People of the Philippines vs. Andres Talib-Og y Tuganan

Manila

FIRST DIVISION

[ G.R. No. 238112. December 05, 2018 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANDRES TALIB-OG Y TUGANAN, ACCUSED-APPELLANT.

DECISION

TIJAM, J.:

This is an appeal from the Decision1'dated December 15, 2017 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01536-MIN, affirming with modification the Joint Judgment2'dated April 20, 2015 of the Regional Trial Court (RTC) of Dipolog City, Branch 7, in Criminal Case Nos. 12890, 13001, 13002 and 13003, finding accused-appellant Andres Talib-og y Tuganan guilty beyond reasonable doubt of two (2) counts of rape by sexual assault and two (2) counts of statutory rape, committed against AAA,3'a ten'-year old girl.

The Antecedent Facts

On December 4, 2004, accused-appellant was charged with statutory rape and was charged with three (3) additional counts in separate Informations,4'the accusatory portions of which read:

Criminal Case No. 12890

The undersigned City Prosecutor I of Dipolog accuses ANDRES TALIB-OG y Tuganan of the crime of STATUTORY RAPE, committed as follows:

That on November 28, 2004, at 11:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste designs, did then and there willfully, unlawfully and feloniously have carnal knowledge with AAA, a ten-year old minor, against her will and without her consent.

CONTRARY TO LAW.

Criminal Case No. 13001

The undersigned Third Assistant City Prosecutor of Dipolog accuses ANDRES TALIB-OG y Tuganan of the crime of 'STATUTORY RAPE', committed as follows:

That on November 13, 2004, at 10:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously have carnal knowledge with AAA, a ten-year old minor, against her will and without her consent.

Criminal Case No. 13002

Timt on October 25, 2004, at 8:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously'insert his middle right finger into the vagina'of AAA, a ten-year old minor, against her will and without her consent.

Criminal Case No. 13003

That on October 28, 2004, at 10:00 o'clock in the evening, more or less at XXX, Dipolog City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously'insert his middle right finger into the vagina'of AAA, a ten-year old minor, against her will and without her consent.

CONTRARY TO LAW.5'(Underscore supplied)

Upon arraignment, accused-appellant pleaded not guilty to each of the crimes charged against him. After the pre-trial conference, the cases were heard on consolidated trial.6

The prosecution presented four (4) witnesses, including AAA, the victim. AAA testified in open court that she was born on March 16, 1994.7

AAA recalled that in the evening of October 25, 2004, she and her younger sibling were sleeping in their house while her father was out drinking and her mother was in Jolo. She woke up around 8 o'clock that night, when accused-appellant was removing her panty. She tried to flee, but accused-appellant held her feet, made her lie down and covered her mouth with his left hand. Accused-appellant inserted his right hand finger into her vagina and left shortly thereafter. She was able to recognize the accused-'appellant because his face was illuminated by the light from a lamp in their house. Before the incident, she already knew accused-appellant as Dodoy, her father's friend, whose house was located less than a kilometer away from their home. She did not report the incident to her father because accused' appellant had threatened her.8

On October 28, 2004, accused-appellant raped AAA again around 10 o'clock in the evening while she and her younger sister were sleeping. The accused-appellant removed her underwear and inserted his middle finger into her vagina.9

On November 13, 2004 at around 10 o'clock in the evening, AAA felt pain as accused-appellant inserted his organ into her vagina and did a pumping motion. She was not able to shout because the accused-appellant covered her mouth. Accused-appellant left through the back of the house when AAA's father arrived. AAA explained that the former could easily enter their house as their door was only covered by a tarpaulin.10

Finally, on November 28, 2004 at 11 o'clock in the evening, AAA narrated that when her father came home drunk that night, she retreated to the'bodega'of their neighbor and slept on an empty sack. Accused-appellant went there and inserted his penis into her vagina after removing her underwear. When accused-appellant was done with his deeds, AAA ran to the house of her aunt nearby. She slept on the bench outside the said house and woke up the next morning. She finally told her aunt about the four incidents. They reported the same to the barangay, and accused-appellant was brought to the police for questioning. AAA was also brought to the doctor for examination and then to the Department of Social Welfare and Development (DSWD) where she was fetched by her mother.11

For his part, accused-appellant proffered the defense of denial. He claimed that he was asleep in his house during three out of the four incidents narrated by AAA. On November 28, 2014, the fourth incident, he narrated that he was at the bodega to get a sack when he saw somebody sleeping on the floor. He woke that person up and told her to go home but he did not recognize the said person.12

The RTC Ruling

On April 20, 2015, the RTC promulgated its Joint Judgment, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused Andres Talib-og y Tuganan guilty beyond reasonable doubt of the following crimes:

1) In Criminal Case No. 13002, the accused is found guilty of rape by sexual assault, a crime defended [sic] under paragraph 2 of Article 266-A of the Revised Penal. Code and is hereby sentenced to suffer the penalty of 2 years, 4 months and I day of'prision correccional, as minimum, to 10 years of'prision mayor, as maximum. He is further ordered to pay AAA the amounts of P30,000.00 as civil indemnity and P30,000.00 as moral damages, and the costs of the suit;

2) In Criminal Case No. 13003, the accused is found guilty of rape by sexual assault, a crime defined under paragraph 2 of Article 266-A of the Revised Penal Code and is hereby sentenced to suffer the penalty of 2 years, 4 months and 1 day of'prision correccional, as minimum, to 10 years of'prision mayor, as maximum. He is further ordered to pay AAA the amounts of P30,000.00 as civil indemnity and P30,000.00 as moral damages, and the costs of the suit;

3) In Criminal Case No. 13001, the accused is found guilty of statutory rape by sexual intercourse, a crime defined under paragraph 1 of Article 266-A of the Revised Penal Code and is hereby sentenced to suffer the penalty of'reclusion perpetua. He is further ordered to pay AAA the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages, and the costs of the suit;

4) In Criminal Case No. 12890, the accused is found guilty of statutory rape by sexual intercourse, a crime defined under paragraph 1 of Article 266-A of the Revised Penal Code and is hereby sentenced to suffer the penalty of'reclusion perpetua. He is further ordered to pay AAA the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages, and the costs of the suit;

The award of damages shall earn legal interest at the rate of six percent (6%)'per annum'from the finality of this judgment until fully paid.

SO ORDERED.13

Accused-appellant appealed his conviction to the CA and argued that the prosecution failed to prove his guilt beyond reasonable doubt.1a⍵⍴h!1

In his Brief,14'accused-appellant questioned the credibility of AAA's testimony. He pointed out that the actuations of AAA before, during and after the alleged incidents were not in conformity with human experience. According to accused-appellant, AAA had every opportunity to flee from him but chose not to. He also mentioned that he had a quarrel with AAA's father, which could be the reason behind the accusations against him.15

The CA Ruling

On December 15, 2017, the CA rendered a Decision affirming with modification RTC Joint Judgment by increasing the amount of civil indemnity and moral damages to P75,000.00, respectively, pursuant to'People v. Jugueta.16

Hence, this appeal.

On July 9, 2018, the Court required both parties to file their respective supplemental briefs. Accused-appellant, through the Public Attorney's Office, filed his Supplemental Brief.17'The Solicitor General, on the other hand, filed a Manifestation18'stating that they are adopting the arguments they had previously proffered in their Brief submitted with the CA.

Our Ruling

The appeal is bereft of merit.

Under Article 266-A, paragraph 1, of the Revised Penal Code (RPC), as amended by Republic Act No. 8353 or otherwise known as "The Anti' Rape Law of 1997," the crime of rape may be 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[.]

In Criminal Case Numbers (Nos.) 12890 and 13001, the prosecution sufficiently established the presence of the elements of statutory rape under paragraph 1(d) as cited above,'viz: (1) the offended party is under 12 years of age; and (2) the accused had carnal knowledge of the victim, regardless of whether there was force, threat, or intimidation or grave abuse of authority. It is enough that the age of the victim is proven and that there was sexual intercourse.19'Here, it is undisputed that AAA was a minor when accused-'appellant had sexual intercourse with her on two separate incidents,'i.e.'on November 13 and 28, 2004.

Accused-appellant's defense of denial does not persuade. As correctly ruled by the RTC, and affirmed by the CA, AAA's direct, positive, and straightforward narration of the incidents in detail prevails over accused' appellant's unsubstantiated allegations. Basic is the rule that the trial court's factual findings, especially its assessment of the credibility of witnesses, are accorded great weight and respect and binding upon this Court, particularly when affirmed by the CA.20'As such, We find no cogent reason to deviate from the lower courts' factual findings.

Likewise, in Criminal Case Nos. 13002 and 13003, the RTC correctly convicted accused-appellant for two counts of rape by sexual assault instead of statutory rape as erroneously designated in the corresponding Information. Rape by sexual assault is defined under paragraph 2 of Article 266-A of the RPC, as follows:

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 ours)

As narrated by AAA, she was still a minor when accused-appellant inserted his finger into her vagina on October 25 and 28, 2004, or roughly a month before he raped her by sexual intercourse.

However, in accordance with prevailing jurisprudence, We modify the penalty imposed by the CA for the two counts of rape by sexual assault.

In'People v. Chingh,21'the Court ruled that the penalty under Article III, Section 5(b) of Republic Act No. 7610, also known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act" shall be imposed in a conviction for rape by sexual assault when the victim is a minor. Thus:

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 lasdviousness 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.22

The afore-cited rule in'Chingh'was applied in the case of'Ricalde v. People23'wherein although the accused was charged and convicted with the crime of rape by sexual assault, the Court applied the penalty for an offense under Section S(b), Article III of R.A. No. 7610.

Likewise, in the recent case of'People v. Bagsic,24'the Court, citing'Chingh'and'Ricalde, reiterated the rationale behind the modification and increase of the penalty applicable for rape by sexual assault committed against a minor, as follows:

From the foregoing, it can be easily discerned that if the courts would not opt to impose the higher penalty provided in R.A. No. 7610 in cases of rape by sexual assault, wherein the victims are children, an accused who commits acts of lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III of R.A. 7610, suffers the more severe penalty of'reclusion temporal'in its medium period, than the one who ,commits rape by sexual assault which is punishable by'prision mayor.

Although accused-appellant was not specifically charged for an offense under R.A. 7610,'Ricalde'instructs that as long as the Information is clear about the facts constitutive of the offense, there is no violation of the right of the accused to due process.25

Here, the Informations in Criminal Case Nos. 13002 and 13003 clearly indicated that the accused-appellant "willfully, unlawfully and feloniously insert his right finger into the vagina of AAA, a ten-year old minor, against her will and without her consent,"26'which undeniably amounts to lascivious conduct under Section 5(b) of R.A. 7610.27'Under the said provision, the imposable penalty shall be'reclusion temporal'in its medium period.

Accordingly, We affirm the conviction of accused-appellant for two counts of rape by sexual assault under Art. 266-A, paragraph 2 of the RPC subject to modification as to the penalty imposed. After applying the Indeterminate Sentence Law, accused-appellant is thereby sentenced to suffer an 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.

In addition, pursuant to current jurisprudence, accused-appellant is further ordered to pay exemplary damages to AAA in the amount of P75,000.00 for each count of statutory rape,28'and P30,000.00 for each count of rape by sexual assault.29

WHEREFORE, the appeal is'DENIED. The Decision of the Court of Appeals dated December 15, 2017 in CA-G.R. CR HC No. 01536-MIN is'AFFIRMED'with'MODIFICATION. Judgment is hereby rendered as follows:

1. In Criminal Case No. 12890, accused-appellant Andres Talib-og y Tuganan is found guilty of statutory rape defined under paragraph 1(d) of Article 266-A of the Revised Penal Code and hereby sentenced to suffer the penalty of'reclusion perpetua. He is further ordered to pay AAA the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and another P75,000.00 as exemplary damages, as well as the costs.

2. In .Criminal Case No. 13001, accused-appellant Andres Talib-og y Tuganan is found guilty of statutory rape defined under paragraph 1(d) of Article 266-A of the Revised Penal Code and hereby sentenced to suffer the penalty of'reclusion perpetua. He is further ordered to pay AAA the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and another P75,000.00 as exemplary damages, as well as the costs.

3. In Criminal Case No. 13002, accused-appellant Andres Talib-og y Tuganan is found guilty of rape by sexual assault defined under paragraph 2 of Article 266-A of the Revised Penal Code and hereby sentenced to suffer the 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. He is further ordered to pay AAA the amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and another P30,000.00 as exemplary damages, as well as the costs.

4. In criminal Case No. 13003, accused-appellant Andres Talib-og y Tuganan is found guilty of rape by sexual assault defined under paragraph 2 of Article 266-A of the Revised Penal Code and hereby sentenced to suffer the 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. He is further ordered to pay AAA the amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and another P30,000.00 as exemplary damages, as well as the costs.

SO ORDERED.

Bersamin, C. J., (Chairperson), Del Castillo, Jardeleza, and'Gesmundo, JJ., concur.

Footnotes

1'Rollo, pp. 66-75; penned by CA Associate Justice Oscar V. Badelles and concurred in by CA Associate Justices Romulo V. Borja and Perpetua T. Atal-Pano.

2'CA'Rollo, pp. 24-36; penned by Judge Rogelio D. Laquihon.

3'The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence against Women and Their Children, effective November 15, 2004.'People v. Dumadag, 667 Phil. 664, 669 (2011).

4'Rollo, pp. 4-5.

5'Id. at 25-26.

6'Id. at 5.

7'Id.

8'Id.

9'Id. at 6.

10'Id.

11'Id.

12'Id. at 7.

13'CA'Rollo, pp. 35-36.

14'Id. at 15-23.

15'Id. at 17.

16'783 Phil. 806 (2016).

17'Rollo, pp. 25-32.

18'Id. at 20-23.

19'People v. Ronquillo, G.R. No. 214762, September 20, 2017.

20'People v. Leonardo, 638 Phil. 161, 189 (2010).

21'661 Phil. 208 (2011).

22'Id. at 222.

23'751 Phil. 793 (2015).

24'G.R. No. 218404, December 13, 2017.

25'Ricalde v. People, supra note 28.

26'Rollo, pp. 4-5.

27'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:

x x x x

(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 victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,'That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be'reclusion temporal'in its medium period;

x x x x (Emphasis supplied)

28'People v. Ronquillo, supra note 24.

29'People v. Marmol, 800 Phil. 813 (2016).