
the proof need not correspond to this allegation, unless the time and place is
material and of the essence of the offense as necessary ingredient in its
description. Evidence so presented is admissible and sufficient if it shows 1)
that the crime was committed at any time within the period of the statute of
limitations; and 2) before or after the time stated in the complaint or indictment
and before the action is commenced.
We agree with the Court of Appeals in debunking appellant's claim that AAA's
testimony was overly generalized and lacked specific details on when appellant
sexually abused the victim. The records are replete with details on when and how
appellant sexually abused her. AAA testified that appellant habitually molested her
whenever he had the opportunity to do so, to wit:
Atty. Rosanna Elepao-Balauag:
How many times[,] because the witness answered that his father was sexually
abusing her.
Court:
Witness may answer.
Atty. Rosanna Elepao-Balauag:
How many times if you remember?
A: Many times.
xxxx
Q: When was (sic) [did] the incident happened?
A:
Sa bahay po namin at madaling araw po iyon dahil nagpapaturo kami ng drivin
g
at ako po iyong unang nagising at sabi ko nga po magdriving na turuan niya ak
ong magmaneho at tapos po pinahiganiya ako sa tabi nya at tapos po kinausap p
o niya ako at habang kinakausap niya ako, he started touching my private parts
and later on he sucked my nipple, mam.
Q: What else did he do?
A: That's all mam.
Q: And what happened after that?
A: He did you (sic) it again, mam.
xxxx
Q: What she did you to? [sic]
A: Ganoon pa rin po, he sucked my breast

at tapos po niyon, papasukin niya ako sa kanyang room at ila-
lock niya iyong pinto; minsan po naman, pagagalitan niya ako na walang kabag
ay bagay at hindi ko naman po alam kung ano iyon; ganoon po lagi, hinawakan
niya iyong breast, papagalitan ako, iyon paulit ulit na lang po, mam.
Q: After he scolded you what happened next?

A: Iyon pag umiiyak na po ako, uumpisahan po niyang hawakan muli iyong mg
a private parts.
xxxx
Q: And after that incident what transpired next?
A: Paulit ulit po niyang ginagawa, lagi po niya akong hinhahawakan ang breast
ko at vagina and then nira-rub po nang kamay niya.35
However, in Criminal Case Nos. 98-652 and 98-658, we agree with the Office of the
Solicitor General, representing the People, that the prosecution failed to prove
appellant's guilt for acts of lasciviousness beyond reasonable doubt. While AAA
testified that appellant habitually molested her, there was no specific evidence
supporting the charge that appellant committed acts of lasciviousness in May 1993
and September 1997, or on or about those dates. Hence, we find appellant not guilty
for two counts of acts of lasciviousness (Criminal Case Nos. 98-652 and 98-658) on
the ground of reasonable doubt.
As regards the other criminal cases for acts of lasciviousness, where appellant's guilt
was proved beyond reasonable doubt, we affirm appellant's conviction. In these cases,
the alternative circumstance of relationship under Article 15 of the Revised Penal
Code should be considered against appellant.36 In People v. Fetalino,37 the Court held
that, in crimes against chastity, like acts of lasciviousness, relationship is considered
aggravating. In that case, the Court considered relationship as an aggravating
circumstance since the informationsmentioned, and the accused admitted, that the
complainant is his daughter.
In the instant case, the informations expressly state that AAA is

appellants daughter, and appellant openly admitted this fact.38 Accordingly, we
modify the penalty imposed in Criminal Case Nos. 98-657 and 98-659. Section 5,
Article III of Republic Act No. 7610 prescribes the penalty of reclusion temporal in
its medium period to reclusion perpetua.39 Since there is an aggravating circumstance
and no mitigating circumstance, the penalty shall be applied in its maximum
period reclusion perpetua.40 Besides, Section 31 of Republic Act No. 7610 expressly
provides that The penalty provided herein shall be imposed in its maximum period
when the perpetrator is [a] x x x parent, x x x. In People v. Montinola41 and People v.
Sumingwa,42 where the accused is the biological father of the minor victim,43 the
Court appreciated the presence of the aggravating circumstance of relationship and
accordingly imposed the penalty of reclusion perpetua. Thus, appellant herein is
sentenced to suffer the penalty of reclusion perpetua in Criminal Case Nos. 98-657
and 98-659.
In Criminal Case Nos. 98-651,44 98-653,45 98-654,46 98-655,47 and 98-656,48 where
AAA was still below 12 years old at the time of the commission of the acts of
lasciviousness, the imposable penalty is reclusion temporal in its medium period in
accordance with Section 5(b), Article III of Republic Act No. 7610. This provision
specifically states [t]hat the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium
period.49 Considering the presence of the aggravating circumstance of relationship, as
explained, the penalty shall be imposed in its maximum period. In People v.
Velasquez,50 which involved a two year old child sexually abused by her grandfather,
the Court imposed the indeterminate sentence of 12 years and 1 day of reclusion
temporal as minimum to 17 years of reclusion temporal as maximum. Accordingly,
appellant herein is sentenced to suffer the indeterminate penalty of 12 years and 1 day
of reclusion temporal as minimum to 17 years of reclusion temporal as maximum.
Also, we modify the amount of moral damages and fine awarded by the Court of
Appeals. We reduce the amount of moral damages from P50,000 to P15,000 and the
amount of fine from P30,000 to P15,000 for each of the seven (7) counts of acts of
lasciviousness.51 In addition, we award civil indemnity in the amount of P20,000, and
exemplary damages in the sum of P15,000, in view of the presence of the aggravating
circumstance of relationship,52 for each of the seven (7) counts of acts of
lasciviousness.
WHEREFORE, we AFFIRM the 28 September 2007 Decision of the Court of
Appeals in CA-G.R. CR-HC No. 01980 with MODIFICATIONS. We find appellant
Ernesto Fragantey Ayuda:
1. GUILTY of RAPE in Criminal Case No. 98-660. He is

sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and ordered to pay AAA P75,000 as civil
indemnity, P75,000 as moral damages, and P30,000 as exemplary
damages.
2. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case

Nos. 98-657 and 98-659, with relationship as an aggravating
circumstance. He is sentenced to suffer the penalty
of reclusion perpetua and ordered to pay AAA (1) moral damages
of P15,000; (2) a fine of P15,000; (3) civil indemnity of P20,000;
and (4) exemplary damages of P15,000 for each count.
3. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case

Nos. 98-651, 98-653, 98-654, 98-655, and 98-656, with
relationship as an aggravating circumstance. He is sentenced to
suffer the indeterminate penalty of 12 years and 1 day of reclusion
temporal as minimum to 17 years of reclusion temporal as
maximum and ordered to pay AAA (1) moral damages
of P15,000; (2) a fine of P15,000; (3) civil indemnity of P20,000;
and (4) exemplary damages of P15,000 for each count.
4. NOT GUILTY of ACTS OF LASCIVIOUSNESS in Criminal

Case Nos. 98-652 and 98-658 on the ground of reasonable doubt.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
DIOSDADO M. PERALTA
Associate Justice
ROBERTO A. ABAD JOSE PORTUGAL PEREZ
Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.
RENATO C. CORONA
Chief Justice
* Designated additional member per Raffle dated 9 February 2011.
1 Rollo, pp. 2-39. Penned by Associate Justice Enrico A. Lanzanas with Associate Justices Remedios Salazar-
Fernando and Rosalinda Asuncion-Vicente concurring.
2 CA rollo, pp. 47-66. Penned by Judge Helen Bautista-Ricafort.
3 The real name of the private complainant is withheld per Republic Act (R.A.) No. 7610 (Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act); R.A. 9262 (Anti-Violence Against Women and
Their Children Act of 2004); and A.M. No. 04-10-11-SC effective 15 November 2004 (Rule on Violence Against
Women and Their Children). See People v. Cabalquinto, G.R. No. 167693, 19 September 2006, 502 SCRA 419,
421-423.
4 Records, pp. 5-6, 13-14, 19-20, 29-30, 39-40, 47-48, 57-58, 67-68, 75-76, 84-85.
5 Rollo, pp. 2-7.
6 CA rollo, pp. 218-223.
7 Id. at 214.
8 Id. at 62-64.
9 Id. at 244-245.
10 CA rollo, pp. 119, 121, 122, 124.
11 As amended by Republic Act No. 7659 (AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN
HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AND FOR OTHER
PURPOSES).
12 People v. Lolos, G.R. No. 189092, 19 August 2010.
13 G.R. Nos. 148716-18, 7 July 2004, 433 SCRA 689, 698.

14 Id.
15 People v. Maglente, G.R. No. 179712, 27 June 2008, 556 SCRA 447, 461-462.
16 Id. at 462.
17 CA rollo, pp. 238-239.
18 Records, p. 457.
19 People v. Montinola, G.R. No. 178061, 31 January 2008, 543 SCRA 412, 424.
20 People v. Maglente, supra note 15 at 467.
21 Id.
22 Id.
23 People v. Anguac, G.R. No. 176744, 5 June 2009, 588 SCRA 716, 723.
24 Id. at 723, citing People v. Alejo, G.R. No. 149370, 23 September 2002, 411 SCRA 563, 573 and People v. Rata,
G.R. Nos. 145523-24, 11 December 2003, 418 SCRA 237, 248-249.
25 Pursuant to Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659 (AN ACT TO
IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE
THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER
PURPOSES).
Section 11. Article 335 of the same Code is hereby amended to read as follows:
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of
the parent of the victim.
26 People v. Garbida, G.R. No. 188569, 13 July 2010. Republic Act No. 9346 (AN ACT PROHIBITING THE
IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES) provides:
SEC. 2. In lieu of the death penalty, the following shall be imposed.
(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties
of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the
penalties of the Revised Penal Code.
SEC. 3. Person convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced
to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise
known as the Indeterminate Sentence Law, as amended.
27 People v. Mejia, G.R. No. 185723, 4 August 2009, 595 SCRA 356, 376.
28 People v. Documento, G.R. No. 188706, 17 March 2010, 615 SCRA 610, 618.
29 CA rollo, p. 117.
30 Id.
31 People v. Abello, G.R. No. 151952, 25 March 2009, 582 SCRA 378, 394, citing People v. Larin, G.R. No.
128777, 7 October 1998, 297 SCRA 309, 318; Amployo v. People, G.R. No. 157718, 26 April 2005, 457 SCRA 282,
295; Olivarez v. Court of Appeals, G.R. No. 163866, 29 July 2005, 465 SCRA 465, 473; and Malto v. People, G.R.
No. 164733, 21 September 2007, 533 SCRA 643.
32 357 Phil. 987 (1998).
33 Records, p. 445.
34 369 Phil. 966, 978 (1999).
35 CA rollo, pp. 228-229.
36 People v. Montinola, supra note 19 at 432.
37 G.R. No. 174472, 19 June 2007, 525 SCRA 170, 195.
38 TSN (Ernesto Fragante), 18 March 2003, p. 6 .
39 In People v. Leonardo, G.R. No. 181036, 6 July 2010, the Court explained the range of the penalty prescribed
under Section 5, Article III of Republic Act No. 7610, thus:
The minimum, medium and maximum term of the [prescribed penalty] is as follows: minimum 14 years, 8 months
and 1 day to 17 years and 4 months; medium 17 years, 4 months and 1 day to 20 years; and
maximum reclusion perpetua.
40 People v. Montinola, supra note 19 at 433; People v. Sumingwa, G.R. No. 183619, 13 October 2009, 603 SCRA
638, 661.
41 People v. Montinola, supra note 19 at 433.
42 G.R. No. 183619, 13 October 2009, 603 SCRA 638, 655-656.
43 The victim in Montinola was 14 years old while the victim in Sumingwa was 15 years old at the time of the
commission of the offense.
44 AAA was only ten (10) years old at the time of the commission of the crime.
45 AAA was only ten (10) years old at the time of the commission of the crime.
46 AAA was only eleven (11) years old at the time of the commission of the crime.
49 See Dulla v. Court of Appeals, G.R. No. 123164, 18 February 2000, 326 SCRA 32, 48, where the Court stated:
The penalty for acts of lasciviousness under Art. III, 5(b) of R.A. No. 7610 is reclusion temporal in its
medium period, the range of which is from 14 years, 8 months and 1 day to 17 years and 4 months.
Applying the Indeterminate Sentence Law and in the absence of modifying circumstances, the maximum
term of the sentence to be imposed shall be taken from the medium period of the imposable penalty, which
is reclusion temporal medium, the range of which is from 15 years, 6 months and 20 days to 16 years, 5
months and 9 days, while the minimum term shall be taken from the penalty next lower in degree, which
is reclusion temporal minimum, the range of which is from 12 years and 1 day to 14 years and 8 months.
50 G.R. Nos. 132635 & 143872-75, 21 February 2001, 352 SCRA 455, 478. The Court stated:
x x x Aira is a two-year old child. The penalty imposable for acts of lasciviousness against children under
12 years of age should be that provided by R.A. 7610, which is reclusion temporal in its medium period.
Accused-appellant is Aira'sgrandfather. His relationship to his victim aggravates the crime, and, as
provided by R.A. 7610, Section 31, the penalty shall be imposed in the maximum period when the
perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of
consanguinity or affinity. Hence, the maximum period of reclusion temporal medium should be imposed.
Applying the provisions of the Indeterminate Sentence Law, the minimum of the penalty to be imposed
should be reclusion temporal minimum.
51 People v. Montinola, supra note 19 at 433; People v. Sumingwa, G.R. No. 183619, 13 October 2009, 603 SCRA
638, 661.
52 Flordeliz v. People, G.R. No. 186441, 3 March 2010, 614 SCRA 225, 243.
SECOND DIVISION
JOJIT GARINGARAO, G.R. No. 192760
Petitioner,
Present:
CARPIO, J., Chairperson,
- versus - LEONARDO-DE CASTRO,*
BRION,
PERALTA,** and
PEREZ, JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. July 20, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the 26 November 2009
Decision2 and 22 June 2010 Resolution3 of the Court of Appeals in CA-G.R. CR
No. 31354. The Court of Appeals affirmed with modifications the decision of the
Regional Trial Court of San Carlos City, Pangasinan, Branch 56 (trial court),
finding Jojit Garingarao (Garingarao) guilty beyond reasonable doubt of the crime of
acts of lasciviousness in relation to Republic Act No. 7610 (RA 7610).4
The Antecedent Facts
The facts of the case, as can be gleaned from the decision of the Court of Appeals, are
as follows:
On 28 October 2003, AAA5 was brought to the Virgen Milagrosa Medical Center by
her father BBB and mother CCC due to fever and abdominal pain. Dr.
George Morante (Dr. Morante), the attending physician, recommended that AAA be
confined at the hospital for further observation. AAA was admitted at the hospital and
confined at a private room where she and her parents stayed for the night.
On 29 October 2003, BBB left the hospital to go to Lingayen, Pangasinan to process

his daughters Medicare papers. He arrived at Lingayen at around 8:00 a.m. and left
the place an hour later. CCC also left the hospital that same morning to attend to their
store at Urbiztondo, Pangasinan, leaving AAA alone in her room.
When BBB returned to the hospital, AAA told him that she wanted to go home.
Dr. Morante advised against it but due to AAAs insistence, he allowed AAA to be
discharged from the hospital with instructions that she should continue her
medications. When AAA and her parents arrived at their house around 11:30 a.m.,
AAA cried and told her parents that Garingaraosexually abused her. They all went
back to the hospital and reported the incident to Dr. Morante. They inquired from the
nurses station and learned that Garingarao was the nurse on duty on that day.
On 20 January 2004, the City Prosecutor filed an Information against Garingarao for
acts of lasciviousness in relation to RA 7610, as follows:
That on or about the 29th day of October 2003, at Virgen Milagrosa University
Hospital, San Carlos City, Pangasinan, and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd designs, did then and
there, willfully, unlawfully and feloniously touched the breast of AAA, 16
years of age, touched her genitalia, and inserted his finger into her vagina, to
the damage and prejudice of said AAA who suffered psychological and
emotional disturbance, anxiety, sleeplessness and humiliation.
Contrary to Article 336 of the Revised Penal Code in relation to RA 7610.6
During the trial, AAA testified that on 29 October 2003, between 7:00 a.m. and 8:00
a.m., Garingarao, who was wearing a white uniform, entered her room and asked if
she already took her medicines and if she was still experiencing pains. AAA replied
that her stomach was no longer painful. Garingarao then lifted AAAs bra and touched
her left breast. Embarrassed, AAA asked Garingarao what he was
doing. Garingarao replied that he was just examining her. Garingarao then left the
room and returned 15 to 30 minutes later with a stethoscope. Garingarao told AAA
that he would examine her again. Garingarao lifted AAAs shirt, pressed the
stethoscope to her stomach and touched her two nipples. Garingarao then lifted AAAs
pajama and underwear and pressed the lower part of her abdomen. Garingarao then
slid his finger inside AAAs private part. AAA instinctively crossed her legs and again
asked Garingarao what he was doing. She asked him to stop and informed him she
had her monthly period. Garingarao ignored AAA and continued to insert his finger
inside her private part. Garingarao only stopped when he saw that AAA really had her
monthly period. He went inside the bathroom of the private room, washed his hands,
applied alcohol and left. When BBB arrived at the hospital, AAA insisted on going
home. She only narrated the incident to her parents when they got home and they went
back to the hospital to report the incident to Dr. Morante.
Dr. Morante testified on AAAs confinement to and discharge from the hospital.
The prosecution presented the following documents before the trial court:
(a) AAAs birth certificate to establish that she was 16 years old at the time of
the incident;
(b) AAAs medical records establishing her confinement to and discharge

from Virgen Milagrosa Medical Center;
(c) the schedule of duties of the nurses at the hospital showing

that Garingarao was on duty from 12:00 a.m. to 8:00 a.m. on 29 October 2003;
(d) a certificate from the Department of Education Division Office showing

that BBB was present at the office from 8:00 a.m. to 9:00 a.m. on 29 October
2003;
(e) AAAs Medical Payment Notice;
(f) the incident report filed by AAAs parents with the police; and
(g) a letter from the hospital administrator requiring Garingarao to explain why
no administrative action should be filed against him in view of the incident.
For the defense, Garingarao gave a different version of the

incident. Garingarao alleged that on 29 October 2003, he and his nursing
aide Edmundo Tamayo (Tamayo) went inside AAAs room to administer her
medicines and check her vital signs. BBB then accused them of not administering the
medicines properly and on time. Garingarao told BBB that they should not be told
how to administer the medicines because they knew what they were doing and that
they would be accountable should anything happen to AAA. A heated argument
ensued between BBB and Garingarao. BBB told Garingarao he was an arrogant
nurse. Garingarao replied that if BBB had any complaint, he could report the matter to
the hospital. Garingaraodenied that he inserted his finger into AAAs private part and
that he fondled her breasts. Garingarao alleged that the filing of the case was
motivated by the argument he had with BBB.
Tamayo testified that he was with Garingarao when they went to AAAs room between
7:00 a.m. and 8:00 a.m. of 29 October 2003. He alleged that BBB was present and he
accused Garingarao of not administering the medications properly. Tamayo alleged
that Garingarao and BBB had an argument. Tamayo stated that he would always
accompany Garingaraowhenever the latter would visit the rooms of the patients.
The Decision of the Trial Court
In its Decision7 dated 5 November 2007, the trial court found Garingarao guilty as
charged. The trial court gave credence to the testimony of AAA
over Garingaraos denial. The trial court ruled that Garingarao was positively
identified by AAA as the person who entered her room, touched her breasts and
inserted his finger into her private part. The trial court also found that the prosecution
was able to establish that BBB and CCC were not in the room when Garingarao went
inside.
The trial court found as baseless Garingaraos defense that the case was only motivated
by the argument he had with BBB. The trial court ruled that it was illogical for BBB
to convince his daughter to fabricate a story of sexual abuse just to get even
at Garingarao over a heated argument.
The dispositive portion of the trial courts Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the
accused Jojit Garingarao GUILTY beyond reasonable doubt of the crime of
acts of lasciviousness in relation to Republic Act 7610, and sentencing him to
suffer the penalty of imprisonment ranging from 12 years to 1 day of Reclusion
Temporal as minimum to 14 years and 8 months of Reclusion Temporal as
maximum.
The accused is ordered to pay to the minor victim [AAA] P20,000.00 as moral
damages and P10,000.00 as fine.
SO ORDERED.8
Garingarao appealed from the trial courts Decision.
The Decision of the Court of Appeals
In its 26 November 2009 Decision, the Court of Appeals affirmed the trial courts
decision with modifications.
The Court of Appeals ruled that while Garingarao was charged for acts of
lasciviousness in relation to RA 7610, he should be convicted under RA 7610 because
AAA was 16 years old when the crime was committed. The Court of Appeals ruled
that under Section 5(b) of RA 7610, the offender shall be charged with rape or
lascivious conduct under the Revised Penal Code (RPC) only if the victim is below 12
years old; otherwise, the provisions of RA 7610 shall prevail.
The Court of Appeals ruled that based on the evidence on record and the testimony of
AAA, the decision of the trial court has to be affirmed. The Court of Appeals ruled
that under Section 2(h) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases, the introduction of any object into the genitalia of
the offended party as well as the intentional touching of her breasts when done with
the intent to sexually gratify the offender qualify as a lascivious act. AAAs testimony
established that Garingarao committed the lascivious acts.
The Court of Appeals found no reason for AAA or her family to fabricate the charges
against Garingarao. The Court of Appeals ruled that Garingaraos claim that the case
was filed so that BBB could get even with him because of the argument they had was
too shallow to be given consideration. The Court of Appeals likewise
rejected Garingaraos defense of denial which could not prevail over the positive
testimony of AAA.
The Court of Appeals modified the penalty imposed by the trial court. The Court of
Appeals ruled that the duration of reclusion temporal in its maximum period should
be 17 years, 4 months and 1 day to 20 years and not 14 years and 8 months as
imposed by the trial court. The Court of Appeals also raised the award of moral
damages and fine, which was deemed as civil indemnity, to conform with recent
jurisprudence.
The dispositive portion of the Court of Appeals Decision reads:
WHEREFORE, in view of the foregoing, the Decision dated November 5, 2007

of the Regional Trial Court of San Carlos City, Pangasinan in Criminal Case
No. SCC-4167 is hereby AFFIRMED with the following MODIFICATIONS:
1. The penalty imposed on the accused-appellant is 14 years and 8

months of reclusion temporal as minimum to 20 years of reclusion
temporal as maximum[;]
2. The award of moral damages is raised from P20,000.00
to P50,000.00; and
3. The award of indemnity is raised from P10,000.00 to P50,000.00.
SO ORDERED.9
Garingarao filed a motion for reconsideration. In its 22 June 2010 Resolution, the
Court of Appeals denied the motion.
Hence, the petition before this Court.
The Issue
The only issue in this case is whether the Court of Appeals committed a reversible
error in affirming with modifications the trial courts decision.
The Ruling of this Court
The petition has no merit.
Garingarao alleges that the Court of Appeals erred in affirming the trial courts
decision finding him guilty of acts of lasciviousness in relation to RA
7610. Garingarao insists that it was physically impossible for him to commit the acts
charged against him because there were many patients and hospital employees around.
He alleges that AAAs room was well lighted and that he had an assistant when the
incident allegedly occurred. Garingarao further alleges that, assuming the charges
were correct, there was only one incident when he allegedly touched AAA and as
such, he should have been convicted only of acts of lasciviousness and not of
violation of RA 7610.
We do not agree.
Credibility of Witnesses
The Court has ruled that in case of acts of lasciviousness, the lone testimony of the
offended party, if credible, is sufficient to establish the guilt of the accused.10 In this
case, both the trial court and the Court of Appeals found the testimony of AAA
credible over Garingaraos defense of denial and alibi. It is a settled rule that denial is a
weak defense as against the positive identification by the victim.11 Both denial and
alibi are inherently weak defenses and constitute self-serving negative evidence which
cannot be accorded greater evidentiary weight than the positive declaration by a
credible witness.12 Garingaraos defense of denial and alibi must fail over the positive
and straightforward testimony of AAA on the incident. Further, like the trial court and
the Court of Appeals, we find incredible Garingaraos defense that the case was an
offshoot of a heated argument he had with AAAs father over the
manner Garingarao was giving AAAs medications. It is hard to believe that AAAs
parents would expose her to a public trial if the charges were not true.13 In addition,
the prosecution was able to establish that, contrary to Garingaraos allegation, both
BBB and CCC were not in AAAs room at the time of the incident.
Violation of RA 7610
Section 5, Article III of RA 7610 provides:
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
The penalty of reclusion temporal in its medium period

to reclusion perpetua shall be imposed upon the following:
(a) x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with
a child exploited in prostitution or subject to other sexual abuse; Provided, That
when the 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) yeas of age shall be reclusion temporal in its
medium period, x x x
(c) x x x
The elements of sexual abuse under Section 5, Article III of RA 7610 are the
following:
1. The accused commits the act of sexual intercourse or lascivious conduct;
2. The said act is performed with a child exploited in prostitution or subjected to

other sexual abuse; and
3. The child, whether male or female, is below 18 years of age.14
Under Section 32, Article XIII of the Implementing Rules and Regulations of RA
7610, lascivious conduct is defined as follows:
[T]he 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 the intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.15
In this case, the prosecution established that Garingarao touched AAAs breasts and
inserted his finger into her private part for his sexual gratification. Garingarao used his
influence as a nurse by pretending that his actions were part of the physical
examination he was doing. Garingarao persisted on what he was doing despite AAAs
objections. AAA twice asked Garingarao what he was doing and he answered that he
was just examining her.
The Court has ruled that a child is deemed subject to other sexual abuse when the
child is the victim of lascivious conduct under the coercion or influence of any
adult.16 In lascivious conduct under the coercion or influence of any adult, there must
be some form of compulsion equivalent to intimidation which subdues the free
exercise of the offended partys free will.17 In this case, Garingarao coerced AAA into
submitting to his lascivious acts by pretending that he was examining her.
Garingarao insists that, assuming that the testimonies of the prosecution witnesses
were true, he should not be convicted of violation of RA 7610 because the incident
happened only once. Garingarao alleges that the single incident would not suffice to
hold him liable under RA 7610.
Garingaraos argument has no legal basis.
The Court has already ruled that it is inconsequential that sexual abuse under RA 7610
occurred only once.18 Section 3(b) of RA 7610 provides that the abuse may be
habitual or not.19Hence, the fact that the offense occurred only once is enough to
hold Garingarao liable for acts of lasciviousness under RA 7610.
Indemnity and Moral Damages
In view of recent jurisprudence, we deem it proper to reduce the amount of indemnity

to P20,00020 and moral damages awarded by the Court of Appeals to P15,000.21 We
also impose on Garingarao a fine of P15,000.22
WHEREFORE, we DENY the petition. We AFFIRM the 26 November 2009

Decision and 22 June 2010 Resolution of the Court of Appeals in CA-G.R. CR No.
31354 with MODIFICATIONS. The Court finds Jojit Garingarao GUILTY beyond
reasonable doubt of acts of lasciviousness in relation to Republic Act No. 7610. He is
sentenced to suffer the penalty of 14 years and 8 months of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum and ordered to pay
AAA P20,000 as civil indemnity, P15,000 as moral damages and a fine of P15,000.
SO ORDERED.
Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 211002 January 21, 2015
RICHARD RICALDE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
Even men can become victims of rape.
Before us is a criminal case for rape through sexual assault committed against a 10-year-old boy.
Accused Richard Ricalde (Ricalde) was charged with rape as described under the second paragraph
of Section 266-A of the Revised Penal Code, committed "[b ]y 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 person's mouth or anal orifice, or any instrument or object, into the genital or
anal orifice of another person." 1
This is a Petition for Review2 assailing the Court of Appeals’ August 28, 2013 Decision3 affirming
Ricalde’s conviction for rape through sexual assault and January 15, 2014 Resolution4 denying
reconsideration.
The Provincial Prosecutor of Biñan, Laguna filed an Information charging Ricalde of rape through
sexual assault:
That on or about January 31, 2002, in the Municipality of Sta. Rosa, Province of Laguna, Philippines,
and within the jurisdiction of this Honorable Court, accused Richard Ricalde, prompted with lewd
design, did then and there willfully, unlawfully and feloniously inserting [sic] his penis into the anus of
XXX who was then ten (10) years of age against his will and consent, to his damage and prejudice.
CONTRARY TO LAW.5
Ricalde pleaded not guilty during his arraignment on August 21, 2002.6 The prosecution presented
the victim (XXX),7 his mother, and the medico-legal as witnesses, while the defense presented
Ricalde as its sole witness.8
The facts as found by the lower courts follow.
On January 30, 2002, XXX requested his mother to pick up Ricalde at McDonald’s Bel-Air, Sta.
Rosa at past 8:00 p.m.9 Ricalde, then 31 years old,10 is a distant relative and textmate of XXX, then
10 years old.11
After dinner, XXX’s mother told Ricalde to spend the night at their house as it was late.12 He slept on
the sofa while XXX slept on the living room floor.13
It was around 2:00 a.m. when XXX awoke as "he felt pain in his anus and stomach and something
inserted in his anus."14 He saw that Ricalde "fondled his penis."15 When Ricalde returned to the sofa,
XXX ran toward his mother’s room to tell her what happened.16 He also told his mother that Ricalde
played with his sexual organ.17
XXX’s mother armed herself with a knife for self-defense when she confronted Ricalde about the
incident, but he remained silent.18 She asked him to leave.19
XXX’s mother then accompanied XXX to the barangay hall where they were directed to report the
incident to the Sta. Rosa police station.20 The police referred them to the municipal health center for
medical examination.21 Dr. Roy Camarillo examined22 XXX and found no signs of recent trauma in his
anal orifice23 that was also "NEGATIVE for [s]permatozoa."24
On February 4, 2002, XXX and his mother executed their sworn statements at the Sta. Rosa police
station, leading to the criminal complaint filed against Ricalde.25
Ricalde denied the accusations.26 He testified that he met XXX during the 2001 town fiesta of Calaca,
Batangas and learned that XXX’s mother is the cousin of his cousin Arlan Ricalde.27 He and XXX
became textmates, and XXX invited him to his house.28 On January 30, 2002, XXX’s mother picked
him up to sleep at their house.29 He slept at 10:00 p.m. on the living room sofa while XXX slept on the
floor.30 He denied the alleged rape through sexual assault.31
The Regional Trial Court in its Decision32 dated June 20, 2011 found Ricalde guilty beyond
reasonable doubt of rape through sexual assault:
WHEREFORE, this Court finds accused Richard Ricalde guilty beyond reasonable doubt of the
crime of rape by sexual assault and, accordingly, sentences him to suffer the penalty of
imprisonment ranging from four (4) years, two (2) months and one (1) day of prision correccional as
minimum, to eight (8) years of prision mayor as maximum. Accused is ordered to pay [XXX] the
sums of 50,000.00 as moral damages and 50,000.00 as civil indemnity.
SO ORDERED.33
The Court of Appeals in its Decision34 dated August 28, 2013 affirmed the conviction with the
modification of lowering the amounts of damages awarded:
WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of the Regional Trial Court of
Calamba, Laguna, in Crim. Case No. 11906-B, is AFFIRMED but with MODIFICATION as to the
award of damages. Accused-appellant RICHARD RICALDE is ordered to pay the victim civil
indemnity in the amount of Thirty Thousand (30,000.00) Pesos and moral damages likewise in the
amount of Thirty Thousand (30,000.00) Pesos, both with interest at the legal rate of six (6%) percent
per annum from the date of finality of this judgment until fully paid.35
Ricalde filed this Petition praying for his acquittal.36
Petitioner argues the existence of reasonable doubt in his favor. First, the medico-legal testified that
he found "no physical signs or external signs of recent trauma [in XXX’s] anus,"37 or any trace of
spermatozoa.38 He contends that physical evidence "ranks high in [the court’s] hierarchy of
trustworthy evidence." 39
Second, XXX did not categorically say that a penis was inserted into his anal orifice, or that he saw a
penis or any object being inserted into his anal orifice.40 XXX was also able to immediately push him
away.41 Thus, no push and pull movement happened that would explain XXX’s alleged stomach
ache.42 Petitioner submits that the alleged stomach ache was an attempt to aggravate the charge
against him.43
Petitioner argues that XXX’s inconsistent testimony raises reasonable doubt on his guilt.44 XXX
claimed that he immediately pushed petitioner away, but in another instance, he testified as follows:
"I felt that he was inserting his penis inside my anus because I was even able to hold his penis. He
was also playing with my penis."45 XXX also stated in his salaysay that "the penis reached only the
periphery of his anal orifice."46
Third, XXX testified that after he had pushed petitioner away, he saw that petitioner was wearing
pants with the zipper open.47 Petitioner submits that performing anal coitus while wearing pants with
an open zipper poses a challenge — the risk of injuring the sexual organ or having pubic hair
entangled in the zipper. 48 Petitioner argues that the court must consider every circumstance favoring
the innocence of an accused.49
Assuming he committed an offense, petitioner contends that the court should have applied the
"variance doctrine" in People v. Sumingwa,50 and the court would have found him guilty for the lesser
offense of acts of lasciviousness under Article 336 of the Revised Penal Code.51 The petition then
enumerated circumstances showing possible homosexual affections between petitioner and
XXX.52 These include the fact that they were textmates and that petitioner played with XXX’s penis.53
Petitioner argues that this masturbation could have caused an irritation that XXX mistook as
penetration.54 XXX could also have mistaken the "overreaching fingers as a male organ trying to
enter his [anus]."55 Assuming these acts took place, these would only be considered as acts of
lasciviousness.56
The People of the Philippines counters that the prosecution proved beyond reasonable doubt all
elements of the crime charged.
The Comment57 discussed that it is neither improbable nor contrary to human experience that XXX’s
mother allowed her son to be left alone with a stranger.58 Petitioner was not a complete stranger, and
she could not have foreseen such abuse since "rape by sexual assault or any form of sexual abuse
of a boy by a grown man is fairly uncommon in our culture."59
Petitioner’s reliance on the medico-legal’s findings deserves scant consideration.60 The Comment
quoted People v. Penilla61 in that "[a] medical examination of the victim is not indispensable in a
prosecution for rape inasmuch as the victim’s testimony alone, if credible, is sufficient to convict the
accused of the crime."62 In any case, the medico-legal testified on the sphincter’s flexibility and how
an insertion into the anal orifice would not necessarily cause injury.63
Lastly, the prosecution established all elements of rape through sexual assault based on XXX’s clear
and categorical testimony.64 Petitioner’s defense of mere denial cannot outweigh positive
testimony.65 Consequently, petitioner’s contention that the incident only amounts to acts of
lasciviousness lacks merit.66
The issue before us for resolution is whether the prosecution proved beyond reasonable doubt
petitioner Richard Ricalde’s guilt for the crime of rape through sexual assault.
We affirm petitioner’s conviction with modification on the penalty imposed.
The Anti-Rape Law of 199767 classified rape as a crime against persons68 and amended the Revised
Penal Code to include Article 266-A on rape through sexual assault:
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 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 person’s mouth or
anal orifice, or any instrument or object, into the genital or anal orifice of another person.
(Emphasis supplied)
Rape under the second paragraph of Article 266-A is also known as "instrument or object
rape,"69 "gender-free rape,"70 or "homosexual rape."71 The gravamen of rape through sexual assault is
"the insertion of the penis into another person’s mouth or anal orifice, or any instrument or object,
into another person’s genital or anal orifice."72
Jurisprudence holds that "the findings of the trial court, its calibration of the testimonies of the
witnesses, and its assessment of the probative weight thereof, as well as its conclusions anchored
on said findings are accorded respect if not conclusive effect."73
The trial court found that XXX’s "straightforward, unequivocal and convincing testimony"74 sufficiently
proved that petitioner committed an act of sexual assault by inserting his penis into XXX’s anal
orifice.75 There was no showing of ill motive on the part of XXX to falsely accuse petitioner.76 The
Court of Appeals accorded great weight to the trial court’s findings and affirmed petitioner’s
conviction.77
No cogent reason exists for this court to overturn the lower courts’ findings.
First, petitioner’s argument highlighting alleged inconsistencies in XXX’s testimony fails to convince.
In a long line of cases,78 this court has given full weight and credit to the testimonies of child victims.
Their "[y]outh and immaturity are generally badges of truth and sincerity."79 XXX, then only 10 years
old, had no reason to concoct lies against petitioner.80
This court has also held that "[l]eeway should be given to witnesses who are minors, especially
when they are relating past incidents of abuse."81
Petitioner contends that XXX did not categorically say that a penis was inserted into his anal orifice,
or that he saw a penis or any object being inserted into his anal orifice.
This contradicts petitioner’s earlier statement in his appellant’s brief82 that "[a]lthough it is true that
the Supreme Court, in a long line of cases, did not rule out the possibility of rape in cases where the
victim remained physically intact at the time she or he was physically examined, still, it bears
stressing that in the instant case, the private complainant testified that the accused-appellant’s penis
fully penetrated his anus."83
The trial court also quoted portions of the transcript of XXX’s testimony in that he "felt something was
inserted in [his] anus."84
Q: That early morning of January 31, 2002, while you were sleeping at your house, do you
recall any unusual incident that happened to you?
A: Yes sir, I felt something was inserted in my anus.
....
Q: When you said that you felt something was inserted in your anus, what did you do?
A: I felt that he was inserting his penis inside my anus because I was even able to hold his
penis. He was also playing with my penis.
Q: So when you said he was inserting his penis to your anus and he was even playing with
your private part, who is this person you are referring to as "he"?
A: Richard, sir.85
In People v. Soria,86 this court discussed that a victim need not identify what was inserted into his or
her genital or anal orifice for the court to find that rape through sexual assault was committed:
We find it inconsequential that "AAA" could not specifically identify the particular instrument or object
that was inserted into her genital. What is important and relevant is that indeed something was
inserted into her vagina. To require "AAA" to identify the instrument or object that was inserted into
her vagina would be contrary to the fundamental tenets of due process.87
Second, petitioner’s reliance on the medico-legal’s finding of no recent trauma in XXX’s anal orifice,
or any trace of spermatozoa, lacks merit. The absence of spermatozoa in XXX’s anal orifice does
not negate the possibility of an erection and penetration. This result does not contradict the positive
testimony of XXX that the lower courts found credible, natural, and consistent with human nature.
This court has explained the merely corroborative character of expert testimony and the possibility of
convictions for rape based on the victim’s credible lone testimony.88
In any case, the medico-legal explained that his negative finding of trauma in the anal orifice does
not remove the possibility of an insertion considering the flexibility of the sphincter:
Q: Now, a while ago you testified that he was sodomized and your findings states [sic] that you did
not find any congestion or abrasion, can you explain to this court why you stated in your findings that
you did not find any congestion or abrasion?
A: Again, based on my examination[,] there were no external signs of recent trauma to the anus. It
should be realized that the sphincter, that is the particular portion of the anus controlling the bowel
movement, it exhibits a certain flexibility such that it can resist any objected [sic] inserted and that
area is very vascular, meaning to say, it is rich in blood supply, such that any injuries would be
healed in 24 hours or less than 24 hours, sir?89
Lastly, we address petitioner’s invocation of the "variance doctrine" citing People v.

Sumingwa.90 Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure
provides for the "variance doctrine":
SEC. 4. Judgment in case of variance between allegation and proof.—When there is 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, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former continue or form part of
those constituting the latter.
In Sumingwa, the accused in Criminal Case Nos. 1649 and 1654 was charged with qualified rape
but was convicted for the lesser offense of acts of lasciviousness committed against a child under
Article III, Section 5(b) of Republic Act No. 761091 since "there was no penetration, or even an
attempt to insert [the accused’s] penis into [the victim’s] vagina."92
In the instant case, no variance exists between what was charged and what was proven during trial.
The prosecution established beyond reasonable doubt all elements of the crime of rape through
sexual assault.
XXX testified that he "felt something was inserted [into his] anus."93 The slightest penetration into
one’s sexual organ distinguishes an act of lasciviousness from the crime of rape. People v.
Bonaagua94 discussed this distinction:
It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of
the male organ or even its slightest contact with the outer lip or the labia majora of the vagina
already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the
outer lip of the vagina, the act should also be considered as already consummating the crime of rape
through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case,
such logical interpretation could not be applied. It must be pointed out that the victim testified that
Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This
testimony of the victim, however, is open to various interpretation, since it cannot be identified what
specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of
an accused must be proven beyond reasonable doubt, the statement cannot be the basis for
convicting Ireno with the crime of rape through sexual assault.95 (Emphasis supplied)
People v. Bonaagua considers a woman’s private organ since most if not all existing jurisprudence
on rape involves a woman victim. Nevertheless, this interpretation can apply by analogy when the
victim is a man in that the slightest penetration to the victim’s anal orifice consummates the crime of
rape through sexual assault.
The gravamen of the crime is the violation of the victim’s dignity. The degree of penetration is not
important. Rape is an "assault on human dignity."96
People v. Quintos97 discussed how rape causes incalculable damage on a victim’s dignity, regardless
of the manner of its commission:
The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as
these define the manners of commission of rape. However, it does not mean that one manner is less
heinous or wrong than the other. Whether rape is committed by nonconsensual carnal knowledge of
a woman or by insertion of the penis into the mouth of another person, the damage to the victim’s
dignity is incalculable. Child sexual abuse in general has been associated with negative
psychological impacts such as trauma, sustained fearfulness, anxiety, self-destructive behavior,
emotional pain, impaired sense of self, and interpersonal difficulties. Hence, one experience of
sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.
"The prime purpose of [a] criminal action is to punish the offender in order to deter him and others
from committing the same or similar offense, to isolate him from society, reform and rehabilitate him
or, in general, to maintain social order." Crimes are punished as retribution so that society would
understand that the act punished was wrong.
Imposing different penalties for different manners of committing rape creates a message that one
experience of rape is relatively trivial or less serious than another. It attaches different levels of
wrongfulness to equally degrading acts. Rape, in whatever manner, is a desecration of a person’s
will and body. In terms of penalties, treating one manner of committing rape as greater or less in
heinousness than another may be of doubtful constitutionality.
However, the discriminatory treatment of these two acts with the same result was not raised in this
case. Acknowledging that every presumption must be accorded in favor of accused in criminal
cases, we have no choice but to impose a lesser penalty for rape committed by inserting the penis
into the mouth of the victim.98 (Citations omitted)
We affirm petitioner’s conviction but modify the penalty imposed by the lower court to the penalty
under Article III, Section 5(b) of Republic Act No. 7610 known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act":99
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
The penalty of reclusion temporal in its medium period to reclusion perpertua 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: 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 maybe: 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; (Emphasis supplied)
The Implementing Rules and Regulations of Republic Act No. 7610 defines "lascivious conduct":
[T]he 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 pubic area of a person.100
In People v. Chingh,101 the accused was charged with rape "for inserting his fingers and afterwards
his penis into the private part of his minor victim[.]"102 The Court of Appeals found the accused guilty
of two counts of rape: statutory rape and rape through sexual assault.103 This court modified the
penalty imposed for rape through sexual assault to the penalty provided in Article III, Section 5(b) of
Republic Act No. 7610, discussing as follows:
It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old.
This calls for the application of R.A. No. 7610, or "The Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act," which defines sexual abuse of children and prescribes
the penalty therefor in Section 5(b), Article III, to wit:
....
In this case, the offended party was ten years old at the time of the commission of the offense.
Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2,
Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual
Assault. However, instead of applying the penalty prescribed therein, which is prision mayor,
considering that VVV was below 12 years of age, and considering further that Armando’s act of
inserting his finger in VVV’s private part undeniably amounted to lascivious conduct, the appropriate
imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is
reclusion temporal in its medium period.
The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under
Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of
reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault,
which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure,
it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A.
No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No.
7610 is still good law, which must be applied when the victims are children or those "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."104 (Emphasis supplied, citations omitted)
Thus, "for Rape Through Sexual Assault under paragraph 2, Article 266-A, [the accused Chingh
was] sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-
one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months, and twenty
(20) days of reclusion temporal, as maximum."105
The imposable penalty under Republic Act No. 7610, Section 5(b) "for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium period." This
penalty is higher than the imposable penalty of prision correccional for acts of lasciviousness under
Article 336 of the Revised Penal Code.
In enacting Republic Act No. 7610, the legislature intended to impose a higher penalty when the victi
m is a child.
The fact that XXX was only 10 years old when the incident happened was established by his birth
certificate, and this was admitted by the defense.106 His age of 10 years old was alleged in the
Information.107 The higher penalty under Republic Act No. 7610, as discussed in People v. Chingh,
applies in this case.
Having sex with a 10-year-old is child abuse and is punished by a special law (Republic Act No.
7610). It is a progression from the Revised Penal Code to provide greater protection for children.
Justice Velasco suggests that this is not so. He anchors his view on his interpretation that Republic
Act No. 7610 requires a showing that apart from the actual coerced sexual act on the 10-year-old,
the child must also be exploited by prostitution or by other sexual acts. This view is inaccurate on
grounds of verba legis and ratione legis.
The first paragraph of Article III, Section 5 of Republic Act No. 7610 clearly provides that "children . .
. who . . . due to the coercion . . . of any adult . . . indulge in sexual intercourse . . . are deemed to be
children exploited in prostitution and other sexual abuse." The label "children exploited in . . . other
sexual abuse" inheres in a child who has been the subject of coercion and sexual intercourse.
Thus, paragraph (b) refers to a specification only as to who is liable and the penalty to be imposed.
The person who engages in sexual intercourse with a child already coerced is liable.
It does not make sense for the law not to consider rape of a child as child abuse. The proposal of
Justice Velasco implies that there has to be other acts of a sexual nature other than the rape itself
that will characterize rape as child abuse. One count of rape is not enough. Child abuse, in his view,
is not yet present with one count of rape.
This is a dangerous calculus which borders on judicial insensitivity to the purpose of the law. If we
adopt his view, it would amount to our collective official sanction to the idea that a single act of rape
is not debilitating to a child. That a single act of rape is not a tormenting memory that will sear into a
child’s memory, frame his or her view of the world, rob him or her of the trust that will enable him or
her to have full and diverse meaningful interactions with other human beings. In my view, a single
act of sexual abuse to a child, by law, is already reprehensible. Our society has expressed that this
is conduct which should be punishable. The purpose and text of the law already punish that single
act as child abuse.
Rape is rape. Rape of a child is clearly, definitely, and universally child abuse.
Justice Velasco further observes that the right to due process of the accused will be violated should
we impose the penalty under Republic Act No. 7610. I disagree.
The Information was clear about the facts constitutive of the offense. The facts constitutive of the
offense will suggest the crime punishable by law. The principle is that ignorantia legis non excusat.
With the facts clearly laid out in the Information, the law which punishes the offense should already
be clear and the accused put on notice of the charges against him.
Additionally, there is no argument that the accused was not represented by counsel. Clear from the
records is the entry and active participation of his lawyer up to and including this appeal.
On the award of damages, we maintain the amount of 30,000.00 in favor of XXX as a victim of rape
through sexual assault, consistent with jurisprudence.108
This court has stated that "jurisprudence from 2001 up to the present yields the information that the
prevailing amount awarded as civil indemnity to victims of simple rape committed by means other
than penile insertion is ₱30,000."109
This statement considered the prevailing situation in our jurisprudence where victims of rape are all
women. However, as in this case, men can also become victims of rape through sexual assault, and
1âwphi1
this can involve penile insertion.
WHEREFORE, the Court of Appeals Decision in CA-G.R. C.R. No. 34387 dated August 28, 2013 is
AFFIRMED with MODIFICATION in that for rape through sexual assault under Article 266-A,
paragraph 2, accused-appellant Richard Ricalde is sentenced to suffer the indeterminate penalty of
twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to
fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. He is
ordered to pay the victim civil indemnity in the amount of ₱30,000.00 and moral damages likewise in
the amount of ₱30,000.00, both with interest at the legal rate of 6% per annum from the date of
finality of this judgment until fully paid.
SO ORDERED.
THIRD DIVISION
G.R. No. 209344, June 27, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JAIME BRIOSO ALIAS TALAP-TALAP, Accused-Appellant.
DECISION
PERALTA, J.:
Before the Court is an ordinary appeal filed by accused-appellant Jaime Brioso (Brioso) assailing the Decision1 of the Court of
Appeals (CA), dated March 22, 2013, in CA-G.R. CR-H.C. No. 05234, which affirmed with modification the Decision 2 of the Regional
Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case No. 2795, finding Brioso guilty of the crime of statutory rape, in
relation to Republic Act No. 7610 (RA 7610), and imposing upon him the penalty of reclusion perpetua.
The antecedents are as follows:
Around 5 o'clock in the afternoon of May 31, 2001, the victim, AAA, 3 who was then four (4) years old,4was playing at the basketball
court near their house located at Barangay Dimanayat, San Luis, Aurora. Accused-appellant then approached and asked her to go
with him to a nearby mango tree where he promised to give her candies. When AAA agreed, accused-appellant took her hand and
led her to the mango tree which was near his house. Upon reaching the mango tree, accused-appellant immediately removed AAA's
short pants and panty then proceeded to mash her private organ and inserted his finger into her vagina. Thereafter, accused-
appellant made her lie down on the ground and inserted his penis into her vagina. Accused-appellant warned AAA not to tell
anybody about what he did to her, otherwise he will kill her. Stricken by fear, AAA went home without telling anybody about her
ordeal. However, the next morning, AAA's mother, BBB, observed that her daughter had difficulty urinating. She examined AAA's
vagina and found that it was swollen. BBB then cleaned AAA's sex organ and asked her the reason why it was swollen. AAA then
told BBB that accused-appellant molested her. Upon learning about what happened to her daughter, BBB brought her child to one
of their Barangay Kagawads to report the incident. The following morning, the Barangay Kagawad accompanied AAA and BB,B to
the Office of the Department of Social Welfare and Development in San Luis where AAA related her ordeal and again pointed to
accused-appellant as the culprit. They were then brought to the local police station where a criminal complaint was filed against
accused-appellant. There, the authorities gathered information regarding AAA's molestation where AAA reiterated her statements.
Thereafter, AAA was examined by a medical doctor who prepared a medico-legal report.
Subsequently, the Office of the Provincial Prosecutor of Aurora filed an Information 5 with the RTC of Baler, charging accused-
appellant with the crime of statutory rape, the pertinent portions of which read as follows: c hanRoblesv irtual Lawlib rary
xxxx
That in, about or sometime on the last week of May, 2001, in Barangay Dimanayat, San Luis, Province of Aurora, and within the
jurisdiction of this Honorable Court, said accused Jaime Brioso alyas (sic) "Talap-talap", did then and there wilfully (sic), unlawfully
and feloniously with lewdness mashed and inserted a finger into the vagina of a four (4)-year-old child [AAA] and have carnal
knowledge of the said minor child against her will.
x x x6
cra lawred
The Information was initially sent to the archives because the authorities were not able to arrest accused-appellant. Eventually, on
October 5, 2007, accused-appellant was arrested. He was arraigned on October 25, 2007 wherein he pleaded not guilty.7 ChanRoble sVirtualawl ibra ry
In his defense, accused-appellant denied the allegations of the prosecution and raised the defense of alibi.
Pre-trial was conducted on April 16, 2008.8 Thereafter, trial ensued.
On August 24, 2011, the RTC rendered its Decision finding accused-appellant guilty as changed, the dispositive portion of which
reads as follows: cha nRoblesv irt ual Lawlib rary
WHEREFORE, under the above premises, this Court hereby finds JAIME BRIOSO GUILTY beyond reasonable doubt of the crime of
Statutory Rape under Article 266-A (1) (d) of the Revised Penal Code, in relation to R.A. 7610, and hereby sentences him to suffer
the penalty of reclusion perpetua and to pay to [AAA] the amount of Seventy-Five Thousand Pesos (P75,000.00) as civil indemnity,
Seventy-Five Thousand Pesos (P75,000.00) as moral damages, and Thirty Thousand Pesos (P30,000.00) as exemplary damages.
SO ORDERED.9 c ralaw red
The RTC gave full credence to the testimony of AAA holding that she testified on the rape that happened to her in a straightforward
and credible manner. The RTC also cited the findings of the medico-legal which corroborated the testimony of AAA. The trial court
did not give weight to accused-appellant's defense of alibi because the place where he claims to be at the time of the rape is just a
few minutes walk from the scene of the crime, hence, it is not physically impossible for him to be at the said scene at the time of
the commission of the rape. The RTC further held that AAA positively identified accused-appellant as the one who raped her.
Accused-appellant appealed the RTC Decision with the CA.10 ChanRobles Vi rtua lawlib rary
On March 22, 2013, the CA promulgated its assailed Decision affirming the judgment of the RTC in toto.
The CA held, others, that: it found no reason to depart from the findings of the RTC regarding the credibility of AAA; AAA's delay in
reporting her rape may not be construed as indication of a false accusation; under the Rules of Court, a child of tender years may
be asked leading questions; accused-appellant failed to allege and prove any improper motive on AAA's part to falsely accuse him
of rape.
On April 11, 2013, accused-appellant, through counsel, filed a Notice of Appeal manifesting his intention to appeal the CA Decision
to this Court.11 ChanRoble sVirt ualawli bra ry
In its Resolution dated May 3, 2013, the CA gave due course to accused-appellant's Notice of Appeal and directed its Judicial
Records Division to elevate the records of the case to this Court. 12 ChanRob les Virtualawl i brary
Hence, this appeal was instituted.
In a Resolution13 dated December 4, 2013, this Court, among others, notified the parties that they may file,their respective
supplemental briefs, if they so desire.
in its Manifestation14 dated February 17, 2014, the Office of the Solicitor General (OSG) informed this Court that it will no longer file
a supplemental brief because it had already adequately addressed in its brief filed before the CA all the issues and arguments raised
by accused-appellant in his brief.
In the same manner, accused-appellant filed a Manifestation in Lieu of Supplemental Brief 15 dated March 4, 2014, indicating that he
no longer intends to file a supplemental brief and is adopting his brief, which was filed with the CA, as his supplemental brief as it
had adequately discussed all the matters pertinent to his defense.
Accused-appellant's basic contention is that he was wrongly convicted because the prosecution failed to prove his guilt beyond
reasonable doubt. In support of his claim, he posits the following arguments: (1) AAA's unexplained delay of five (5) days in
reporting her alleged rape to her mother, as well as her failure to immediately identify accused-appellant as the supposed
perpetrator of the crime, greatly affects her credibility; (2) AAA's credibility is also subject to question considering her failure to
clearly narrate her alleged rape during her testimony in court and that what she did was merely to confirm the leading questions
propounded to her by the prosecutor; (3) AAA's actuations immediately after her supposed rape, wherein she showed no outrage or
fear towards accused-appellant, are not the natural reaction of the victim of a crime.
The appeal lacks merit.
The pertinent provisions of Articles 266-A of the Revised Penal Code, as amended, provide: c hanRoble svirtual Lawlib ra ry
Art. 266-A Rape; When And How Rape is Committed. -
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: cha nRoblesvi rt ualLa wlibra ry
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise 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. cra lawred
xxx cra lawred
Statutory rape is committed when: (1) the offended party is under twelve (12) years of age; and (2) the accused has carnal
knowledge of her, regardless of whether there was force, threat or intimidation, whether the victim was deprived of reason or
consciousness, or whether it was done through fraud or grave abuse of authority. 16 It is enough that the age of the victim is proven
and that there was sexual intercourse.17 ChanRobles Virtualawl ibrary
This Court has consistently held that "rape under Article 266-A(1)(d) of the Revised Penal Code, as amended, is termed statutory
rape as it departs from the usual modes of committing rape." 18 What the law punishes in statutory rape is carnal knowledge of a
woman below twelve (12) years old.19 Thus, force, intimidation and physical evidence of injury are not relevant considerations; the
only subject of inquiry is the age of the woman and whether carnal knowledge took place. 20 The law presumes that the victim does
not and cannot have a will of her own on account of her tender years; the child's consent is immaterial because of her presumed
incapacity to discern good from evil.21 ChanRob les Virtualawl ibra ry
Moreover, under Article 266-B, the penalty for statutory rape is death if, among others, the victim is below seven (7) years old,
thus: cha nRoblesvi rt ual Lawlib rary
ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying
circumstances:
xxxx
5. When the victim is a child below seven (7) years old.
xxxx c ralawred
In the present case, both the RTC and the CA found that the prosecution was able to prove beyond reasonable doubt all the
elements of statutory rape and this Court finds no cogent reason to depart from these findings, as will be discussed below.
Accused-appellant's arguments in the instant appeal basically harp on the alleged loopholes, inconsistencies and improbabilities in
the testimonies of the victim and her mother which supposedly cast doubt on their credibility as witnesses.
Settled is the rule that testimonies of child-victims are normally given full weight and credit, since when a girl, particularly if she is
a minor, says that she has been raped, she says in effect all that is necessary to show that rape has, in fact, been
committed.22 When the offended party is of tender age and immature, courts are inclined to give credit to her account of what
transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which
she testified is not true.23 Youth and immaturity are generally badges of truth and sincerity.24 Considering that AAA was only four
(4) years old when she was raped and was only eleven (11) years old when she took the witness stand, she could not have
invented a horrible story.
Besides, the testimony of AAA is corroborated by the findings of the physician who examined her indicating "swelling and
tenderness of the labia majora" "swelling, redness and tenderness of the labia minora," "whitish discharge from the vaginal os,"
"multiple erosions at the perineum and labia minora," "broken hymen at the 4 & 5 o'clock positions." 25 When asked about her
findings, the physician concluded "that there was a penetration of the area causing all these erosions, all these wounds [and]
lacerations and there was a penetration of something that was hard breaking into the hymen." 26 Thus, the RTC and the CA are
correct in concluding that both the victim's positive testimony and the findings of the medico-legal officer complemented each other
in the conclusion that accused-appellant had sexual intercourse with the victim.
The Court is neither persuaded by accused-appellant's argument that AAA's unexplained delay of five (5) days in reporting the rape
to her mother greatly affects her credibility. This Court has repeatedly held that delay in reporting rape incidents, in the face of
threats of physical violence, cannot be taken against the victim. 27 AAA's delay in reporting the incidents to her mother or the proper
authorities is insignificant and does not affect the veracity of her charges. It should be remembered that accused-appellant
threatened to kill her if she told anyone of the incident. This Court has explained why a rape victim's deferral in reporting the crime
does not equate to falsification of the accusation, to wit: chanRob lesvi rtua lLawl ibra ry
The failure of complainant to disclose her defilement without loss of time to persons close to her or to report the matter to the
authorities does not perforce warrant the conclusion that she was not sexually molested and that her charges against the accused
are all baseless, untrue and fabricated. Delay in prosecuting the offense is not an indication of a fabricated charge. Many victims of
rape never complain or file criminal charges against the rapists. They prefer to bear the ignominy and pain rather than reveal their
shame to the world or risk the offenders' making good their threats to kill or hurt their victims. 28 c ralaw red
Further, it has been written that a rape victim's actions are oftentimes overwhelmed by fear rather than by reason.29 It is this fear,
springing from the initial rape, that the perpetrator hopes to build a climate of extreme psychological terror, which would, he hopes,
numb his victim into silence and submissiveness. 30Moreover, delay in reporting an incident of rape is not an indication of a
fabricated charge and does not necessarily cast doubt on the credibility of the complainant. 31 It is likewise settled in jurisprudence
that human reactions vary and are unpredictable when facing a shocking and horrifying experience such as sexual assault, thus, not
all rape victims can be expected to act conformably to the usual expectations of everyone. 32 In the instant case, AAA, being only
four (4) years old at the time that she was violated and threatened with death if she reports the incident, would naturally be cowed
into silence because of fear for her life.
Accused-appellant also contends that AAA's credibility is again put into question because she failed to clearly narrate her alleged
rape during her testimony in court and that what she did was merely to confirm the leading questions propounded to her by the
prosecutor.
The Court does not agree. The Court quotes with approval the CA's ruling, thus: chanRob lesvi rtua lLawl ibra ry
Also, that AAA was unable to narrate the rape with case without the leading questions propounded by the prosecutor and the trial
court is not unnatural. To be sure, a court cannot expect a rape victim to remember every ugly detail of the appalling outrage,
especially so since she might in fact have been trying not to remember them. Thus, it is palpable that AAA remembered the painful
sexual intercourse forced upon her by the accused-appellant. She just did not want to replay the whole rape in her mind and simply
gave her terse but sufficient answers to the questions posed by the prosecution and the trial judge during her direct
examination.33 cralaw red
Rape is a painful experience which is oftentimes not remembered in detail. 34 For such an offense is not analogous to a person's
achievement or accomplishment as to be worth recalling or reliving; rather, it is something which causes deep psychological
wounds and casts a stigma upon the victim, scarring her psyche for life and which her conscious and subconscious mind would opt
to forget.35 Thus, a rape victim cannot be expected to mechanically keep and then give an accurate account of the traumatic and
horrifying experience she had undergone.36 ChanRobles Vi rtualawl ib rary
As to the leading questions asked by the prosecutor during AAA's direct examination, it is too late in the day for accused-appellant
to object to the manner of questioning adopted by the public prosecutor. Accused-appellant should have interposed his objections
in the course of the oral examination of AAA, as soon as the grounds therefor became reasonably apparent.37 As it were, he raised
not a whimper of protest as the public prosecutor recited his offer or propounded questions to AAA. Worse, accused-appellant
subjected AAA to cross-examination on the very matters covered by the questions being objected to;38 therefore, he is barred from
arguing that the victim was "only made to confirm the leading questions propounded to her which are all in line with the theory of
the prosecution."
Moreover, it is true that, as a rule, leading questions are not allowed in direct examination. However, Section 10 (c) of Rule 132
allows leading questions to be asked of a witness who is a child of tender years, especially when said witness has difficulty giving an
intelligible answer, as when the latter has not reached that level of education necessary to grasp the simple meaning of a question,
moreso, its underlying gravity. This exception is now embodied in Section 20 39 of the Rule on Examination of a Child Witness, which
took effect on December 15, 2000. Under Section 4 thereof, a child witness is any person who at the time of giving testimony is
below the age of eighteen (18) years. In the instant case, AAA was only eleven (11) years old when she took the witness stand.
Thus, the decision of the RTC to allow the prosecution to ask AAA leading questions is justified.
Accused-appellant likewise posits that AAA's actuations immediately after her supposed rape, wherein she showed no outrage or
fear towards accused-appellant, and that her belated display of fear when she took the witness stand seven years after the crime
was supposedly committed are not the natural reaction of the victim of a crime.
However, this Court has recognized the fact that no clear-cut behavior can be expected of a person being raped or has been
raped.40 AAA's conduct, i.e., nonchalance or indifference in the presence of the accused-appellant immediately after the latter
supposedly raped her, is also not enough to discredit her. As earlier stated, victims of a crime as heinous as rape, cannot be
expected to act within reason or in accordance with society's expectations. 41 It is unreasonable to demand a standard rational
reaction to an irrational experience, especially from a young victim. 42 One cannot be expected to act as usual in an unfamiliar
situation as it is impossible to predict the workings of a human mind placed under emotional stress. 43 Moreover, it is wrong to say
that there is a standard reaction or behavior among victims of the crime of rape since each of them had to cope with different
circumstances.44 Cha nRobles Vi rtua lawlib rary
Anent accused-appellant's defense of alibi, the Court, likewise, quotes the findings and conclusions of the CA with approval, to
wit:chanRoble svi rtual Lawli bra ry
x x x [A]ccused-appellant's defense of alibi deserves scant consideration.
For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of the commission
of the crime, but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity. Physical
impossibility refers not only to the geographical distance between the place where the accused was and the place where the cr ime
was committed when the crime transpired, but more importantly, the facility of access between the two places. Due to its doubtful
nature, alibi must be supported by clear and convincing proof.
In the instant case, the accused-appellant failed to demonstrate that it was physically impossible for him to be at the mango tree
where the rape of AAA took place. It would indeed be too fragile an alibi for an accused to establish such impossibility where
the locus delicti and the house of Pedro Esplana - the place where he was supposedly having a drinking spree with friends -
are located in the same barangay.
x x x45 cralaw red
At this juncture, it bears to reiterate the rule that in criminal cases, an examination of the entire records of a case may be explored
for the purpose of arriving at a correct conclusion, as an appeal in criminal cases throws the whole case open for review, it being,
the duty of the court to correct such error as may be found in the judgment appealed from, "whether they are made the subject of
the assignment of errors or not.46 Consistent with this rule, the Court digresses from the rulings of the RTC and the CA finding
accused-appellant guilty only of the crime of statutory rape, as the Court finds that accused-appellant was, in fact, charged and
proven guilty of two counts of rape.
A perusal of the Information filed against accused-appellant would show that he was charged with two offenses, the first of which is
rape under paragraph 1 (d), Article 266-A of the RPC, as amended, and the second is rape as an act of sexual assault under
paragraph 2, Article 266-A of the same law. Accused-appellant was charged of having carnal knowledge of AAA, who was under
twelve years of age at the time, under paragraph 1 (d) of Article 266-A, and he was also charged of committing rape through
sexual assault by inserting his finger into the genital of AAA under the second paragraph of Article 266-A, pertinent portions of
which provide as follows: chanRoble svirtual Lawli bra ry
Art. 266-A Rape; When And How Rape is Committed. -
xxxx
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 person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another
person.
xxxx c ralawred
Indeed, two instances of rape were proven at the trial. First, it was established that accused-appellant inserted his penis into the
private part of his victim, AAA. Second, through the testimony of AAA, it was proven that accused-appellant also inserted his finger
in AAA's private part, Pertinent portions of the said testimony read as follows: cha nRoblesv irt ual Lawlib rary
xxxx
PROS. Casar
You said that you are afraid of Talaptalap. Why are you afraid of him?
A (No answer from the witness)
THE COURT:
Put it on record that the child is crying.
PROS. Casar
Please tell us why are you afraid of Talaptalap? Is it because he did something to you?
A Yes, sir.
PROS. Casar
What did he do to you?
THE COURT:
Put it on record that the child is still crying.
PROS. Casar
What did he do to you?
THE COURT:
You ask her direct questions, fiscal.
PROS. Casar
Did he "hipo" your "pekpek"?
A Yes, sir.
PROS. Casar
Will you please demonstrate to us how did he make "hipo" with your "pekpek?"
A (No answer from the witness).
PROS. Casar
Did Talaptalap lower your parity and short before he made "hipo" you?
A Yes, sir.
PROS. Casar
And after lowering your lower garments you said he made "hipo" you, how did he "hipo" you?
PROS. Casar
After lowering your shorts and your panty did he use his hands in making "hipo" with your "pekpek?"
A Yes, sir.
PROS. Casar
Did he insert his lingers into your "pekpek?"
A Yes sir.
PROS. Casar
You said he inserted his fingers into your vagina. How about his penis, did he also insert his penis inside your vagina or to your
"pekpek?"
PROS. Casar
Did he insert his penis inside your vagina?
A Yes, sir.
PROS. Casar
After inserting his penis into your vagina what else did he do to you?
PROS. Casar
Were you hurt because he inserted his finger into your vagina?
A Yes, sir.
PROS. Casar
Did you cry because you got hurt?
A Yes, sir.
PROS. Casar
What did he tell you? Did he tell you not to tell anybody what he has done to you?
A Yes, sir.
PROS. Casar
That is the reason why it take you (sic) hard time in telling us what you have told us?
A Yes, sir.47
cra lawred
The Information has sufficiently informed accused-appellant that he is being charged with two counts of rape. It is true that Section
13, Rule 110 of the Revised Rules of Criminal Procedure requires that "[a] complaint or information must charge only one offense,
except when the law prescribes a single punishment for various offenses." However, Section 3, Rule 120 of the same Rules, as well
as settled jurisprudence, also states that "[w]hen two or more offenses are charged in a single complaint or information but the
accused fails to object to it before trial, the court may convict the appellant of as many as are charged and proved, and impose on
him the penalty for each offense, setting out separately the findings of feet and law in each offense."48 Consequently, since
accused-appellant failed to file a motion to quash the Information, he can be convicted with two counts of rape.
As to the penalty for the rape committed by accused-appellant under paragraph 1 (d), Article 266-A of the RPC, as amended,
Article 266-B of the same Code provides that the death penalty shall be imposed if the victim is a child below seven years old.
However, following Republic Act No. 9346 (RA 9346),49 the RTC, as affirmed by the CA, correctly imposed upon accused-appellant
the penalty of reclusion perpetuain lieu of death, but it should be specified that it is without eligibility for parole, 50 as the RTC did
not state it in the dispositive portion of its Decision.
With respect to the penalty for rape through sexual assault under paragraph 2, Article 266-A of the RPC, it is undisputed that at the
time of the commission of the sexual abuse, AAA was four (4) years old. This calls for the application of Republic Act No. 7610 (R.A.
7610), or The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, which defines sexual abuse of
children and prescribes the penalty therefor in Section 5 (b), Article 111, to wit: c hanRoble svirtual Lawli bra ry
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: chanRob lesvi rtua lLawl ibra ry
xxxx
(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.51 cralawred
The abovequoted 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 abuses. It covers not only a situation where a child is abused for profit, but also where
one - through coercion, intimidation or influence - engages in sexual intercourse or lascivious conduct with a child.
In connection with the above provision of law, Section 2 (h) of the Rules and Regulations on the Reporting and Investigation of
Child Abuse Cases,52 which was promulgated pursuant to Section 32 of R.A. No. 7610, defines "Lascivious conduct" as: chanRob lesvi rtua lLawl ibra ry
[T]he intentional touching, either directly or through clothing, of the genilalia, 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 pubic area of a person. c ralaw red
In the present case, AAA was four years old at the time of the commission of the offense. Pursuant to the above-quoted provision
of law, accused-appellant was aptly prosecuted under paragraph 2, Article 266-A of the RPC, as amended, for Rape Through Sexual
Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that AAA was below
twelve (12) years of age at the time of the commission of the offense, and considering further that accused-appellant's act of
inserting his finger in AAA's private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be
that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period.
Thus, as held in People v. Ching:53

The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Article [336 of the Revised Penal
Code, as amended by R.A. No. 8353], in relation to Section 5 (b), Article 111 of R.A. No. 7610, suffers the more severe penalty
of reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault, which is merely punishable
by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the franiers of R.A. No. 8353
to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353,
R.A. No. 7610 is still good law, which must be applied when the victims arc children or those "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."
Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly
imposed under the law, which is fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal. On the other hand,
the minimum term shall be within the range of the penalty next lower in degree, which is reclusion temporal in its minimum period,
or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.54 cra lawred
Hence, accused-appellant should be meted the indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21)
days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as
maximum.
As to accused-appellant's civil liabilities, it is settled that an award of civil indemnity ex delicto is mandatory upon a finding of the
fact of rape, and moral damages may be automatically awarded in rape cases without need of proof of mental and physical
suffering.55 Exemplary damages are also called for, by way of public example, and to protect the young from sexual abuse. 56 ChanRob les Vi rtualaw lib rary
The RTC and the CA awarded in AAA's favor the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages for the rape committed under paragraph 1 (d) of Article 266-A. In recent rulings of this
Court,57 the amounts of civil indemnity, moral damages and exemplary damages have been increased in cases where the penalty
for the crime committed is death which, however, cannot be imposed because of RA 9346. In the most recent case of People v.
Ireneo Jugueta,58 the increase in the amounts of civil indemnity, moral damages and exemplary damages has been explained in
detail. As it now stands, in cases of simple or qualified rape, among others, where the imposable penalty is death but the sa me is
reduced to reclusion perpetua because of RA 9346, the amounts of civil indemnity, moral damages and exemplary damages are
pegged uniformly at P100,000.00. Thus, the awards of civil indemnity, moral damages and exemplary damages, given to AAA,
should be increased to P100,000.00 each.
With respect to the rape through sexual assault under paragraph 2, Article 266-A, accused should pay AAA the amounts of
P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages, in accordance with
prevailing jurisprudence.59ChanRob les Virtualawl ibra ry
The Court additionally orders accused-appellant to pay interest of six percent (6%) per annum from the finality of this judgment
until all the monetary awards for damages are fully paid, in accordance with prevailing jurisprudence. 60 Cha nRobles Virtualawl ibra ry
WHEREFORE, the instant appeal is DISMISSED and the Decision dated March 22, 2013 of the Court of Appeals in CA-G.R. CR-
H.C. No. 05234 is hereby AFFIRMED with the following MODIFICATIONS:
1. Accused-appellant JAIME BRIOSO, alias Talap-Talap, is found guilty of Statutory Rape under paragraph 1 (d), Article 266-A of the
Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. He is ORDERED to PAY
the victim, AAA, the increased amounts of P100,000.00 as civil indemnity, P100,000.00 as moral damages and P100,000.00 as
exemplary damages.
2. Accused-appellant is also found guilty of Rape Through Sexual Assault under paragraph 2, Article 266-A of the Revised Penal
Code, in relation to Republic Act No. 7610, and is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10)
months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal, as maximum. He is ORDERED to PAY AAA the amounts of P30,000.00 as civil indemnity, P30,000.00 as
moral damages, and P30,000.00 as exemplary damages.
3. Accused-appellant is additionally ORDERED to PAY the victim interest of six percent (6%) per annumon all damages awarded
from the date of finality of this Decision until fully paid.
SO ORDERED. chan roble svi rtual lawlib rary

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SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 182521

- versus - ABAD, and

ERNESTO FRAGANTE y AYUDA, Promulgated:

Appellant. February 9, 2011

On appeal is the 28 September 2007 Decision1 of the Court of Appeals in CA-G.R.

That sometime in December 1993 at Shaolin Chinese Restaurant located

That sometime in between the period commencing in January 1994 to August

That sometime in between the period commencing in August 1994 until

The Court of Appeals narrated the facts as follows:

Ernesto A. Fragante (Ernesto hereafter) married CCC on October 6, 1975, in

On two occasions, between October 1993 and December 1993,

Joint trial ensued thereafter.

The Ruling of the Trial Court

The Ruling of the Court of Appeals

On 28 September 2007, the Court of Appeals rendered a Decision the dispositive

2. In pursuant with Section 31(f), Article XII, of Republic Act No.

4. In Criminal Case No. 98-660, the penalty imposed is hereby reduced

The Ruling of this Court

Criminal Case No. 98-660 for Rape

Article 335 of the Revised Penal Code11 provides:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

We reject appellant's contention that AAA's testimony was full of inconsistencies. On

Criminal Case Nos. 98-651, 98-652, 98-653, 98-654,

98-655, 98-656, 98-657, 98-658,

and 98-659 for Acts of Lasciviousness

We are not convinced.

The penalty of reclusion temporal in its medium period

2. The said act is performed with a child exploited in prostitution or

3. The child, whether male or female, is below 18 years of age.31

SECTION 3. Definition of Terms. -

In People v. Losano,34 the Court held:

Atty. Rosanna Elepao-Balauag:

Witness may answer.

Atty. Rosanna Elepao-Balauag:

How many times if you remember?

Q: When was (sic) [did] the incident happened?

Q: What else did he do?

A: That's all mam.

Q: And what happened after that?

A: He did you (sic) it again, mam.

Q: What she did you to? [sic]

A: Ganoon pa rin po, he sucked my breast

Q: After he scolded you what happened next?

Q: And after that incident what transpired next?

In the instant case, the informations expressly state that AAA is

1. GUILTY of RAPE in Criminal Case No. 98-660. He is

2. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case

3. GUILTY of ACTS OF LASCIVIOUSNESS in Criminal Case

4. NOT GUILTY of ACTS OF LASCIVIOUSNESS in Criminal

ROBERTO A. ABAD JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

* Designated additional member per Raffle dated 9 February 2011.

2 CA rollo, pp. 47-66. Penned by Judge Helen Bautista-Ricafort.

5 Rollo, pp. 2-7.

6 CA rollo, pp. 218-223.

10 CA rollo, pp. 119, 121, 122, 124.

12 People v. Lolos, G.R. No. 189092, 19 August 2010.

13 G.R. Nos. 148716-18, 7 July 2004, 433 SCRA 689, 698.

17 CA rollo, pp. 238-239.

20 People v. Maglente, supra note 15 at 467.

SEC. 2. In lieu of the death penalty, the following shall be imposed.