GR.

182521

PP VS ABAD & ERNESTO FRAGANTE y AYUDA,

FACTS:

Ernesto Fragrante was married to CCC; they had three children and the victim (AAA) is their
third child. Three or four months before her eleventh (11) birthday, she woke up early because
her father promised them that they will have driving lessons that day. Her father entered her
room, lie beside her on her bed, he was talking about a lot of things to her and then he started
to fondle her breast and suck her nipples.

The said incident was repeated between June and August 1993 and on some other occasions.
In September 1995 when AAA is at the age of thirteen (13), she was raped by her father
Ernesto. She was told to get inside his room. He scolded her and told her to lie down on his
bed. And then he raped her. She begged and struggled for him to remove his penis inside her
but despite all her pleas he stayed on top of him.

In the evening of October 25, 1997 AAA was left home with his father because her mother and
siblings went to a wake. Her father started massaging her breast. Her father strangled her and
asked her whether she preferred to be strangled first and she answered no. He started
touching her private parts and then she told him that her mother has arrived, that was the only
time that she was allowed to leave but she was warned to not tell her mother what happened.
After that, they report the incident to the NBI. The appellant was charged with nine (9) counts of
acts of lasciviousness and (1) count of rape.

RTC RULING:

The trial court rendered a Decision convicting appellant for the crimes charged which are nine
(9) counts of acts of lasciviousness and one (1) count of rape all committed against his own
minor daughter AAA

CA RULING :

The decision of the Regional Trial Court is AFFIRMED with MODIFICATION.

ISSUE: 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

RULING:
The court sustained the appellants conviction for (7) counts of acts of lasciviousness and (1)
count of rape. He was acquitted for (2) counts of acts of lasciviousness on the ground of
reasonable doubt.

The prosecution sufficiently established appellant's guilt beyond reasonable doubt for the crime
of rape.

Article 335 of the Revised Penal Code 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.

It must be stressed that the gravamen of rape is sexual congress with a woman by force and
without consent. In People v. Orillosa, 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. 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. 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.

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.

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 Madrid and the latter's testimony
which corroborate AAA's claim that appellant raped her.
The Court is not impressed with appellant's claim that AAA's failure to immediately report the
incidents to the proper authorities affected her credibility. Delay could be attributed to the
victim's tender age and the appellant's threats. A rape victim's actions are oftentimes influenced
by fear, rather than reason. 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.

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:

(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.

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, 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 Certificate 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.

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. In People v. Fetalino, 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 informations
mentioned, and the accused admitted, that the complainant is his daughter.

In the instant case, the information expressly state that AAA is appellant's daughter, and
appellant openly admitted this fact. 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. Since there is an
aggravating circumstance and no mitigating circumstance, the penalty shall be applied in its
maximum period - reclusion perpetua. 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. Montinola and People v. Sumingwa, where the
accused is the biological father of the minor victim, 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, 98-653, 98-654, 98-655, and 98-656, 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."Considering the presence of the aggravating circumstance of relationship, as explained,
the penalty shall be imposed in its maximum period. In People v. Velasquez, 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. 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, for each of the seven
(7) counts of acts of lasciviousness.
GR. 186469

PP VS JOVER MATIAS

FACTS:

Appellant Jover MatiasyDela Fuente and private complainant AAA were neighbours .In the
evening of June 6, 2004, AAA, a minor, was on her way to the vegetable stall of a certain
"Manuela" to buy something when, all of a sudden, appellant pulled her towards a house that
was under construction. There, he forced her to lie on a bamboo bed, removed her shorts and
underwear, and inserted first, his finger, and then his penis into her vagina. Appellant threatened
to kill her if she should report the incident to anyone.

When AAA arrived home, she narrated to her mother and aunt what appellant did to her. In
defense, appellant claimed that in the evening of the incident, he and his uncle, Romeo Matias,
weredoing construction work at the house of his aunt. He was therefore surprised when two
policemen arrested him at around 6:30 in the evening of even date and detained him at the
Baler Police Station.

RTC RULING

The RTC convicted appellant for rape under Sec. 5 (b), Article III of RA 7610 and imposed the
penalty of reclusion perpetua. The RTC likewise directed him to pay AAA the amount of P50,000
as civil indemnity and P30,000 as moral damages.

CA RULING

The CA affirmed the RTC Decision in toto, finding no compelling reason to depart from its
findings and conclusions. The appellate court held that if the RTC found AAA's testimony to be
credible, logical and consistent, then it should be given great respect, as the RTC had the ability
to observe first hand the demeanor and deportment of the witnesses on stand.

ISSUE

W/N the CA committed reversible error in affirming in toto the Decision of the RTC, which
convicted appellant of rape underSec. 5 (b), Article III of RA 7610.
RULING:

NO

In this case, the Court affirmed the ruling of CA wherein appellant is convicted for rape under
Sec. 5 (b), Article III of RA 7610 and sentenced him to reclusion perpetua, upon a finding that
AAA was a minor below 12 years old at the time of the commission of the offense on June 6,
2004. However, the records shows that AAA was born on April 23, 1991, which would make
her 13 years old at the time of the commission of the offense on June 6, 2004.

On this score, it is worth noting that in its April 19, 2007 Decision,the RTC concluded that AAA was
the victim of sexual abuse labeled 'rape' considering the established fact that there was sexual
intercourse between him and AAA. Thus, appellant's conviction was clearly under Sec. 5 (b), Article III
of RA 7610 or sexual abuse and not for rape under Article 266-A of the RPC.

However, theres a need to modify the penalty imposed upon appellant. Following the pronouncement
in the case of Malto v. People[14]for sexual abuse, and in the absence of any mitigating or aggravating
circumstances, the Court finds it appropriate to impose the penalty of reclusion temporal in its
maximum period, which has the range of 17 years, 4 months and 1 day to 20 years.

Applying the Indeterminate Sentence Law,[15]therefore, the maximum term of the indeterminate
penalty shall be that which could be properly imposed under the law, which is 17 years, 4 months and
1 day to 20 years of reclusion temporal, while the minimum term shall be within the range next lower
in degree, which is prision mayor in its medium period to reclusion temporal in its minimum period, or
a period ranging from 8 years and 1 day to 14 years and 8 months. Similarly, the award of moral
damages is increased from P30,000.00 to P50,000.00, pursuant to the Malto case.
G.R. No.183090
PP v. Bernabe Pangilinan

FACTS:

AAA, a thirteen year old girl lived with her aunt BBB and her husband since she was two years
old until July 27, 2001. At around 10 p.m. of July 27, 2001, while her aunt was working in
Angeles, Pampanga, and she was watching television in their house, appellant arrived and
ordered her to cook chicken adobo which she did. Appellant approached her and pointed a
samurai at her. Appellant then kissed her neck and mashed her breast. It was not the first time
that appellant did that to her. AAA testified that prior to the said incident; she was already
abused by the appellant several times. She said that the reason why she did not tell her aunt
about the molestation is because the appellant threatened to kill her and her aunt. She also said
that her aunt and appellant treated her like their own child.

BBB denied all the allegations against him and on his defense he said that it was CCC, AAAs
cousin who molested her and that AAA is only forced by her wifes relatives to file charges
against him because they were against him and their relationship. His testimony was
corroborated by two other witnesses. The Trial Court found the accused guilty for rape and
sexual abuse. The Court of Appeals affirmed the said decision but with modifications as to the
award for damages.

RTC RULING
The Court hereby finds the accused Guilty Beyond Reasonable Doubt on both cases
(Criminal Case No. 11768 and Criminal Case No. 11769) for Rape and Sexual Abuse,
respectively, and he is hereby sentenced as follows:

I. Under Criminal Case No. 11768

1. to suffer the penalty of Reclusion Perpetua; and

2. to indemnify the private complainant in the amount
of P50,000.00 as actual damages, P50,000.00 as moral
damages, and P20,000.00 as fine to answer for the private
complainants rehabilitation at the DSWD, Tarlac City.

II. Under Criminal Case No. 11769

1. to suffer the penalty of imprisonment of six (6) months

and one (1) day of Prision Correccional medium, as the
minimum to seven (7) years of Prision Mayorminimum, as
the maximum; and

2. to indemnify the private complainant in the amount

of P30,000.00 as damage
CA RULING

The CA rendered its decision which affirmed the RTC Decision, finding the appellant guilty of the
crimes charged, but modifying the award of damages.

ISSUE: Whether the accused should be penalized for rape under RA 7610 or under Article 266-
A of the Revised Penal Code.

RULING:

In this case, appellant was charged under two separate information for rape under Article 266-A
of the Revised Penal Code and sexual abuse under Section 5 (b) of RA No. 7610, respectively.
However, we find the Information in Criminal Case No. 11769 for sexual abuse to be void for
being violative of appellants constitutional right to be informed of the nature and cause of the
accusation against him.

The allegations in the above-quoted Information would show the insufficiency of the averments
of the acts alleged to have been committed by appellant. It does not contain the essential facts
constituting the offense, but a statement of a conclusion of law. Thus, appellant cannot be
convicted of sexual abuse under such Information. The right to be informed of the nature and
cause of the accusation against an accused cannot be waived for reasons of public
policy. Hence, it is imperative that the complaint or information filed against the accused be
complete to meet its objectives. As such, an indictment must fully state the elements of the
specific offense alleged to have been committed.

Art. 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.

We find that AAA remained steadfast in her assertion that appellant raped her through force and
intimidation with the use of a samurai. And even after the incident, appellant threatened AAA
that he would kill her and her aunt, i.e., appellant's wife, should AAA report the incident.

A finding that the accused is guilty of rape may be based solely on the victim's testimony if such
testimony meets the test of credibility. We held that no woman, much less a child of such tender
age, would willingly submit herself to the rigors, the humiliation and the stigma attendant upon
the prosecution of rape, if she were not motivated by an earnest desire to put the culprit behind
bars.

Appellant argues that he could not be convicted of rape since based on the medical examination
report, AAA's genitalia had no hymenal laceration which corroborated AAA's testimony that
appellant merely kissed her and touched her breast on July 27, 2001.

Proof of hymenal laceration is not an element of rape. [53] An intact hymen does not negate a
finding that the victim was raped. Penetration of the penis by entry into the lips of the vagina,
even without laceration of the hymen, is enough to constitute rape, and even the briefest of
contact is deemed rape.[54]

While it appears from AAA's testimony that she was not raped precisely on July 27, 2001 as
what appellant did was kiss her lips and mash her breast on that day, however, her entire
testimony in the witness stand positively shows that appellant with the use of force and
intimidation had carnal knowledge of her at some other time. She testified that appellant violated
her since she was seven years old. The first time was when they were still staying in Angeles
City where appellant touched her private parts; the second time was when they were already in
Gerona, Tarlac, where appellant pointed a samurai at her and raped her; and the third time
happened on July 27, 2001 when appellant kissed her lips and mashed her breast. Indeed,
appellant may be convicted for rape in the light of AAA's testimony. For in rape cases, the date
of the commission is not an essential element of the offense; what is material is its occurrence.

Notably, the information alleges that the crime of rape was committed on or about July 27,
2001, thus the prosecution may prove that rape was committed on or about July 27, 2001, i.e.,
few months or years before, and not exactly on July 27, 2001.
In his Supplemental Brief, appellant claims that he should have been prosecuted for rape under
RA No. 7610 since AAA was already more than 12 years old when the alleged rape was
committed which carries the penalty of reclusion temporal in its medium period to reclusion
perpetua.

We do not agree. In People v. Dahilig, wherein the question posed was whether the
crime committed was rape (Violation of Article 266-A, par. 1, in relation to Article 266-B,
1st paragraph of the Revised Penal Code, as amended by RA No. 8353), or is it Child Abuse,
defined and penalized by Section 5, (b), RA No. 7610, we said:

As elucidated by the RTC and the CA in their respective decisions, all the
elements of both crimes are present in this case. The case of People v.
Abay, however, is enlightening and instructional on this issue. It was stated in that
case that if the victim is 12 years or older, the offender should be charged with
either sexual abuse under Section 5 (b) of R.A. No. 7610 or rape under Article
266-A (except paragraph 1 [d] of the Revised Penal Code. However, the offender
cannot be accused of both crimes for the same act because his right against
double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act. Specifically, Abay reads:

Under Section 5 (b), Article III of RA 7610 in relation to RA 8353,if the

victim of sexual abuse is below 12 years of age, the offender should
not be prosecuted for sexual abuse but for statutory rape under Article
266-A (1)(d) of the Revised Penal Code and penalized with reclusion
perpetua. On the other hand, if the victim is 12 years or older, the
offender should be charged with either sexual abuse under Section 5
(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of
the Revised Penal Code. However, the offender cannot be accused of
both crimes for the same act because his right against double
jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act. Likewise, rape cannot be
complexed with a violation of Section 5 (b) of RA 7610. Under Section
48 of the Revised Penal Code (on complex crimes), a felony under
the Revised Penal Code (such as rape) cannot be complexed with an
offense penalized by a special law.

In this case, the victim was more than 12 years old when the crime
was committed against her. The Information against appellant
stated that AAA was 13 years old at the time of the incident.
Therefore, appellant may be prosecuted either for violation of
Section 5 (b) of RA 7610 or rape under Article 266-A (except
paragraph 1 [d]) of the Revised Penal Code. While the Information
may have alleged the elements of both crimes, the prosecution's
evidence only established that appellant sexually violated the
 person of AAA through force and intimidation by threatening her
with a bladed instrument and forcing her to submit to his bestial
designs. Thus, rape was established.

Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be
convicted therefor. Considering, however, that the information correctly charged the
accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1 st par. of
the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted
therefor, the CA should have merely affirmed the conviction.

As in the present case, appellant can indeed be charged with either Rape or Child Abuse and
be convicted therefor. The prosecution's evidence established that appellant had carnal
knowledge of AAA through force and intimidation by threatening her with a samurai. Thus, rape
was established. Considering that in the resolution of the Assistant Provincial Prosecutor,
he resolved the filing of rape under Article 266-A of the Revised Penal Code for which appellant
was convicted by both the RTC and the CA, therefore, we merely affirm the conviction.